Jamsheena K. v. Muhammed Yusuf and others

**“C.R.”** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA, 1944 MAT.APPEAL NO. 358 OF 2022** **AGAINST THE JUDGMENT DATED 20.04.2022 IN O.P.NO.711 OF 2021 ON THE FILE OF THE FAMILY COURT, KOZHIKODE** ## **APPELLANT/PETITIONER:** **JAMSHEENA K., AGED 39 YEARS, D/O. UMMER K, KALATHINGALTHODI, MIST VILLA, MAKKARAPARAMBU POST, VELLATTUPARAMBU, VADAKKANGARA, MAAALAPPURAM DISTRICT – 676507, NOW RESIDING AT: FLAT NO 3A, SREE ROSH, KARUN VILLA, EAST HILL ROAD, NADAKKAVU, KOZHIKODE – 673006.** **BY ADVS. M.SHAJNA K.M.FIROZ** ## **RESPONDENTS/RESPONDENTS:** **1 MUHAMMED YUSUF AGED 39 YEARS, S/O. KEZHISHERY MUHAMMED YAKUB, MASCOT HOUSE, PERINTHALMANNA POST, KAKKUTH AMOSM DESOM, PERINTHALMANNA TALUK, MALAPPURAM, PIN – 679322.** 2 Mat.Appeal No.358 of 2022 - **2 MUHAMMED YAKUB, AGED 66 YEARS, MASCOT HOUSE, PERINTHALMANNA POST, KAKKUTH AMOSM DESOM, PERINTHALMANNA TALUK, MALAPPURAM, PIN – 679322.** - **3 NAJMA YAKUB** **AGED 56 YEARS, W/O. MUHAMMED YAKUB, MASCOT HOUSE, PERINTHALMANNA POST, KAKKUTH AMOSM DESOM, PERINTHALMANNA TALUK, MALAPPURAM, PIN – 679322.** **BY ADV K.M SATHYANATHA MENON K.M** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 02.12.2022, THE COURT ON 19.12.2022 DELIVERED THE FOLLOWING:** 3 Mat.Appeal No.358 of 2022 ## **“C.R.”** ## **JUDGMENT** ## P.G.Ajithkumar, J. An order under Order VII, Rule 10(2) of the Code of Civil Procedure, 1908 is under challenge in this appeal filed under Section 19(1) of the Family Courts Act, 1984. 2. The appellant is the wife of the 1[st] respondent. Respondents No.2 and 3 are the parents of the 1[st] respondent. The appellant filed O.P.No.711 of 2021 before the Family Court, Kozhikode, claiming compensation and return of gold ornaments. The respondents filed a counter, inter alia, contending that the Family Court, Kozhikode does not have territorial jurisdiction to try the original petition. The Family Court heard the question of jurisdiction and as per the judgment dated 20.04.2022 held that no part of the cause of action has arisen within the jurisdiction of that court. Accordingly, the suit was returned to the appellant, invoking the provisions of Order VII, Rule 10(2) of the Code. 3. On 30.05.2022, notice on admission was directed to be served on the respondents. The respondents entered appearance through their learned counsel. 4 Mat.Appeal No.358 of 2022 4. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 5. The reliefs claimed in O.P.No.711 of 2021 are realisation of Rs.1 crore as compensation from the respondents for the physical and mental harassment and also the defamatory acts did by the respondents, and recovery of 46 sovereigns of gold ornaments or its money equivalent. The appellant pleaded that the cause of action for the petition has arisen where the marriage took place, where the gold ornaments were delivered and also where the questionable acts were committed. The respondents raised an objection that no part of the cause of action has arisen within the local limits of the Family Court, Kozhikode; the place of marriage, matrimonial home, the place where the alleged questionable acts were committed, and residence of the parties are in Malappuram District, which is beyond the territorial limits of the Family Court, Kozhikode. The Family Court, after considering the rival contentions, came to the conclusion that no part of the cause of action has arisen at a place within the 5 Mat.Appeal No.358 of 2022 territorial jurisdiction of that court and ordered to return the petition. 6. In the Family Courts Act, 1984 there is no provision governing territorial jurisdiction of the Family Courts. Section 7 of the Family Courts Act defines jurisdiction of the Family Courts; only with reference to the subject matter. Section 10(1) of the Family Courts Act incorporates the provisions from the Code whereby general trappings of a civil court are conferred on the Family Courts. Section 10(1) of the Family Courts Act reads, “10. Procedure generally.- (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court.” 7. In the light of Section 10(1) of the Family Courts Act the provisions in Sections 15 to 21 of the Code, subject to the provisions in the special statutes, govern the territorial 6 ## Mat.Appeal No.358 of 2022 jurisdiction of the Family Courts. Section 19 of the Hindu Marriage Act, 1955; Section 31 of the Special Marriage Act, 1954; Section 3(3) of the Indian Divorce Act, 1869, and Section 9 of the Guardian and Wards Act, 1890, contain the rules governing territorial jurisdiction. The Dissolution of Muslim Marriages Act, 1939, does not contain a similar provision. 