Kerala High Court

Sandeep.R vs Mohanan on 19 February, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                  &

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

     FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942

          Tr.Appeal(C).No.8 OF 2020 IN Tr.P(C). 836/2019

AGAINST THE JUDGMENT    DATED 10.02.2019 IN Tr.P(C) 836/2019 OF HIGH
                           COURT OF KERALA


APPELLANT/PETITIONER:

             SANDEEP.R
             S/O. MR. RAVEENDRAN PILLAI,
             RESIDING AT KANNATTIZHIKATHU HOUSE, KOYICKAL MURI,
             EAST KALLADA P O, EAST KALLADA VILLAGE, KOLLAM
             REPRESENTED BY POWER OF ATTORNEY SMT SMITHA R, AGED
             41, D/O. SREEKUMARI AMMA, RAGHUNANDANAM, KAREEPRA
             VILLAGE, EDAKKADAM P.O, KOLLAM DISTRICT.

             BY ADV. SRI.ARUN BABU

RESPONDENTS/RESPONDENTS:

      1      MOHANAN
             AGED 59 YEARS
             S/O. RAGHAVAN PILLAI, RESIDING AT SREELAKOM,
             MUKHATHALA P.O, THRIKKOVILVATTAM VILLAGE, KOLLAM
             TALUK-691576.

      2      JAYALEKSHMI
             AGED 51 YEARS
             W/O. MOHANAN, 689501, SREELAKOM, MUKHATHALA P.O,
             THRIKKOVILVATTAM VILLAGE, KOLLAM TALUK-691576.

      3      PALLAVI MOHAN
             AGED 21 YEARS
             W/O. ARJUN, RESIDING AT SREEVALSOM, KADAKKAD NORTH,
             PANDALAM P O, PANDALAM VILLAGE, PATHANAMTHITTA TALUK-
             689501.

             R1-3 BY ADV. SRI.BIJU .C. ABRAHAM

     THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD ON
11.02.2021,THE COURT ON 19.02.2021 DELIVERED THE FOLLOWING:
 Tr.Appeal (C) No.8/2020
                                      2




              A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ.
           -------------------------------------------------------
                        Tr. Appeal (C) No.8 of 2020
            ------------------------------------------------------
                Dated this the 19th day of February, 2021


                               JUDGMENT

P.V.KUNHIKRISHNAN, J.

This appeal is filed against the judgment dated 10.2.2020

in Tr.P.(C) No.836/2019. The above transfer petition was filed

to transfer O.S.No.523/2018 on the file of the Munsiff Court,

Kollam to Family Court, Kollam.

2. Brief facts of the case is necessary for deciding this

appeal. The appellant filed O.S.No.523/2018 against the

respondents herein before the Munsiff Court, Kollam for

realisation of money from the respondents. Appellant married

one Sruthi Mohan on 12.09.2010. Respondents 1 and 2 are the

father-in-law and mother-in-law of the appellant and the third

respondent is the sister of Sruthy Mohan. The appellant Tr.Appeal (C) No.8/2020

contends that he gave an amount of Rs. 7 lakhs to the

respondents in connection with the marriage of the third

respondent. According to the appellant, an amount of Rs.5

lakh was paid on 4.5.2017 by closing a fixed deposit

maintained at Thrikkovilvattom Service Co-operative Bank Ltd.,

and a further amount of Rs.2 lakh was raised by availing a loan

from State Bank of India. Exhibit.P1 produced along with the

transfer petition is the plaint in O.S. No.523/2018.

3. The respondents filed a statement in the suit

disputing the case of the appellant. It was further contended

that at the time of marriage of the appellant and Sruthy

Mohan, 105 sovereigns of gold and a car was given to the

appellant. On 25.5.2012, around 72 sovereigns of gold were

pledged at the State Bank of India and an amount of Rs.9 lakh

was taken and the same was deposited at Thrikkovilvattom

Service Co-operative Bank. From the same, Rs.6 lakh was

taken as a loan and utilised by the appellant for the

construction of a residential house. It is alleged by the

respondents that the appellants sold 52 sovereigns of gold and Tr.Appeal (C) No.8/2020

got Rs.11 lakhs which was deposited at Thrikkovilvattom

Service Co-operative Bank and thereafter, 32 sovereigns of

gold were pledged and obtained Rs.2.5 lakhs. It was

submitted that O.P.No.825/2018 was filed before the Family

Court, Kollam for return of gold and money by the wife of the

appellant. Ext.P2 produced in the transfer application is the

statement filed by the respondents in O.S. No.523/2018.

