Meharban v Abdul Rahim and Basheer

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 5TH DAY OF FEBRUARY 2018 / 16TH MAGHA, 1939** **Tr.P(C).No. 161 of 2017** **TO TRANSFER OS.NO.652/2013 of MUNSIFF COURT, KOTTARAKKARA TO THE FAMILY COURT,ATTINGAL** **--------** ## **PETITIONER(S)/** **-------------** **MEHARBAN,** **S/O.SAFIYA BEEVI, AGED 39 YEARS, KOLLAYIL HOUSE, K.K.KONAM P.O., PALLICAKAL, THIRUVANANTHAPURAM DISTRICT, (FROM SUBAIR MANZIL, UMMANNOOR CHERRY, VAYAKKAL P.O., VALAKOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM** **BY ADV.SRI.B.MOHANLAL** **RESPONDENT(S)/:** ## **--------------** ## **1. ABDUL RAHIM,** **S/O.SUBAIR KUNJU, MANJU MANZIL, FROM SUBAIR MANZIL, VAYAKKAL P.O., VALAKOM VILLAGE, KOTTARAKKARA, KOLLAM,PIN-691 548.** ## **2. BASHEER,** **S/O.KOCHU KUNJU, THELUKUTTY KIZHAKKATHIL, PORUVAZHY P.O., PORUVAZHY VILLAGE, KUNNATHOOR, KOLLAM,PIN-690520.** **R2 BY ADV. SRI.SYAM J SAM** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **TS** ## **Tr.P(C).No. 161 of 2017** ## **APPENDIX** **PETITIONER(S)' ANNEXURES** **-----------------------** **ANNEXURE A1:- THE TRUE COPY OF THE O.P.NO.1145/2013 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KOTTARAKKARA.** **ANNEXURE A2:- THE TRUE COPY OF THE O.P.NO.1200/2013 FILED BY THE PETITIONER BEFORE THE FAMILY COURT, KOTTARAKKARA.** **ANNEXURE A3:- THE TRUE COPY OF THE O.S.NO.652/2013 FILED BY THE 2ND RESPONDENT BEFORE THE MUNSIFF COURT, KOTTARAKKARA.** **RESPONDENT(S)'ANNEXURES - NIL** **------------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS** ## **ALEXANDER THOMAS, J.** ## **--------------------------------** ## **Tr.P.C No.161 of 2017** ## **----------------------------------------Dated this the 05[th] day of February 2018** ## **ORDER** ## The prayer in this Transfer Petition (Civil) is as follows: _For the above reasons and other valid ground that are to be urged at the time of hearing it is most humbly prayed in the interest of justice that this Hon'ble Court may be pleased to transfer O.S.No.652/2013 on the file of the Munsiff Court, Kottarakkara to Family Court, Attingal to try along with O.P.No:125/2016, 126/2016 and 127/2016._ 2. Though service of notice on 1[st] respondent is duly completed, there is no appearance for the parties and Sri.Syam.J.Sam has entered appearance for the 2[nd] respondent. 3. Heard Sri.B.Mohan Lal learned counsel for the petitioner and Sri.Syam J.Sam learned counsel for the 2[nd] respondent. 4. The petitioner herein is the wife of the 1[st] respondent. Differences of opinion between the parties have led to matrimonial disputes. The petitioner had filed O.P.No.1145/2013 (seeking recovery of gold ornaments and money) before the Family Court, Kottarakkara. The petitioner has also filed O.P.No.1200/2013 (seeking for setting aside the sale deed executed by the 1[st] respondent 2 ## Tr.P.C No.161 of 2017 in favour of the 2[nd] respondent), on the contention that the said transaction is a sham transaction. The 1[st] respondent (husband) has filed O.P.No.1192/2013 (seeking divorce) before the Family Court, Kottrakkara. It is submitted that the petitioner had filed a Transfer Petition (Civil) before this Court, seeking transfer of the above said three cases from the Family Court, Kottarakkara to Family Court, Attingal; as she had changed her residence to Attingal and thereafter, this Court in that transfer petition, had transferred all the three above said original petitions filed before the Family Court Kottarakkara to Family Court, Attingal and were re-numbered as O.P.Nos.125/2016, 126/2016 and 127/2016 respectively. 5. It is the case of the petitioner that the 1[st] respondent had colluded together with the 2[nd] respondent and transferred the property and building of the petitioner to the 2[nd] respondent herein. Later, the 2[nd] respondent herein had filed O.S No.652/2013 before the Munsiff Court, Kottarakkara, arraying the petitioner and the 1[st] respondent herein as the defendants therein; seeking prohibitory injunction as against the petitioner and her husband from entering into the said plaint schedule property. It is stated that the plaint schedule property covered in O.S No.652/2013, is the very same 3 ## Tr.P.C No.161 of 2017 property, which is sought to be cancelled in terms of the prayers in O.P No.126/2016, now pending on the file of the Family Court, Attingal. It is further stated that going by the provisions of Sec.7(1) of the Family Courts Act, 1984, the said matter could be entertained and adjudicated only by the Family Court concerned and not by the civil court, in view of the provisions contained in Sec.7(1) of the Family Courts Act. On a perusal of Annexure-A3, it is seen that one of the prayers therein is to set aside the sale deed number 2544/2013 dated 30.10.2013 of SRO Kottarakkara. On a perusal of the averments in Annexure-A3 original suit filed by the 2[nd] respondent can be seen that the plaintiff therein is asserting his right over the property concerned solely on the basis of the document said to have been executed as document No.2544/2013 of SRO Kottarakkara dated 30.10.2013. Therefore, it is clear that the subject matter of the two litigative proceedings is one and the same as it pertained to the very same property. 