MARIAMMA JOSEPH v ANITHA @ OMANA and Others

C.R.P.No.291 of 2021 1 # **CR** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 19**[TH] **DAY OF JANUARY 2024 / 29TH POUSHA, 1945** **CRP NO. 291 OF 2021** **AGAINST THE ORDER/JUDGMENT OS 369/2019 OF MUNSIFF COURT, CHANGANACHERRY\ CMA 79/2018 OF ADDITIONAL DISTRICT COURT,KOTTAYAM** ## **REVISION PETITIONER:** MARIAMMA JOSEPH, AGED 81 YEARS, W/O.JOSEPH, RESIDING AT ADAVICHIRA VALIYAPARAMBIL HOUSE, PALLICKACHIRA P.O., PAIPPADU KARA, PAIPPADU VILLAGE, CHANGANACHERRY TALUK BY ADVS. D.KISHORE R.MURALEEKRISHNAN (MALAKKARA) MEERA GOPINATH ARYA JOSEPH ## **RESPONDENTS:** 1 ANITHA @ OMANA, AGED 53 YEARS D/O.VASUDEVAN, POLACHIRA PUTHENPARAMBIL HOUSE, THRICKODITHANAM P.O, THRICKODITHANAM MURI, THRIKODITHANAM VILLAGE, CHANGANACHERRY TALUK, PIN 686 105 2 ARUN @ JAMES, S/O.ANITHA @ OMANA, AGED 33 YEARS POLACHIRA PUTHENPARAMBIL HOUSE, THRICKODITHANAM P.O, THRICKODITHANAM MURI, THRIKODITHANAM VILLAGE, CHANGANACHERRY TALUK, PIN 686 105 3 THE SUB REGISTRAR THENGANA SUB REGISTRY OFFICE, MADAPPALLY P.O., MADAPPALLY MURI, MADAPPALLY VILLAGE, CHANGANACHERRY TALUK, PIN 686 546 C.R.P.No.291 of 2021 2 4 THE VILLAGE OFFICER PAIPPADU VILLAGE, CHANGANACHERRY TALUK, PAIPPADU P.O., CHANGANACHERRY PIN 686 537 5 STATE OF KERALA REP.BY THE DISTRICT COLLECTOR, COLLECTORATE, KOTTAYAM, 686 002 BY ADVS. ABU MATHEW ## **OTHER PRESENT:** GP JIBU T.S. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R.P.No.291 of 2021 3 ## **V.G.ARUN J.** ------------------------------------- C.R.P. No 291 of 2021 **---------------------------------** Dated this the 19[th] day of January 2024 ## **O R D E R** The petitioner is the plaintiff in OS No.369/2016 pending on the files of the Munsiff Court, Changanacherry. The suit is filed seeking permanent prohibitory injunction restraining the 3[rd] defendant from registering any deed in respect of the plaint schedule property at the instance of defendants 1 and 2 and also to restrain the 4[th ] defendant from mutating the plaint schedule property in the name of defendants 1 and 2/respondents 1 and 2. The averments in the suit are to the following effect; The plaint schedule property originally belonged to the petitioner's son James and upon the death of James in the year 1987, the property devolved upon his father Joseph, i.e, the husband of the plaintiff. Joseph died intestate and thereupon the property devolved upon the plaintiff and her other children in accordance with the Indian Succession Act. As the children are living abroad, the plaintiff is managing the property. While so, the plaintiff got information that the first defendant had C.R.P.No.291 of 2021 4 approached the 4[th] defendant Village Officer for getting the property mutated in the name of defendants 1 and 2, by claiming to be the widow and son of deceased James. 2. In their written statement the defendants stated that James and the first defendant were residing together and had entered into a marriage agreement on 30/10/1986 and the second defendant is the son born to James and the first defendant. 3. On the basis of the pleadings, the trial court framed the following issues; i) Is the plaintiff entitled to get a decree for permanent prohibitory injunction as prayed for? ii) What is the order as to costs? 4. In the trial of the suit, the plaintiff was examined in part. At that stage, the Counsel for the second defendant challenged the maintainability of the suit on the ground that the Munsiff Court has no jurisdiction to entertain the suit and such power is vested with the Family Court alone. The learned Munsiff accepted the contention and held that, since the cause of action is based on the rights and obligations of the second defendant arising out of an alleged marital relationship C.R.P.No.291 of 2021 5 between his mother/1[st ] defendant and James, the deceased son of the plaintiff, the suit is one covered by Explanation (d) to Section 7(1) of the Family Courts Act,1984 ('the Act' for short). Based on that finding, the plaint was returned for presentation before the Family Court having jurisdiction. Although petitioner preferred an appeal challenging the order, the same was dismissed affirming the findings of the trial court. Hence this revision. 5. Learned Counsel for the revision petitioner contended that the courts below committed a fundamental flaw in holding that only the Family Court has jurisdiction to entertain the suit. For reaching such conclusion, the court below relied on Explanation (d) to Section 7(1) of the Act, which has no application to the facts of the case. It is argued that Explanation (d) to Section 7(1) of the Act would apply only to a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship. As far as the case at hand is concerned, the dispute is purely civil in nature and the contention that the first defendant had entered into a marriage agreement with the deceased son of the petitioner and the second defendant is the child born out of that relationship will not make it a suit for injunction in relation to circumstances arising out of a marital relationship. In support of this contention, reliance is placed on the decision of the Apex Court in **Kasthuri R. and Others v. M.Kasthuri and Others (2018 (5) SCC** C.R.P.No.291 of 2021 6 **353)** . It is submitted that the respondents/defendants have filed another suit before the Munsiff's Court seeking a declaration that the first respondent is the legally wedded wife of deceased James and the second respondent is the child born out of that relationship. 