Ariya E.S. v. Pratheesh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 10TH DAY OF FEBRUARY 2017/21ST MAGHA, 1938** **OP (FC).No. 85 of 2017 (R) --------------------------AGAINST THE ORDER IN OP.NO.380/2016 OF FAMILY COURT, MUVATTUPUZHA** **PETITIONER:** ## **-----------** **ARIYA E.S, AGED 29 YEARS, D/O SASIDHARAN, ELAVUMKUNNUMPURATHU,VAZHAKKULAM PO, KAVANA, MUVATTUPUZHA -686670.** **BY ADV. SRI.C.N.SAMEER** **RESPONDENT:** **-----------** **PRATHEESH** **AGED 39 YEARS, S/O KUNJAPPAN, MEEMBANIKKATTU HOUSE, VAZHAKKULAM PO, KAVANA, MUVATTUPUZHA.686670.** **THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 10-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (FC).No. 85 of 2017 (R) ---------------------------** ## **APPENDIX** **PETITIONER'S EXHIBITS:** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND RESPONDENT DATED 30.4.2009.** **EXHIBIT P2 TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE RESPONDENT DATED 13.6.2016.** **EXHIBIT P2(A) TRUE COPY OF THE ACKNOWLEDGEMENT CARD SIGNED BY THE RESPONDENT DATED 14.6.2016.** **EXHIBIT P3 TRUE COPY OF THE REQUEST SENT BY THE PETITIONER TO THE SUB REGISTRAR KARIKODU, DATED 22.6.2015.** **EXHIBIT P4 TRUE COPY OF THE REPLY SENT BY THE SUB REGISTRAR, KARIKODU SUB REGISTRY TO THE PETITIONER DATED 11.7.2016.** **EXHIBIT P5 TRUE COPY OF THE O.P NO.380/2016 FILED BY THE RESPONDENT AGAINST THE PETITIONER BEFORE THE FAMILY COURT, MUVATTUPUZHA, DATED 1.7.2001** **EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN OP. NO.380/2016 BEFORE THE FAMILY COURT, MUVATTUPUZHA DATED 16.8.2016.** **EXHIBIT P7 TRUE COPY OF THE I.A NO.961/2016 IN O.P NO.380/2016 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, MUVATTUPUZHA DATED 17.8.2016.** **EXHIBIT P8 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A NO.961/2016 IN O.P NO.380/2016 BEFORE THE FAMILY COURT, MUVATTUPUZHA DATED 3.11.2016.** **EXHIBIT P9 TRUE COPY OF THE ORDER IN I.A NO.961/2016 IN OP. NO.380/2016 PASSED BY THE FAMILY COURT, MUVATTUPUZHA DATED 12.1.2017.** **RESPONDENT'S EXHIBITS: NIL -----------------------** **/TRUE COPY/** **P.S TO JUDGEMENT** **cl** ## **A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ.** ....................................... O.P.(FC).No.85 of 2017 ........................................ Dated this the 10[th] day of February, 2017. ## **JUDGMENT** ## **K. Ramakrishnan, J:** In the nature of the order we intend to pass, no notice need be issued to the respondent in this case. 2. This original petition has been filed by the petitioner challenging Ext.P9 order and also for quashing the proceedings pending before the Court below in OP.No.380/2016 of the Family Court, Muvattupuzha under Article 227 of the Constitution of India. 3. It is alleged in the petition that the respondent herein filed Ext.P5 petition as OP.No.380/2016 for restitution of conjugal rights under Section 9 of the Hindu Marriage Act (hereinafter referred to as 'the Act') on the basis of Ext.P1 agreement said to have been entered into between the parties. It is also alleged in the petition that there was a customary marriage solemnized from a Siva temple and the petitioner is not coming and joining with the respondent and that prompted the respondent to file an application for restitution of conjugal rights. The petitioner herein is the respondent in the main case, entered appearance and filed Ext.P6 objection stating that there was no marriage solemnised between the parties as alleged and as such, there is no valid marriage and so the application under section 9 of the Hindu Marriage Act is not maintainable and even denied the execution 2 O.P.(FC).No.85 of 2017 of Ext.P1 agreement. According to the respondent, he had not cohabitated with the petitioner in the Court below and it is only to harass him that such an application has been filed. When the case was posted for counseling, the respondent herein filed Ext.P7 application as IA.No.961/2016 to exempt him from appearance. The respondent herein filed Ext.P8 objection to the same. The Court below by Ext.P9 order dismissed the application seeking exemption of the petitioner from his appearance for counselling and directed the petitioner to appear for counseling relying on the decision reported in Blessy Varghese, Edattukaran v. Sonu, [OP (FC).No. 174/2015]. This is under challenge. Along with that, the petitioner is also challenging the maintainability of the petition itself before the Court below. 4. Heard Sri.C.N. Sameer, the learned counsel appearing for the petitioner. 5. The learned counsel appearing for the petitioner submitted that since he had raised objection regarding the maintainability of the petition itself, denying the existence of marriage, the Court below should not have entertained the application itself without considering the question of maintainability as a preliminary issue. Further, the respondent herein, who is the petitioner before the Court below, had not produced any prima facie evidence or material to show that there was a valid marriage between them. 3 O.P.