"how to decide upon the value of this deed where people do sign it in good number in presence of people in authority at times.."
Now what the judge said in this judgment;"We make it clear that we have otherwise not gone into the question as to whether there existed really any custom in the community to which the parties belong for divorce by mutual consent without intervention of the Court and it is for the Court to decide such fact on the basis of evidence that will be adduced by the parties."
Shilpa vs Jaydeepkumar on 28 November, 2011
This appeal is at the instance of a wife/plaintiff under Section 7 of the Family Courts Act, 1984 and is directed against the order dated 2nd August 2011 thereby rejecting the plaint under Order 7 Rule 11(a) of the Code of Civil Procedure.
Being dissatisfied the plaintiff has come up with the present appeal.
After hearing the learned counsel for the parties and after going through the material on record, we find that the appellant before us filed a suit for declaration that she is a divorcee on the basis of a settlement arrived at by the parties in terms of the custom prevailing in the community to which the parties belong. It appears that in the said suit, it was specifically averred that the factum of such divorce will be evident from deeds executed by the parties and it is also supported by affidavits by the senior members of the said community.
As indicated earlier, the learned Judge, Family Court instead of entering into merit, has by taking recourse to Order 7 Rule 11(a) of the Code rejected the plaint.
In our view, if we accept all the averments made in the plaint to be true, there is no escape from the conclusion that the plaintiff has made out cause of action for filing the proceeding and, thus, the learned Court below illegally held that there was no cause of action for filing the suit. As pointed out by a Division Bench of this Court in the case of Dipika Amrutbhai Patel vs. Vishwam Parmanand Patel reported in 2011 (1) GLH 457 Sections 7 and 8 of the Family Courts Act enables the Family Court to entertain suit for declaration and dissolution of marriage by customs of the parties and, thus, it was not a fit case for rejection of the plaint without entering into merit. We, therefore, set aside the order impugned and direct the Family Court to decide the suit on merit.
We make it clear that we have otherwise not gone into the question as to whether there existed really any custom in the community to which the parties belong for divorce by mutual consent without intervention of the Court and it is for the Court to decide such fact on the basis of evidence that will be adduced by the parties.
With the above observations, the appeal is allowed. No order as to costs.
In the facts of the present case, we are also convinced that the proceeding requires expeditious disposal and as such we direct the Family Court to positively dispose of the proceeding within three months from the date of communication of this judgment and no unnecessary adjournments should be granted to either of the parties.
BHATTACHARYA, ACTING CJ.)