Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 31ST DAY OF OCTOBER 2023 / 9TH KARTHIKA, 1945 OP (FC) NO. 587 OF 2021 AGAINST THE ORDER DATED 04.01.2021 IN IA NO.876/2019 IN OP 39/2019 OF FAMILY COURT, KATTAPPANA PETITIONERS/PETITIONERS:
1 VELUTHAI, AGED 62 YEARS, W/O.LATE T.K.THANKAPPAN, PADINJARETHIL HOUSE, ALADY 2 MURUGAN, AGED 45 YEARS, S/O.LATE T.K.THANKAPPAN, PADINJARETHIL HOUSE, ALADY 3 SINDHU, AGED 42 YEARS, D/O.LATE T.K.THANKAPPAN, PADINJARETHIL HOUSE, ALADY 4 BALAYYAN, AGED 40 YEARS, S/O.LATE T.K.THANKAPPAN, PADINJARETHIL HOUSE, ALADY BY ADV BIJU .C. ABRAHAM
RESPONDENTS/RESPONDENTS: 1 MARY, AGED 57 YEARS, W/O.LATE P.V.KUNJUMON, PEEDIKAYIL, K, CHAPPATHU KARA, AYYAPPANCOIL VILLAGE, IDUKKI TALUK-685507. 2 MINI, AGED 42 YEARS, D/O.LATE P.V.KUNJUMON, PEEDIKAYIL, K.CHAPPATHU KARA, AYYAPPANCOIL VILLAGE, IDUKKI TALUK-685507. THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 31.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMIT RAWAL & C.S.SUDHA, JJ. ------------------------------------------------------- O.P.(FC)No.587 of 2021 ---------------------------------------------------- Dated this the 31st day of October, 2023
JUDGMENT
Amit Rawal, J.
1. Present O.P. is directed against the order dated 04/01/2021 in
I.A.No.876/2019 and dated 29.05.2019 in I.A.No.108/2019 in O.P.No.39/2019 filed by the petitioners challenging the settlement deed executed in favour of the respondents, whereby both applications have been dismissed and the O.P. was held to be not maintainable. The facts in brief are as under: Petitioners are the successors-in-interest of late Mr.Thankappan who died on 03.10.2007. Respondent No.1 executed a settlement deed bearing No.3427 of 2013 dated 26.09.2013 of SRO, Kattappana in favour of the 2nd respondent, Mini - her daughter, on the ground that during the life time of Thankappan, she had acquired the ownership on the basis of a settlement deed No.340/2007 of SRO, Kattappana, alleged to have been executed by Thankappan. Petitioners challenge both these documents on the ground that the signature of Thankappan on the settlement deed of 2007 was fabricated one. Therefore, respondent No.1 could not have executed settlement deed in 2013 in favour of respondent No.2, which was also challenged by the petitioners by invoking the jurisdiction of the Munsiff Court, through O.S.No.95/2018. In the aforementioned suit, the defendants submitted an application I.A.No.1491 of 2018 raising an objection with regard to the maintainability of the suit in view of the provisions of Section 7 of the Family Courts Act, 1984. The trial court framed the issues and decided the same against the petitioners vide order dated 19.12.2018. Accordingly, jurisdiction of the Family Court as per Section 7(1)(d) of the Family Courts Act, 1984 was invoked by preferring O.P.No.39 of 2019. In the aforementioned petition, respondents preferred I.A.No.108 of 2019 by
raising the same issue of jurisdiction. The Family Court vide impugned order
dated 29.05.2019 rejected the O.P. as not maintainable. I.A.876/2019 filed by the petitioners on maintainability of the O.P. was also dismissed vide
order dated 4.1.2021.
2. Learned counsel appearing on behalf of the petitioners submitted
that respondents have been playing hide and seek in the court with the intention to reject the claim of the petitioners, for, once Munsiff Court had, on the basis of the objection raised by them, found that the aforementioned I.A. could not have been filed in the O.P. by invoking jurisdiction of the Family Court. Even otherwise on a simple reading of the provisions of Section 7, it can be understood that the marital status has to be decided by a Family Court and not by the Civil Court. The Munsiff Court could not have dismissed the matter summarily.
3. This court on 04/12/2021 issued notice. As per the office report
notice sent to respondent No.1 has been refused by the addressee and service on respondent No.2 has been effected, but there is no appearance. We accordingly proceeded to decide this matter on merits.
4. We have heard the learned counsel for the parties and appraised the paper book.
5. It is a classic case where the affected party is made to run from
pillar to post and rather has been made a rolling stone, as, on the objection of the respondents, have been denied the right to seek vindication by invoking jurisdiction of Munsiff court which found that it did not have the jurisdiction and when the jurisdiction of the competent court as per the order of the Munsiff court was invoked, the said court has also ousted by accepting the objection of the respondents.
6. We are shocked that the Family Court without referring to the
provisions of Section 7 and the Explanation tagged thereto, has returned the O.P. where the prayer was for status quo in the I.A. Section 7 with its Explanation reads as under - “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.”
7. The expression 'marital status' has to be with regard to the
relationship of respondent No.1 who allegedly claim to be the wife of late Thankappan as, during his life time, vide settlement deed had conferred the ownership upon first respondent and on the basis of the same, in 2013 was conferred upon the second respondent. The Family Court would have the jurisdiction to decide the marital status and thus would assume the role of a civil court by giving chance to participate in evidence in support of their respective pleadings. The orders impugned, to the extent the OP is declared as not maintainable, are wholly unjust, unsustainable and arbitrary and hence set aside. Accordingly, O.P.(FC) is allowed and O.P. is ordered to be restored to the Family Court. The trial of the O.P. shall commence in accordance with law, as expeditiously as possible. Sd/- AMIT RAWAL JUDGE Sd/- C.S.SUDHA JUDGE ak APPENDIX OF OP (FC) 587/2021 PETITIONERS' EXHIBITS:- Exhibit P1 TRUE COPY OF THE PLAINT DATED 22.03.2018 IN O.S.NO.95/2018 SUBMITTED BY THE PETITIONERS BEFORE THE HON'BLE MUNSIFF COURT, KATTAPPANA. Exhibit P2 TRUE COPY OF THE ORDER DATED 19.12.2018 PASSED BY THE MUNSIFF COURT, KATTAPPANA IN I.A.NO.1491/2018 IN O.S.NO.95/2018. Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 19.12.2018 PASSED BY THE MUNSIFF COURT, KATTAPPANA IN O.S.NO.95/2018. Exhibit P4 TRUE COPY OF THE ORDER DATED 29.05.2019 PASSED BY THE FAMILY COURT, KATTAPPANA IN I.A.NO.108/2019 IN O.P.NO.39/2019. Exhibit P5 TRUE COPY OF THE ORDER DATED 04.01.2021 IN I.A.NO.876/2019 IN O.P.NO.39/2019 ON THE FILES OF THE FAMILY COURT, KATTAPPANA.