8. The learned counsel appearing for the appellant would submit that in the light of the provisions of Section 19 and Section 20(c) of the Code, O.P.No.711 of 2021 is maintainable before the Family Court, Kozhikode. The contention is that the appellant presently is residing in Kozhikode; where she is working also, and the henchmen of the 1[st] respondent reached her office to threaten and abuse her. Since such acts were done in the presence of her colleagues that had impeded her reputation among them, for which she is entitled to get compensation from the 1[st] respondent. She is presently residing at Kozhikode, and that also entitles her to institute the petition before the Family Court, Kozhikode. 7 Mat.Appeal No.358 of 2022 9. The learned counsel appearing for the respondents, on the other hand, would contend that solely because the appellant has a temporary residence at Kozhikode, the court at Kozhikode cannot be clothed with jurisdiction. In the view of the learned counsel, no part of the cause of action has arisen within the territorial limits of the Family Court, Kozhikode and the same is evident from not only the averments in the original petition itself, but also the reply sent by the appellant to the notice of the 1[st] respondent asking her to rejoin the matrimonial relationship. Accordingly it is contended that the Family Court, Kozhikode has no jurisdiction to try O.P.No.711 of 2021. 10. The wife has filed O.P.No.711 of 2021 following marital disharmony between the petitioner and the 1[st] respondent. Going by the provisions of Section 10(1) of the Family Courts Act, jurisdiction of the Family Court to try such a litigation is governed by the provisions in the Code unless there is provision in the special statute under which the lis has arisen. If the wife is the petitioner, a preferential view is taken by the Legislature in such special statutes. 8 Mat.Appeal No.358 of 2022 11. Section 19 of the Hindu Marriage Act, 1955 and Section 31 of the Special Marriage Act, 1954 contain similar provision enabling the wife to file petition where she is residing on the date of presentation of the petition. The Divorce Act, 1869 does not contain a provision having a lean in favour of the wife in the matter of fixing territorial jurisdiction of the courts. The Dissolution of Muslim Marriage Act, 1939 does not contain a provision fixing territorial jurisdiction at all. If it is with respect to the person or property of a minor the place of suing is as defined in Section 9 of the Guardian and Wards Act. The special right created in favour of a wife in regard to the place of suing under the special statutes is, however, with respect to the proceedings under the respective statutes alone. In the absence of a provision in the special statute, fixing territorial jurisdiction, and when the right claimed is one available under common law, that arises out of the marital relationship, the provisions contained in the Code can alone decide where it has to be instituted. 12. The learned counsel appearing for the appellant contended that as long as an application is filed by the 9 Mat.Appeal No.358 of 2022 respondent questioning the jurisdiction, a Family Court should not consider that question. The learned counsel places reliance in this regard in **Issac E. A. v. Bindhu Thomas [2015 (3) KHC 615].** The question considered in that decision was, when an issue arises regarding jurisdiction of the court, can it be decided as a preliminary issue, if no application in this regard is filed by the objector. The Court held that mere filing of an objection is insufficient. The Family Court was accordingly directed to consider the question of jurisdiction as a preliminary issue, if the respondent files an application. 13. The said principle has no application in the case on hand. Here, the question is regarding territorial jurisdiction. The jurisdiction is of three kinds,- (i) pecuniary (ii) subject matter and (iii) territorial. Under Rule 2 of Order XIV of the Code an issue which relates to the jurisdiction of the court or a bar created by any law, the court may decide that question as a preliminary issue. Such an issue may be related to territorial jurisdiction as well. That does not mean that a court cannot decide the question regarding territorial jurisdiction without raising an issue. 