4. It is the case of the appellant that, when the above

statement is received, he came to know that his wife Sruthy

Mohan filed O.P. No.825/2018 before the Family Court, Kollam

for recovery of gold and money from the appellant, his mother,

and sister. Ext.P3 produced in the transfer petition is the copy

of the petition in O.P.No.825/2018 pending before the Family

Court, Kollam. According to the appellant, the cause of action

which led to Exts.P1 and P3 arose out of the marital

relationship between the appellant and his wife. According to

the appellant, the nature of evidence to be adduced by the

parties in both these proceedings are interconnected. The

appellant submitted that the dispute involved in the suit Tr.Appeal (C) No.8/2020

pending before the Munsiff Court is a dispute arising from a

matrimonial relationship. Hence, the appellant filed Tr.P.(c)

No.836/2019 before this Court for transferring

O.S.No.523/2018 pending before the Principal Munsiff Court,

Kollam to the Family Court, Kollam.

5. When the above transfer petition came up for

consideration, the learned single Judge dismissed the transfer

petition mainly for the reason that the transaction involved in

this case did not arise out of the marital relationship.

Aggrieved by the above order, this Transfer appeal is filed.

6. Heard the learned counsel for the appellant and the

respondents.

7. The counsel for the appellant submitted that O.S. No.

523/2018 on the file of the Munsiff Court, Kollam is a suit that

arises out of the marital relationship between the appellant and

his wife and therefore, it is a suit filed in the circumstances

arising out of a marital relationship and therefore, the Family

Court has jurisdiction. The counsel for the respondents

supported the judgment of the learned single judge and argued Tr.Appeal (C) No.8/2020

that the Family Court has no jurisdiction to try O.S.

No.523/2018 now pending on the file of the Munsiff Court,

Kollam.

8. The short point to be decided is whether the Family

Court, Kollam can try O.S. No. 523/2018 now pending before

the Munsiff Court, Kollam. Section 7 of the Family Court Act

deals about the jurisdiction of the Family Courts. Section 7

along with its explanation is extracted hereunder:

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 sub-section are suits and proceedings of the following nature, namely:--

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of 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;

Tr.Appeal (C) No.8/2020

(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.

9. A reading of the above provision, it is clear that the

Family Court shall 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 nature referred to in the explanation to the

section.

10. Explanation to Section 7 deals with the nature of suits

and proceedings that can be considered by the Family Court.

Explanation (d) to Section 7 of the Family Court deals with a

suit or proceedings for an order or injunction in the

circumstances arising out of a marital relationship. So the

point to be decided is whether the suit in question, in this case, Tr.Appeal (C) No.8/2020

is a suit arising out of 'circumstances' arising out of a marital

relationship. In Leby Issac v. Leena M.Ninan, (2005 (3)

KLT 665) this Court observed like this:

"13. So, 'circumstances' in relation to a marital relationship will be those particulars which closely precedes, surrounds, accompanies and follows a marital relationship. That means, primarily those can be the marriage itself and the surrounding occurrences in connection with marriage. The main requirement is that such 'circumstances' must have a direct bearing on marriage, since the marriage precedes, the existence or origin of a 'marital relationship'. 'Circumstances' arising out of a marital relationship are therefore, 'occurrences or things which stand around or about, which attend upon, which closely precede or follow, which surround and accompany, which depend upon, or which support or qualify the principal event' of a marriage or marital relationship.

14. The expression 'in circumstances arising out of marital relationship' thus means not only those occurrences which transpired during marital life, but those also include such circumstances which led to the marriage, which developed thereafter, which took place during marital life, which resulted in breaking down of marriage and also those which 'closely followed as a consequence of all these. If the intention of legislature was to take in only those occurrences which take place during a 'marital relationship', there was no necessity to use the word 'circumstances' in explanation (d) to S.7(1) of the Act. The same purpose could have been achieved if explanation (d) is worded without the term Tr.Appeal (C) No.8/2020

'circumstances' also. So, the inclusion of word 'circumstances' in the relevant provision is quite significant and it must have been done to include all such circumstances surrounding, preceding and closely following a marital relationship i.e., the principal event of marriage and the eventualities surrounding the same."

