Kerala High Court

Krishna Kumar C vs Aswathy Venugopal on 3 September, 2024

Author: Devan Ramachandran

Bench: Devan Ramachandran

                                                  2024:KER:67015

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
                                &
         THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
 TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
                     OP (FC) NO. 473 OF 2024
   AGAINST THE ORDER DATED 01.06.2024 IN I.A.NO.4/2024 IN
O.P.NO.1043/2023 AND I.A.NO.5/2024 IN O.P.NO.1049/2024 OF THE
               FAMILY COURT, THIRUVANANTHAPURAM

PETITIONER:

          KRISHNA KUMAR C, AGED 54 YEARS
          S/O CHANDRASHEKHARAN PILLAI,
          NO 57 FE LAKESHORE HOUSE, KASAVANAHALLI,
          BANGLORE- 560035, PIN - 560035

          BY ADVS.
          K.B.PRADEEP
          HARISANKAR R


RESPONDENTS:

    1     ANIRUDH.K. NAIR, AGED 22 YEARS
          APARTMENT NO C2, SOBHA DAHLIA,
          VARTHUR HOBLY BELLANDUR,
          BANGALORE SOUTH, PIN - 560103

    2     BHARATH K.NAIR,(MINOR), AGED 16 YEARS
          S/O KRISHNA KUMAR C APARTMENT NO C2,
          SOBHA DAHLIA, VARTHUR HOBLY BELLANDUR,
          BANGALORE SOUTH ,REPRESENTED BY HIS MOTHER
          ASWATHY VENUGOPAL, AGED 46, D/O OF GIRIJA DEVI,
          RESIDING AT, VISHAL, TC NO /826/1 , VJ LANE ,
          VELLAYAMBALAM, THIRUVANANTHAPURAM PERMANENTLY
          RESIDING AT - C2- 1042, 4 TH FLOOR, SOBHA DAHLIA,
          GREEN GLEN LAYOUT, BELLANDUR, BANGALORE.,
          PIN - 560103

          BY ADVS.
                                               2024:KER:67015
OP(FC) 473/24 & 474/24

                               2

           MARTIN JOSE P
           P.PRIJITH(K/233/2005)
           THOMAS P.KURUVILLA(K/420-B/2005)
           R.GITHESH(K/630/2002)
           AJAY BEN JOSE(K/729/2012)
           HARIKRISHNAN S.(K/497/2019)
           MANJUNATH MENON(K/000474/2015)
           SACHIN JACOB AMBAT(K/734/2016)
           ANNA LINDA EDEN(K/1201/2020)
           S.SREEKUMAR (SR.)(S-571)


      THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
03.09.2024, ALONG WITH OP (FC)NO.474/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
                                                     2024:KER:67015
OP(FC) 473/24 & 474/24

                                    3


            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
                                    &
          THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
  TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
                         OP (FC) NO. 474 OF 2024
    AGAINST THE ORDER DATED 01.06.2024 IN I.A.NO.4/2024 IN
O.P.NO.1043/2023 AND I.A.NO.5/2024 IN O.P.NO.1049/2024 OF THE
                 FAMILY COURT, THIRUVANANTHAPURAM

PETITIONER:

           KRISHNA KUMAR C, AGED 54 YEARS
           S/O CHANDRASHEKHARAN PILLAI, NO. 57,
           FE LAKESHORE HOUSE, KASAVANAHALLI,
           BANGALORE., PIN - 560035

           BY ADVS.
           K.B.PRADEEP
           HARISANKAR R


RESPONDENT:

           ASWATHY VENUGOPAL, AGED 46 YEARS
           APARTMENT NO C2, SOBHA DAHLIA, VARTHUR
           HOBLY BANGALORE SOUTH NOW RESIDING AT
           C2- 1042, 4 TH FLOOR, SOBHA DAHLIA,
           GREEN GLEN LAYOUT, BELLANDUR, BANGALORE,
           PIN - 560103

           BY ADVS.
           MARTIN JOSE P
           P.PRIJITH(K/233/2005)
           THOMAS P.KURUVILLA(K/420-B/2005)
           R.GITHESH(K/630/2002)
           AJAY BEN JOSE(K/729/2012)
                                               2024:KER:67015
OP(FC) 473/24 & 474/24

                               4

           HARIKRISHNAN S.(K/497/2019)
           MANJUNATH MENON(K/000474/2015)
           SACHIN JACOB AMBAT(K/734/2016)
           ANNA LINDA EDEN(K/1201/2020)
           S.SREEKUMAR (SR.)(S-571)


      THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
03.09.2024, ALONG WITH OP (FC)NO.473/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
                                                                        2024:KER:67015
OP(FC) 473/24 & 474/24

                                             5


                                   JUDGMENT

[OP (FC) Nos.473/2024 & 474/2024]

Devan Ramachandran, J.

We are disposing of these matters together because the parties are

part of the same family, though the afore Original Petitions seek

different reliefs.

2. In both the Original Petitions before the learned Family

Court, Thiruvananthapuram, the petitioner is the respondent; while, one

among them has been filed by his wife, and the other by his children.

3. We do not propose to enter into the details of the facts

because, the sole and pointed controversy between the parties at this

stage is whether the Original Petitions are maintainable before the

learned Family Court, Thiruvananthapuram.

4. The specific case of the petitioner is that his wife and

children are residing at Bangalore; while, the latter impels the

contention that the entire cause of action arose within

Thiruvananthapuram, particularly because the wife is permanently

residing there.

