K. Kadher Nazeer v Jubairiya C.K. and Naseem K.E.

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV & THEHONOURABLEMR.JUSTICEP.M.MANOJ TUESDAY,THE26[TH]DAYOFMARCH2024/6THCHAITHRA,1946 ``` ## **`OP (FC) NO. 205 OF 2024`** ``` ORDERDATED03.11.2023INOPNO.566OF2018OFFAMILY COURT,ERNAKULAM ``` ## **`PETITIONER/2ND RESPONDENT:`** ``` NASEEMK.E.,REPBYHISPOWEROFATTORNEYHOLDERK.E. NASEER AGED40YEARS ``` ``` K.P.MANZIL,KAKKANAD,THRIKKAKARA.P.O,KOCHI, POWEROFATTORNEYHOLDERK.E.NASEER,THRIKKAKARA.P.O, KAKKANAD,KOCHI,PIN-682021 ``` ``` BYADVS. A.BALAGOPALAN A.RAJAGOPALAN M.N.MANMADAN M.S.SREEJITH ``` ## **`RESPONDENT/PETITIONER AND THE FIRST RESPONDENT:`** ``` 1K.KADHERNAZEER,AGED62YEARS S/OK.M.KADHER,ARAFHAMANZIL,THRIKKAKARA.P.O, KOCHI,PIN-682021 ``` ``` 2JUBAIRIYAC.K.,D/OKOCHUNNI,KUNNELPARAMBU, VAZHAKKALA,ERNAKULAM,PIN-682021 ``` ``` SRISAIGYJACOBPALATTY,SR.GOVERNMENTPLEADER ``` ``` THISOP(FAMILYCOURT)HAVINGCOMEUPFORADMISSIONON 26.03.2024,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` OPFC 205 of 2024 2 **“CR”** ## **JUDGMENT** ## **P.M. Manoj, J** The above Original Petition is preferred being aggrieved by Ext.P3 order passed by Family Court, Ernakulam. The Family Court rejected the challenges raised by the petitioner as regards the maintainability of the Original Petition. 2. Short facts are as under: The Original Petition before the Family Court was preferred by Sri. K Kadher Nazeer, arraying his wife Jubairiya C.K. as the 1st respondent, and the petitioner herein as the 2nd respondent. It was contended in the petition that the marriage between him and the 1st respondent was solemnized on 17.11.1991. While he was working abroad, the wife mooted a proposal for the purchase of 5 cents of land belonging to her father. He contends that though the sale consideration was provided by him, the property was purchased in the name of the wife **.** Later, the relationship between the husband and wife became strained. On his arrival back to India in 2018, February, he realised that his wife had already sold the property to the 2nd respondent/petitioner claiming that she is the actual owner of the property. It was in the above backdrop that OPFC 205 of 2024 3 the petition was filed before the Family Court to declare that the petitioner-husband is the absolute owner of the property, for setting aside the sale deed and for injunction. The respondent wife was set ex-parte as she did not care to appear before the Family Court. 3. The 2nd respondent/petitioner contested the proceedings and in his written statement raised two contentions. He contended that the relief claimed to be one for declaration of title, and that the petition should have been valued under Section 25 of the Court Fees Act. He also raised an issue as to the very maintainability of the petition contending that the Family Court would have no jurisdiction to entertain the petition as the 2nd respondent/petitioner is a total stranger to the marital relationship between the original petitioner and the 1st respondent wife. He preferred I.A. No.1/2023 seeking to consider the maintainability issue of the petition as a preliminary issue. 4. The learned Family Court, after considering the contentions advanced in light of the law laid down by this Court in various judgments, repelled his contentions. The above order is under challenge in this petition. 5. Sri. M.N Manmadan, the learned counsel appearing for the petitioner, submitted that the order passed by the Family Court cannot be sustained under law. According to the learned counsel, the petitioner is not OPFC 205 of 2024 4 a family member of either the husband or the wife. If that be the case, the dispute involved cannot be considered as a family dispute, and the family court will not have jurisdiction to entertain the matter. It is further asserted that the interpretation given by the Family Court to confer jurisdiction on itself would lead to frivolous litigations. The petitioner herein further contended that after the execution of deed, the mutation has been effected in his favour and he has now completed the construction of a building on the said property. It is also contended by the petitioner herein that after the institution of the suit, the husband and wife have mortgaged their respective properties for availing a loan by standing as sureties, which would show that the entire proceeding is collusive. He also contends that the petition has not been properly valued. 6. We have carefully considered the contentions advanced by the counsel appearing for the petitioner and have perused the impugned order. 7. It would be appropriate at this juncture to refer to the relevant portion of Section 7 of the Family Courts Act, 1984 which reads as follows: - (a) Jurisdiction. - (1) Subject to the other provisions of this Act, a Family Court shall- - (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceeding of the nature referred to in the explanation; OPFC 205 of 2024 5 and - (b) be deemed, for the purposes of exercising such jurisdiction under such law to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. **Explanation.--** The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:- - (a) A suit or proceeding between the parties to a marriage for a decree of nullity of marriage declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; - (b) A suit or proceeding for a declaration as to the validity of a marriage or a, to the matrimonial status of any person; - (c) A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them. xxxxxxx xxxxxxx xxxxx xxxxxx Explanation (c) provides that a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them can also be entertained by the Family Court. 