High Court of KeralaDivision BenchThe appeal is allowed; set aside the Family Cou...
Benjeena P.J. v. C.P. Pappachan and Rani Lukose
Case / Petition Number:Mat.Appeal No. 468 Of 2019
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- K. Harilal
- C.S. Dias
- Judgment Date
- 2019-12-06
- Court Decision / Holding
- Mat.Appeal is allowed; the impugned order dated 10.6.2019 in I.A 991/2019 in O.P.128/2018 is set aside; the matter is remitted to the Family Court for fresh consideration in accordance with law; the parties directed to appear on 20.12.2019; the 1st respondent may file a written objection; the Family Court shall dispose of the original petition within six months after conciliation/mediation proceedings; costs borne by the parties.
- Final Disposition
- The appeal is allowed; set aside the Family Court’s order dismissing OP 128/2018; remand for fresh consideration with directions including written objections and six-month disposition window; parties to appear; costs as directed.
Parties to the Case
Appellants / Petitioners
- Benjeena P.J.
Respondents
- C. P. Pappachan
- Rani Lukose
Legal Representation & Advocates
Counsels for Petitioners
- • T. Madhu
- • C. R. Saradamani
- • B. S. Suraj Krishna
Counsels for Respondents
- • M. Balagovindan
- • C. P. Udayabhanu
Case Synopsis & Summary
Benjeena P.J., the appellant, filed OP 128/2018 in the Family Court, Ernakulam, seeking a declaration of marriage with the first respondent. The Family Court dismissed the petition as not maintainable on a preliminary issue, and the present Mat.Appeal challenges that order. The appellant alleges that she and the 1st respondent were ceremonially married at Varapuzha and later at a Christian retreat, declaring themselves husband and wife and living together accordingly. The respondent denies the marriage, arguing that there was no valid Christian marriage because it was not solemnised by a priest and no notice was published; he invokes Section 5 of the Indian Christian Marriage Act, 1872, contending that there must be episcopal ordination for solemnisation, and that the Act cannot be satisfied otherwise. The issues taken up include whether the Indian Christian Marriage Act extends to the Travancore-Cochin area, whether the petition can be quashed under Article 227/Section 151 CPC, whether the petition can be dismissed under Order VII Rule 11(d) or Order XIV Rule 2(2)(b) on maintainability, whether a mixed question of fact and law can be decided at a preliminary stage, and whether the Family Court has jurisdiction to declare matrimonial status of a person. The High Court holds that the Act has no application in the erstwhile Cochin area; the petition cannot be barred by this Act, and the matter requires pleadings and evidence. It remits the matter to the Family Court with directions, allowing the appeal and setting aside the impugned order, including a direction for conciliation, a written objection by the respondent, a six-month period for disposal, and costs to be borne by the parties.
Provisions of Law Cited
Indian Christian Marriage Act, 1872Section 1, Indian Christian Marriage Act, 1872Section 3, Indian Christian Marriage Act, 1872 (interpretation)Section 5, Indian Christian Marriage Act, 1872Cochin Christian Civil Marriage Act, 1095Family Courts Act, 1984Explanation (c) to sub-section (1) of Section 7, Family Courts Act, 1984Constitution of India, Articles 372 and 395Constitution of India, Article 227CPC, Section 151CPC, Order VII Rule 11(d)CPC, Order XIV Rule 2(2)(b)Indian Constitution (Articles 372, 395)
Legal Doctrines & Maxims
- Determination of an issue without pleading is impermissible (Vimal Chand Ghevarchand Jain and Others v. Ramiakant Eknath Jajoo, 2009)
- High Courts may terminate civil proceedings initiated with mala fides or ulterior motives (cited in Jacky v. Tiny @ Antony & others, later overruled)
Submissions & Arguments
Contentions of Appellants / Petitioners
The appellant contends that the Family Court erred in treating maintainability as a preliminary issue. The Act does not extend to the erstwhile Cochin area; thus its bar cannot operate; the cause of action arose within Cochin territory where personal law governs marriage solemnisation. The pleadings show a ceremonial marital union; the petition seeks a declaration of status, which is permissible under the Family Courts Act (Section 7(1), Explanation (c)). The appellant emphasizes that the original petition should be decided on its merits with evidence, not dismissed at threshold, and relies on pleadings principle from Vimal Chand Ghevarchand Jain. The reliance on other precedents, including the view that the Act extends to the whole of India with territorial exclusions, is argued to be misapplied in this case.
Contentions of Respondents
The respondent contests the petition on the basis that there was no valid Christian marriage, as no episcopal-ordained priest performed the solemnization and no notice was issued under Section 5 of the Indian Christian Marriage Act, 1872. He argues the Act’s application cannot cover the Ernakulam/CoCHin territory; he invokes the rule that absence of formal solem- nisation nullifies marriage under the Act. He relies on authorities that permit dismissing a petition on maintainability, as well as the precedent that mala fides can justify termination of proceedings; however, the court eventually overrules the reliance on earlier decisions that were later superseded. He insists that the petition be dismissed or at least rejected on preliminary grounds if the Act applies; he asks for evidence and defence primarily through written objections.
Cited Precedents (5)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Ramesh B. Desai and others v. Bipin Vadilal Mehta and others | AIR 2006 SC 3672 | Mentioned Only | Cited by counsel; not adopted by the court. |
| Jacky v. Tiny @ Antony and Others | 2012 (1) KHC 82 | Overruled | Cited to illustrate a previously held view; later overruled by Supreme Court in Jacky Tiny Antony & others (2014) SCC 508. |
| Merin Dominic v. Union of India | 2017(1) KLT 950 | Distinguished | Court disagrees with the contention based on Merin Dominic; distinguishes it. |
| Vimal Chand Ghevarchand Jain and Others v. Ramiakant Eknath Jajoo | (2009) 5 SCC 713 | Positive | Cited for principle that determination of an issue without pleading is impermissible. |
| Jacky Tiny Antony & Others | 2014 (6) SCC 508 | Overruled | Supreme Court overruled the 2012 Tiny Antony decision. |
Diagnostic Tool
Does this judgment govern your specific facts?
Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Benjeena P.J. v. C.P. Pappachan and Rani Lukose and instantly map out authorities that support, challenge, or govern your position.
Extracted Judgment Text
Exact text extracted from official judgment records.
# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.HARILAL**
## **&**
**THE HONOURABLE MR.JUSTICE C.S.DIAS**
**FRIDAY, THE 06TH DAY OF DECEMBER 2019 / 15TH AGRAHAYANA, 1941**
**Mat.Appeal.No.468 OF 2019**
## **AGAINST THE ORDER/JUDGMENT IN OP 128/2018 DATED 10-06-2019 OF FAMILY COURT,ERNAKULAM**
## **APPELLANT/RESPONDENT/PETITIONER:**
**BENJEENA.P.J AGED 39 YEARS D/O. JOBOY P.J. RESIDING AT CHAKIATH HOUSE, THUNDATHUMKADAVU VARAPUZHA P.O., ERNAKULAM NOW RESIDING AT POOMALAPARAMBIL HOUSE, MANANTHAVADY P.O., KANIYARAM, WAYANAD DISTRICT 670 645.**
**BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI SRI.B.S.SURAJ KRISHNA**
## **RESPONDENT/PETITIONER/RESPONDENTS:**
**1 C.P.PAPPACHAN AGED 65 YEARS S/O. KOCHAPPU, RESIDING AT CHAKIATH HOUSE, THUNDATHUMKADAVU, VARAPUZHA P.O., ERNAKULAM 683 517. 2 RANI LUKOSE, AGED 51 YEARS RESIDING AT 9/264 , KOTTARATHIL HOUSE, ARANGAM P.O., NADUVIL, IRIKKUR KANNUR 670 582.**
**R1 BY ADV. SRI.M.BALAGOVINDAN R1-2 BY ADV. SRI.C.P.UDAYABHANU**
**THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-11-2019, THE COURT ON 06-12-2019 DELIVERED THE FOLLOWING:**
**Mat.Appeal.No.468 OF 2019**
**2**
## **JUDGMENT**
**Dias,J.**
**The appellant, who is the petitioner in O.P. 128/2018 on the files of the Family Court, Ernakulam, is aggrieved by the dismissal of the original petition as not maintainable.**
**2. The appellant had filed the original petition, inter alia, seeking a decree to declare that she is the wife of the 1[st] respondent.**
**3. It was her case before the Family Court that she got acquainted with the 1[st] respondent. The 1[st] respondent used to visit her at her house at Varapuzha, and he finally adorned a thali chain on her and accepted her as his wife. They declared before the Altar of Jesus**
**Mat.Appeal.No.468 OF 2019**
**3**
**Christ that they have entered into the sacred covenant of marriage, and they would staunchly abide by it.