Dr. Preceline George @ Antony Preceline George & others v. Treasa Bency @ Bency N.L. & others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 6TH DAY OF APRIL 2016/17TH CHAITHRA, 1938 Mat.Appeal.No. 1077 of 2015 () ------------------------------- AGAINST THE ORDER IN O.P.NO. 2159/2012 of FAMILY COURT, ERNAKULAM DATED 23-02-2015. APPELLANT(S)/PETITIONERS: ----------------------------------------- 1. DR.PRECELINE GEORGE @ ANTONY PRECELINE GEORGE, AGED 35 YEARS, S/O.A.T.GEORGE, ARAKKAL HOUSE, DOOR NO.36/3137, KATHRIKKADAVU, KALOOR P.O., ERNAKULAM -17. 2. A.T.GEORGE, AGED 66 YEARS, RESIDING AT ARAKKAL HOUSE, DOOR NO.36/3137, KATHRIKKADAVU, KALOOR P.O., ERNAKULAM -17. 3. MARGERETE PREMY, AGED 62 YEARS, - W/O.A.T.GEORGE, RESIDING AT ARAKKAL HOUSE, DOOR NO.36/3137, KATHRIKKADAVU, KALOOR PO, ERNAKULAM -17. BY ADVS. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY RESPONDENT(S)/RESPONDENTS: ------------------------------------------------ 1. TREASA BENCY @ BENCY N.L., AGED 30, D/O.LONAPPAN (LATE) RESIDING AT NAISSERY HOUSE, NO.2391/60, VADHYAR ROAD, KALOOR, COCHIN-682017. - *2. LONAPPAN, AGED 63 YEARS, - RESIDING AT NAISSERY HOUSE, NO.2391/60, VADHYAR ROAD, KALOOR, COCHIN-682 017. (NOW NO MORE) 3. MARY ISABELLA, AGED 56 YEARS, W/O. LONAPPAN (LATE) RESIDING AT NAISSERY HOUSE, NO.2391/60, VADHYAR ROAD, KALOOR, COCHIN-682 017. P.T.O. Mat.Appeal.No. 1077 of 2015 () :-2-: *ADDL.R4 LINCY, D/O. LONAPPAN (LATE), RESIDING AT NAISSERY HOUSE, NO.2391/60, VADHYAR ROAD, KALOOR, COCHIN-682 017. IS IMPLEADED AS PER ORDER DATED 16.02.2016 IN I.A.NO.3764/15 IN MAT.APPEAL NO.1077/15. R1,R3 BY ADV. SMT.K.V.BHADRA KUMARI R1,R3 BY ADV. SMT.ANILA GEORGE THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 06-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.T.O. ## **C.K. ABDUL REHIM & SHAJI P. CHALY, JJ.** -------------------------------------------------- ## **Mat. Appeal No.1077 of 2015 ----------------------------------------------Dated this the 6[th] day of April, 2016** ## **JUDGMENT** ## _**Shaji P. Chaly, J.**_ Appellants are petitioners in O.P.No.2159 of 2012 on the files of the Family Court, Ernakulam and are challenging the order of the Family Court dated 23.02.2015, whereby the Family Court has directed return of the Original Petition to the appellants, declining jurisdiction, in order to file the same before the proper forum, within 15 days. 2. Necessary facts for disposal of the appeal are as follows: 3. 1[st] appellant married 1[st] respondent as per Christian religious rites and ceremonies on 07.06.2009. No issues were born out of the wedlock. 1[st] appellant is a Doctor by profession. It is contended by the appellants that 1[st] respondent was suffering from 'congenital hypothyroidism' and the said fact was suppressed by respondents 1 to 3 and has **Mat. Appeal No.1077 of 2015** 2 obtained consent for marriage by fraud. Thereupon dispute arose and 1[st] appellant has filed O.P.No.1561 of 2009, seeking declaration of the marriage by and between the 1[st] appellant and 1[st] respondent null and void. Family Court allowed the said Original Petition and the marriage of the 1[st] appellant and the 1[st] respondent was declared null and void. Even though the said order was challenged before this court in Mat. Appeal No.29 of 2013, 1[st] respondent was unsuccessful and the appeal was dismissed on 04.07.2013. 4. Thereafter, appellants preferred the Original Petition in question before the Family Court, Ernakulam, claiming Rs.25 lakhs as compensation from the respondents herein. Respondents entered appearance and raised the question of maintainability of the Original Petition, stating that since the marriage is declared null and void, the Original Petition claiming compensation from the respondents will not lie before the Family Court, and that Family Court has no jurisdiction to entertain a case of such a nature. Thereupon, Family Court raised a preliminary issue of maintainability of the Original Petition before it and after providing hearing to the rival parties, has found that it has no jurisdiction since the claim **Mat. Appeal No.1077 of 2015** 3 raised in the Original Petition will not come under Sec.7 of the Family Courts Act, and accordingly directed to return the same to the appellants for presentation before appropriate forum. It is thus aggrieved by the said order of the Family Court, this appeal is preferred. 5. Heard learned counsel for the appellants and the respondents. 