6. The scope and ambit of the parameters laid down as “ _circumstances arising out of a marital relationship_ ” occurring in clause (d) of the Explanation appended to Sec. 7(1) of the Family Courts Act, has been dealt with in a catena of rulings of the Division 4 ## Tr.P.C No.161 of 2017 Bench of this Court as in _**Leby Issac v. Leena M. Ninan**_ reported in 2005 (3) KLT 665, _**Thomas v. Ponnama Thomas**_ reported in2013 (4) KLT 43, _**Suprabha v. Sivaraman**_ reported in2006 (1) KLT 712, _**Syamaladevi v. Saraladevi**_ reported in2009 (1) KLT 892, _**Vasumathi v. Valsan**_ reported in2011 (3) KLT 638, _**Anilkumar v. Sheela**_ reported in2011 (4) KLT 120, _**Krishna Moorthy v.Soumya Krishnan**_ , reported in 2015 (4) KLT 471, _**Janaki Amma v.Renuka Sadanandan**_ , reported in 2016 (1) KLT 563, etc. As per the plaint averments in Anx.3 O.S.No.652/2013 filed before the Munsiff's Court, Kottarakkara, by the 2[nd] respondent herein, the specific case therein is that the plaint schedule property was purchased by the plaintiff therein (R-2 herein) as per sale deed No.2544 of Kottarakkara SRO, executed by D-1 therein (R-1 herein) and that when the said property was purchased, R-1 herein had sought one week's time to continue to reside in that property and that R-2 herein had permitted R-1 herein to reside in that property for one week and D-1 and D2 in the suit (R-1 and R-2 herein) who are husband and wife, tried to prevent the plaintiff (R-2 herein) from entering into that plaint schedule property and that they attempted to cut and remove the trees in the said plaint schedule property and 5 ## Tr.P.C No.161 of 2017 that thereupon they were asked to vacate the premises and that the said spouses had later attempted to bring a group of people to enter the property on 13.11.2013, etc. and that by the intervention of the people of the locality, their effort was not successful and that R-1 and R-2 herein are still trying to trespass into the property, etc. ## 7. Sec. 7(1) of the Family Court Act provides as follows: - “7. **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 proceedings of the nature referred to in the Explanation; 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;_ 6 Tr.P.C No.161 of 2017 - _(b) a suit or proceedings for a declaration as to the validity of a marriage or as 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;_ ## _(d)_ _**a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;**_ - _(e) a suit or proceeding for a declaration as to the legitimacy of any person;_ - _(f) a suit or proceeding for maintenance;_ - _g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor”. (emphasis supplied)_ ## 8. Section 8 of the Family Court Act provides as follows: _“8._ _**Exclusion of jurisdiction and pending proceedings** .- Where a Family Court has been established for any area,-_ - _(a) no District Court any subordinate Civil Court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;_ - _(b) no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);_ - _(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),-_ - _(i) which is pending immediately before the_ 7 ## Tr.P.C No.161 of 2017 _establishment of such Family Court before any District Court or subordinate Court referred to in that sub-section or, as the case may be, before any Magistrate under the said Code; and_ - _(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established,_ _shall stand transferred to such Family Court on the date on which it is established”._ 9. In view of the above position, the Family Courts are conferred with the exclusive jurisdiction to adjudicate on disputes of the natures referred to in the various clauses under the explanation under Sec. 7(1) and clause (d) thereof clearly states that suit or proceedings, order or injunction in circumstances arising of a marital relationship are exclusively conferred on the Family Court. By virtue of Sec.8, the jurisdiction of the civil courts in that regard is excluded. In the instant case, it is not yet disputed that Annexure-A3 suit has been filed on 15.11.2013, which is long after the coming into force of the Family Courts Act. Therefore, the matter in Annexure-A3 suit could have been entertained and adjudicated only by the Family Court concerned. Section 24 of the C.P.C regulates the powers 8 ## Tr.P.C No.161 of 2017 relating to transfer and withdrawal. Section 24(5) of C.P.C mandates that any suit or proceedings may be transferred under that section from a court which has no jurisdiction to try it. 10. In the light of these circumstances, it is ordered that Annexure-A3 suit, O.S.No.652/2013 now on the file of the Munsiff Court Kottarakkara will stand transferred to the Family Court, Attingal. The petitioner will produce a certified copy of the judgment before the Munsiff Court Kottarakkara in relation to O.S No.652/2013 to transfer the same to the Family Court Attingal. Upon receipt of the copy of the order, the Munsiff Court, Kottarakkara, will re-number the cases and will take steps to ensure that the case papers and case records in relation to O.S.No.652/2013 pending on the file of that court are transmitted to the Family Court, Attingal. After receiving the case papers and case records in relation to O.S No.652/2013, the Family Court, Attingal will issue notices to both parties and proceed further with the matter, in accordance with law. The petitioner will be at liberty to file an appropriate application seeking joint trial of all the cases pending before the Family Court, Attingal and there upon the said court shall consider the said plea after hearing broth the parties. 9 ## Tr.P.C No.161 of 2017 11. In order to alleviate the difficulties of the parties for personally attending before the Family Court, it is ordered in the interest of justice that it will be open to both the parties to make appropriate applications for exemption from personal appearance before the Family Court, upon which the said request may be considered favourably, provided the parties are represented through their respective Advocates. Needless to say that the parties will have to appear before the Family Court at the time of counselling and mediation process, etc., as and when specifically so directed by the Family Court. With the above observations and directions, the Transfer Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, Judge.** **SB/08/02/2018** **// true copy //** **P.A to Judge**