6. I heard the learned Counsel appearing for the respondents also. 7. Having carefully considered the contentions and upon scrutiny of Explanation (d) to Section 7(1) of the Act, I find substantial merit in the challenge raised against the impugned judgment. Explanation (d) to Section 7(1) of the Act would confer jurisdiction exclusively upon the Family Courts when the suit or proceedings is for an order or injunction in relation to circumstances arising out of a marital relationship. Here, the petitioner is seeking injunction against the respondents on the strength of her title over plaint schedule property. Respondents, on the other hand, claim right over the property based on a marriage agreement alleged to have been executed between the first respondent and the deceased son of the petitioner and also claiming that the second respondent is born in the relationship between the first respondent and the petitioner's deceased son. The question therefore is whether the suit can be termed as one in relation to circumstances arising out of a marital relationship. The term 'marital relationship' means relationship arising out of marriage. This Court in “ **X” v. Nil** ( **2023 (4) KHC 203)** has held that, ‘marriage’ referred to in the preamble of the Family Courts C.R.P.No.291 of 2021 7 Act only denotes marriage as recognised by law and marriage entered through contract has no recognition under law. The specific contention of the first defendant being that she had entered into a marriage agreement with James, the relationship based on the agreement cannot be termed as ‘marital relationship’, so as to bring the disputes arising out of or in relation to the relationship within the ambit of Explanation (d) to Section 7(1) of the Act. 8. Even if, for the sake of argument it is accepted that there was marital relationship between the first defendant and James, the suit for injunction filed by the petitioner on the strength of her title cannot be considered as one for injunction in circumstances arising out of a marital relationship. In this regard, it is essential to note that there is no family dispute between the plaintiff and the defendants and the dispute is purely civil in nature. The question whether the second defendant is the son of the deceased James cannot also decided in the suit, particularly when the second respondent has filed a separate suit for that purpose. In **Kasthuri's case** (supra), wherein the dispute with respect to property arose between two ladies who claim to be the wife of the deceased owner of the property, the Apex Court held the dispute to be purely civil dispute having no bearing on any dispute within a family which needs to be resolved by a special procedure provided under the Act. It was also held that the dispute between the parties can only be C.R.P.No.291 of 2021 8 resolved on the basis of evidence to be tendered by the parties, the admissibility of which has to be adjudged within the four corners of the provisions of the Indian Evidence Act, 1872. 9. What would amount to 'circumstances' in relation to marital relationship was considered by a Division Bench of this Court in **Leby Issac v. Leena M. Ninan and Others** ( **2005 KHC 960)** . Paragraphs 13 and 14 of that judgment being contextually relevant, are extracted hereunder; “13. So, 'circumstances' in relation to a marital relationship will be those particulars which closely precedes, surrounds, accompanies and follows a marital relationship. That means, primarily those can be the marriage itself and the surrounding occurrences in connection with marriage. The main requirement is that such 'circumstances' must have a direct bearing on marriage, since the marriage precedes, the existence or origin of a 'marital relationship'.'Circumstances' arising out of a marital relationship are therefore, 'occurrences or things which stand around or about, which attend upon, which closely precede or follow, which surround and accompany, which depend upon, or which support or qualify the principal event' of a marriage or marital relationship. 14. 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 marital life, which resulted C.R.P.No.291 of 2021 9 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 i.e., the principal event of marriage and the eventualities surrounding the same.” 10. As held by the Division Bench, the purpose behind including the word 'circumstances' is to bring in all circumstances surrounding, preceding and closely following the principal event of marriage and the eventualities surrounding the same. In as much as the relationship between the first defendant and James does not amount to marital relationship, the circumstances and eventualities surrounding the same will not fall within the ambit of Explanation (d) to Section 7(1) of the Act. 11. The above discussion leads to the conclusion that the courts below committed serious error in returning the plaint on the premise that the suit is in relation to circumstances arising out of marital relationship and can therefore be decided only by the Family Court. In the result, the Civil Revision Petition is allowed and the impugned judgment is set aside. O.S.No.369/2016 will stand restored to C.R.P.No.291 of 2021 10 files of the Munsiff Court, Changacherry. The parties shall appear before the Munsiff Court on 19/02/2024. Sd/- **V.G.ARUN Judge.** dpk