K.B. Anil Kumar v. N.S. Sheela and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN MONDAY, THE 19TH SEPTEMBER 2011 / 28TH BHADRA 1933 Mat.Appeal.No. 256 of 2006() ---------------------------OP.866/2003 of FAMILY COURT,TRIVANDRUM .................... ## APPELLANT/RESPONDENT NO.2 ---------------------------------------- K.B.ANIL KUMAR, S/O.KRISHNAN NAIR, ALUVILA VEEDU, NEAR V.J.HOSPITAL, VATTAPPARA P.O., THIRUVANANTHAPURAM, NOW RESIDING AT CHANDRA NIVAS, ARUVIYODU, MANANTHALA P.O. BY ADV. SRI.R.T.PRADEEP ## RESPONDENTS/PETITIONER & RESPONDENTS NO.1 & 3. ------------------------------------------------- 1. N.S.SHEELA, C/O. N.S.RADHAKRISHNAN, DEVIKRISHNA, ERATTAKALINGU, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM. * 2. K.B.AJEED, S/O.KRISHNAN NAIR, ALUVILA VEEDU, NEAR V.J. HOSPITAL, VATTAPPARA P.O., THIRUVANANTHAPURAM. * 3. K.V.SUNIL KUMAR, RESIDING AT ALUVILA VEEDU, NEAR V.J.HOSPITAL, VATTAPPARA P.O., THIRUVANANTHAPURAM. *THE NAME OF RESPONDENTS 2 AND 3 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 24.7.2008 ON I.A.NO.1768/2008. ADV. DR.K.P.SATHEESAN SRI.ANOOP V.NAIR SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.K.K.RAJEEV THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 20/07/2011, THE COURT ON 19/09/2011 DELIVERED THE FOLLOWING: **“CR”** ## **THOTTATHIL B. RADHAKRISHNAN & N.K.BALAKRISHNAN, JJ.** **---------------------------------------------------Mat. Appeal No.256 of 2006 ---------------------------------------------------Dated this the 19[th] day of September, 2011** ## **Judgment** ## **Balakrishnan, J.** The short question that arises for consideration in this appeal filed under Section 19 of the Family Courts Act, 1984 is whether the Family Court lacks jurisdiction to decide the claim made by the first respondent-wife against her husband's brother for return of money and whether the O.P. filed by her before the Family Court is a suit or proceeding 'in circumstances arising out of a marital relationship' as mentioned in explanation (d) to Section 7(1) of the Family Courts Act (for short 'the Act'). The first respondent-wife filed O.P. before the Family Court against her husband and his brothers. As against the appellant herein, the claim made by her was for recovery of Rs.1,20,700/-. Her case is that while the marital relationship between her and her husband (1[st] respondent in the O.P.) was subsisting, as directed and influenced by her husband, she stood as a surety for the appellant in a chitty transaction and since the appellant defaulted payment of the Mat.A.No.256/06 - 2 - amount, a sum of Rs.28,500/- was recovered from her salary and thereafter she remitted Rs.92,200/- to close the loan transaction so as to avoid recovery of amount from her salary which was attached for recovery of the amount due from the appellant. The appellant and other respondents in the O.P. remained ex parte. Accepting the affidavit filed by her in lieu of chief examination, the court below granted a decree for return of the said amount of Rs.1,20,700/- and also granted the reliefs sought for against the other respondents. 2. The main plank of the argument advanced by Mr.R.T.Pradeep, the learned counsel for the appellant is that the Family Court has no jurisdiction to try the suit since the appellant is not a party to the marriage. According to the learned counsel, the Family Court shall have and exercise the jurisdiction exercisable by any civil court in respect of suits and proceedings and such a suit or proceeding should be between the parties to a marriage with respect to the property of the parties or of either of them. ## 3. The decision in **Krishnan Nambudiri v. Thankamani** (1994(1) KLT 607) is not applicable to the facts of this case since that decision was rendered interpreting explanation (c) Mat.A.No.256/06 - 3 - to Section 7(1) of the Act. In that case the subject matter of the suit belonged not only to the parties to the marriage, the plaintiff and the first defendant, but belonged to others also. Hence, it was held that it is not enough that the suit is between the parties to the marriage, but the same should be with respect to the property of the parties or either of them. ## 4. In **Ali Haji v. Alima** (1996(2) KLT 997) it was held: “Since, the objection sought to be put forward in this case is under clause (c) of the Explanation to S.7(1) of the Act, a subsisting marital relationship has to be posited before it could be said that the jurisdiction of the Family Court is attracted in respect of a dispute relating to property of either of the parties.” Therefore, that