8. In this context, it would be apposite to refer to the law laid down in **Shyni[1]** , wherein this Court had occasion to interpret the provisions while considering an identical issue. In paragraph No.5 of the judgment, it was observed as under. - 1 Shyni v. George and Others (1997 KHC 289) OPFC 205 of 2024 6 5. On the scheme of the Act and considering the conferment of jurisdiction on the Family Court, it is clear that a suit or proceeding between the parties to a marriage with respect to the property of the parties or either of them comes within the purview of the Family Court. When a wife sues her husband for recovery of her property or which she claim to be her property, obviously the suit could be tried and disposed of only by the Family Court and when in such a suit the wife is obliged to add a close relative of the husband or even a stranger on the allegation that the husband had made over the property to that close relative or stranger, it will be too much to hold that the jurisdiction of the Family Court is ousted to deal with the claim of the plaintiff in view of the mere presence a the stranger or the close relative of the husband. In such a situation, the close relative of the husband or the stranger could only be the agent of the husband or a confidant of the husband holding the property claimed by the wife on behalf of the husband. It is not possible to accept the argument that in such a circumstance also the wife would be obliged to file the suit against the stranger in an ordinary Civil Court even while she is forced to maintain her suit against the husband in the Family Court. Would it make any difference if in a given case, the property of the wife was entrusted not merely to the husband but also to a close relative of the husband, in this case the father-in-law? I think that it will be the very negation of the scheme of the Family Court Act and the attempt made by that Act to constitute a Special Civil Court for the purpose of dealing with all matrimonial disputes including dispute about property to hold that the wife would not be entitled to maintain a suit for recovery of her property against the father-in-law in the Family Court. If it were merely a suit against the father-in-law it is quite clear that the suit could be instituted only in the ordinary Civil Court. Equally, if it is merely a suit against the husband for recovery of property, the same could only be maintained in the Family Court. In a case where the claims have to be combined or the same has to be made against both the husband and the father-in-law as in the present case, could it be said that the jurisdiction of the Family Court would Stand ousted? My answer is an emphatic no. The suit will remain as a suit against the spouse for recovery of the property of the wife. No doubt even at the OPFC 205 of 2024 7 time of the marriage the property was handed over not only to the husband but also to the father-in-law. But that would not make the suit anything other than for recovery of the property of a party to the marriage from the other party to the marriage and persons connected with him or related to him. It is notorious that in our State, what is called Streedhanam or what is understood as the share of the bribe in the properties of her father is normally handed over at the time of the marriage not to the husband but to the father-in-law who receives it on behalf of the husband. It is really a case of the father-in-law acting for and on behalf of the husband while he receives the property of the wife. In the case of the streedhanam paid at the time of the marriage of a Christian woman, this Court has held that the father-in-law would be holding the property as a trustee for the bride. Taking in the sweep of the Family Court Act and the objects sought to be achieved by the Family Courts Act, I am of the view, that merely because a stranger is also impleaded in the suit on the ground that the property of the wife or a portion of it also been handed over to him the suit cannot be entertained by the Family Court is not warranted. In any view, such a construction of the statute to confine the jurisdiction of the Family Court only to the other spouse and not to anyone else who acts either for that spouse or under that spouse would tend to defeat the very object of the enactment of the Act and the establishment of the Family Courts. One of the important aims of the setting up of the Family Courts Act is to bring about a reconciliation between the spouses if possible and to permit them to separate with dignity only if all attempts at conciliation fail. Can there not be a conciliation even in a case where the wife sues her husband and her father-in-law for recovery of the property which she claims to be hers? The answer can only be in the affirmative. There cannot be any doubt that a special machinery has been constituted by the Family Court Act for counselling and for bringing about a conciliation between the spouses. Then, the Family Court Judge is charged with the duty to attempt conciliation. Should the spouses be deprived of that machinery specially provided by the Family Courts Act and not available in that form in the ordinary Civil Court merely because one of them is compelled to sue not only the other spouse but also a close relation of that spouse or a confidant OPFC 205 of 2024 8 or assignee of that spouse? The answer can only Be ‘no’ since an answer otherwise would mean that the very scheme of the Act would stand defeated and the spouse who is sued can always take up the stand that he had made over the property to a stranger and when the suing spouse is compelled to implead that person, the suit would be taken out of the purview of the Family Court. I have therefore no hesitation in holding that so long as the suit is by one spouse against the other the suit would be maintainable in the Family Court even if for the purpose of seeking relief in respect of the cause of action put forward in the suit, the suing spouse is forced to implead persons other than the other spouse or including the close relatives of the other spouse. 