Orissa High Court
Kshirbati @ Kharabati Naik vs Premsila Naik & Anr on 4 March, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 122 of 2024
[In the matter of an appeal under Section 100 r/w order
XLII Rule 1 of the Code of Civil Procedure, 1908.
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Kshirbati @ Kharabati Naik ...... Appellant
-Versus-
Premsila Naik & Anr ..... Respondents
Advocate(s) appeared in this case :-
_________________________________________________________
For Appellant : Ms. S.Jena, Advocate
For Respondent: Mr. B. S.Dash, Advocate
Advocate
________________________________________________________
CORAM
JUSTICE SASHIKANTA MISHRA
JUDGMENT
4th March, , 2025
SASHIKANTA MISHRA, J. This is an appeal filed by
defendant No.1 against a reversing judgment.
2. The judgment passed by the learned District
Judge, Deogarh on 16.02.2024 followed by decree in
RFA No. 11 of 2023 is under challenge whereby, the
judgment passed by learned Civil Judge, Senior
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Division, Deogarh in C.S. No. No. 79/ 2021 followed
by decree, was confirmed.
3. For convenience, the parties are referred to as per
their respective status before the trial Court.
4. In view of the order proposed to be passed, it is not
felt necessary to relate the facts of the case in detail. It
would suffice to only mention that the suit in question
was filed by the plaintiff seeking a declaration that she
is the only legally married wife of Srimukha Naik with
negative declaration that defendant No.1 is not the
legally wedded wife of Srimukha Naik with further
prayer to direct defendant No.3 to disburse all the
pensionary benefits in her favour. Be it noted that said
Srimukha Naik died on 25.07.2021, leaving behind the
plaintiff and his children one of whom namely, Arati
Naik was impleaded as defendant No.2 in the suit. It is
alleged that Srimukha Naik was never married to
defendant No.1 and as such she is not entitled to
family pension.
Page 2 of 14
5. The defendant Nos.1 and 2 contested the suit
by filing a joint written statement denying the plaint
averments. Defendant No.1 claimed to be first wife of
Srimukha Naik and that four children were born out of
said wedlock. She also contends that the plaintiff is not
the legally wedded wife of Srimukha Naik. She was
declared as nominee by her husband at the time of
preparation of pension papers. Her husband Srimukha
Naik had illicit relationship with the plaintiff. Further,
she has received the pensionary benefits from the
defendant No.3 bank as per direction of the
Accountant-General of Odisha.
6. The Central Bank of India defendant No.3 also
appeared and contested the suit by filing a written
statement denying the plaint averments. It was inter
alia stated that as per the instructions of Treasury
Officer, Deogarh, pension has been disbursed in favour
of Srimukha Naik and thereafter, to his nominee,
defendant No.1.
Page 3 of 14
7. The trial Court framed nine issues and after
analysing the oral and documentary evidence on record
dismissed the suit. The plaintiff carried the matter in
appeal. On re-appreciation of the oral and
documentary evidence on record, the First Appellate
Court was not inclined to concur with the findings of
the trial Court. The appeal was allowed in part by
setting aside the impugned judgment and decree and
by declaring that the plaintiff is the legally married wife
of Srimukha Naik and as such, defendant No.1 is not
the legally married wife of Srimukha Naik.
8. Being aggrieved, defendant No.1 has filed the instant
Second Appeal which was admitted on the following
substantial question of law:
(i) Whether both the Courts below were correct in
entertaining the suit and the appeal arising therefrom in
view of Section 7 of the Family Courts Act read with
Section 8 of C.P.C?
9. Heard Ms. S. Jena, learned counsel for the
appellant-defendant No.1 and Mr. B.S.Das, learned
counsel for plaintiff-respondent No.1.
Page 4 of 14
10. Ms. Jena assails the impugned judgments on
the ground that a Family Court having been
established constituted for the district of Deogarh, the
Courts below lacked jurisdiction to entertain and
adjudicate the dispute. Ms. Jena further submits that
the prayer of the plaintiff as laid in the plaint squarely
falls within the jurisdiction of the Family Court as per
Section-7. Since the Family Court was established at
Deogarh during pendency of the suit, the trial Court, or
for that matter the First Appellate Court, lacked
jurisdiction to continue with the suit/appeal in view of
the express bar under Section-8 of the Family Courts
Act.
11. Mr. B.S.Das, learned counsel appearing for the
plaintiff would submit that the plaintiff claimed
declaration as regards her status vis-a-vis that of
defendant No.1 and on such basis claimed a further
direction to the bank (defendant No.3) to disburse all
pensionary benefits in her favour. This, according to
Mr. Das, is therefore, a purely civil dispute over which
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the civil Courts alone have jurisdiction. He however,
fairly submits that the declaration sought for by the
plaintiff was with regard to her marital status as also
that of defendant No.1.
