Mary, W/o Antony v Antony

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU MONDAY, THE 5TH DAY OF FEBRUARY 2018 / 16TH MAGHA, 1939 Mat.Appeal.No. 124 of 2009 AGAINST THE JUDGMENT DATED 20-08-2008 IN OP NO.236/2007 of FAMILY COURT,ERNAKULAM APPELLANT/PETITIONER: --------------------- MARY, W/O. ANTONY, AGED 58 YEARS, CHALANATTU VEETTIL, VADUTHALA, KOCHI-23, NOW AT C/O. JOSEPH LAZER, PEREPALLY VEETTIL, NEAR THIRUKUDUMBAM SCHOOL, CHITTUR, KOCHI. BY ADVS.SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK ## RESPONDENTS/RESPONDENTS: ------------------------ 1. ANTONY, AGED 83 YEARS, CHALANATTU VEETTIL, VADUTHALA, KOCHI-23(DIED) 2. KRISANTHA DANIEL, D/O. LATE ANTONY, KAINIKKADU HOUSE, PALAMUTTAM ROAD, EDAKOCHI, KOCHI - 682 006. 3. BUDHANSI, D/O. LATE ANTONY, KARAPPARAMBIL HOUSE, PYARI JUNCTION, THOPPUMPADY. 4. JOSE MANUEL, MATTUPURATH, PAZHAMPILLY THOMAS ROAD, VADUTHALA RAILWAY GATE, KOCHI -23, NOW AT C/O. BIJU ALEX, KARUVELIPARAMBU, KARUVELIPARAMBU ROAD, S.R.M. ROAD. R4 BY ADVS. SRI.DENY JOSEPH SRI.JOHN VIPIN R2 & R3 BY ADV. SRI.K.L.JOSEPH THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DST ## **K. HARILAL & A.M. BABU,JJ.** **= = = = = = = = = = = = = = = = =** **Mat. Appeal No.124 of 2009 - - - - - - -- - - - - - - - - - - - - -** _Dated this the 5[th] day of February, 2018_ ## **J U D G M E N T** ## **A.M. Babu,J.** The proceedings before the family court was in fact a suit. It was filed to get a gift deed set aside. The family court passed the impugned order directing to return the original petition for presentation before the proper court. The petitioner is in appeal. 2. The case of the petitioner may be briefly stated as follows: Herself and the 1[st] respondent decided to live together as husband and wife. A marriage agreement was executed by and between them. It was registered on 08.04.1984. The petitioner decided to marry the 1[st] respondent in order to have a secured life in the society. The 1[st] respondent ## **Mat. Appeal No.124 of 2009** ## **-: 2 :-** was keeping illicit relationship with many women. The relationship between the petitioner and the 1[st] respondent collapsed when one Mary claimed herself to be the daughter born to the 1[st] respondent in another woman. There were property transactions between by the petitioner and the 1[st] respondent. Ultimately she executed a gift deed in his favour in respect of her sole property. The extent of the property was 2.625 cents. The gift deed is vitiated by fraud, misrepresentation, undue influence et cetera. 3. The 1[st] respondent did not file writtenstatement. He died pendente lite. Respondents 2 and 3 were impleaded as his legal representatives. They supported the petitioner. 4. The 4[th] respondent contended himself to be a bona fide purchaser of the petition schedule property for valuable consideration and without ## **Mat. Appeal No.124 of 2009** ## **-: 3 :-** notice. His contentions go as under: The petition is not maintainable. The family court has no jurisdiction to decide the dispute involved in the case. The dispute raised by the petitioner does not come within the purview of the Family Courts Act _._ Only a civil court has jurisdiction to decide the dispute. The gift deed impugned in the suit is one validly executed. The property was purchased by the 4[th] respondent from the 1[st] respondent paying its price. The sale was known to the petitioner then and there. The property is in the exclusive ownership and possession of the 4[th] respondent. The petitioner is not the legally wedded wife of the 1[st] respondent. The execution of a marriage agreement between them is denied. They were not residing together. 5. The family court tried the suit. Evidence was adduced on the side of the petitioner only. PW1 was examined. Exts A1 to A8 were marked. No evidence ## **Mat. Appeal No.124 of 2009** ## **-: 4 :-** whatsoever was adduced on the side of any of the respondents. 6. The family court went deep into the question of its jurisdiction. It found it did not have. Therefore the petition was ordered to be returned to the petitioner for presentation before the proper court. 7. We heard Sri C.A. Chacko, the learned counsel for the petitioner and Sri John Vipin, the learned counsel for the 4[th] respondent. 8. The prayer in the suit was to set aside a gift deed. Injunction was also sought. The family court originally found that it had no jurisdiction. Therefore it directed to return the petition for presentation before the proper court. In appeal, this court remanded the case to the family court to consider afresh the question of jurisdiction. The suit was tried after the remand. The family court ## **Mat. Appeal No.124 of 2009** ## **-: 5 :-** again found that it did not have jurisdiction. Therefore it directed to return the petition to the petitioner for presentation before the proper court. 