Kerala High Court
Anitha D.S vs P.Rajeswari Thankachy on 13 January, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
OP(C) NO. 2210 OF 2021
AGAINST THE ORDER/JUDGMENT IN O.S.1001/2019 OF ADDITIONAL
MUNSIFF-II COURT, TRIVANDRUM
PETITIONERS:DEFENDANTS 1& 2
1 ANITHA D.S,
AGED 44 YEARS,
W/O.LATE P.SIVAPRASAD, RESIDING AT PRANAVAM, TC
49/998(1), CHIRAMUKKU, MANACAUD P.O,
THIRUVANANTHAPURAM-695 009.
2 PRANAV.A.S,
AGED 18 YEARS
S/O.LATE P.SIVAPRASAD, RESIDING AT PRANAVAM, TC
49/998(1), CHIRAMUKKU, MANACAUD P.O,
THIRUVANANTHAPURAM-695 009.
BY ADVS.
K.SANEESH KUMAR
V.B.SANTHINI
RESPONDENT:
P.RAJESWARI THANKACHY,
AGED 71 YEARS
W/O.LATE K.PARAMESWARAN THAMPI, RESIDING AT TC
49/998, PRASAD BHAVAN, CHIRAMUKKU, ATTUKAL,
MANACAUD P.O, THIRUVANANTHAPURAM-695 009.
BY ADVS.
T.MADHU
C.R.SARADAMANI
SHAHID AZEEZ
RENJISH S. MENON
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.01.2022, THE COURT ON 13.01.2022 DELIVERED THE
FOLLOWING:
O.P(c).No.2210/2021 2
"CR"
A. BADHARUDEEN, J.
================================
O.P(C).No.2210 of 2021
================================
Dated this the 13th day of January, 2022
JUDGMENT
This Original Petition (Civil) has been filed under Article
227 of the Constitution of India. The order in O.S.No.1001/2019
dated 05.11.2021 on the file of the Additional Munsiff-II,
Thiruvananthapuram, produced as Ext.P6 herein, is under
challenge in this Original Petition.
2. Heard the learned counsel for the petitioners as well as
the respondents.
3. In this matter, as per Ext.P5 judgment of this Court in
O.P(C).No.1464/2020, the court below was directed to expedite
the disposal of the Suit when some other orders were put under
challenge in the above O.P(C). As per the direction in Ext.P5, the
Suit ought to have been decided before close for Christmas
holidays during 2021. However, a preliminary issue was heard
by the learned Munsiff as to maintainability of the Suit.
According to the defendants, the Suit is not maintainable before
the Munsiff Court since the subject matter of the Suit is one
clearly covered under Section 7(1)(d) of the Family Courts Act,
1984. Though the contention was raised based on the decision
reported in [2005(3) KLT 665 (DB)], Leby Issac v. Leena
M.Ninan, the learned Munsiff found that the Munsiff Court has
jurisdiction to decide the matter. It has been observed by the
learned Munsiff that the main issue to be decided in this case is
the partible nature of the property and the genuineness of the Will
propounded by the defendants.
4. The learned counsel for the petitioners reiterated the
contentions put before the trial court to substantiate that the
plaintiff herein is none other than the mother-in-law of the 1st
defendant and, therefore, the Suit is one covered under Section
7(1) (d) of the Family Courts Act. In support of this contention,
decision reported in [2015(5) KHC 365], Krishna Moorthy v.
Soumya Krishnan & anr. and [2016 (1) KHC 266], Janaki
Amma& Ors. v. Renuka Sadanandan & Ors. have been
highlighted.
5. Opposing this contention, the learned counsel for the
plaintiff/1st respondent herein would contend that this is a simple
Suit for partition consequent on the death of the son of plaintiff
and this Suit cannot be considered as one covered under Section
explanation (d) to Section 7(1) of the Family Courts Act. In the
decision reported in Janaki Amma's case (supra), a Division
Bench of this Court considered a Suit filed by the mother-in-law
to declare title over the property left by her son as her own, on
which a sale deed was executed in favour of his wife. In that
case, the Division Bench observed that the said case would fall
under explanation (d) to Section 7(1) of of the Family Courts
Act. In the decision in Krishna Moorthi's case (supra), when
daughter instituted a Suit for recovery of an amount of Rs.40 lakh
which the father had promised to pay for the marriage, the
jurisdiction was held to be vested with the Family Court. Therein
also it was held that the Suit in question and the cause of action
agitated based on the right and obligations arose therein would
clearly fall within explanation (d) to Section 7(1) of the Family
Courts Act. In this connection, it is apposite to refer Section 7 as
such for clarity. Section 7 of the Family Courts Act reads as
follows:
"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;
(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."