10 Mat.Appeal No.358 of 2022 14. Order VII, Rule 10 of the Code says that at any stage of the suit, a plaint shall be returned to be presented to the court in which the suit should have been instituted. The provision imperates that the court at any stage of the proceedings finds that it lacks territorial jurisdiction, has the obligation to return the plaint to be presented before the proper court, the reason being the judgment rendered by a court which does not have territorial jurisdiction despite the defendant raises objection, would be a _coram non judice_ . Going by the provisions of Section 21 of the Code, an objection regarding place of suing should be raised at the earliest possible opportunity. The corollary of it is that the court has a duty to decide the question of jurisdiction once it is raised, with immediacy. If that question is considered before framing the issues the only material that can be looked into is the averments in the plaint/petition and, of course, the documents which form part of such pleadings. If the court is satisfied on such consideration that, it has no jurisdiction, the court has to invoke the provisions of Rule 10 and, as the case may be, Rule 10(A) of Order VII of the Code. 11 Mat.Appeal No.358 of 2022 15. Here, the Family Court returned the petition holding, on the basis of the pleadings in the petition, that it has no territorial jurisdiction. Therefore the contention that the impugned order is bad in law for want of an application for the purpose is untenable. 16. The appellant inferred jurisdiction to the Family Court, Kozhikode by stating that a part of the cause of action has arisen within its local limits. The allegation is that the 1[st] respondent sent his henchmen to her office at Kozhikode, who threatened her and made derogatory statements in the presence of her colleagues. One of the reason for claiming compensation from the 1[st] respondent is such defamatory acts. From the averments in the petition in O.P.No.711 of 2021 all other overt acts occurred beyond the local limits of the Family Court, Kozhikode. 17. Section 19 of the Code describes the place of suing of a suit for compensation in cases of wrong committed to a person. It is the place where the wrong was done. Similarly, Section 20 confers jurisdiction to the court within whose jurisdiction the cause of action or a part of the cause of action has arisen. 12 Mat.Appeal No.358 of 2022 18. What means ‘cause of action’? The Apex Court in **Church of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust** **[(2012) 8 SCC 706]** explained: a cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. 19. A three Judge Bench of the Apex Court in **Bloom Dekor Limited v. Subhash Himatlal Desasi and others** 13 Mat.Appeal No.358 of 2022 **[(1994) 6 SCC 322],** after referring to **Cooke v. Gill [1873 LR 8 CP 107]** held that by “cause of action” it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit. 20. The appellant claimed compensation of Rs.1 crore for the wrongs committed to her personally. One among the wrongs alleged is that the 1[st] respondent sent his henchmen to her office at Kozhikode, and through them, he threatened her and made statements derogatory to her in the presence of her colleagues. Such an allegation also is part of the cause of action for claiming compensation from the respondents. Therefore, it can only be said that a part of the cause of action has arisen at Kozhikode, which is within the jurisdiction of the Family Court, Kozhikode. In that view of the matter, the finding of the Family Court, Kozhikode that no part of the cause of action has arisen within the limits of that court and therefore O.P.No.711 of 2021 could not be tried by that court is incorrect. The impugned judgment is therefore liable to be 14 Mat.Appeal No.358 of 2022 set aside. The Family Court, Kozhikode has to try O.P.No.711 of 2021 as it has territorial jurisdiction to entertain it. Accordingly, this appeal is allowed. The Family Court, Kozhikode will restore O.P.No.711 of 2021 and proceed with it in accordance with law. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr