JUDGMENT

RAJIV NARAIN RAINA, J. –

1. Heard learned counsel for the parties in the challenge to the order passed by the learned District Judge, Family Court, Bhiwani dismissing the defendant's application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 ('CPC'). The defendant prayed in the obstruction application that the suit for maintenance could not proceed except upon affixation of ad valorem Court-fee on the petition in terms of Section 7 of The court-fees Act, 1870 and in terms of the maintenance value quantified and prayed that the maintenance petition be dismissed for deficiency in payment of requisite court-fee. In the petition filed under section 20 of the Hindu Adoptions and Maintenance Act, 1956 ('the HAMA'), a claim is made for marriage expenses in a sum of 50 lacs from the defendant, the petitioner before this Court. The story narrated is that the defendant serves in the Indian Army in the rank of a Lieutenant Colonel. He was married off in accordance with the rule of custom to Smt. Sushila Kumari, the widow of his deceased brother. The respondent is the natural born daughter of late Sh.Suresh Kumar and Smt. Sushila Kumari. It is pleaded that the petitioner was two and half years of age at the time. In resisting the petition, the defendant chose to respond to the petition admitting in clear terms that Kumari Sneh Lata was his adopted daughter. This admission is made in paragraph 1 on merits of the written statement. If she is adopted, she would be deemed to be the child of the adoptive father in terms of section 12 of the HAMA. However, these matters need not be gone into for the present since they are for the trial court to consider as the concern here is save and express to the correctness of the impugned order passed by learned trial Judge declining the application under Order 7 Rule 11 CPC and proceeding with the petition.

2. Learned counsel for the petitioner raises preliminary ground of maintainability of the petition to submit that the remedy itself, if any, lies in the civil court and not by way of a petition under the HAMA, as the one pending in the Family Court at Bhiwani exercising powers under the said Act. He relies on the decision of the Himachal Pradesh High Court in Baldev Singh v. Pooja Devi; 2007(3) RCR (Civil) 150 to fortify his contention. This was a case where the petitioning daughter had brought a claim under the provisions of the Act against her father to meet her marriage expenses. The question of maintainability exclusively before the civil court was not taken in the application under Order 7 Rule 11 CPC which was restricted to the issue of chargeability to ad valorem court-fee. This court, thus, would not go into it.

3. On the other hand, learned counsel for the respondent places reliance on a decision of the Supreme Court in Ruma Chakraborty v. Sudha Rani Banerjee & another; 2005(8) SCC 140 to counter the contention of the petitioner. In this case a divorce was sought inter alia from the husband together with a claim for provision for food, clothing, residence, the three of the benefits provided other than education, medical attendance and treatment by section 3 (b) (i) of the HAMA together with maintenance expenses for their unmarried daughter, a right conferred by section 3 (b) (ii). The Supreme Court observed that there was such a liability fastened on the husband by virtue of marriage. However, these are in the main, matters for the trial Court to enter upon and decide.

4. So far as the question of ad valorem court-fee is concerned, it may be remembered that the present is not a civil suit under section 9 of the CPC. It is a petition under the substantive provisions of a special Act triable by a special Forum, and for those petitions and would appear not to be per se governed by the provisions of Section 7 of the Court-fees Act, 1870. This is for the reason that the Family Courts Act, 1984 ('FCA') is applicable to the State of Haryana where Family Courts have been established under section 3. This Act provides for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. The jurisdiction of the Family Court is described in section 7 of the FCA. Sub section (b) of section 7 (1) empowers the Court to try a suit or proceeding for maintenance. It is deemed to be a civil court. The section is reproduced:-

“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, as 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 subsection are suits and proceedings of the following nature, namely:

a. a suit or proceeding between the parties to a marriage for decree of a nullity 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 circumstances 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. (Underlined for emphasis)

5. In view of these provisions of law, an action instituted for maintenance and reasonable expenses for marriage even though the latter is not specifically mentioned in section 7 of the FCA it would still be maintainable before the special family law court. Section 8 of FCA excludes jurisdiction of district courts and other subordinate civil courts in matters falling under sub-section (1) of section 7 (1). Section 8 lays down:

“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 power 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 or by 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.”