9. Further, a Division Bench of this Court in **Vasumathi N. and Another[2]** had occasion to observe that the jurisdiction of the Family Court to decide a particular case has to be determined by not looking at the position of the parties array but based on nature of dispute sought to be resolved. If the actual dispute is between the parties to the marriage, the suit would be treated as one between the parties in such a suit or proceeding. It was held that if the real dispute raised in the matter is between parties to the marriage concerning the property of one of them, the Family Court will have jurisdiction to entertain the lis. It would be apposite to refer to paragraph No. 16 of the judgment. 16. We shall initially consider the applicability of Explanation (c). Ext. P4 is not technically a suit or proceedings between the parties to the marriage. The parties to the marriage are together on one side on the party array whereas the second respondent is the party on the other side. But, virtually, the dispute is between the parties to the marriage and the dispute > 2 Vasumathi N. and Another v. Valsan and Ors. [2011 (3) KHC 573] OPFC 205 of 2024 9 is with respect to the property standing in the name of one of them. The jurisdiction under Explanation (c), according to us, is not to be determined by looking at the position of the parties on the array of parties. What has virtually got to be considered is the very nature of the dispute which is sought to be resolved in such suit or proceedings. So reckoned, we have no hesitation to agree that the suit/proceedings is initiated virtually to resolve the disputes between the petitioners on the one hand and respondent No.1 on the other, though they together are arrayed as defendants in the suit filed by the second respondent. In that view of the matter, we hold that the real dispute raised in OS No. 173 of 2006 is between the parties to the marriage with respect to the property of one of them. The mere fact that immediately after the commencement of the dispute, before the institution of the suit, there has been a transfer of property by the first respondent in the name of respondent No.2 under Ext. P2 sale deed and that the second respondent as a mercenary of the Ist respondent has initiated the proceedings does not militate against the real nature of the dispute between the parties. The dispute raised in both the suit and the O.P. are hence disputes (suit/proceedings) falling under Explanation (c) to S.7(1) and consequently within the exclusive jurisdiction of the Family Court. 10. In view of the principles of law laid down in **Shyni and Vasumathi** (supra), we are of the view that the learned Family Court was well justified in holding that the said court would have jurisdiction to entertain the dispute. In that view of the matter, the contention of the petitioner that he, being a stranger, could not have been driven to the Family Court as a party to the proceedings in a dispute between the husband and wife, cannot be accepted. 11. Insofar as the valuation of the petition is concerned, it would be apposite to note that the Original Petition has been filed by the OPFC 205 of 2024 10 husband arraying the wife and a stranger to the proceedings for declaration of title and consequential reliefs. We find that a Division Bench of this Court in **Salesh Babu[3]** had occasion to interpret the provisions and answer the question in the following lines:- 5. S.23 of the Family Courts Act provides for the making of Rules by the State Government after consultation with the High Court for carrying out the purposes of the Act. The Family Courts (Kerala) Rules 1989 were framed in exercise of that power. R.3 of the said Rules provides that all proceedings instituted before the Family Court shall be by way of a petition, but making an exception in regard to proceeding under the Code of Criminal Procedure. For the present purpose what is to be noticed is that, all proceedings instituted before the Family Court are by way of a petition. In such a situation, when a wife makes a claim for recovery of the value of the ornaments from her husband, going by R.3 of the Rules, that proceeding has to be initiated by way of a petition. That the proceeding is to be initiated by way of a petition is re-emphasised by R.4 and the other Rules. The question then is what is the effect of the adjudication on such a petition. S.17 of the Family Courts Act only provides for what a judgment should contain and S.18 of the Act provides that an adjudication by the Family Court shall have the same force and effect as a decree or order of a civil court and shall be executed in the same manner. S.2(e) of the Family Courts Act provides that the words and expressions used in the Act but not defined in the Act, shall have the meaning assigned to them by the Code of Civil Procedure. The word 'order' has been defined by the Code of Civil Procedure under S.2(14) of the Code, as meaning the formal expression of any decision by a civil court which is not a decree. S.2(2) of the Code defines 'decree' as the formal expression of an adjudication which regards the court exercising it conclusively determines the rights of parties. Whether considered as an 'order' or a 'decree', it is clear that the proceedings leading to the adjudication is by way of a petition only and the 3 Saleesh Babu v. Deepa; 1996 (1) KLJ 796. OPFC 205 of 2024 11 court fee payable thereon could only be the fee prescribed for an application. If treated as a decree, the Court fee payable under S.52 of the Court Fees Act for the appeal would only be the fees payable in the first instance. 