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2014 DIGILAW 279 (KER)

Anitha v. Ramani Nair

2014-03-25

K.ABRAHAM MATHEW, T.R.RAMACHANDRAN NAIR

body2014
JUDGMENT : K. ABRAHAM MATHEW, J. 1. The appellants are the plaintiffs and the respondents the defendants in O.S.No.274 of 2008 on the file of the Principal Sub Court, Palakkad. The plaint schedule property allegedly belonged to one Leela. She bequeathed it to her only son, Gopinathan and only daughter, the first defendant. Gopinathan also died. The first plaintiff is the wife and the second plaintiff the minor son of Gopinathan. On his death his ½ share in the plaint schedule property devolved equally on the plaintiffs. In the suit the plaintiffs pray for partition and separation of their ½ share in the property. Pending the suit the first defendant alienated the property to the additional second defendant. A contention was raised that the civil court has no jurisdiction to entertain the suit in view of Section 7(1)(c) and (d) of the Family Courts Act and only the Family Court has jurisdiction to entertain the dispute. Placing reliance on the decision in Anilkumar v. Sheela ( 2011(4) KLT 120 ) and Vasumathi v. Valsan 2011(3) KLT 638 the lower court upheld the contention and ordered to return the plaint to be presented before the Family Court. This order is assailed in this appeal. 2. Heard the counsel on both sides. 3. Since only clauses (c) and (d) in the Explanation to section 7(1) arise for interpretation in this case, they alone are extracted below: Section 7(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 sub-section are suits and proceedings of the following nature, namely;- (a)............ (b)............ (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; 4. (b)............ (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; 4. Clause (c) in the explanation requires two ingredients viz. the suit or proceedings (1) should be between the parties to a marriage, and (2) should be with respect of the property of the parties or of either of them. Those two ingredients should exist at the same time. If any one of them is absent, the clause has no application. 5. The question whether the expression parties to a marriage may be given a wide interpretation was considered in Suprabha v. Sivaraman ( 2006 (1) KLT 712 ). The Division Bench took the view that in the context of Section 7(c) the meaning of the words “parties to a marriage” cannot be given such a wide interpretation as to include all those who are interested in the welfare of the couple or those who take part in the marriage ceremony. In Shyni v. George and others ( 1997 (1) KLJ 573 ) it is observed that if it were merely a suit against father-in-law it is quite clear that the suit could be instituted only in the ordinary civil court. In this case one of the plaintiffs is the wife of deceased Gopinathan; the first defendant is the only sister of Gopinathan and the other defendant is not even a relative. Thus this is not a proceedings between parties to a marriage. 6. There may be cases in which the Family Court does not have jurisdiction even though the parties to a marriage are parties to the proceedings and both or either or either of them has a right in the property involved in it. Devaki Antharjanam v. Narayanan Namboodiri ( 2006 (2) KLT 1022 ) is such a case. In a partition which took place in an Illam certain properties were allotted to a woman, her husband and their children. Later, a partition took place between these persons. The property involved in the litigation was allotted to the share of the wife, the husband and their only son. The wife filed a suit for partition against the husband and the son. The final decree passed by the civil court was challenged before this court. Later, a partition took place between these persons. The property involved in the litigation was allotted to the share of the wife, the husband and their only son. The wife filed a suit for partition against the husband and the son. The final decree passed by the civil court was challenged before this court. It was submitted that as parties to the proceedings was between parties to a marriage and it was for partition Family Court alone had jurisdiction and the final decree passed by the civil court was invalid. The court held as follows: “There cannot be different forum for filing the suit for partition depending on who files the suit. There may be cases for partition where there are several sharers; those sharers may include parties to a marriage. It may also be true that in such a case, there may be dispute between the parties to the marriage. That does not mean that the Family Court has jurisdiction to entertain and decide the suit, only on the ground that two of the parties to the suit consist of parties to a marriage. The disputes involved in a partition suit may, sometimes, be complex. Different parties may set up different rights and may sometimes claim exclusive rights. Some of the parties may claim reservation or equity. Some may set up tenancy rights under the Land Reforms Act having been created in their favour or in favour of strangers. If the question of tenancy arises, it has to be referred to the Land Tribunal which has exclusive jurisdiction to decide the question of tenancy, in view of S.125(3) of the Kerala Land Reforms Act. These are all matters for the civil court to decide and they do not come within the jurisdiction of the Family Court.” The learned Judge rejected the argument that civil court had no jurisdiction to entertain the suit. The nature of dispute is relevant even under clause (c) in the Explanation to Section 7(1). 7. We hold that since the parties to the dispute before us are not parties to a marriage clause (c) to Explanation 7(1) of the Family Courts Act is not applicable to it. 8. The nature of dispute is relevant even under clause (c) in the Explanation to Section 7(1). 