6. The petitioner is thus not quite correct in his submission that it is the civil courts that have jurisdiction to entertain and decide the claim and the application by way of a petition is not maintainable before the Family Court at Bhiwani. The provisions of the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973 have been applied to the Family Court by section 10 of the Act. Section 10 says:-

“10. Procedure generally

(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings] other than proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)], before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such court.

(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973, (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other”

7. It is both the High Court and the respective States of Punjab and Haryana that exercise powers to frame rules under sections 21 and 23 of FCA respectively. In pursuance of objects in section 10 of FCA, the Punjab & Haryana High Court has for its territorial jurisdiction unambiguously discarded the applicability of the CPC to the Family Court when it made rules on 18th March 2005 cited as Punjab and Haryana High Court Family Courts Rules, 2005 to regulate the procedure of Family Courts in exercise of powers conferred by section 21 of the FCA and inter alia laid down in section 25 that:-

“25. The proceedings before the Family Court shall be treated as civil proceedings, but the provisions of the Code of Civil Procedure, 1908 shall not apply to such proceedings and it shall be entitled to devise its own procedure in accordance with the rules of natural justice.

8. It is thus a debatable issue whether an application under Order 7 Rule 11 was itself maintainable before the Family Court. The answer to this question will depend on whether ad valorem court-fee is at all payable on any kind of application, suit, petition or proceeding before it including the present one. If the answer is in the negative and ad valorem court-fee is not payable then it will have to be held that an application under Order 7 Rule 11 of the Civil PC on such a question as raised in this petition cannot be entertained at all by the Family Court in view of broad bar of Rule 25 of the High Court Rules. And accordingly pending applications, if any, before the Family Courts in Haryana presented by defendants invoking bar of deficiency of court-fee leave aside what is prescribed by law, shall have to suffer judicial death in a summary fashion even without Family Courts having to pass reasoned orders rejecting such applications. This is not to say that substantial rights underlying the Code can be ignored by operation of Rule 25 as for example principles of res judicata; binding settlements and compromises arrived at by the disputing parties when not vitiated by vice of fraud, coercion, duress and the like; issues of territorial jurisdiction, prayers made contrary to public policy, frivolous and vexatious litigation etc. The rules cannot I think be read as going that far. I do not think the High Court meant as much when it enacted the rules for its territories. Whenever the principles of natural law arise the Family Court will need to rise to the occasion in order to serve the ends of justice to the most vulnerable section of society in a wholesome manner keeping the scales of justice in balance in any dispute. These High Court rules speak nothing of the court-fee leviable, either ad valorem or fixed on the suits, petitions and applications filed under FCA for the obvious reason that court-fee is a parliamentary and state subject involving the public exchequer being a fiscal policy matter with a quid pro quo of services rendered by the adjudicatory machinery paid by the State. But the courts owe a duty to ensure that litigants are court-fee compliant so that the exchequer does not suffer and imperil the State interest. Its legislative intendment is simply to provide revenue to the State and therefore its provisions and connotations are to suffer strict construction so as to bring home the revenue. If there is no clear provision in the court-fee law responding to increasing growth of statutory enactments and special laws then its provisions would have to meet the same strict standards of interpretation in favour of removing the burden of ad valorem court-fee on the pocket of the person applying for relief who are themselves looking for survival money from the remiss family provider as in the case of FCA adjudication. To burden relief-seekers further with ad valorem court-fee would be onerous and oppressive and may defeat the intended purposes of the Act and act as a repellent to justice. The law is intended to protect the weak, the sick and the abandoned. This is what FCA does and the HAMA supports the cornerstone.

9. This brings us to the moot point of what amount of court-fee is payable in law, whether fixed or ad valorem on the suit, petition or application under HAMA. The right to marriage expenses which is a species of maintenance and claimed here by an unmarried daughter is found both in section 3 (b) (ii) and sections 20 and 23 (2) (b) of the HAMA and Section 7 (f) of the FCA. Section 3 of HAMA defines 'maintenance' to include in its sub-section (b) and its further sub-section (ii) “in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.” Section 20 of HAMA preserves the ancient and pious duty of a Hindu father to maintain his children and aged parents including a childless step-mother. The provisions create an obligation which is enforceable in law under section 23 in the case of an unmarried daughter to meet her “reasonable wants”. Sections 3 (b) (ii) and sections 20 and 23 (2) (b) of the HAMA are reproduced in that order for quick reference:-

“ 3. Definitions -In this Act unless the context otherwise requires-

(a) xxx

(b) "maintenance" includes-

(i)    in all cases, provision for food, clothing, residence, education and medical attendance and treatment;

(ii)    in the case of an unmarried daughter also the reasonable expenses of and incident to her marriage;”

“20. Maintenance of children and aged parents-

(1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

(3) The obligation of a person to maintain his or her aged or infirm parent or daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property Explanation- In this section "parent" includes a childless stepmother.”