6. In determining the question arising for decision, we have to bear in mind the object of the Family Courts Act. The Family Courts Act was enacted with the object of creating a special setup for the settlement of family disputes laying emphasis on conciliation and achieving socially desirable results without adherence to rigid rules of procedure and rules of evidence. This was based on the recommendation of the Law Commission in its 59th report that in dealing with disputes concerning the family, the court ought to adopt an approach radically different from that adopted in ordinary civil proceedings. One of the objectives of the Act, is also to bring succour to women and children who have been abandoned by their husbands and fathers. In this context, when R.3 speaks of the initiation of all proceedings before the Family Court by way of a petition, it will be in consonance with the object sought to be achieved, to understand the proceeding only as a petition not warranting payment of advalorem fees under the Court Fees Act. The Court Fees Act prescribes the fee to be paid on application to be made to a court. S.7 of the Family Courts Act directs that the Family Court shall be deemed for the purpose of exercising jurisdiction under the Act, to be a District Court or other subordinate Civil Court for the area to which the jurisdiction of the Family Court extends. It - is therefore, clear that S.7(c) of the Act takes within its purview a suit or proceeding between the parties to a marriage with respect to the property of the parties or any of them. The claim by a wife therefore for recovery of her property from her husband, would come squarely within the jurisdiction of the Family Court and obviously in view of R.3 of the Rules by way of a petition. But S.7(1)(b) of the Act would indicate that the Family Court should be deemed as a District Court for the purpose of entertaining an application referred to in S.7 of the Family Courts Act. Since the proceedings is to a Court which is deemed to be a District Court and since the proceeding would commence by way of an application, it is obvious that such an application would be governed by Schedule II of the Court Fees OPFC 205 of 2024 12 Act. Schedule II provides for petitions under various matrimonial enactment. Obviously, a claim for return of her property by a wife against her husband does not come under any of the specific sub clauses under Schedule II Art.1. We have therefore to look to the residuary Article (as there is no other Article applicable) to determine what is the fee payable 'on such a petition. It is clear from Schedule II Art.11(1)(2)(ii) of the Court Fees Act that the fee payable in a petition to the Family Court which is not otherwise provided for in the Court Fees Act, would be Rs. 10/-. This is so, notwithstanding the fact that the claim in the petition involves a claim for recovery of an ascertained sum of money or specific property. If the fees payable on a petition under the Family Courts Act in respect of a claim by a wife against her husband or vice versa is governed by Schedule II Art.11(1)(2)(ii) of the Court Fees Act, it appears to be clear to us that the court fee payable on the appeal would also be the same. 12. As held by this Court, the interpretation of Rule 3 of the Family Courts (Kerala) Rules, 1989, indicates that all proceedings before the Family Court are initiated by a petition, in consonance with the objective of the rule and such proceedings are exempt from ad valorem fees under the Court Fees Act. Section 7 of the Family Courts Act designates the Family Court as a District Court or subordinate Civil Court for jurisdictional purposes. However, Section 7(1)(b) designates the Family Court as a District Court for entertaining certain applications, subjecting such applications to fees outlined in Schedule II of the Court Fees Act. It is also clear from Schedule II Art.11(l)(2)(ii) of the Court Fees and Suits Valuation Act that the fee payable in a petition to the Family Court which is not otherwise provided for in the Court Fees Act would be Rs. 50/- as amended. In that view of the matter, the second contention advanced by OPFC 205 of 2024 13 the petitioner cannot be sustained. 13. The scope of interference under Article 227 of the Constitution of India is limited to the extent focused on ensuring that the trial courts or Tribunals function within the limits of their authority. The Court is not obligated to act as an appellate court and re-evaluate the arguments presented. Interference can only be made in cases where there is a jurisdictional error, procedural impropriety, or perversity in the order. The purpose of exercising jurisdiction under Article 227 is to keep the trial courts within the bounds of their authority and not to correct factual errors and law. In the case on hand, we find no jurisdictional error, impropriety, or perversity in the order passed by the Family Court. Therefore, no interference is warranted. This petition is dismissed accordingly. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** **Sd/P.M.MANOJ JUDGE** ``` ncd ``` OPFC 205 of 2024 14 ## **`APPENDIX OF OP (FC) 205/2024`** ## **`PETITIONER’S EXHIBITS:`** ``` ExhibitP1TRUEPHOTOCOPYOFTHEO.P.NO.566OF2018 ONTHEFILEOFFAMILYCOURT,ERNAKULAM ExhibitP2TRUEPHOTOCOPYOFTHEWRITTENSTATEMENT FILEDBYTHEPETITIONERINO.P.NO.566OF 2018 ExhibitP3TRUEPHOTOCOPYOFTHEORDERDATED 03.11.2023PASSEDBYTHEFAMILYCOURT, ERNAKULAM ```