7. We hold that since the parties to the dispute before us are not parties to a marriage clause (c) to Explanation 7(1) of the Family Courts Act is not applicable to it. 8. Now, it may be examined whether the decisions in Anil Kumar (supra) and Vasumathi (supra) on the basis of which the lower court took the view that the Family Court has exclusive jurisdiction over the subject matter of the dispute, are applicable to the facts of the case. 9. The clause which came up for consideration in Anil Kumar’s case is clause (d) in the Explanation to Section 7(1) of the Family Courts Act. This clause does not require that the parties to the dispute should be parties to the proceedings. It is sufficient that the suit or proceedings is for an order or injunction in circumstances arising out of a marital relationship. 10. The allegation of the wife in Anil Kumar’s case was that pursuant to the directions given to her by her husband and under his influence she stood as a surety for his brother in a chitti transaction and the amount was sought to be recovered from her on his making default in paying the instalments. The High Court held that only the Family Court had jurisdiction to entertain the dispute. The reason for holding so is clear from paragraph 9 of the judgment which runs as follows: “The case of the wife, as has been mentioned earlier, arose during the subsistence of the marital relationship and the circumstances projected in this case have a direct bearing on the marriage.” 11. In the present case the parties claim right under a partition deed. The relationship between the parties is irrelevant to decide the lis. The view taken by the learned Judge in Devaki Antharjanams case(supra) stands to reason. The lower court wrongly placed reliance on Anil Kumar’s case. 12.The second decision relied on by the lower court is Vasumathi v. Vaisan ( 2011(3) KLT 638 ) rendered by a Division Bench of this court. Vasumathi initiated a proceedings in the Family Court against her husband under Section 125 Cr. P.C. On receipt of the notice issued from the court the husband transferred his immovable property to a stranger. 12.The second decision relied on by the lower court is Vasumathi v. Vaisan ( 2011(3) KLT 638 ) rendered by a Division Bench of this court. Vasumathi initiated a proceedings in the Family Court against her husband under Section 125 Cr. P.C. On receipt of the notice issued from the court the husband transferred his immovable property to a stranger. The stranger filed a suit in a Munsiff Court at another station for an injunction restraining Vasumathi and her relatives from interfering with the rights claimed by the stranger in respect of the property. In the suit Vasumathi and her husband were made co-defendants. The question came up for consideration was whether the proceedings before the Family Court and the suit in the civil court might be tried together in the Family Court. The Division Bench took the view that the suit by the stranger was of the nature referred to in the explanation to Section 7(1) of the Family Courts Act and so that court alone had jurisdiction to entertain the dispute and the two litigations should be tried by that court. 13. The contention of Vasumathi was that the transaction between her husband and the stranger was a sham transaction. The dictum laid down in Vasumathi’s case is that if the real issue involved in a litigation is a dispute between the parties to a marriage, it is immaterial that it was initiated by a third party and that the parties to the marriage are together on one side on the party array. The following passage in Vasumathi’s case is very relevant: “If the real dispute is between the parties to the marriage, the fact that there are other parties also arrayed in the suit is irrelevant. A party to a marriage cannot nullify the jurisdiction of the Family Court under explanation (c) by arraying one more party to the array of parties. According to us, their position in the array of parties is also not crucially relevant so long as the suit or proceedings in substance and in its core is between the parties. Application of clause (C) cannot be decided in a myopic manner by ascertaining the position of the parties on the array. According to us, their position in the array of parties is also not crucially relevant so long as the suit or proceedings in substance and in its core is between the parties. Application of clause (C) cannot be decided in a myopic manner by ascertaining the position of the parties on the array. They may be on opposite sides or may be together on one side on the array, but the suit or proceedings does not lose its character as one “between the parties” because they happen to be arrayed together on one side on the array.” 14. After observing that in the circumstances of the case “it is seen that the first plaintiff’s claim for partition in the capacity as a widow of Gopinathan against her sister-in-law is in the circumstances arising out of a marital relationship under Section 7(l)(c) &(d) of the Family Courts Act”, the learned Sub Judge passed a judgment directing return of the plaint. He did not discuss and enter a finding as to the clause, either (c) or (d), under which the case falls. He did not examine the applicability of Anil Kumar’s case or Vasumathi’s case to the facts of the case before him. It also escaped his notice that when a plaint is ordered to be returned the court passes only an order and not a judgment. 15. The decisions of this court referred to above hold that the nature of the dispute involved in the litigation is also relevant both under clause (c) and clause (d) of the Act to determine whether the Family Court has jurisdiction to entertain it; relationship between the parties alone is not the test. 16. This is not a proceedings between parties to a marriage. The parties to it claim right under a partition deed. Their right is independent of the marriage between the plaintiff and her deceased husband. The relationship between the parties is irrelevant to decide the lis. 17. We are fully satisfied that the facts of the case attract neither clause (c) nor (d) in the Explanation to Section 7(1) of the Family Courts Act. The order passed by the learned Sub Judge cannot be sustained. In the result, this appeal is allowed. The learned Sub Judge is directed to take back the plaint on his file and proceed with it in accordance with the law.