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2017 DIGILAW 348 (KER)

K. v. VARGHESE VS MAGDALINE CLAUDIA @ MINI

2017-02-20

A.M.SHAFFIQUE, K.RAMAKRISHNAN

body2017
JUDGMENT : Shaffique, J. This original petition is filed challenging Exts.P4 and P5 orders by which the Family Court had dismissed an application for impleading the petitioners as additional petitioners 2 to 5 in the original petition. The original petition was filed by late Sri. K.J. Antony alleging that the marriage between him and the respondent was null and void. During the pendency of the original petition, petitioner expired and his brothers and sisters, claiming to be legal heirs of the petitioner, have filed IA No.3406/13 to implead them as legal heirs. The Family court dismissed the said application on the ground that since the deceased is no more, his brother and sister cannot be treated as parties to the marriage in order to prosecute the wife of the deceased. Consequently, by Ext.P5 order dated 24/3/2014, the OP has been dismissed. 2. Learned counsel for the petitioners submits that the Family Court has completely erred in dismissing the application for impleading. It is stated that the original petition was filed by Late Sri. K.J. Antony for a declaration that the marriage was null and void. The cause of action definitely succeeds to the legal heirs. As far as the respondent is concerned, though the deceased Antony married her, the status has to be declared by the Court. The declaration of status has other civil consequences as well and therefore, the Family Court should have impleaded the petitioners herein as additional petitioners in the OP. 3. Heard, the learned counsel for the respondent who supports the view taken by the Family Court. 4. Having heard the learned counsel on either side and having perused the records, we are of the view that when a suit has been filed for declaring the legal status especially the marital status between the parties, the cause of action definitely survives to the legal heirs as well. Declaration has other civil consequences, which will affect the right and interest of the parties and therefore, we are of the view that the Family Court ought to have permitted the petitioners to be impleaded as additional petitioners and the matter prosecuted in accordance with the procedure prescribed. Accordingly, this OP is allowed. (i) The impugned orders in IA No.3406/13 and OP No.2177/2012 are set aside. (ii) IA No.3406/13 shall stand allowed. Accordingly, this OP is allowed. (i) The impugned orders in IA No.3406/13 and OP No.2177/2012 are set aside. (ii) IA No.3406/13 shall stand allowed. The Family Court shall restore OP No.2177/2012 to file and dispose of the same in accordance with the procedure prescribed. (iii) The parties shall appear before the Family Court on 14/3/2017 and the Family Court shall endeavour to dispose of the matter as expeditiously as possible.