decision has no application to the facts of this case. ## 5. The decision in **Abdul Jaleel v. Shahida** [2003(2) KLT 403(SC) ] was a case where the apex court was dealing with explanation (c) to Section 7. There it was held: “The wordings 'disputes relating to marriage and family affairs and for matters connected Mat.A.No.256/06 - 4 - therewith' in the view of this Court must be given a broad construction. The Statement of Objects and Reasons, as referred to hereinbefore, would clearly go to show that the jurisdiction of the Family Court extends, _inter alia_ , in relation to properties of spouses or of either of them which would clearly mean that the properties claimed by the parties thereto as a spouse of other; irrespective of the claim whether property is claimed during the subsistence of a marriage or otherwise.” 6. The Family Courts Act was enacted with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. The Law Commission in its 59[th] report had emphasised that in dealing with disputes concerning the family, the court should adopt an approach different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. A perusal of the statement of objects and reasons would also make it clear that the Act seeks to exclusively provide within the jurisdiction of the Family Court, the matters Mat.A.No.256/06 - 5 - relating to the property of the spouses or either of them. Explanation (c) to Section 7(1) of the Act refers to suit or proceedings between the parties to a marriage with respect to the property of the parties or either of them. But so far as the case on hand is concerned, the appellant and the 1[st] respondent are not parties to the marriage and the decree impugned in this appeal does not fall within explanation (c) to Section 7(1) of the Act. 7. Though it was initially submitted on behalf of the 1[st] respondent/wife that the dispute in this case would fall under explanation (c) to Section 7(1) also, that was not seriously pressed into service because the dispute is not between the parties to a marriage with respect to the property of the parties or either of them. 8. Mr.Anoop Nair, learned counsel appearing for the respondent-wife would submit that the dispute in this case is covered by explanation (d) to Section 7(1) as it arose “in circumstances arising out of a marital relationship”. Mr.R.T.Pradeep, learned counsel for the appellant would submit that in order to attract explanation (d) to Section 7(1) it must stem from a marriage and since the appellant is not a Mat.A.No.256/06 - 6 - party to the marriage, the claim for money alleged to be due from him to the respondent cannot be one which would fall “in circumstances arising out of a marital relationship”. This argument has been stiffly resisted by Mr.Anoop Nair, learned counsel appearing for the respondent who would submit that 'circumstances' referred to in explanation (d) has to be liberally interpreted and if so construed, it would include such circumstances which arose surrounding the marriage also. In this connection, the learned counsel submits that the case of the respondent/wife is that she happened to stand as a surety to the appellant to the chitty transaction because of the pressure exerted and due to the influence of her husband and it is only to maintain harmony in the matrimonial home she happened to stand as a surety. It is further submitted that had the appellant been a total stranger, there would have been no occasion for the respondent to stand as a surety and that only because the appellant happened to be the brother of the respondent's husband, to avoid dispute, she obliged her husband to stand as a surety. Therefore, the argument advanced by the learned counsel is that the words “circumstances arising out of a marital relationship” employed Mat.A.No.256/06 - 7 - in explanation (d) to Section 7(1) would include such circumstances which developed during the subsistence of the marital relationship, and in this case admittedly she happened to stand as a surety during the subsistence of the marriage between herself and Ajeed, the appellant's brother. It is also argued by Mr.Anoop Nair that if the intention of the legislature was to take in only disputes between parties to the marriage or circumstances which are so connected with the marriage, there was no necessity to have explanation (d) to Section 7(1) at all. As per Black's Law Dictionary, the meaning of the word 'circumstance' is “An accompanying or accessory fact, event, or condition, such as a piece of evidence that indicates the probability of an event.” In this