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2024 DIGILAW 1539 (KER)

Nirmala, W/o Sajeenran v. Sajeendran

2024-11-22

P.V.BALAKRISHNAN, SATHISH NINAN

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JUDGMENT : P.V.BALAKRISHNAN, J This intra court appeal is filed by the petitioner in Tr.P.C.No.594/2022 challenging the judgment passed therein, dismissing her petition. 2. The Transfer Petition was filed seeking transfer of O.S.No.608/2018 on the files of the Additional Munsiff Court- II, Nedumangad to the Family Court, Nedumangad. 3. The appellant is the legally wedded wife of the first respondent and the second respondent is the mother of the first respondent. The appellant and the first respondent got married on 11/5/2003 and two children were born in the wedlock. When the relationship between them got strained, the appellant filed O.P.No.842/2016 before the Family Court Nedumangad seeking recovery of gold ornaments, realization of money and maintenance. An order of attachment of the property was also passed by the Family Court, as per order in I.A.No.1567/2016. During the pendency of the Original petition, the matter was referred for mediation and the parties entered into an agreement whereby, the respondents agreed to sell the property and settle the claims raised in the original petition. Consequently, the attachment was also lifted. While so, the 2nd respondent filed O.S. No.608/2018, against the first respondent before the Additional Munsiff Court, Nedumangad seeking declaration of right over the property, mandatory injunction, etc. It is alleged that suit has been filed in collusion with the first respondent, with an intention to defeat the compromise entered into between the parties in O.P.No.842/2016. The subject matter and parties in both the proceedings are one and the same and in order to avoid conflicting decisions, transfer of O.S.No.608/2018 to the Family Court, Nedumangad is a necessity. 4. The respondents would contend that O.S. No.608/2018 is a suit filed by the second respondent against the first respondent and the same cannot be tried and disposed of by the Family Court, which is not a court competent to deal with the matter in issue. According to them, the proceedings in the afore suit will not come under any of the provisions of Section 7 of the Family Courts Act and the same is not a suit between parties to the marriage. 5. Heard both sides. 6. On an anxious consideration of the rival contentions and the materials on record, we find merit in the contention of the appellant. 5. Heard both sides. 6. On an anxious consideration of the rival contentions and the materials on record, we find merit in the contention of the appellant. It is an admitted fact that O.P.No.842/2016 pending before the Family Court, Nedumangad has been filed by the appellant against the respondents seeking recovery of the gold ornaments, realization of money, maintenance, attachment of property, etc. It is not in dispute that the property, which is also the subject matter in O.S. No.608/2018, filed by the second respondent against the first respondent, was attached by the Family Court during the pendency of the original petition. The records reveal that while so, the parties in O.P.No.842/2016 entered into an compromise agreement whereby, it was agreed that the respondents will sell the property and settle the claim raised in the original petition. Consequently, the attachment over the property came to be lifted. The records also reveal that it is thereafter, the second respondent has filed O.S.No.608/2018 before the Munsiff Court, Nedumangad against the first respondent, who is none other than her son seeking the reliefs of declaration and mandatory injunction over the afore property. It is to be taken note that the appellant was also impleaded as additional defendant in the said suit during its pendency. Thus, it can be seen that both in O.P.No.842/2016 pending before the Family Court, Nedumangad and in O.S.No.608/2018 pending before the Additional Munsiff Court-II, Nedumangad, the property involved and the parties are one and the same and a decision made in any one of them will have a bearing on the other. 7. It is true that strictly speaking, going by the array of parties, it cannot be stated that O.S.No.608/2018 is between the parties to the marriage. But, it is to be seen that the dispute revolves around the property belonging to one of them and that the parties to the marriage are in the array of defendants and the suit is filed by none other than the mother-in-law of the appellant claiming right over the property belonging to one of the parties to the marriage. The property is the subject matter of the compromise in the proceedings before the Family Court. It is a settled law that the position in the array of parties is not relevant so long as the suit or proceedings in substance and in its core is between the parties. The property is the subject matter of the compromise in the proceedings before the Family Court. It is a settled law that the position in the array of parties is not relevant so long as the suit or proceedings in substance and in its core is between the parties. We may profitably refer to the decision of this Court in Vasumathi N. and Another v.Valsan and Others [ 2011 (3) KHC 573 (DB)] wherein it has been held thus; “xxxxxxxx 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. 