**
**4. It was further averred that the marriage was witnessed by the driver and maidservant of the 1[st] respondent. Subsequently, on 8.11.2015, the 1[st] respondent again tied a thali chain on the appellant at Chittoor Dyana Kendram, a Christian Charismatic Retreat Centre. There also, the 1[st] respondent declared that he accepted the appellant as his wife and the appellant confirmed her consent in accepting the 1[st] respondent as her husband. They then started living together as man and wife.**
**5. The appellant had further pleaded that, subsequently, the 1[st] respondent adopted a recalcitrant**
**Mat.Appeal.No.468 OF 2019**
**4**
**attitude towards her and their**
**relationship got strained and then he**
**denied the marital relationship.**
**6. In the above compelling circumstances, the appellant filed the original petition seeking to declare that she is the wife of the 1[st]**
## **respondent.**
**7. The 1[st] respondent entered**
**appearance in the case and filed I.A No.991/2019 under Order XIV Rule 2 (2) of the Code of Civil Procedure ( in short**
**“Code”), to hear the question of**
**maintainability as a preliminary issue.**
**The 1[st] respondent did not file any written objection to the original petition.**
**8. The 1[st] respondent contended that he never tied a thali chain on the**
**Mat.Appeal.No.468 OF 2019**
**5**
**appellant and that the allegation he entered into a marriage with the appellant was an absolute lie and that the allegations levelled against him were**
**only to extort money.**
**9. The 1[st] respondent further contended that, as per the mandate under Section 5 of the Indian Christian Marriage Act, 1872 (hereinafter for brevity referred to as “ the Act”), the marriage had to be solemnized by a person who has received episcopal ordination.**
**10. According to the 1[st] respondent, there is no provision in the Act to solemnize a marriage in any other form. Therefore, even assuming the assertions in the original petition to have any semblance of truth, there cannot be a valid marriage in the eyes of law.**
**Mat.Appeal.No.468 OF 2019**
## **6**
**11. The appellant opposed the application by filing a written objection and, inter alia, contended, that the application was not maintainable and that the dispute as to the marital status between the parties is a mixed question of fact and law, which can only be decided after taking evidence and hence he prayed the application to be dismissed.**
**12. The learned Judge of the Family Court, after hearing the counsel for the parties, by the impugned order held that there is no marriage between the parties because the marriage was not solemnised by a Priest and no notice was published. Accordingly, the learned Judge allowed I.A No.991/2019 and dismissed the**
**Original Petition.**
## **Mat.Appeal.No.468 OF 2019**
## **7**
|**13. **<br>**Heard**|**learned**||**Senior**|
|---|---|---|---|
|**Adv.T.Sethumadhavan, **|**assisted **|**by **|**Adv.**|
|**T.Madhu,**<br>**for**<br>**the**|**appellant**||**and**|
|**Adv.M.Balagovindan,**|**for**|**the**|**1st**|
|**respondent.**||||
**14. Adv.T.Sethumadhavan argued that the impugned order is palpably erroneous because the original petition could not have been dismissed at the threshold. He contended that the averments in the original petition contain mixed questions of fact and law. He placed reliance on** _**Ramesh B.Desai and others v.Bipin Vadilal Mehta and others [AIR 2006**_ **S** _**C 3672]**_ **to drive home his argument.**
**15. Per contra, Adv.M.Balagovindan argued that by virtue of O.VII, Rule 11(d) and Order XIV, Rule 2(2)(b) of the Code, the original petition was rightly**
**Mat.Appeal.No.468 OF 2019**
**8**
**dismissed** _**in limine**_ **by the Family Court, as it is barred by law.**
**16. According to counsel for the respondent, the Family Court was perfectly justified in dismissing the original petition, principally for the reason that there is no valid marriage between the parties.**
**17. He placed reliance on the decision of this Court in** _**Jacky v. Tiny @ Antony and Others [2012 (1) KHC 82],**_ **and contended that the High Court could terminate civil proceedings initiated with mala fides or with ulterior motives, and where the continuance of proceeding will amount to an abuse of process of court.**
**18. From the pleadings and evidence**
**on record and the submissions by the**
**Mat.Appeal.No.468 OF 2019**
**9**
**learned counsel for the parties, the following points emerge for consideration.