12. Reference to the plaint filed in the suit reveals that
the following relief was claimed.
” i. The suit be decreed in favour of the plaintiff by
declaring she is the only legal married wife of Srimukha
Naik;
ii. It be declare that the def. No-1 is / was not a legally
married wife of Srimukha Naik;
iii. The def. No-3 be directed to disbursed all the pension
benefit (arrears) and month to month regularly till the
end of the life of the plaintiff to the plaintiff;
And in event of disbarment of pension if done in favour
of the def.No-1 prior to filing of this suit, the def. No-3 be
directed to recover the same from the def. No-1 and pay
to the plaintiff;
iv. Any other relief(s) the plaintiff is entitled in law &
equity be granted with cost of the suit;
And for which the plaintiff is in duty bound shall ever
pray.”
13. It is not disputed that the State Government in
consultation with this Court established the Family
Court in the district of Deogarh by notification dated
23.07.2018. Said notification is extracted below for
immediate reference:
GOVERNMENT OF ODISHA
LAW DEPARTMENTPage 6 of 14
NOTIFICATION
The 23/7/2018.
No.IJ-39/2018 787s: In exercise of the powers conferred by
clause (b) of sub-section (1), read with sub-section (2) of section 3
of the Family Courts Act, 1984 (66 of 1984), the State
Government, in consultation with the High Court of Orissa, do
hereby establish a Family Court in the district of Deogarh with
headquarters at Deogarh with effect from the date the said Court
functions within the local limits of jurisdiction co-extensive with
the revenue sub-division of DeogarhBy order of the Governor
Principal Secretary to GovernmentBy letter dated 13.12.2021, this Court fixed
23.12.2021 as the date and time for opening of the
Family Court at Deogarh. Said letter is quoted
hereinbelow:
THE HIGH COURT OF ORISSA: CUTTACK
No. 15293
XVIII-20/2018
From
The Special Officer (Admn).
To
The District & Sessions Judge, Deogarh.
Cuttack dated the 13th December 2021
Sub Opening of the Family Court at Deogarh in the District of
Deogarh on 23 12 2021 at 9.30 A. M.
Sir
With reference to the above noted subject, I am directed to say
that the Court are pleased to fix 23 12.2021 at 9 30 AM to be the
date and time for opening of the Family Court at Deogarh in the
District of Deogarh Hon’ble the Chief Justice has kindly consented
to inaugurate the said new Court in presence of Hon’ble Shri
Justice Arindam Sinha on the scheduled date by Virtual Mode.
I am, further directed to request you to remain in
readiness, to provide requisite technical support as well as to take
all necessary steps in consultation with the Central Project Co-
Page 7 of 14
ordinator of the Court for opening of the said new Court
through Virtual Mode while strictly observing the COVID
guidelines and also to transfer the case records and deploy
necessary staff well in advance to the newly established Family
Court at Deogarh for smooth functioning of the said Court after
opening.
Yours faithfully.
Special Officer (Admn.)I/C
14. The suit was filed on 29.11.2021 as evident from
the order sheet of the trial Court. So, as on the date of
filing of the suit, the Family Court at Deogarh had been
established but had not become functional. It started
functioning almost a month later i.e. on 23.12.2021. It
now, needs to be examined as to if the relief claimed in
the suit is a matter within the exclusive jurisdiction of
the Family Court or not.
15. Reference to Section 7 under Chapter-III, Family
Courts Act, 1984 relates to jurisdiction. Section 7
reads as follows;
7. Jurisdiction. (1) Subject to the other provisions of this
Act, a Family Court shall– (a) have and exercise all the
jurisdiction exercisable by any district court or any
subordinate civil court under any law for the time being
in force in respect of suits and proceedings of the nature
referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district court or, asPage 8 of 14
the case may be, such subordinate civil court for
the area to which the jurisdiction of the Family Court
extends.
Explanation.–The suits and proceedings referred to in
this sub-section are suits and proceedings of the
following nature, namely:–
(a) a suit or proceeding between the parties to a
marriage for a decree of nullity of marriage (declaring
the marriage to be null and void or, as the case may be,
annulling the marriage) or restitution of conjugal rights
or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the
validity of a marriage or as to the matrimonial status of
any person;
(c) a suit or proceeding between the parties to a
marriage with respect to the property of the parties or of
either of them;
(d) a suit or proceeding for an order or injunction in
circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the
legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of
the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family
Court shall also have and exercise–
(a) the jurisdiction exercisable by a Magistrate of the
first class under Chapter IX (relating to order for
maintenance of wife, children and parents) of the Code
of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by
any other enactment.
