Kerala High Court
Manikyan vs Keerthi Harimemon on 21 May, 2024
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
OP (FC) NO. 14 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 06.12.2023 IN OP NO.650 OF 2019
OF FAMILY COURT, TIRUR
PETITIONER/S:
MANIKYAN, AGED 57 YEARS
S/O. LATE VENKIDAJALAM, SOUPARNIKA, BEHIND MARIYAMMAN
KOVIL, KAVIL PAD OLAVAKKOD, PALAKKAD POST, PALAKKAD
DISTRICT, PIN - 678002
BY ADV K.RAKESH
RESPONDENT/S:
1 KEERTHI HARIMEMON, AGED 30 YEARS
AKSHARAM G.R.S.S. ROAD, PADINJAKKARA, KOTTAKKAL POST,
TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676503
2 PRADEEP K.S., AGED 33 YEARS
S/O. LATE SURESH KUMAR K.P., SOUPARNIKA, BEHIND
MARIYAMMAN KOVIL, KAVIL PAD OLAVAKKOD, PALAKKAD POST,
PALAKKAD DISTRICT, PIN - 678002
3 VIJAYAKUMARI, AGED 56 YEARS
W/O. LATE SURESH KUMAR K.P., SOUPARNIKA, BEHIND
MARIYAMMAN KOVIL, KAVIL PAD OLAVAKKOD, PALAKKAD POST,
PALAKKAD DISTRICT, PIN - 678002
4 RANJITH K.S., AGED 36 YEARS
S/O. LATE SURESH KUMAR K.P., SOUPARNIKA, BEHIND
MARIYAMMAN KOVIL, KAVIL PAD OLAVAKKOD, PALAKKAD POST,
2
O.P.(F.C.)No.14 of 2024
PALAKKAD DISTRICT, PIN - 678002
BY ADVS.
SRI DEVAPRASANTH P.J
SMINI JOSE(K/262/2015)
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
3
O.P.(F.C.)No.14 of 2024
JUDGMENT
P.M.Manoj, J.
The above Original Petition is preferred being aggrieved by Ext.P6 order
passed by Family Court, Tirur, whereby the application filed by the petitioner
challenging the maintainability of O.P.No.650 of 2019 filed by the respondent was
rejected.
2. Short facts are as under:
The Original Petition before the Family Court was preferred by the 1st
respondent herein seeking recovery of gold retained in the bank locker at State
Bank of India, Olavakkode Branch. The 2nd respondent herein is the husband of
the 1st respondent and respondents 3 and 4 are mother-in-law and
brother-in-law of the 1st respondent respectively. The petitioner herein, a relative
of respondents 2 to 4, was arrayed as the 4th respondent.
3. The petitioner herein filed a written statement contending that he is
a total stranger and had no connection whatsoever with gold /money entrusted
with the 1st respondent. He followed it up by filing I.A No.6 of 2023 with a
prayer to consider the issue of maintainability as a preliminary issue. A detailed
objection was filed by the 1st respondent disputing the contentions. It was
contended therein that the petitioner was residing with the other respondents
and he was intimately connected with the transactions.
4. The learned Family Court, after considering the contentions
advanced in light of the law laid down by this Court in various judgments,
repelled his contentions. The above order is under challenge in this petition.
5. We have heard Sri. K.Rakesh, the learned counsel appearing for the
petitioner, and Sri.Devaparasanth, the learned counsel appearing for the 1st
respondent.
6. We have carefully considered the contentions advanced by the
counsel appearing for both sides and have perused the impugned order.
7. The Family Court, based on the materials produced before the Court,
came to the conclusion that the petitioner had received the summons in the
address shown in the petition. This clearly showed that he was residing in the
same house as that of the other respondents. There was a specific allegation in
the petition that the entrusted articles were being used and managed by the
petitioner. The petition was filed in the year 2019 and in the objection filed
before the Court initially, the petitioner had not disputed the jurisdiction of the
Family Court to entertain the petition. It was only when the case was taken up
for trial that the petitioner had come up with a challenge as to the maintainability
of the petition.
8. In the light of the above facts, it would be profitable to refer to the
statutory provisions. Section 7 of the Family Courts Act, 1984 which reads as
follows:
(a) 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
proceeding 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.
xxxxxxx xxxxxxx xxxxx xxxxxx
Explanation (c) provides that a suit or proceeding between the parties to a
marriage with respect to the property of the parties or of either of them can also
be entertained by the Family Court.
8. In Shyni1, this Court had occasion to interpret the provisions while
considering an identical issue. In paragraph No.5 of the judgment, it was
observed as under.