6. The Family Court, after appreciating the rival contentions and assimilating the point of law as provided under Sec.7, has found that it has no jurisdiction to entertain the Original Petition since there is no marital relationship by and between the 1[st] appellant and the 1[st] respondent and therefore the claim raised in the Original Petition is not one arising out of the marital relationship. 7. Even though learned counsel for the appellants relied on the judgment of this Court in _**'Leby Issac v. Leena M. Ninan**_ ' [2005 (3) KLT 665] to canvass the proposition that an Original Petition claiming damages against the wife and inlaws is maintainable as it is a dispute arising out of the marital relationship, Family Court has found that in the said decision, the facts involved were different and an Original Petition was **Mat. Appeal No.1077 of 2015** 4 pending before the Family Court by and between the husband and wife and therefore the claim for damages was entertained by the Family Court. In such circumstances, the ratio arrived at by the Family Court in the case at hand is that there is no matrimonial relationship existing so as to enable the appellants to invoke the jurisdiction of the Family Court. 8. A reading of Sec.7(1)(d) of the Family Courts Act, 1984, we are of the considered opinion that a Family Court is vested with jurisdiction to entertain all cases where a circumstance is arising out of a marital relationship. Nowhere in Sec.7, it is mentioned that the jurisdiction of the Family Court can be invoked only if a relationship is existing by and between the parties to a marriage. But on the other hand, it is very specific that any proceeding or suit can be instituted in any circumstances arising out of a marital relationship, which thus means, the Family Court will get jurisdiction under the said provision if and when a relationship existed out of a marriage. A Division Bench of this Court [consisting one of us, C.K. Abdul Rehim, J.] in the judgment in _**'Janaki Amma and others v. Renuka Sadanandan and others'**_ [ILR 2016 (1) Kerala 756] had occasion to consider the true scope of **Mat. Appeal No.1077 of 2015** 5 Sec.7(1)(d) of the Act and held that if the cause of action is emerging out of any circumstances related to the matrimonial relationship, and the same could not have existed independently, then the suit can be maintained before the Family Court, as it will fall under Explanation (d) to Sec.7(1) of the Act. In the said judgment, this court has conducted a detailed survey with respect to various facts of the said issue under the circumstances mentioned in Sec.7(1), including the judgment in _**'Leby Issac'**_ referred to by the Family Court and arrived at the conclusion that the Family Court is vested with sufficient powers and jurisdiction to entertain any suit or proceeding in relation to a marriage and the circumstances arising out of the same. 9. Even though learned counsel for the respondents has argued _in extenso_ that in order to entertain a suit or proceeding before the Family Court, there should be an existing relationship by and between the parties. On a deeper analysis and reckoning facts, law and circumstances involved in the case, we are of the considered opinion that, there existed a marital relationship by and between the 1[st] appellant and the 1[st] respondent, which ended in termination on the **Mat. Appeal No.1077 of 2015** 6 ground of nullity. Therefore, the appellants are entitled to prefer a proceeding before the Family Court as provided under Sec.7(1)(d) of the Act. We also do not find any reason to doubt the correctness of the judgment in _**'Janaki Amma and others'**_ cited _supra_ . 10. Therefore, we have no hesitation to hold that the finding rendered by the Family Court, Ernakulam in O.P.No.2159 of 2012 in its order dated 23.02.2015 that it has no jurisdiction to entertain the Original Petition cannot be sustained under law. 11. Resultantly, the appeal is allowed and the Family Court is directed to take back the said Original Petition to its file and consider the same on merits in accordance with law. We make it clear that we have not expressed any opinion on merits in the Original Petition. 12. Registry is directed to send back the records, if the records are transmitted to this court. Parties are directed to appear before the Family Court on 02.05.2016 in order to **Mat. Appeal No.1077 of 2015** 7 proceed with the matter and the Registry is also directed to inform the date of posting to the Family Court, without any delay. Sd/- **C.K. ABDUL REHIM JUDGE** Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/06.04.2016