It is evident that the suit being one for a declaration as
to the validity of marriage between the plaintiff and
Srimukha Naik as also for negative declaration
regarding the marital status of defendant No.1 vis-a-vis
Srimukha Naik, the dispute squarely falls within the
Page 9 of 14
purview of Clause-(b). The other relief claimed, that
is, for direction for disbursal of pensionary benefits, is
obviously consequential being entirely dependent upon
the main relief claimed. Thus, the matter which ought
to have been dealt with by the Family Court after its
establishment and functioning was entertained by the
Civil Court. At the stage, it would be useful to refer to
Section 8, which is quoted hereinbelow;
8. Exclusion of jurisdiction and pending proceedings.–
Where a Family Court has been established for any
area,–
(a) no district court or any subordinate civil court
referred to in sub-section (1) of section 7 shall, in
relation to such area, have or exercise any jurisdiction in
respect of any suit or proceeding of the nature referred
to in the Explanation to that sub-section;
(b) no magistrate shall, in relation to such area, have or
exercise any jurisdiction or powers under Chapter IX of
the Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to in
the Explanation to sub-section (1) of section 7 and every
proceeding under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974),–
(i) which is pending immediately before the
establishment of such Family Court before any district
court or subordinate court referred to in that sub-section
or, as the case may be, before any magistrate under the
said Code; and
(ii) which would have been required to be instituted or
taken before such Family Court if, before the date on
which such suit or proceeding was instituted or taken,
this Act had come into force and such Family Court had
been established, shall stand transferred to such Family
Court on the date on which it is established.
Page 10 of 14
Clause-(a) of the provision quoted above clearly bars
the jurisdiction of the Civil Court in respect of any
matter in respect of any suit or proceeding of the
nature referred to in the explanation to that
subsection. Clause-(c) makes it clear that any suit or
proceeding of the nature referred to in explanation to
Subsection (1) of Section 7, which is pending
immediately before the establishment of the Family
Court before any district Court or subordinate Court
over which a Family Court alone has jurisdiction on
the date on which it is established shall stand
transferred to the Family Court.
16. As already stated, the Family Court at Deogarh
started functioning w.e.f. 23.12.2021. Therefore, in
view of Clause (a) of Section 8, the Court of Civil Judge,
Senior Division at Deogarh lacked jurisdiction to
adjudicate upon the matter any further. Further, as
per the provision under Clause-(c), the suit ought to
have been transferred to the Family Court. In the case
Page 11 of 14
of Balaram Yadav vrs. Fulmaniya Yadav 1it was
held that a proceeding for a declaration as to the
validity of both marriage and matrimonial status of a
person is within the exclusive jurisdiction of the Family
Court. Further, it makes no difference as to whether
the relief claimed is affirmative or negative. What is
important is the declaration regarding the matrimonial
status.
17. It is surprising that even after establishment and
functioning of the Family Court, the trial Court not
only proceeded with the suit but also decided it finally.
Even more surprisingly, the First Appellate Court
entertained the appeal arising out of the judgment and
the decree of the trial Court and reversed the same. It
is true that the question as to jurisdiction of the courts
vis-à-vis the Family Courts Act was never raised either
before the trial Court or the First Appellate Court but
then, the same is immaterial in view of the fact that the
question of jurisdiction goes to the root of the matter
1 2016 (II) OLR (SC) 125
Page 12 of 14
and the judgment passed by the Court lacking
jurisdiction is obviously a nullity. Moreover, in view of
the exclusion of the jurisdiction of the Civil Court as
per Section 9 of the CPC, the suit and the appeal
arising therefrom could not have been entertained and
decided by the Courts below. It is reiterated that the
Civil Court shall have no jurisdiction to entertain a suit
where the same is expressly barred under any law. In
the instant case, the jurisdiction of the Civil Court to
adjudicate the dispute is expressly barred by the
provisions of Sections 7 and 8 of the Family Courts
Act.
18. From the conceptus of the analysis made
hereinbelow, this Court finds that trial Court
committed manifest error and illegality in not
transferring the suit to the Family Court after its
functioning. This Court also holds that the First
Appellate Court committed illegality in entertaining the
appeal arising out of the judgment passed by the trial
Court, which itself was a nullity.
Page 13 of 14
19. In the result, the appeal succeeds and is
therefore, allowed. The impugned judgments and
decrees passed by both the Courts below are hereby
set aside. The trial Court is directed to immediately
transmit the records to the Family Court at Deogarh
for hearing of the matter afresh. In doing so, the
Family Court shall not be influenced by the judgments
passed by the trial Court as well as the First Appellate
Court in any manner. Further, the suit being of the
year 2021, the Family Court shall endeavour to dispose
of the same as expeditiously as possible, preferably,
within eight months from the date of receipt of records.
…………………………..
Sashikanta Mishra,
Judge
Deepak
Signature Not Verified
Digitally Signed
Signed by: DEEPAK PARIDA
Reason: Authentication
Location: OHC,Cuttack
Date: 06-Mar-2025 11:40:16
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