“23 Amount of maintenance-

(1) It shall be in the discretion of the court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so the court shall have due regard to the considerations set out in sub-section (2), or sub- section(3), as the case may be, so far as they are applicable.

(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or aged or infirm parents under this Act, regard shall be had to.-

(a)           xxx

(b)           the reasonable wants of the claimant;

(c)           to (g) xxx” (relevant extract)

10. The right to maintenance or the quantification of a reasonable amount to defray marriage expenses by the applicant-respondent can only be a rough estimate of expenses likely to be incurred as an incidence of marriage. Thus, the Family Court would be free in its judicious discretion to deal with the petition in accordance with law under which it is acting and to see whether the case falls under the provisions of the Act paying due regard to the considerations set out in sections 3 (b) and 23 (1) (b) and 23 (2) (d) thereof to determine reasonable wants and expenses of the claimant, and to see if the respondent falls within the definition of dependants in section 21 of the Act. At this stage the claim, if any, which may or may not be fastened on the petitioner, still remains inchoate and largely in the realm of a future judicial determination by adjudication of rights to marriage expenses claimed in the petition. But as of now, the claim cannot be predicted or predicated with any reasonable certainty. It is not possible to estimate at the money value of the subject matter of the dispute before the declaration of rights inter se the parties is granted or denied by the court. Therefore, the respondent cannot on first principles be called upon to affix ad valorem court-fee on the petition instituted under the special Act on the claimed amount of Rs. 50 lacs. If the respondent has suppressed material facts in the petition that would remain in the province of the learned trial court to examine as to its effect on the relief claimed.

11. The question of court-fee payable on a petition for maintenance in the context of HAMA and of help in this case has been considered by a Division Bench of the Rajasthan High Court in Smt. Mamta And Others V. Hari Kishan, AIR 2004 Rajasthan 47 in the context of the Rajasthan High Court Family Courts Rules, 1994 and the Rajasthan Court Fees and Suits Valuation Act, 1961. The facts of the case were that the wife and children of the respondent moved an application under Sections 18 and 20 of the HAMA claiming maintenance in the sum of Rs. 25,000/- per month. The husband filed an application under Order 7 Rule 11 CPC for rejection of the application for non-payment of Court-fee payable on valuation of the petition i.e. Rs. 3 lacs. On the moot controversy, a preliminary issue was framed whether the application filed by the wife is liable to be dismissed for non-payment of court-fees. The Judge, Family Court, decided the issue against the wife who appealed to the High Court. It was contended before the Court that the proceedings for maintenance before the Family Court are summary in nature and as such an application cannot be termed as a 'suit'. Consequently, the provision of Section 22 of the Rajasthan Court Fees and Suit Valuation Act, 1961 is not a relevant factor and on such an application ad valorem Court fee is not payable on the amount claimed payable for one year. The Court was called upon to deal with Schedule II of the Rajasthan Act, 1961 where Sub-Clause (k) of Clause 11 of the Schedule II of the Act provides for fixed fees. Clause 11 identifies original petitions not otherwise provided for when filed in; (1) a Court subordinate to the High Court and (2) the High Court, and the fee prescribed therefor is Rs. 2/- and Rs. 10/- respectively. The Court reasoned that the Family Courts are empowered to make an attempt to simplify the rules and procedure so as to enable the Family Court to deal effectively with the disputes before it. One of its objectives is to bring succour to women and children who have been abandoned by their husbands/fathers and others. 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. The Court opined that the framers of the rule have casually incorporated all sorts of alternatives, i.e., plaint or petition or application. In case, the action instituted before the Family Court is taken as a plaint and tried as a suit, the Court took the view that the entire purpose of setting up Family Courts will be frustrated. With a view to deal with actions in matrimonial disputes more quickly and effectively which are different from the procedure adopted in ordinary civil proceedings, the action will have to be taken as instituted on an application. 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. When a woman and the children ask for maintenance, they can institute proceedings by way of an application. 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. Thus, Section 7(1)(f)of the Act takes within its purview a suit or proceeding between the parties to a marriage with respect to the property of the parties or any of them and apply it for survival ends. Since the proceedings before the Family Court is commenced by way of a petition or an application, it is obvious that such an application would be governed by Schedule II of the Rajasthan Court Fees and Suit Valuation Act, 1961. The Court further reasoned in paragraph 15 of the judgment that a bare look at Section 22 of the Rajasthan Act shows that the said provision is applicable to suits and not applications or proceedings. Therefore, actions instituted under Sections 18 and 20 are proceedings within the meaning of Section 7 (f) and not a suit. Therefore, Section 22 has no application. To reach this conclusion, the Court drew strength from the Division Bench judgment of the Kerala High Court in Saleesh Babu v. Deepa; (1996) 2 HLR 441. It is well established law that in case of fiscal Statutes the provisions must be strictly interpreted giving every benefit of doubt to the subject and lightening as far as possible, the burden of court-fees on a litigant. Where an adjudication falls within two provisions of the Court-fees Act one of which is onerous for the litigant and other more liberal, the Court would apply that provision which is beneficial to the litigant. For this proposition of law the Court placed reliance on Supreme Court decisions reported in AIR 1957 SC 657 and AIR 1976 SC 1503. Accordingly, the Court held that all the petitions in the Family Courts are in the nature of petitions or applications and the courtfees is payable under the residuary Clause 11(k) of the Schedule-II of the Rajasthan Court Fees and Suit Valuation Act, 1961.