5. On the scheme of the Act and considering the conferment of
jurisdiction on the Family Court, it is clear that a suit or proceeding
between the parties to a marriage with respect to the property of the
parties or either of them comes within the purview of the Family Court.
When a wife sues her husband for recovery of her property or which she
claim to be her property, obviously the suit could be tried and disposed
of only by the Family Court and when in such a suit the wife is obliged to
add a close relative of the husband or even a stranger on the allegation
that the husband had made over the property to that close relative or
stranger, it will be too much to hold that the jurisdiction of the Family
Court is ousted to deal with the claim of the plaintiff in view of the mere
presence a the stranger or the close relative of the husband. In such a
situation, the close relative of the husband or the stranger could only be
the agent of the husband or a confidant of the husband holding the
Shyni v. George and Others (1997 KHC 289)
property claimed by the wife on behalf of the husband. It is not possible
to accept the argument that in such a circumstance also the wife would
be obliged to file the suit against the stranger in an ordinary Civil Court
even while she is forced to maintain her suit against the husband in the
Family Court. Would it make any difference if in a given case, the
property of the wife was entrusted not merely to the husband but also to
a close relative of the husband, in this case the father-in-law? I think
that it will be the very negation of the scheme of the Family Court Act
and the attempt made by that Act to constitute a Special Civil Court for
the purpose of dealing with all matrimonial disputes including dispute
about property to hold that the wife would not be entitled to maintain a
suit for recovery of her property against the father-in-law in the Family
Court. If it were merely a suit against the father-in-law it is quite clear
that the suit could be instituted only in the ordinary Civil Court. Equally,
if it is merely a suit against the husband for recovery of property, the
same could only be maintained in the Family Court. In a case where the
claims have to be combined or the same has to be made against both
the husband and the father-in-law as in the present case, could it be
said that the jurisdiction of the Family Court would Stand ousted? My
answer is an emphatic no. The suit will remain as a suit against the
spouse for recovery of the property of the wife. No doubt even at the
time of the marriage the property was handed over not only to the
husband but also to the father-in-law. But that would not make the suit
anything other than for recovery of the property of a party to the
marriage from the other party to the marriage and persons connected
with him or related to him. It is notorious that in our State, what is
called Streedhanam or what is understood as the share of the bribe in
the properties of her father is normally handed over at the time of the
marriage not to the husband but to the father-in-law who receives it on
behalf of the husband. It is really a case of the father-in-law acting for
and on behalf of the husband while he receives the property of the wife.
In the case of the streedhanam paid at the time of the marriage of a
Christian woman, this Court has held that the father-in-law would be
holding the property as a trustee for the bride. Taking in the sweep of
the Family Court Act and the objects sought to be achieved by the
Family Courts Act, I am of the view, that merely because a stranger is
also impleaded in the suit on the ground that the property of the wife or
a portion of it also been handed over to him the suit cannot be
entertained by the Family Court is not warranted. In any view, such a
construction of the statute to confine the jurisdiction of the Family Court
only to the other spouse and not to anyone else who acts either for that
spouse or under that spouse would tend to defeat the very object of the
enactment of the Act and the establishment of the Family Courts. One of
the important aims of the setting up of the Family Courts Act is to bring
about a reconciliation between the spouses if possible and to permit
them to separate with dignity only if all attempts at conciliation fail. Can
there not be a conciliation even in a case where the wife sues her
husband and her father-in-law for recovery of the property which she
claims to be hers? The answer can only be in the affirmative. There
cannot be any doubt that a special machinery has been constituted by
the Family Court Act for counselling and for bringing about a conciliation
between the spouses. Then, the Family Court Judge is charged with the
duty to attempt conciliation. Should the spouses be deprived of that
machinery specially provided by the Family Courts Act and not available
in that form in the ordinary Civil Court merely because one of them is
compelled to sue not only the other spouse but also a close relation of
that spouse or a confidant or assignee of that spouse? The answer can
only Be 'no' since an answer otherwise would mean that the very
scheme of the Act would stand defeated and the spouse who is sued can
always take up the stand that he had made over the property to a
stranger and when the suing spouse is compelled to implead that
person, the suit would be taken out of the purview of the Family Court. I
have therefore no hesitation in holding that so long as the suit is by one
spouse against the other the suit would be maintainable in the Family
Court even if for the purpose of seeking relief in respect of the cause of
action put forward in the suit, the suing spouse is forced to implead
persons other than the other spouse or including the close relatives of
the other spouse.