2024:KER:67015 OP(FC) 473/24 & 474/24

5. Sri.K.B.Pradeep - learned counsel for the petitioner in both

these matters, argued that it was unfair on the part of the learned Trial

Court to have dismissed his client's applications, without considering

whether the factual and legal matrix would justify the prayers therein.

He argued that hence, even if the learned Court was not inclined to

consider the applications at that stage, it ought to have deferred the

question of maintainability, to be decided it in the Original Petition

itself. He therefore, prayed that, in such perspective, the impugned

orders in these Original Petitions be set aside.

6. Sri.Harikrishnan S. - learned counsel for the respondents,

however, submitted that the afore arguments of the petitioner are

untenable because, he has himself invoked the jurisdiction of the

learned Family Court, Thiruvananthapuram, in an Original Petition filed

under the Guardians and Wards Act. He added that, in any event, as

has also been correctly found in the impugned orders, the issue of

maintainability is one which is edificed on mixed questions of facts and

law and can only be decided, framing an issue, during the trial of the

Original Petition. He, therefore, left it to this Court to issue appropriate 2024:KER:67015 OP(FC) 473/24 & 474/24

orders in such regard.

7. As we have already said above, the limited controversy

between the parties is only as to the maintainability of the Original

Petitions. Even going by the afore narrative of the rival contentions and

facts projected, it is indubitable that no affirmative decision can be

taken on this issue, unless evidence is taken, after raising it as an issue,

during trial. Since both sides agree to this course and since we find no

reason why we should not direct the learned Family Court to do so, we

are certain that these Original Petitions ought to be allowed to such

extent.

8. That being said, we notice from the impugned orders that

the afore liberty is virtually reserved to the parties; but without saying

so in explicit terms. The intent of the learned Trial Court is clear that

the issue of maintainability will be decided, after framing it as an issue,

at the time of trial.

In the afore circumstances, we dispose of these Original Petitions,

without intervening with the impugned orders; however, clarifying that

the learned Trial Court will raise an issue relating to maintainability, 2024:KER:67015 OP(FC) 473/24 & 474/24

depending upon the manner in which it is impelled before it in the

pleadings of the parties; and then proceed to dispose of the Original

Petitions, after affording necessary opportunity to both sides.

Needless to say, the opinion of the learned Family Court in the

orders impugned herein will not fetter or influence it when the matters

are finally disposed of, but will be governed by the facts established and

evidence adduced during trial.

Sd/-

DEVAN RAMACHANDRAN JUDGE

Sd/-

M.B. SNEHALATHA JUDGE

RR 2024:KER:67015 OP(FC) 473/24 & 474/24

APPENDIX OF OP (FC) 474/2024

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ORIGINAL PETITION NO.1043/2023 DATED 13-05-2023 IN FILE OF FAMILY COURT THIRUVANANTHAPURAM

Exhibit P2 TRUE COPY OF THE OBJECTIONS DATED 16-12- 2023 IN ORIGINAL PETITION NO.1043/2023 DATED 13-05-2023 IN FILE OF FAMILY COURT THIRUVANANTHAPURAM

Exhibit P3 TRUE COPY OF AN APPLICATION DT 22/2/2024 FOR CONSIDERING MAINTAINABILITY AS A PRELIMINARY ISSUE, FILED BY THE PETITIONER AS I.A NO. 4/2024,

Exhibit P4 TRUE COPY OF THE OBJECTION DATED 28-2- 2024 TO EXHIBIT P-3

Exhibit P5 TRUE COPY OF THE ORIGINAL PETITION NO.1049/2023 DATED 12-05-2023 BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM.

Exhibit P6 TRUE COPY OF OBJECTION DATED 4-12-2023 FILED AGAINST EXHIBIT-P5

Exhibit P7 TRUE COPY OF THE AN APPLICATION AS I.A NO. 5/24 IN ORIGINAL PETITION NO.1049/2023 BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM

Exhibit P8 TRUE COPY OF THE OBJECTION DATED 28-02- 2024.

Exhibit P9 TRUE COPY OF THE COMMON ORDI.A NO. 4/2024 IN OP NO. 1043/2023 AND I.A 5/2024 IN O.P 1049/2023 ON THE FILE OF THE FAMILY COURT, THIRUVANANTHAPURAM DATED 1-06- 2024,IN 2024:KER:67015 OP(FC) 473/24 & 474/24

APPENDIX OF OP (FC) 473/2024

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE ORIGINAL PETITION NO.1043/2023 DATED 12-05-2023 IN FILE OF FAMILY COURT THIRUVANANTHAPURAM

Exhibit P2 TRUE COPY OF THE OBJECTIONS DATED 18-12- 2023 IN ORIGINAL PETITION NO.1043/2023 IN FILE OF FAMILY COURT THIRUVANANTHAPURAM

Exhibit P3 TRUE COPY OF AN APPLICATION DT 22/2/2024 FOR CONSIDERING MAINTAINABILITY AS A PRELIMINARY ISSUE, FILED BY THE

Exhibit P4 TRUE COPY OF THE OBJECTION DATED 28-2- 2024 TO EXHIBIT P-3

Exhibit P5 TRUE COPY OF THE O.P NO. 1049\2023, DT.

12-05-2023 SEEKING MAINTENANCE, BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM,

Exhibit P6 TRUE COPY OF THE OBJECTION DT. 4-12-2023 TO EXHIBIT- P5.

Exhibit P7 TRUE COPY OF THE APPLICATION AS I.A NO.

Exhibit P8 TRUE COPY OF THE OBJECTION DATED 28/02/2024 IN O.P NO. 1049\2023

Exhibit P9 TRUE COPY THE COMMON ORDER DATED 1-06- 2024,IN I.A NO. 4/2024 IN OP NO.