6. However, the learned counsel for the respondent
placed decision reported in [2020 (5) KHC 629], Mini & Ors. v.
Sivaraman & anr. and submitted that in order to entertain a
petition by the Family Court, any circumstance arising out of a
marital relationship should be there. In the said decision, the
following are the observations:
"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. 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 `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".
Thus the law emerges is that in all circumstances, surrounding,
preceding and closely following a marital relationship starting
from the principal event of marriage, the jurisdiction is vested
with the Family Court.
7. Coming to the facts of this case, the mother-in-law of
the 1st defendant in the Suit instituted Suit as plaintiff for partition
of the property alleged to be left by her son, consequent on the
death of his son. According to the mother-in- law/plaintiff, she is
entitled to get 1/3 share in the plaint schedule items and
defendants 1 and 2, the wife and her son, are entitled to get 1/3
share each. The cause of action stated in the Suit was obstruction
made by the defendants from entering into A and B schedule
items by denying co-ownership right of the mother-in-law.
8. According to the defendants, the husband of the 1 st
defendant executed a Will before S.R.O, Thiruvallom as deed
No.III/40/2019 and thereby the entire right of the plaint schedule
item had been transferred in favour of defendants 1 and 2.
9. Thus it appears that the genuineness of the Will is a
question to be decided to find out whether the property is liable to
be partitioned and the plaintiff is entitled to get 1/3 share. In such
circumstances, I am of the view that the present Suit is for
partition of the property after considering the genuineness of the
Will. Going by the given facts of this case, I have no hesitation
to hold that this is a Suit cannot be held as one comes within the
definition of S.7(1)(d) of the Family Courts Act, treating the same
as one for a Suit or proceeding for an order in circumstances
arising out of a marital relationship. Thus I hold that this Suit for
partition filed by the mother-in-law against daughter-in-law and
her son is maintainable before a civil court and not before the
Family Court, as property right consequent on the death of the
son of the plaintiff is the direct question to be decided by the civil
court in this case and the same is not covered under Section 7(1)
(d) of the Family Courts Act. Thus the order impugned is
perfectly in order.
10. In the above circumstances, I find no merit in the
Original Petition and is dismissed accordingly.
11. Considering the fact that the trial of the Suit, which
was directed to be completed before December, 2021 by this
Court, has been stalled, the trial court is directed to expedite the
trial of the case at the earliest, at any rate, before close of the
court for summer vacation.
Registry shall forward a copy of this judgment to the
Additional Munsiff-II, Thiruvananthapuram for information and
compliance, within 7 days.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
APPENDIX OF O.P.(C) 2210/2021
PETITIONERS' EXHIBITS
Exhibit P1 A TRUE COPY OF THE PLAINT IN OS.1001 OF
2019 DATED 29.06.2019 FILED BY THE
RESPONDENT BEFORE THE ADDITIONAL
MUNSIFF-II COURT, THIRUVANANTHAPURAM.
Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE PETITIONERS DATED
22.09.2019.
Exhibit P3 A TRUE COPY OF THE AMENDED PLAINT FILED
BY THE RESPONDENT DATED 10.09.2021.
Exhibit P4 A TRUE COPY OF THE ADDITIONAL WRITTEN
STATEMENT FILED BY THE PETITIONERS
DATED 25.09.2021.
Exhibit P5 A TRUE COPY OF THE JUDGMENT IN O.P(C)
NO.1464/2020 DATED 02.08.2021 PASSED BY
THIS HONOURABLE COURT.
Exhibit P6 A TRUE COPY OF THE ORDER PASSED IN
PRELIMINARY ISSUE DATED 05.11.2021 BY
THE ADDITIONAL MUNSIFF-II COURT,
THIRUVANANTHAPURAM.