**
**1. Whether the Indian Christian Marriage Act, 1872, extends to the territories of Travancore-Cochin area?**
**2. Whether the original petition can be quashed by this Court under Article 227 of the Constitution of India or Section 151 of the Code of Civil Procedure?**
**3. Whether the original petition could have been rejected under Order VII, Rule 11 (d) or Order XIV, Rule 2(2)(b)of the Code, on the issue of law?**
**4. Whether a mixed question of fact and law could have been decided by the Family Court on a preliminary issue without the respondent filing a written statement?**
**5. Whether the Family Court has**
**Mat.Appeal.No.468 OF 2019**
**10**
**the jurisdiction to declare the marital status of any person, other than parties to the marriage?**
**19. With reference to Point No.1, regarding the application of the Act, we render the following finding.**
**20. Section 1 of the Act reads as**
**follows:**
**“1. Short title: This Act may be called the Indian Christian Marriage Act, 1872.**
**Extent:-[It extends to the whole of India (except [the territories which, immediately before the 1[st] November, 1956 were comprised in the States] of Travancore -Cochin, Manipur and Jammu and Kashmir])**
**21. Undisputedly, the appellant has**
**alleged that the marriage was**
## **Mat.Appeal.No.468 OF 2019**
**11**
**solemnised at Varapuzha, and she lived with the 1[st] respondent at Varapuzha, which falls within the erstwhile Cochin area. It is trite law that, for the purpose of deciding a preliminary issue on the question of maintainability, the cause of action to institute the original petition has to be looked into. As already pointed out, the 1[st] respondent has not filed a written objection refuting the assertions in the original petition.**
**22. Section 1 of the Act**
**categorically states that the Act extends to the whole of India except the territories which immediately before 1[st] November, 1956 were comprised in the erstwhile States of Travancore-Cochin, Manipur and Jammu and Kashmir.**
**Mat.Appeal.No.468 OF 2019**
**12**
**23. We have not found any amendment to the Act in the post-constitutional era, extending the application of the Act.**
**24. Section 3 of the Act - The interpretation clause, defines “India” to mean the territories to which the Act extends.**
**25. Therefore, we hold that the Act has no application in the erstwhile Cochin area, where the cause of action for the original petition arose. The parties are governed by their personal law, for the purpose of solemnisation of marriage. Thus, the contention of the 1[st]**
**respondent that there was no marriage as per the provisions of the Act is**
**unsustainable in law and the finding of the Family Court in this regard is**
**Mat.Appeal.No.468 OF 2019**
**13**
**erroneous and is set aside.**
**26. Counsel for the respondent then argued that this Court in** _**Merin Dominic v. Union of India [2017(1) KLT 950) has**_ **held that by virtue of Articles 372 and 395 of the Constitution of India, the Cochin Christian Civil Marriage Act, 1095 is still in force. We disagree with this contention because the appellant has alleged that her marriage with the 1[st] respondent was solemnized under the Indian Christian Marriage Act, 1872, and**
**not under the Cochin Christian Civil Marriage Act, 1095.**
**27. We have no doubt in our mind that the Indian Christian Marriage Act, 1872, stands saved by Articles 372 and 395 of the Constitution of India. The crux of the issue is that it is not applicable**
**Mat.Appeal.No.468 OF 2019**
## **14**
**to the parties in this case, as the cause of action for instituting the original petition has arisen in an area where the Act has no application. Hence, the argument is meritless.**
**28. With regard to point No.2, whether the original petition could be quashed by this Court under Article 227 of the Constitution of India or Section 151 of the Code, we answer it as under.**
**29. This Court in** _**Tiny @ Antony & others (s**_ **upra) held that plaints can be quashed by the High Court invoking Article 227 of the Constitution of India**
**or Section 151 of the Code We are conscious that the decision was**
**overruled by the Hon'ble Supreme Court in**
**v.** _**Jacky Tiny @ Antony & others [2014 (6)**_
_**SCC 508].**_ **Therefore, such a course**