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. In a dispute like the one in this case, merely because the dispute between the parties is brought before the Court by another mercenary or name lender to one of the spouses, the suit or proceedings cannot lose its character as one between the parties to the marriage. A purposive interpretation is warranted and when so reckoned, the position in the party array cannot be given undue importance. A suit/proceedings does not lose its essential character as one between parties merely because that proceedings is initiated by a name lender to one of the parties who on his own showing has no dispute with one of the spouses.” Further this Court, by relying on the decision in Vasumathi's case(cited supra), reiterated the law in the decision in Sainudeen v. Shareefa K.M.and Others [ 2018 (5) KHC 122 (DB)] wherein it was held thus; “13. xxxxxxxx Where the original civil suit filed by a 3rd party, before the Civil Court, against the parties to a marriage, is sought to be transferred to the Family Court, for enabling a joint trial with an Original Petition between the parties to the marriage and the 3rd party pending before the Family Court, it cannot be declined simply on a narrow construction of S. 7(c) of the Family Court Act that the original civil suit is one filed by a 3rd party against the parties to a marriage and not a suit between the parties to a marriage. Similarly, the competency of the Family Court to try the original civil suit mandated under S.24 of the CPC cannot be determined isolately on the basis of the pleadings in the original civil suit alone. It is to be determined on the basis of the matter in issue arises out of a combined reading of the pleadings in both cases pending before the Civil Court and the Family Court in juxtaposition. In short, the determination of the competency of the Court under S.24 of the CPC is not circumscribed by the averments or allegations in the civil suit alone. In such an enquiry, on the basis of the combined pleadings, of both cases if the Court finds that the matter in issue is common and arises out of the dispute between the parties to a marriage with respect to the common subject matter of the parties or either of them, the original civil suit can be transferred to the Family Court notwithstanding the fact that the original civil suit is one filed by a 3rd party against the parties to a marriage and not a suit between the parties to a marriage. Moreover, in such circumstance, a joint trial is essential to avoid conflicting decisions that may be passed in the Original Suit and Original Petition pending before the Civil Court and Family Court respectively.” 8. Very recently, another Division Bench of this Court in the decision in Naseem K.E. v.K.Kadher Nazeer [ 2024 (3) KHC 439 ] considered the same issue and categorically held that the jurisdiction of Family Court to decide a particular case has to be determined by not looking into the position of the array of parties but must be based on the dispute sought to be resolved. It was held that if the real dispute raised in the matter is between parties to the marriage concerning the property of any one of them, the Family Court will have the jurisdiction to entertain the lis. 9. Therefore, going by the above dictums, it is to be seen that the jurisdiction under explanation (c) of Section 7(1) cannot be determined merely by looking into the position of the parties and it is the nature of the dispute which is sought to be resolved that has to be taken note of. Further, the real issue involved has to be ascertained not by merely looking into the pleadings in one suit alone but, is to be determined on the basis of pleadings in both the cases. On such consideration, in the present case, undoubtedly it can be seen that the matter in issue is intertwined. At this juncture, we also take note of the fact that the specific case of the appellant is that O.S.No.608/2018 has been filed by the respondents in collusion, for the purpose of defeating the fruits of O.P.No.842/2016 filed by her, and to prevent the sale of the property involved in the afore cases. Therefore, considering all the afore facts, we are of the view that O.S.No.608/2018 pending before the Munsiff Court-II, Nedumangad is liable to be transferred to the Family Court, Nedumangad. In the result, this appeal is allowed as follows; i) The impugned judgment passed in Tr.P.(C)No.594/2022 is set aside and the transfer petition is allowed. ii) O.S.No.608/2018 pending on the files of the Additional Munsiff Court-II, Nedumangad is withdrawn and transferred to the Family Court, Nedumangad, where O.P.No.842/2016 is pending. iii) The Additional Munsiff Court–II, Nedgumangad is directed to transmit the records of O.S.No.608/2018 to the Family Court, Nedgumangad forthwith. iv) Both sides are directed to appear before the Family Court,Nedumangad on 30/12/2024.