Sebie Merin Cherian vs Joji Chacko
2021 Latest Caselaw 4328 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                   &

                   THE HONOURABLE MR.JUSTICE C.S.DIAS

     FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942

                       Mat.Appeal.No.806 OF 2013

   AGAINST THE ORDER IN O.P.NO.61/2013 OF FAMILY COURT, KALPETTA
                                -------


APPELLANT/S:

                SEBIE MERIN CHERIAN, D/O.CHERIYAN EAPEN,
                CHERUPALATHIN EAPEN COTTAGE, THELLIYOOR P.O.,
                VENNIKULAM, MALLAPPALLY, PATHANAMTHITTA DISTRICT,
                REPRESENTED BY POWER OF ATTORNEY HOLDER, SUBIE
                THANKAM CHERIAN.

                BY ADVS.
                SRI.ENOCH DAVID SIMON JOEL
                SRI.S.SREEDEV
                SRI.RONY JOSE
                SHRI.CIMIL CHERIAN KOTTALIL

RESPONDENT/S:

      1         JOJI CHACKO, S/O.CHACKO MATHEW, MALAYIL HOUSE,
                MOOLANKAVU POST, KUPPADI VILLAGE, SULTHANBATHERY
                TALUK, WAYANAD DISTRICT, PIN-673592.

      2         CHACKO MATHEW, S/O.MATHEW, MALAYIL HOUSE, MOOLANKAVU
                POST, KUPPADI VILLAGE, SULTHANBETHERY TALUK, WAYANAD
                DISTRICT, PIN-673592.

                R2 BY ADV. DR.GEORGE ABRAHAM


THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION                ON
05.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.Appeal.No.806/2013            2



                              JUDGMENT

Dated this the 5th day of February 2021 A.Muhamed Mustaque, J.

This Mat.Appeal was filed challenging the dismissal

of the Original Petition No.61/2013 on the file of the

Family court, Kalpetta. The appellant is the petitioner

in the above Original Petition. The respondents are the

respondents in the above Original Petition.

2. The above Original Petition was filed for

recovery of Rs.30 lakhs and return of 140 sovereigns of

gold alleged to have been given at the time of marriage

by the appellant's father to the respondents.

3. The appellant, after the marriage, acquired citizenship of America. The respondents raised

preliminary objection in regard to the maintainability

of the petition before the Family Court, contending that

the petitioner herself is the citizen of America and the

petition is not maintainable under the Family Courts

Act, 1984.

4. The Family Court upholding the preliminary

objection, dismissed the petition holding that it is not

maintainable.

5. The short point that arises for consideration

is whether the petition for the return of patrimony and

gold ornaments would lie before the Family Court or not.

Admittedly, the marriage took place between the parties

at the Jerusalem Marthoma Church, Sulthan Bathery. In

regard to matters related to marriages, the place of

celebration is having jurisdiction. Admittedly, the

marriage took place in India. The alleged entrustment of

the movables also took place in India. Merely for the

reason that the appellant acquired citizenship of

America subsequent to the marriage will not dis-entitle

her for moving the courts in India. The provisions under

the Family Courts Act do not prevent a foreign citizen

suing before the court having jurisdiction in India

under the Family Courts Act. Substantial jurisdiction

has to be understood with reference to the cause of

action. Under the private international law, personal

action would lie before the Family Court, where the

marriage was celebrated. In the absence of any statutory

prohibition under the Family Courts Act, the claim of a

foreign citizen is perfectly maintainable. In the light

of the law enunciated above, we are of the view that the

petition is perfectly maintainable before the Family

court.

6. The learned counsel for the respondents would

raise a contention regarding resjudicata. According to

him, the issue was tried and decided in O.P.No.142/2012

before the Family Court, Kalpetta. Therefore, the

second petition is not maintainable. In fact, this issue

has not been considered by the Family Court.

In such circumstances, we are of the view that

reserving liberty to the respondents to raise the

contention based on resjudicata before the Family Court,

this Appeal is disposed of. The impugned judgment is

set aside. The parties are directed to appear before the

Family Court on 05.03.2021. All pending interlocutory

applications are closed.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS

JUDGE

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