**Mat.Appeal.No.468 OF 2019**
**15**
**cannot be adopted by this Court.**
**30. On point Nos.3 and 4, whether the original petition can be rejected/dismissed on the question of maintainability under Order VII, Rule 11 (d)and Order XIV, Rule 2(2)(b) of the Code, as it is contended that the original petition is barred by law as there is no valid marriage, we render the following finding.**
**31. As already pointed out, the 1[st] respondent has not filed a written objection to the original petition. The thrust of his contention in the application was that there is no valid marriage between him and the appellant as per the provisions of the Act, since a Priest had not solemnised the marriage, and no notice was published.**
**Mat.Appeal.No.468 OF 2019**
**16**
**32. We have already held in point No.1 that the Act has no application in the erstwhile Cochin area. Therefore, the provisions of Order VII, Rule 11(d) and Order XIV Rule 2(2)(b) do not apply to the facts of the case, as there is no bar to the suit created by any law for the time being in force. Likewise, as the 1[st] respondent has not filed a written objection, there is no foundation for his defence to assert that there is no valid marriage between him and the appellant. The issue is a pure question of fact. Necessarily, the 1[st] respondent has to file a written objection and refute the allegations in the original petition. Only then can an issue of fact be decided. We hold so because of the law declared by the Hon'ble Supreme**
**Mat.Appeal.No.468 OF 2019**
**17**
**Court in** _**Vimal Chand Ghevarchand Jain and Others v. Ramiakant Eknath Jajoo [ (2009)**_
_**5 SCC 713]**_ **that determination of an issue without pleading is impermissible.**
**33. With reference to point No.5,**
**as to the jurisdiction of the Family Court to entertain the original petition to declare the marital status between the appellant and the 1[st] respondent, we render the following finding.**
**34. The counsel for the respondent argued that the original petition ought to have been filed before the Civil Court and not the Family Court. We are unable to agree on this contention because, Explanation (c) to sub-section**
**(1) of Section 7 of the Family Courts Act, 1984, permits a suit or proceeding**
**for a declaration as to the validity of a**
## **Mat.Appeal.No.468 OF 2019**
## **18**
**marriage or as to the matrimonial status of any person. The legislature has consciously used the words “any person” and omitted the words “parties to a marriage” as seen in the other explanations. Hence, only the Family Court has the jurisdiction to entertain an original petition of the present nature.**
**35. In view of our findings on points 1 to 5, we are of the view that the impugned order passed by the Family Court in dismissing O.P. 128/2018 on the preliminary issue of maintainability is erroneous and unsustainable in law. Thus, we set aside the impugned order and remit O.P. No.128 of 2018 to the Family Court for fresh consideration in accordance with law.**
**Mat.Appeal.No.468 OF 2019**
**19**
**36. In the result the Mat.Appeal is allowed as follows:**
**(i) The order dated 10.6.2019 in I.A No.991/2019 in O.P.128/2018 is set aside.**
**(ii) The parties are**
**directed to appear before the Family Court on 20.12.2019 either in person or through counsel.**
**(iii) The 1[st] respondent is at liberty to file his written objection to the original petition.**
**(iv) The learned Judge of the Family Court is directed to dispose of the original petition within a period of six months after conciliation and mediation proceedings are completed.**
**Mat.Appeal.No.468 OF 2019**
**==> picture [16 x 9] intentionally omitted <==**
**----- Start of picture text -----**<br>
20<br>**----- End of picture text -----**<br>
**(v) In the facts and circumstances of the case, the parties shall bear their respective costs.**
**Sd/- K.HARILAL,JUDGE ma/05/12/19 Sd/- C.S DIAS, JUDGE**
**/True copy/ P.S to Judge**
**Mat.Appeal.No.468 OF 2019**
**21**