Idicula Baby v. Betzy Samuel Idicula and others (OP (FC) No. 26 of 2019, High Court of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** **OP (FC).No. 26 of 2019** **I.A.NO.3397/2018 IN O.P.NO.2135/2014 of FAMILY COURT,ERNAKULAM DATED 04-10-2018** ## **PETITIONER(1ST RESPONDENT IN O.P.NO.2135/14):** **IDICULA BABY, AGED 69 YEARS, S/O.BABY,MEPRATH HOUSE,THANNITHODU.P.O., KOZHENCHERRY TALUK,PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.V.PHILIP MATHEWS SRI.GIBI.C.GEORGE** ## **RESPONDENTS(PETITIONER AND RESPONDENTS 2 TO 6 IN O.P.NO.2135/14):** - **1 BETZY SAMUEL IDICULA, AGED 58, W/O.IDICULA BABY,KOIPPURATHU HOUSE, OOTTUPARA.P.O.,KOZHENCHERRY,PATHANAMTHITTA DISTRICT PIN-689691.** - **2 RENJITH BABY, S/O.IDICULA BABY, MEPRATHU HOUSE,THANNITHODU.P.O.,KOZHENCHERRY, PATHANAMTHITTA DISTRICT-689551.** - **3 SIBY JIJI, W/O.JIJI.K.MATHEW,KARIMBIL PUTHENVEETTIL, KAVIYOOR.P.O.,KOTTOOR MURI,PATHANAMTHITTA DISTRICT PIN -689551.** - **4 ALEYAMMA, W/O.THOMAS,KALLATHRA HOUSE, VALLAMKULAM KIZHAKKU MURI, ERAVIPEROOR.P.O.,PATHANAMTHITTA DISTRICT-689542.** - **5 T.V.GEORGE, S/O.VARGHESE,THEKKEDATHU HOUSE,KULATHUNGAL, KOZHENCHERRY TALUK,KONNI.P.O., PATHANAMTHITTA DISTRICT PIN-689542.** **OP (FC).No. 26 of 2019 : 2 :** **6 THOMAS VARGHESE, S/O.VARGHESE,KAMUKUM PALLIL,KULATHUNGAL, KOZHENCHERRY TALUK,KONNI.P.O., PATHANAMTHITTA DISTRICT PIN -689542.** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 24.1.2019, THE COURT ON 18.03.2019 DELIVERED THE FOLLOWING:** **OP (FC).No. 26 of 2019 : 3 :** ## **C.K.ABDUL REHIM & T.V.ANILKUMAR, JJ.** ## **--------------------------------O.P.(FC) No.26 of 2019** **---------------------------------Dated this the 18[th] day of March, 2019** ## **J U D G M E N T** ## T.V.ANILKUMAR,J. We heard the learned counsel for the petitioner on admission. 2. The petitioner herein, who is the 1[st] respondent in O.P.No.2135/2014, questioned the jurisdiction of the Family Court, Ernakulam to entertain the said original petition under Section 7(1) of the Family Courts Act (hereinafter referred to as 'the FC Act'). Negativing the contention, I.A.No.3397/2018 filed by him questioning the maintainability was dismissed by the court on 4.10.2018. The said order is challenged in this Original Petition filed under Article 227 of the Constitution of India. 3. The petitioner herein is the 1[st] respondent in **OP (FC).No. 26 of 2019 : 4 :** O.P.2135/2014 filed by the 1[st] respondent herein, his wife. The 2[nd] respondent is the son born to the spouses. Respondents 3 and 4 are the niece and sister of the petitioner respectively. The respondents 5 and 6 are the transferees of the properties described as items 1 and 2 in the schedule of the O.P., under the documents executed by the respondents 1 and 2. 4. The case of the 1[st] respondent in O.P.No.2135/2014 is that, after her marriage with the petitioner herein, he misappropriated her gold, patrimony and other assets and misutilized the money for purchase of items 1 and 2 immovable properties, in the names of himself and son. Therefore she alleges that the petitioner has no exclusive title in those items of properties and she is the real owner of those properties. Item No.3 is a Maruthi Swift car registered in the name of the 2[nd] respondent. It was later transferred into the name of 3[rd] respondent. 5. Items 1 and 2 properties in the names of the petitioner and the 2[nd] respondent was transferred to the respondents 5 and 6 through a settlement deed, dated **OP (FC).No. 26 of 2019 : 5 :** 23.11.2013 and a sale dated 17.1.2013, registered as Document Nos.2958 and 165 respectively, of the Sub Registrar Office, Konni. It is contended in the case before the Family Court that the petitioner and the 2[nd] respondent had no right to transfer the immovable properties, in as much as they were supposed to hold the items only as trustees and the 1[st] respondent retained exclusive ownership over them. There are a few other litigations pending in Family Court, Thiruvalla between the petitioner and the 1[st] respondent, in which also she had claimed that the petitioner had misutilized her gold and patrimony and therefore she had sought for recovery of the same from him. 6. The 1[st] respondent continues to allege that, since 1992, the petitioner herein and the son (2[nd] respondent) have been undergoing treatment for their mental illness. They continue to be persons of unsound mind and were not in a position to take care of the transactions which they entered into under law. Therefore, the documents they executed in favour of respondents 5 and 6 are not valid under law. Taking unfair advantage of their unsoundness of mind and by **OP (FC).No. 26 of 2019 : 6 :** unlawful means, the impugned documents were brought in to existence by respondents 3 to 6. Assailing validity of these documents and seeking them to be set aside, O.P.No.2135/2014 was filed before the court below. Consequential injunction is also sought for in the O.P. As regards Item No.3 in the schedule, the allegation is that, her son (2[nd] respondent) was not in a position to understand the transaction which he entered into with the 3[rd] respondent and therefore the transfer of ownership of the car in favour of the latter is not valid. Therefore the 1[st] respondent sought cancellation of the transfer of ownership and registration of car, effected into the name of the 3[rd] respondent. 