(emphasis supplied)

11. Relying upon the above judgment and other judgments of

this Court in Anilkumar K.B. v. Sheela N.S. and others (2011 (3)

KHC 942) this court again considered this point and observed like

this:

"9. 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. Since the relief awarded by the Family Court would be orders, the first part of explanation (d) to S.7 will be satisfied even though the section does not mention anything about a decree for recovery of money. Relying on the decision of the Apex Court in Abdul Jaleel v. Shahida, 2003 KHC 428 : 2003 (2) KLT 403 (SC) : ILR 2003 (3) Ker. 327 : 2003 (4) SCC 166 : AIR 2003 SC 2525 : JT 2003 (4) SC 4 and the decision in Leby Issac v. Leena M. Nian (supra), it was held by another Division Bench in Suprabha v. Sivaraman, 2006 KHC 228 : 2006 (1) KLT 712 : ILR 2006 (1) Ker. 515 : 2006 (1) KLJ 414 : AIR 2006 Ker. 187:

'It was probably because what was provided under S.7, Explanation (c) was not sufficient to bring all disputes arising out of marital relationship and there may be cases where either the husband or wife was not alive at the time of filing the suit that the legislature thought of adding clause (d). As per the practice, at the time of marriage, gold ornaments are Tr.Appeal (C) No.8/2020

given to the bride by her parents.' In that case it was held that the claim for return of the value of gold ornaments is a claim 'in the circumstances arising out of a marital relationship'.

10. So far as the case on hand is concerned, there can be no doubt that the first respondent happened to stand as a surety for the appellant for the amount due from him to K. S. F. E. when the marital relationship between her and her husband was subsisting and also when she was staying in her matrimonial home. She happened to stand as a surety only because of the influence or compulsion of her husband. Therefore, the amount due from the appellant (the brother of the first respondent's husband) arose 'in circumstances arising out of a marital relationship'. It is a 'dispute' coming under explanation (d) to S.7(1) of the Act. As such, the suit / petition before the Family Court is perfectly maintainable."

12. Again this Court after considering all the earlier

judgments in Janaki Amma and Others v. Renuka

Sadanandan and others (2016 (1) KHC 266) observed like

this :

"16. We are of the considered opinion that the crucial aspect to be considered while deciding the question as to whether it is a suit or a proceedings instituted seeking an order or injunction in the circumstances arising out of the marital relationship, is the cause of the lis itself and not the parties to the lis. Prime consideration should be as to whether the cause of the lis has got any bearing with the marital relationship. An objective assessment should be made as to whether the cause has got any stem from the Tr.Appeal (C) No.8/2020

circumstances arising out of the marital relationship. In other words, whether the cause should have been existed but for the marital relationship, shall be the basis of the assessment. If the answer is on the positive, definitely the lis can be categorized as one not coming within the scope of Explanation (d). But if the cause of action is emerging out of any circumstances related to the matrimonial relationship and the same could not have existed independently, then the suit can be maintained before the Family Court, and it will fall under Explanation (d) to S.7(1) of the Act.

17. When the facts of the case at hand is analyzed based on the above said parameters, it is evident that the claim of the 1st respondent that she paid money to the 1st appellant by disposing her own property for discharging the bank liability of the mother - in - law, on the basis of a specific understanding that the B - schedule property will be assigned into her name, has got a clear stem arising out of a circumstances connected to a marital relationship. Since the alleged promise was not complied with and since the 1st appellant had assigned the properties to her sons, the 1st respondent is claiming declaration of title over the property contained in B - schedule. The alleged transaction of the 1st respondent selling her own property for discharging her mother - in - law's debt on the basis that the B - schedule will be assigned to her name, happens only because of the matrimonial relationship of the parties as daughter - in -

law and mother - in - law. But for the marriage of the 1st respondent with the son of the 1st appellant, such an alleged transaction would not have taken place. Therefore the cause of action agitated against the mother - in - law had arisen from circumstance connected with the matrimonial relationship. Whether the parties to the Tr.Appeal (C) No.8/2020

marriage are parties to the lis, becomes immaterial in such circumstances. Therefore considering the wider interpretation to be given to the ambit and scope of the explanation contained under Clause (d), as guided by binding precedents of this Court and the Hon'ble Supreme Court, we are persuaded to hold that the cause agitated is emerging from circumstances arising out of marital relationship. It is rightly observed by the Family Court that the alleged contract between the 1st respondent and the 1st appellant is only due to the marriage of the 1st respondent with the son of the 1st appellant. The entire transaction took place after the marriage. Therefore it is found that the dispute will squarely come within the purview of Explanation (d) to S.7(1) of the Act."