9. Sec.7 of the Family Courts Act deals with the jurisdiction of family courts. Sec.7(1) provides that subject to the other provisions of the Act, a family court shall 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 proceedings of the nature referred to in the explanation. The explanation states that the suits and proceedings referred to in Sec.7(1) are suits and proceedings enlisted thereunder as clauses (a) to (g). We are only concerned with clause (c) of the explanation. What clause (c) takes in is a suit or proceedings between the parties to a marriage with respect to the property of the parties or of either ## **Mat. Appeal No.124 of 2009** ## **-: 6 :-** of them. Should clause (c) apply the parties to the suit must be parties to a marriage. Was there a marriage is the question. 10. The parties to the alleged marriage are christians. They hail from the erstwhile Cochin state. Therefore they are governed by the Cochin Christian Civil Marriage Act, 1095(ME). Sec.4 of the said Act provides for solemnization of marriage. Admittedly there has been no solemnization of marriage between the petitioner and the 1[st] respondent. Even going by the allegations in the petition, what could be there was a living together. Ext A7 is an agreement executed by and between the petitioner and the 1[st] respondent to reside together as husband and wife. Ext A7 is only an agreement between a man and a woman to live as husband and wife. Ext A7 cannot confer the executants thereof the status of the husband and wife. There has been ## **Mat. Appeal No.124 of 2009** ## **-: 7 :-** no solemnization of marriage. Nobody has a case of solemnization of marriage. Therefore clause (c) of the explanation to sec.7(1) of the Family Courts Act can have no application. 11. The entire attempt before the family court and before us was to contend for a valid marriage on the strength of long cohabitation. The learned counsel for the petitioner refers to the evidence of PW1 on long cohabitation. Reliance was placed on Exts A4 to A7 documents in which the parties were referred to as husband and wife. The learned counsel relied on the decision of the apex court in _**Sobha Hymavathi Devi v. Setti Gandgadhara Swamy**_ [AIR 2005 SC 800]. The decision holds that there is a presumption in favour of marriage if there was long cohabitation. That was a case where there was an allegation and denial of solemnization of marriage. Such an allegation is lacking in the present case. ## **Mat. Appeal No.124 of 2009** ## **-: 8 :-** This is a case where nobody has a case that the marriage between the petitioner and the 1[st] respondent was ever solemnized. The presumption of long cohabitation is of no avail when the pleadings do not suggest a marriage. There must be certain basic requirements before drawing such a presumption. No presumption can take care of the petitioner since she has no case in her pleadings or evidence that her marriage with the 1[st] respondent was ever solemnized. Therefore the family court has no jurisdiction to entertain the disputes between the parties. The petitioner should approach a civil court. 12. The learned counsel for the petitioner submits that in the event of return of the petition, there is a likelihood of the relief getting barred by the law of limitation. That is not a matter which is to be considered in the present appeal. However, it ## **Mat. Appeal No.124 of 2009** ## **-: 9 :-** appears to us that sec.14 of the Limitation Act will take care of the petitioner. 13. We confirm the order of the family court directing to return the petition for presentation before the proper court. The said court passed such an order after the appearance of the respondents and also after conclusion of the trial. Therefore the family court should have complied with the provisions of order VII rule 10A of C.P.C. That was not done. We have to comply with order VII rule 10B of C.P.C. if the petitioner wishes to apply thereunder. The learned counsel for the petitioner submits that the petition will be presented before the munsiff court, Ernakulam as a plaint. The learned counsel requests us to fix a date for the appearance of the parties before the said court. We take the said submission of the learned counsel as an application within the meaning of order VII rule ## **Mat. Appeal No.124 of 2009** ## **-: 10 :-** 10B of C.P.C. We therefore shall fix a date for the appearance of the parties before the court of the munsiff, Ernakulam. 14. The appeal fails. The same deserves only a dismissal. We therefore dismiss the appeal. We record the submission of the learned counsel for the petitioner that the plaint will be presented before the munsiff court, Ernakulam. The parties shall appear before the said court on 20.03.2018. Sd/- **K. HARILAL,** **JUDGE** Sd/- **A.M. BABU, JUDGE** DST/07.02.2018 //True copy// P.A. To Judge