Kerala High Court
Sindhu vs Latha on 25 September, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
O.P(FC) No.596 of 2024 1
2024:KER:71449
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024/3RD ASWINA, 1946
OP (FC) NO.596 OF 2024
AGAINST THE ORDER DATED 20.01.2024 IN I.A.NO.2 OF 2024 IN
OP NO.442 OF 2023 OF FAMILY COURT, NEDUMANGAD
PETITIONER/COUNTER PETITIONER/RESPONDENT:
SINDHU, AGED 53 YEARS, D/O OMANAKUNJAMMA,
RESIDING AT SINDHU VIHAR, KOCHOLLOOR, MEDICAL
COLLEGE PO, THIRUVANANTHAPURAM, PIN - 695011
BY ADVS.
R.SUNIL KUMAR
A.SALINI LAL
J.M.DEEPAK
JINU P. BINU
RESPONDENT/PETITIONER/PETITIONER:
LATHA, AGED 50, W/O VINODKUMAR, RESIDING AT
KIDANGIL VEEDU, VENCODE, KARAKULAM VILLAGE, NOW
RESIDING AT VISAKHAM, MARIYA NAGAR, CHENTHAPPOOR,
VENCODE P.O VATTAPPARA, THIRUVANANTHAPURAM, PIN -
695028
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON
25.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P(FC) No.596 of 2024 2
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JUDGMENT
Devan Ramachandran, J.
The petitioner challenges the order of the learned
Family Court, Nedumangad, in I.A.No.2 of 2024 in O.P.No.442 of
2023.
2. Interestingly, it is conceded that the Original Petition
was filed by the respondent herein, claiming to be the wife of
now deceased Sri.Vinod Kumar - who is the brother of the
petitioner. The disputes between the parties are in respect to
property or money; and it is the specific case of the respondent
herein that she is the legally wedded wife of Sri.Vinod Kumar.
3. That said, in her pleadings, the respondent asserted
that she married Sri.Vinod Kumar under the Special Marriage
Act; but then moved the afore mentioned I.A., seeking an
amendment under the provisions of Order VI Rule 17 of the
Code of Civil Procedure, to incorporate in an additional factual
assertion, namely, that she had, in fact, married Sri.Vinod
Kumar earlier, under the Hindu Marriage Act, on 03.08.2008.
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This application was contested by the petitioner herein,
contending that it would change the nature of the Original
Petition; but this has been found against her, by the learned
Family Court.
4. It is in such circumstances, that the petitioner has
approached this Court through this Original Petition.
5. We have examined Ext.P5 - which is the order
impugned, and we notice that the learned Judge has only
allowed the amendment, so as to enable the petitioner to
incorporate an additional factual assertion that she married
Sri.Vinod Kumar on 03.08.2008; but without, in any manner,
deciding the validity or rectitude of the said statement. When
both sides are admitted to be Hindus, one fails to understand
what prejudice would be caused to the petitioner, even if the
amendment is allowed because, either way - whether the
alleged marriage is under the Hindu Marriage Act or the Special
Marriage Act - the wife has rights of inheritance over the
husband's property.
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6. In fact, we notice that the attempt of the petitioner is
to raise an abstract question of law, which is evident from
ground No.E, arguing that, had one of the parties been not a
Hindu, then the situation would have been different. We are sure
that this argument is unnecessary and futile in the
circumstances presented before us because, Courts are only
expected to decide disputes on facts, which are then fortified or
substantiated by precedents and law, and not otherwise.
7. Therefore, it is without doubt that we are not
enjoined to answer a question hypothetically raised; nor is a
Family Court obligated to decide any such.
8. As matters now stand, when it is expressly conceded
by even Sri.R.Sunil Kumar - learned Counsel for the petitioner,
that both the parties are Hindus, we fail to understand why the
amendment should be opposed by his client.
9. This is more so when, even when the amendment is
allowed, as has been ordered by the learned Family Court, the
burden of proving the additional facts is certainly on the person
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seeking such; and this would depend upon the evidence and the
materials to be produced in evidence during trial.
We, therefore, close this Original Petition without any
orders; however, leaving every other liberty open to the
petitioner, including to file additional counter affidavit, as
available in law.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
Sd/-
M.B.SNEHALATHA
JUDGE
sp/24/09/2024
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APPENDIX OF OP (FC) 596/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PETITION IN OP: NUMBER
442/23 PENDING BEFORE THE HONOURABLE
FAMILY COURT NEDUMANGAD DATED 24/4/2023
Exhibit P2 TRUE COPY OF THE OBJECTION SUBMITTED BY
THE PETITIONER HEREIN IN OP 442/23
PENDING BEFORE THE HONOURABLE FAMILY
COURT NEDUMANGAD DATED 203/2024
DATED 4/5/2024 BEFORE THE HONOURABLE
FAMILY COURT NEDUMANGAD
Exhibit P4 TRUE COPY OF THE OBJECTION SUBMITTED BY
THE RESPONDENT IN IA 2/2024 IN OP
442/23 DATED 29/5/2024 BEFORE THE
HONOURABLE FAMILY COURT NEDUMANGAD
Exhibit P5 TRUE COPY OF THE ORDER IN IA NUMBER
2/24 IN OP NUMBER 442/2023 PASSED BY
THE THE HONOURABLE FAMILY COURT
NEDUMANGAD DATED 20/1/2024