12. Speedy justice is the jurisprudential basis of the special Act creating special courts manned by experienced and senior judicial officers which deal with special reliefs that can normally brook no delay by their very nature or suffer civil proceedings as usually administered in civil courts as they address sensitive human issues such as interim maintenance, guardianship, child custody, divorce, alimony, restitution of conjugal rights etc. The special Act and the rules framed thereunder would thus govern the field. Section 20 gives overriding effect to the FCA and lays down that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

13. In the jurisdiction of this Court there is no special law combining as in Rajasthan the local Court-Fees and Suits Valuation Act in a single legislation and we would have to go by the two Central Acts in force within this jurisdiction, i.e. Court Fees Act, 1870 and the Suits Valuation Act, 1887. The Suits Valuation Act prescribes a simple mode of valuing suits for the purpose of determining pecuniary jurisdiction of Courts. Section 8 of the Act prescribes that the court-fee value and jurisdictional value to be the same in certain suits whereas suits other than those referred to in the Courtfees Act, 1870 where the value as determinable for computation of court-fee and value for purpose of jurisdiction shall be the same.

14. The Suit Valuation Act, 1887 does not come into play in the present case. However, the Court-fees Act, 1870 prescribes under Section 7 the method of computation of fees payable in certain suits. In a suit of maintenance and annuities or other sums payable periodically, it would be according to the value of the subject-matter of the suit and such value shall be deemed to be 10 times the amount claimed to be payable for one year. In the present case, the applicant-respondent has not made a claim for recurring maintenance but for marriage expenses which is in the nature of a onetime request. In the absence of a clear provision governing court-fees payable and going by the ratio by the decision of the Rajasthan High Court, it appears to be fair and reasonable to hold that the applicant was not called upon to affix ad-valorem court-fees on her application and was liable to affix only a fixed court fees and when paid would suffice to maintain the suit or application before the Family Court.

15. For the foregoing reasons, this Court does not find any apparent error of jurisdiction or any violation of law or any legal bar to reject the plaint. There was nothing wrong in the trial court declining the application under Order 7 Rule 11 CPC.

16. For the foregoing reasons the petition fails and is ordered to stand dismissed, however without any order as to costs since the issue of levy of ad valorem court-fee on an application under HAMA for marriage expenses quantified by an amount required forensic debate to resolve in its complexity with no hard and fast rule available from enacted law.

Petition dismissed.

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