Nikhil, Narayanan & Shyamala v Leena

**'C.R.'** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941** # **OP (FC).No.70 OF 2020** **AGAINST THE ORDER IN I.A.NO.4972/2019 IN OP 2203/2018 DATED 20.11.2019 OF FAMILY COURT,THRISSUR** ## **PETITIONER/S:** **1 NIKHIL, AGED 38 YEARS S/O. NARAYANAN, THUSHARAM HOUSE, PUTHUPANNAM P.O., VATAKARA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE-673 105. 2 NARAYANAN, AGED 69 YEARS F/O. NIKHIL, THUSHARAM HOUSE, PUTHUPANNAM P.O., VATAKARA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE-673 105. 3 SHYAMALA, AGED 59 YEARS W/O. NARAYANAN, THUSHARAM HOUSE, PUTHUPANNAM P.O., VATAKARA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE-673 105. BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY** ## **RESPONDENT/S:** **LEENA, AGED 34 YEARS W/O. NIKHIL, THERLI HOUSE, THIRUVATHRA DESOM, P.O. MANATHALA AMSOM, CHAVAKKAD TAUK, THRISSUR-680 516.** **R1 BY ADV. SRI.T.K.ASOKAN R1 BY ADV. SRI.K.R.DALLY** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 06-032020, THE COURT ON 11-03-2020 DELIVERED THE FOLLOWING:** **OP (FC).No.70 OF 2020** ..2.. ## **JUDGMENT** ## **K. Harilal, J.** The petitioners are the respondents in O.P.No.2203/2018 on the file of the Family Court, Thrissur and the aforesaid original petition was filed by the respondent herein, seeking a decree for return of gold ornaments, money and compensation from the 1[st] petitioner/husband. The 1[st] petitioner and the respondent are husband and wife and the 2[nd] and 3[rd] petitioners are the parents of the 1[st] petitioner. The petitioners disputed the jurisdiction of the Family Court to adjudicate the claim for gold ornaments and money, raised by the respondent/wife. Hence, they filed I.A.No.4972/2019 to consider the issue of jurisdiction as a preliminary issue **OP (FC).No.70 OF 2020** ..3.. before trial. 2. The respondent/wife filed a counter statement contending that the Family Court, Thrissur has territorial jurisdiction to try the original petition, as the cause of action has arisen at the place of marriage, within the jurisdiction of the Family Court, Thrissur. 3. After considering the rival pleas, the Family Court, Thrissur rejected the contention, challenging the jurisdiction of the Family Court, Thrissur and dismissed I.A.No.4972/2019 by Ext.P5, on a finding that on a careful perusal of the entire pleadings advanced by the 1[st] petitioner/husband, it can be seen that part of the cause of action for the present litigation has arisen within the jurisdiction of the Family Court, Thrissur. The legality and correctness of the aforesaid **OP (FC).No.70 OF 2020** ..4.. findings are challenged in this O.P.(FC), filed under Article 227 of the Constitution of India. 4. Heard the learned counsel for the petitioners and the learned counsel for the respondent/wife. 5. The learned counsel for the petitioners drew our attention to the averments in the original petition and contended that there is no averments to the effect that any part of the cause of action has arisen at a place within the jurisdiction of the Family Court, Thrissur. According to the learned counsel for the petitioners, merely for the reason that the marriage has been solemnised at a place within the territorial jurisdiction of the Family Court, Thrissur, it cannot be held that the Family Court, Thrissur will get jurisdiction to **OP (FC).No.70 OF 2020** ..5.. determine the claim for return of gold ornaments, which was allegedly misappropriated by the 1[st] petitioner, while they were residing together in the house of the petitioners, within the jurisdiction of the Family Court, Vatakara. According to the learned counsel for the petitioners, in the absence of any averments, disclosing the cause of action, within the jurisdiction of the Family Court, Thrissur, the Family Court, Thrissur will not get territorial jurisdiction to adjudicate the claim for return of gold ornaments, which was allegedly misappropriated at a place, within the jurisdiction of the Family Court, Vatakara. The learned counsel further contends that the territorial jurisdiction, for instituting a suit for recovery of gold ornaments would be governed by the provisions under the Code of **OP (FC).No.70 OF 2020** ..6.. Civil Procedure (CPC), more particularly; Section 20 of the CPC. 6. Per contra, the learned counsel for the respondent/wife advanced arguments to justify the findings of the Family Court, Thrissur that the entire pleadings advanced by the respondent/wife would show that a part of the cause of action for claiming return of gold ornaments has arisen within the jurisdiction of the Family Court, Thrissur. 7. In support of the said arguments, the learned counsel for the petitioners has produced certain documents, which would show that the respondent/wife had worn the gold ornaments, for which the respondent/wife has claimed reliefs from the 1[st] petitioner/ husband. 8. In view of the arguments at the bar, the question to be considered is, whether **OP (FC).No.70 OF 2020** ..7.. there is any illegality or impropriety in the findings of the Family Court, Thrissur, as to whether the Family Court, Thrissur has a territorial jurisdiction to adjudicate the claim for recovery of gold ornaments, allegedly misappropriated by the petitioners. 