connection, the learned counsel has relied upon the decision in **Leby Issac v. Leena M.Nian** (2005(3) KLT 665) where it was held: “The expression 'in circumstances arising out of marital relationship' thus means not only those occurrences which transpired during marital life, but those also include such circumstances which led to the marriage, which developed thereafter, which took place during Mat.A.No.256/06 - 8 - marital life, which resulted in breaking down of marriage and also those which 'closely' followed as a consequence of all these. If the intention of legislature was to take in only those occurrences which take place during a 'marital relationship', there was no necessity to use the word 'circumstances' in explanation (d) to S.7(1) of the Act. The same purpose could have been achieved if explanation (d) is worded without the term 'circumstances' also. So, the inclusion of word 'circumstances' in the relevant provision is quite significant and it must have been done to include all such circumstances surrounding, preceding and closely following a marital relationship ie., the principal event of marriage and the eventualities surrounding the same.” 9. The case of the wife, as has been mentioned earlier, arose during the subsistence of the marital relationship and the circumstances projected in this case have a direct bearing on the marriage. Since the relief awarded by the Family Court would be orders, the first part of explanation (d) to Section 7 Mat.A.No.256/06 - 9 - will be satisfied even though the section does not mention anything about a decree for recovery of money. Relying on the decision of the apex court in **Abdul Jaleel v. Shahida** [ 2003 (2) KLT 403 (SC) ] and the decision in **Leby Issac v. Leena M.Nian** (supra), it was held by another Division Bench in **Suprabha v. Sivaraman** (2006 (1) KLT 712): “It was probably because what was provided under S.7, Explanation (c) was not sufficient to bring all disputes arising out of marital relationship and there may be cases where either the husband or wife was not alive at the time of filing the suit that the legislature thought of adding clause (d). As per the practice, at the time of marriage, gold ornaments are given to the bride by her parents.” In that case it was held that the claim for return of the value of gold ornaments is a claim “in the circumstances arising out of a marital relationship”. 10. So far as the case on hand is concerned, there can be no doubt that the first respondent happened to stand as a surety for the appellant for the amount due from him to Mat.A.No.256/06 - 10 - K.S.F.E. when the marital relationship between her and her husband was subsisting and also when she was staying in her matrimonial home. She happened to stand as a surety only because of the influence or compulsion of her husband. Therefore, the amount due from the appellant (the brother of the first respondent's husband) arose “in circumstances arising out of a marital relationship”. It is a 'dispute' coming under explanation (d) to Section 7(1) of the Act. As such, the suit/petition before the Family Court is perfectly maintainable. 11. The fact that the appellant defaulted payment of the instalments and so Rs.20,500/- was recovered from the salary of the first respondent was not disputed. Similarly, the fact that she thereafter remitted the entire balance amount of Rs.92,200/- to close the loan transaction so as to avoid recovery of amount from her salary was also not disputed. Thus, according to the first respondent, the amount due to her from the appellant was Rs.1,20,700/-. The appellant remained ex parte before the court below. The averments contained in the petition with regard to the aforesaid claim were not refuted by filing any written statement. He did not choose to get the ex parte decree set aside by filing application for that purpose. Mat.A.No.256/06 - 11 - In fact, there was no case for the appellant that the amount as aforesaid was not paid by the first respondent when he defaulted payment of the amount nor was there any case for him that he had discharged that debt or liability to the first respondent. In fact, the first respondent has produced before this court the copies of the documents evidencing payment of the amount mentioned earlier. Therefore, we have no hesitation to hold that the decree challenged in this appeal is only to be confirmed. The appeal must necessarily fail. It is hence dismissed. No costs. **THOTTATHIL B.RADHAKRISHNAN, JUDGE.** **N.K.BALAKRISHNAN, JUDGE.** srd Mat.A.No.256/06 - 12 - Mat.A.No.256/06 - 13 -