13. In Krishna Moorthy vs. Soumya Krishnan and

Another (2015 (5) KHC 365) this Court observed like this:

"9. As already found, since the suit in question is clearly pertaining to a cause of action agitated based on the rights and obligations of the appellant which arises out of the marital relationship between the appellant and the mother of the respondents, it will clearly fall within Explanation (d) to S.7(1) of the Family Courts Act, because it is a suit / proceedings filed seeking an order "in the circumstances arising out of a marital relationship." Therefore we are inclined to hold that the original petition instituted before the Family Court is maintainable under Clause (d) of the Explanation to 7(1).

Tr.Appeal (C) No.8/2020

Hence we do not find any illegality or infirmity in the order appealed against.

Consequently the appeal fails and the same is hereby dismissed."

14. In the light of the above judgments in Anil Kumar's

case (supra) and in Leby Issac's case (supra), it is clear that

the circumstances arising out of the marital relationship means

not only those occurrences which transpired during the marital

life, but those also includes such circumstances which led to

the marriage, which developed thereafter, which took place

during the marital life, which resulted in breaking down of the

marriage and also those which closely followed as a

consequence of all these. The inclusion of the word

'circumstances' in the relevant portion is quite significant and it

must have been done to include all such circumstances

surrounding, preceding, and closely following a marital

relationship. That is, the principal event of marriage and the

eventualities surrounding the same. This is the principle laid

down in Leby Issac's case which is followed uniformly in the

other decisions.

Tr.Appeal (C) No.8/2020

15. Now coming back to the facts of this case, it is clear

that the case of the appellant before the Munsiff Court, Kollam

in O.S. No.523/2018 is definitely a circumstance arising out of

a marital relationship between the appellant and his wife.

Admittedly, the appellant is the son-in-law of first and second

respondents. Third respondent is the daughter of the first and

second respondents. According to the appellant, in connection

with the marriage of the third respondent, he gave a certain

amount to the first and second respondents. The relevant

portion of the plaint is extracted herein.

"The plaintiff is employed in Indian Army, presently employed in Rajastan. Defendants 1 and 2 are the parents of his wife and the 3rd defendant is her younger sister. The 1 st & 2nd defendants in connection with the marriage of the 3 rd defendant approached the plaintiff in the last week of April 2017 and sought financial assistance `.10,00,000/- explaining paucity of funds and also the special circumstances for convening the marriage immediately. He was told that, her marriage was fixed with one Arjun.M and the date of marriage was also tentatively fixed to 12.05.2017. Plaintiff's wife Sruthi and the 3 rd defendant also pressed him for the financial help.

2. Plaintiff accordingly agreed to provide part thereof and paid `.5,50,000/- to the 1st &2nd defendants on 04.05.2017 by closing his fixed deposits accounts maintained with the Thrikkovilvattom SCB Ltd. After marriage ie on 31.05.2017 Tr.Appeal (C) No.8/2020

plaintiff further paid `.2,00,000/- to 1st & 2nd defendants for disbursing the liabilities arose out of the marriage. Plaintiff secured the said amount by availing loan from the State Bank of India. 1st and 2nd defendants availed the said amounts from the plaintiff assuring prompt repayment before December 2017. Considering the close relationship between the parties, plaintiff did not insist any security documents from the defendants assuring prompt repayment. The 1st & 2nd among you have the contractual obligation to repay the said amounts to the plaintiff with interest from the date of availing the funds. "

16. From the above pleadings in the plaint, it is clear that

if there is no marriage between the appellant and the daughter

of the first and second respondents, such a transaction would

not have been there. Moreover, the case of the wife of the

appellant in O.P.No.825/2018 now pending before the Family

Court are inter connected to the facts in O.S.No.523/2018. If

O.S. No.523/2018 and O.P. No.825/2018 are tried separately,

the case of the appellant that there will be chances for

conflicting decisions cannot be ruled out. Moreover, there is no

inconvenience to the parties also for transferring O.S.

No.523/2018 from the Munsiff Court, Kollam to Family Court,

Kollam because both courts are situated in Kollam. The finding