9. Further, a Division Bench of this Court in Vasumathi N. and
Another2 had occasion to observe that the jurisdiction of the Family Court to
decide a particular case has to be determined by not looking at the position of
Vasumathi N. and Another v. Valsan and Ors. [2011 (3) KHC 573]
the parties arrayed but based on the nature of dispute sought to be resolved. If
the actual dispute is between the parties to the marriage, the suit would be
treated as one between the parties in such a suit or proceeding. It was held
that if the real dispute raised in the matter is between parties to the marriage
concerning the property of one of them, the Family Court will have jurisdiction to
entertain the lis. It would be apposite to refer to paragraph No. 16 of the
judgment.
16. We shall initially consider the applicability of Explanation (c). Ext. P4
is not technically a suit or proceedings between the parties to the
marriage. The parties to the marriage are together on one side on the
party array whereas the second respondent is the party on the other
side. But, virtually, the dispute is between the parties to the marriage
and the dispute is with respect to the property standing in the name of
one of them. The jurisdiction under Explanation (c), according to us, is
not to be determined by looking at the position of the parties on the
array of parties. What has virtually got to be considered is the very
nature of the dispute which is sought to be resolved in such suit or
proceedings. So reckoned, we have no hesitation to agree that the
suit/proceedings is initiated virtually to resolve the disputes between the
petitioners on the one hand and respondent No.1 on the other, though
they together are arrayed as defendants in the suit filed by the second
respondent. In that view of the matter, we hold that the real dispute
raised in OS No. 173 of 2006 is between the parties to the marriage with
respect to the property of one of them. The mere fact that immediately
after the commencement of the dispute, before the institution of the
suit, there has been a transfer of property by the first respondent in the
name of respondent No.2 under Ext. P2 sale deed and that the second
respondent as a mercenary of the Ist respondent has initiated the
proceedings does not militate against the real nature of the dispute
between the parties. The dispute raised in both the suit and the O.P. are
hence disputes (suit/proceedings) falling under Explanation (c) to S.7(1)
and consequently within the exclusive jurisdiction of the Family Court.
10. As held by this Court, when a wife sues her husband for recovery of
her property or which she claim to be her property, obviously the suit could be
tried and disposed of only by the Family Court and when in such a suit the wife is
obliged to add a close relative of the husband or even a stranger on the
allegation that the husband had made over the property to that close relative or
stranger, it will be too much to hold that the jurisdiction of the Family Court is
ousted to deal with the claim of the plaintiff in view of the mere presence a the
stranger or the close relative of the husband. In such a situation, the close
relative of the husband or the stranger could only be the agent of the husband or
a confidant of the husband holding the property claimed by the wife on behalf of
the husband. It is not possible to accept the argument that in such a
circumstance also the wife would be obliged to file the suit against the stranger
in an ordinary Civil Court even while she is forced to maintain her suit against the
husband in the Family Court. In that view of the matter, the Family Court was
well justified in holding that the said court would have jurisdiction to entertain
the dispute.
11. The scope of interference under Article 227 of the Constitution of
India is limited to the extent focused on ensuring that the trial courts or Tribunals
function within the limits of their authority. The Court is not obligated to act as
an appellate court and re-evaluate the arguments presented. Interference can
only be made in cases where there is a jurisdictional error, procedural
impropriety, or perversity in the order. The purpose of exercising jurisdiction
under Article 227 is to keep the trial courts within the bounds of their authority
and not to correct factual errors and law. In the case on hand, we find no
jurisdictional error, impropriety, or perversity in the order passed by the Family
Court.
This petition is dismissed. sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
sd/-
P.M.MANOJ
JUDGE
das
APPENDIX OF OP (FC) 14/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF O.P.NO.650/2019 FILED BY THE
1ST RESPONDENT ON 25-09-2019 BEFORE FAMILY
COURT, TIRUR
Exhibit P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE PETITIONER IN O.P.NO.650/2019 IN THE
MONTH OF JULY, 2023 BEFORE THE FAMILY COURT,
TIRUR
Exhibit P3 A TRUE COPY OF THE ADDITIONAL WRITTEN
STATEMENT FILED BY THE PETITIONER IN THE
MONTH OF NOVEMBER, 2023 IN O.P.NO.650/2019
BEFORE THE FAMILY COURT, TIRUR
Exhibit P4 TRUE COPY OF I.A.NO.6/2023 IN O.P.NO.650/2019
FILED BY THE PETITIONER IN THE MONTH OF
NOVEMBER, 2023
Exhibit P5 A TRUE COPY OF THE OBJECTION DATED 1-12-2023
FILED BY THE 1ST RESPONDENT TO I.A.NO.06/2023
IN O.P.NO.650/2019 BEFORE THE FAMILY COURT,
TIRUR
Exhibit P6 A TRUE COPY OF ORDER DATED 06-12-2023 IN
I.A.NO.6/2023 IN O.P.NO.650/2019 PASSED BY
THE FAMILY COURT, TIRUR