(FC).No.85 of 2017 So under such circumstances, the remedy of the petitioner before the Court below is to file a regular suit for declaration of marital status between the parties and without getting the marriage declared as claimed by her, she is not entitled to maintain an application for restitution of conjugal rights. He had relied on the decision reported in _**Santosh Kumar Pandey v. Smt. Ananya Pandey**_ (AIR 2013 Chhattisgarh 95) and _**Raj Amarsingh Gulale (Singhania) v. Mansi Raj Gulale (Singhania)**_ (2015 (3) DMC 174 (DB)(Bom.) in support of his case. 6. It is true that in order to attract Section 9 of the Act, there is prima facie material to show that there was valid marriage between the parties and the husband is not discharging his duty as husband and co-habiting with the wife, in such circumstances, the wife can file an application for restitution of conjugal rights to compel the husband to join the wife. When the petitioner filed objection denying the marriage and also existence of marital relationship of the respondent with him and questioned the maintainability of the petition, then the Court below is expected to raise a preliminary issue on that aspect and before considering the issue on that aspect, the Court below is not expected to proceed with the case. ## 7. In the decision reported in _**Santosh Kumar Pandey's**_ case (supra), the Chhattisgarh Court has considered this aspect as 4 O.P.(FC).No.85 of 2017 ## follows: _“A bare perusal of section 7 of the Act, 1984 would go to show that it deals with the jurisdiction of Family Court. So fr as Explanation (b) is concerned, the case falling in clause (b) has to be tried by the Family Court. In other words, as and when the issue relating to status of any person whether he is the husband of any lady or whether she is the wife of any person or whether the marriage between any male or female is lawful or not, has to be tried by Family Court_ . _“A bare perusal of Section 9 of the Act, 1955 would go to show that in order to make an application under Section 9 ibid for seeking a decree for restitution of conjugal rights, the plaintiff must be either husband or wife, as the case may be, as an admitted fact. In other words, the sine qua non for maintaining an application under Section 9 ibid is the existence of relationship of husband and wife as an admitted fact between the parties. It is only when the parties do not dispute their very existence of marriage between them and when the relationship of husband and wife inter se is not disputed by both, he/she becomes entitled to file an application under Section 9 ibid against each other seeking decree for restitution of conjugal rights. In such proceedings,_ _the Court cannot decide the issue relating to the very existence of the marriage inter se parties,but the Court has to decide that one party has withdrawn from the society for the other without any reasonable cause. In our considered opinion, therefore, in a case where the very existence of_ 5 O.P.(FC).No.85 of 2017 _marriage between the parties is in issue, the same falls outside the purview of Section 9 ibid for its decision.._ _12. In such case, therefore, in our opinion, the remedy of the appellant would lie in filing a suit for declaration in the first instance that he is a legally married husband of the respondent on the basis of the marriage, which he claims to have performed on a particular date as required by the Act. This he could do by taking recourse to the provisions of Section 7(1) Explanation (b) of the Act, 1984, quoted above, before the Family Judge. It is only after declaration is granted in plaintiff's favour; the parties would be then entitled to make an application under Section 9 of the Act, 1955 for seeking restitution of conjugal rights against each other as husband and wife. However, in this case, this stage did not arise because the marital status between the parties itself was in dispute”._ ## 8. The same view has been reiterated by the Bombay High Court in _**Raj Amarsingh's case**_ (supra) also which reads as follows: _“10. Thus, except the bare statement of the appellant that he and the respondent were married on 17[th] August, 2009 no details of the marriage are given. No documentary evidence such as invitation card of the marriage, photographs of marriage have been filed by the appellant. It was necessary to file such documents because the appellant knew even prior to filing his petition before the Family Court that the stand of the respondent was no_ 6 O.P.