9. Going by Section 7 of the Family Courts Act, 1984, we find that Section 7 deals with the nature of disputes, that can be adjudicated by the Family Court and left the territorial jurisdiction with the relevant statutes under which the rights are asserted and reliefs are claimed by the parties. Further, Section 10 of the Family Courts Act r/w Rule 50 of the Family Courts (Kerala) Rules, 1989 would show that the provisions of CPC and any other law for the time being in force shall apply to suits and procedure (other than the proceedings under **OP (FC).No.70 OF 2020** ..8.. Chapter IX of the Code of Criminal Procedure, 1973), before a Family Court and for the purpose of the said provisions in the Code, a Family Court shall be deemed to be a Civil Court and shall have all the powers of such court. The claim for return of gold ornaments and money would fall under Explanation (c) to Section 7(1) of the Family Courts Act. When CPC is made applicable to the Family Court, it follows that the territorial jurisdiction to adjudicate the dispute falling under Explanation (c) to Section 7 of the Family Courts Act could be governed by Section 20 CPC. According to Section 20 CPC “every suit shall be instituted in a Court within the local limits of whose jurisdiction, the defendant actually and voluntarily resides, or carries on business, or personally works for gain or where the cause of action, wholly **OP (FC).No.70 OF 2020** ..9.. or in part, arises”. 10. In the above view, which is the proper court having territorial jurisdiction to adjudicate claims for return of gold ornaments? We are of the opinion that merely for the fact that the marriage was solomnised at a place within the jurisdiction of a particular Family Court, it cannot be said that, that Family Court will get territorial jurisdiction to adjudicate the claim for return of gold ornaments, if the averments in the plaint would show that the gold ornaments were entrusted with the husband or misappropriated by the husband, when they were living together in the marital house, within the territorial jurisdiction of another Family Court. In other words, merely for the reason that the marriage was solomnised at a place within the jurisdiction **OP (FC).No.70 OF 2020** ..10.. of the Family Court, it cannot be said that the gold ornaments were entrusted with the husband or misappropriated by him at that place, where the marriage was solomnised. 11. Bearing the aforesaid legal proposition in mind, we have gone through the averments in the plaint. In the above context, it is to be borne in mind that in _**Central provident Fund Commissioner, New Delhi and Others**_ v. _**Lala J.R. Education Society and Others [(2016) 14 SCC 679]**_ , the Hon’ble Supreme Court clarified that only contents of the plaint has to be seen and not anything else including written statement or documents produced by the defendant for determining the jurisdiction of a court. 12. Therefore, we reject the application filed by the respondent/wife as I.A.No.1/2020 with documents to substantiate the contention **OP (FC).No.70 OF 2020** ..11.. ## raised by the respondent/wife. 13. On a meticulous examination of the averments in the plaint, we find that there is no averment to the effect that any part of the cause of action has arisen at any place within the jurisdiction of the Family Court, Thrissur. Further, we find that it is the case of the respondent/wife that, while they were living together in the house of the petitioners at Vatakara, the 1[st] petitioner has misappropriated the gold ornaments from her and mentally and physically tortured her. So she is entitled to recover the gold ornaments and the 1[st] petitioner is liable to pay Rs.25,00,000/- (Rupees twenty five lakhs) as compensation for the mental and physical damages caused to the respondent/wife herein. 14. According to the pleadings, no part of cause of action has arisen at a place, **OP (FC).No.70 OF 2020** ..12.. within the territorial jurisdiction of the Family Court, Thrissur. But, according to the averments in the plaint, the cause of action for claiming recovery of gold ornaments and compensation has arisen, within the territorial jurisdiction of the Family Court, Vatakara, as the cause of action has arisen, when they were living together in the house of the petitioners at Vatakara, within the jurisdiction of the Family Court, Vatakara. 15. Thus, we find that the Family Court, Thrissur went wrong by finding that the Family Court, Thrissur has the territorial jurisdiction to try the suit. In the absence of territorial jurisdiction, the Family Court, Thrissur is directed to return the original petition to the respondent/wife for enabling her to present the same before the Family Court, Vatakara, as provided under **OP (FC).No.70 OF 2020** ..13.. Order 7 Rule 10(2) of the CPC. This original petition is disposed of accordingly. **Sd/K.HARILAL JUDGE** SB/12/03/2020 **Sd/C.S.DIAS JUDGE** **OP (FC).No.70 OF 2020** ..14.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORIGINAL PETITION DATED 1.12.2018 FILED BEFORE THE FAMILY COURT, THRISSUR IS PRODUCED HEREWITH AND MARKED AS EXHIBIT P1.** **EXHIBIT P2** **TRUE COPY OF THE COUNTER FILED BY RESPONDENTS DATED 27.8.2019.** **EXHIBIT P3** **TRUE COPY OF THE AFFIDAVIT AND APPLICATION FILED TO CONSIDER THE ISSUE OF JURISDICTION OF PRELIMINARY ISSUED AS I.A.4972/2019.** - **EXHIBIT P4** **TRUE COPY OF THE COUNTER STATEMENT DATED 11.11.2019 BY RESPONDENTS IN ORDER IN I.A.4972/2019.** **EXHIBIT P5** **TRUE COPY OF THE ORDER IN I.A.4972/2019 BEFORE THE FAMILY COURT, THRISSUR DATED 20.11.2019.** ## **// true copy //** ## **P.A to Judge**