7. Contention of the petitioner questioning maintainability of the original petition before the Family Court is that, there is no matrimonial dispute between the spouses as contemplated in Section 7(1) (c) of the FC Act, since the rival claims over the petition schedule properties, is only between the 1[st] respondent and the respondents 5 and 6. We find our way difficult to accept this contention. We are of the view that the proceeding before the Family Court could ## **OP (FC).No. 26 of 2019 : 7 :** well be brought within section 7(1)(d) of the FC Act, since the relief sought in the proceeding before the court below arises out of the circumstances in connection with the matrimonial relationship between the petitioner and the 1[st] respondent. 8. The cause of action for the original petition instituted for setting aside the settlement deed dated 23.11.2013 and the sale deed dated 17.1.2013, is the execution of the impugned deeds by the petitioner and the 2[nd] respondent in favour of respondents 4 and 5 under the alleged vitiating circumstances. The allegation in the O.P. is that, the properties covered under those documents were acquired in the names of petitioner and 2[nd] respondent by misutilizing the assets of 1[st] respondent, which are allegedly misappropriated by the petitioner. 9. The test to determine whether a proceeding instituted before the Family Court precedes the circumstances that arose out of the matrimonial relationship is to see whether, but for the matrimonial relationship, the cause of action to sue would have reasonably arisen. This test was laid down by this court in **Janaki Amma and Others** **OP (FC).No. 26 of 2019 : 8 :** v. **Renuka Sadanandan and Others [2016 (1) KHC 266]** and **Vijayalakshmy** v. **P.K.Jayashree and Another [2018 (5) KHC 416 (DB)]** . The petitioner claims rights and interests in the petition schedule items as though they are her own assets. We are of the view that, but for the marriage with the 1[st] respondent, the claims urged by the 1[st] respondent would not have arisen at all. She could never have questioned validity of the impugned deeds and also the transfer of registration of the vehicle, unless her relationship with the petitioner and the 2[nd] respondent arose out of matrimonial relationship. 10. Learned counsel for the petitioner contended that, since the proceeding in question is one for setting aside documents, it necessarily involves complicated facts and also need appreciation of law. Therefore the ideal forum for adjudication of cases of such a nature is the ordinary civil court and not the Family Court. The argument of the learned counsel is that, strict and technical rules of evidence and pleadings are not imported to the Family Courts and the adjudication of issues without reference to strict law of **OP (FC).No. 26 of 2019 : 9 :** evidence and pleadings will result in travesty of justice. In this regard, he cited two decisions, **Minoti Anand and Another v. Subhash Anand and Others [2011 KHC 2233]** and **Sainudeen** v. **Shareefa K.M. and Others [2018 (5) KHC 122(DB)].** We do not find from any of these decisions the principles of law canvassed in support of the argument of the learned counsel for the petitioner. 11. Though it is true that strict rules of admissibility and relevancy of the evidence are not applicable to the Family Court, it does not mean that the fundamental rules of evidence are foregone. In the nature of the case before us, we consider that the Family Court may be more appropriate forum where parties on either side can bring in all evidence available with them, enabling the Family Court to arrive at just decision uninhibited by technical rules of relevancy and admissibility of evidence, if the Family Court, in its opinion, considers that the evidence brought before it is needed to deal with the dispute before it effectually. There is nothing in the Family Courts Act to suggest that suits or proceeding invoking complexity of facts and evidence should not be **OP (FC).No. 26 of 2019 : 10 :** undertaken by the Family Courts. 12. We, therefore, agree with the view taken by the Family Court in upholding maintainability of the original petition before it. There is no illegality, impropriety or perversity in the impugned order of the Family Court, Ernakulam warranting our interference in exercise of the supervisory jurisdiction. We are only inclined to confirm the order. In the circumstances. O.P.(FC)No.26/2019 is hereby dismissed. Sd/- **C.K.ABDUL REHIM JUDGE** Sd/- **T.V.ANILKUMAR, JUDGE** Bb **OP (FC).No. 26 of 2019 : 11 :** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF O.P.NO.2135/14 (OLD NO.O.P.NO.372/14) EXHIBIT P2 COPY OF OBJECTION FILED BY THE PETITIONER IN O.P.NO.2135/14 EXHIBIT P3 COPY OF I.A.NO.3397/2018 EXHIBIT P4 COPY OF ORDER DATED 04.10.2018 PASSED BY THE FAMILY COURT,ERNAKULAM IN I.A.NO.3397/2018 IN O.P.NO.2135/2014.** ## **RESPONDENTS' EXHIBITS:** NIL **//True Copy//** **P.A. To Judge** **Bb**