High Court of Bombay

Ravindra Sukhdev Ghadge Vs. Swati Ravindra Ghadge and Ors.

MANU/MH/3043/2018

02.11.2018

Family

If Court passes a decree having no jurisdiction over the matter, it would amount to nullity

In instant second appeal, learned counsel for the Appellant has raised issue of jurisdiction of the trial Court as well as the Appellate Court on the ground that, Sections 7 & 8 of the Family Courts Act, 1984/Act, ousts the jurisdiction of the Civil Court in respect of matrimonial dispute filed. Issue raised in present matter is whether the judgment and decree passed by the Civil Judge Senior Division, Aurangabad, and confirmed by District Judge, Aurangabad is nullity on account of exclusion of jurisdiction in matrimonial matters by Section 7 of the Act.

There is no factual dispute. The petition was filed in the court of Civil Judge Senior Division as the Petitioners were residing in Cidco and the marriage had taken place at Aurangabad. It is not disputed that, the residence of the Original Petitioners as well as place of marriage are within municipal limits of Aurangabad Municipal Corporation and the Family Court is having jurisdiction over the entire area of Aurangabad Municipal Corporation. In view of the establishment of the Family Court, the Civil Judge Senior Division, Aurangabad, had no jurisdiction to conduct the petition for grant of maintenance under the Hindu Adoptions and Maintenance Act, 1956.

In Dr. Jagmittar Sain Bhagat vs. Dir., Health Services, Haryana and Ors., it is laid down that, if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality, the doctrine of waiver also does not apply.

The specific ouster of jurisdiction of the Courts in respect of area for which the Family court has been established under Section 8 of Act, shows that, the subject-wise jurisdiction of Civil Judge Senior Division., has been ousted and it is not a simple question of territorial jurisdiction. Therefore, the decisions rendered by the Courts having no subject-wise jurisdiction will be a nullity. As Section 8 of the Act has taken away the jurisdiction, the decisions rendered by the Civil Judges and District Courts are nullity. Therefore, the substantial question of law raised is answered in the affirmative.

Tags : Matrimonial dispute Jurisdiction Nullity

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