Payment of Court Fee in Matrimonial Disputes

Sucheta Garg & Others v. Vineet Garg & others

Civil Revision 1544/2020

Before High Court of Punjab & Haryana at Chandigarh

The Bench of Hon’ble Mr. Justice Gurbir Singh J allowed the Revision of the plaintiffs-wife and children & set aside the order of APJ Family Court directing them to pay court fee on the pending maintenance amount during the pendency of the divorce petition.

?Background

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 04.11.2019 where by Additional Principal Judge, Family Court, Ludhiana, had directed the petitioners to pay ad valorem court fee in a petition filed for maintenance and for recall of the order dt. 03.02.2020 where by their application of the petitioner for recall of the order dt. 04.11.2019 was dismissed.

?Fact

1.???? Petitioner Sucheta Garg filed a suit before the Additional Principal Judge(APJ), Family Court, Ludhiana under Sections 18 and 20 of Hindu Adoption and Maintenance Act, for grant of maintenance and for declaration to the effect that the plaintiffs have charge and for creating charge over the properties and further for declaration to the effect that one transfer deed executed by defendant No.1(Husband/Respondent) in favor of defendant No.2(parent of the respondent-husband) and two transfer deeds executed by defendant No.1 in favour of defendant No.3(parent of the Respondent-husband) with regard to immovable property are illegal and null and void.

2.???? APJ Family Court had asked the plaintiff-wife vide its order dt 04.11.2019 to make the deficiency of court fee good.

3.???? Plaintiff wife filed application for recall of the order dt.04.11.2019 & it was dismissed on 03.11.2020

4.???? The application was dismissed on the ground that the plaintiffs have filed the suit under Sections 18 and 20 of the Hindu Adoption and Maintenance Act, suit for declaration that they have charge and creating charge over properties and for declaration that the transfer deeds are illegal and also suit for permanent injunction therefore they have to pay the Court Fee.

?Submission of the Counsel of the Petitioner

1.???? The suit filed under Sections 18 and 20 of the Hindu Adoption and Maintenance Act, filed by the wife and children does not fall in the category of the suit and Section 7 of the Court Fees Act is not applicable and, therefore, the plaintiffs are not liable to pay ad valorem court fee.

?Submission of the Counsel of the Respondent

2.???? When Respondent-Husband filed divorce petition, the petitioners-plaintiffs filed application under Sections 24 read with Section 26 of Hindu Marriage Act for grant of maintenance pendente lite and litigation expenses which was allowed vide order dated 14.09.2023.

3.???? Respondent No.1 paid the amount of Rs.9 lacs to the petitioners and Rs.11,40,000/- remained to be paid, so suit filed by petitioners-plaintiffs is not maintainable.

4.???? There is no provision under the Family Act claiming charge over the properties belonging to the parents-in[1]law and restraining them from alienating the same.

5.???? The petitioners have got the remedy by filing a separate suit before the civil court for creating charge over the properties as mentioned in the suit.

6.???? Case under Hindu Adoption and Maintenance Act can only be filed if the proceedings under the Hindu Marriage Act are not pending but in the instant case, the petitioner are already got maintenance under the Hindu Marriage Act

?Observation of the High Court wrt Family Court

1.???? Family Courts are created to simplify the rules and procedure so as to enable them to bring succor to women and children who have been abandoned by their husbands/fathers and others.

2.???? Rule 7 speaks of initiation of proceedings before the Family Court by way of plaint or petition or application or otherwise as the Court thinks fit.

3.???? In case, the action instituted before the Family Court is taken as a plaint and tried as a suit the entire purpose of setting up Family Courts will be frustrated.

4.???? Matrimonial disputes require quick and effective dealing which are different from the procedure adopted in ordinary civil proceedings, therefore, action has to be taken as instituted on an application.

5.???? Any other interpretation asking to affix ad valorem court fees will operate harshly and would tend to price justice out of reach of many litigants in distress thereby destroying the very object of setting up of the Family Courts.

6.???? When a woman and the children ask for maintenance, they can institute proceedings by way of an application.

7.???? Section 7 of the FCA directs that the Family Court shall be for the purpose of exercising the jurisdiction under the Act to be the District Court or any other subordinate Civil Court for the area, to which the jurisdiction of the Family Court extends.

?Submission of the counsel of the respondent??

1.???? It is not just a case of maintenance but is also for creating charge over the properties and for declaration that the transfer deeds (made by respondent-husband to his parents) are null and void and for permanent injunction, so ad valorem court fee is required to be paid.

2.???? The dispute regarding properties of the parties to the marriage are to be dealt by the Family Court and not by the regular civil court.

3.???? Jurisdiction of regular civil court is barred in such matters.

?Issue

Whether the petitioners are liable to pay ad valorem court fee or not?

?Order

The petitioners -Wife & children are not liable to pay the ad valorem court fee on the suit filed by them before the Family Court & order of APJ Family Court is against law as such is set aside.

?Seema Bhatnagar

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