(FC).No.85 of 2017 _marriage even took pace. This is clear from the reply that the respondent sent in answer to his notice to resume cohabitation. In such case the onus of establishing that there was a valid marriage between the parties squarely rests upon the appellant and the respondent is not supposed to prove that no marriage took place between the parties and there was no matrimonial relationship between the parties. In this connection, we would like to refer to the decision of the Supreme Court in Pallavi Bhardwaj v.Pratap Chauhan, reported in II (2011) DMC 763 (SC)= V(2011) SLT 704= 2011 (15) SCC 531. In the said case it was observed by the Supreme Court that there is no document about the marriage nor is there any acceptable material relating to marriage. Observing, thus, the Supreme Court restored the judgment of the Family Court which had held that as there was no marriage there is no question of restitution of conjugal rights. In the present case no document is filed as prima facie proof of the marriage. It was thus urged by the learned Counsel for the respondent that the Family Court was right in holding that the petition does not disclose the cause of action and, therefore, it should be dismissed at the threshold._ _11. The appellant has merely relied upon the copy of the notice issued by him to the respondent to resume cohabitation. To the said notice the respondent replied that no marriage had ever taken place and hence there is no question of her resuming the company of the petitioner. Thereafter, reliance was placed by the appellant upon an_ 7 O.P.(FC).No.85 of 2017 _application under the Right to Information Act asking for mobile phone call details about calls allegedly made by the respondent and the appellant to each other. Even if call details show that they had made calls to each other, these call details would not show that any marriage even took place between the parties. It is true that details of marriage ceremonies is matter of evidence but at the same time petition should prima facie disclose that some form of marriage took place between the parties and there should be some prima facie evidence of marriage in the form of marriage like marriage invitation card, photographs of marriage, certificate of marriage or details as to which persons were present in the marriage or details in relation to marriage ceremonies. Annexing such documents to the petition was necessary in this case because the respondent had in reply to the notice of the appellant to resume his company specifically denied that any marriage have ever taken place. As observed earlier, all these details are conspicuously lacking in the petition filed by the appellant.”_ ## 9. Further in the decision reported in _**Susmitha Mohan v.**_ _**Rajesh**_ (2005 (3) KLT 88), this Court has held that once an objection has been raised regarding the maintainability of the petition before the Court as a preliminary issue, then the Court is bound to decide the same and cannot adjourn it to explore the possibility of settlement and insist for counselling before deciding the issue. 8 O.P.(FC).No.85 of 2017 10. So these decisions will go to show that unless the Court is satisfied that there is prima facie material to proceed with the case and that Court has got jurisdiction to entertain the issue, the Court cannot compel the parties to appear for counselling and settlement. So under such circumstances, the order passed by the Court below directing the petitioner to appear before the Court for counselling appears to be not correct and unsustainable. 11. Order 14 Rule 2 of the Code of Civil Procedure says that when a party applies for a hearing on the question of maintainability as a preliminary issue, the Court will have to consider that aspect first and then record finding on that aspect before proceeding with the matter. So if the petitioner files an application under Order 14 Rule 2 to decide the question of maintainability as a preliminary issue, then the Family Court is directed to consider and pass appropriate orders in that application in accordance with law. Till passing an order in that application, the Court below should not insist the presence of the parties for appearing before the counsellor or mediation to explore the possibility of settlement as has been held in the decision reported in _**Susmitha Mohan's case**_ (supra). The petitioner is directed to file an application as directed above within two weeks from today. If such an application is filed, the Court below is directed to pass appropriate orders in that application as expeditiously as 9 O.P.(FC).No.85 of 2017 possible, at any rate, within one month from the date of filing of such application. Till then, implementation of the order in Ext.P9 is directed to be kept in abeyance. With the above directions and observations, this petition is disposed of. Registry is directed to communicate a copy of this judgment to the Court below at the earliest. ## **Sd/-** **A.M. SHAFFIQUE, JUDGE.** **Sd/-** **K. RAMAKRISHNAN, JUDGE.** cl