Preeja v. Sujatha

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 9TH DAY OF FEBRUARY 2018 / 20TH MAGHA, 1939** **Tr.P(C).No. 452 of 2017 ----------------------OS 341/2017 OF MUNSIFF COURT, KOLLAM --------** **PETITIONER/DEFENDANT --------------------** **PREEJA, AGED 28, D/O. SAJITHA PRAKASH, "POURNAMI", PERUNGUZHI P.O., THIRUVANANTHAPURAM - 695 305.** **BY ADVS.SRI.BINDU SREEKUMAR SRI.P.R.ASHOK KUMAR** **RESPONDENT/PLAINTIFF:** **--------------------** **SUJATHA, W/O. CHANDRASENAN, AGED 61, KALATHARAYIL HOUSE, MAYYANAD, KOLLAM -691 303.** **BY ADVS. SRI.M.R.RAJESH SMT.E.S.SANDHYA** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-02-2018 ALONG WITH TRPC 18/2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ## **Tr.P(C).No. 452 of 2017** ## **----------------------** ## **APPENDIX** ## **PETITIONERS ANNEXURES:** **---------------------** - **A1: TRUE COPY OF THE PLAINT IN OS 341/2017 DATED 12.4.2017.** - **A2: TRUE COPY OF THE ORIGINAL PETITION 985/2015 DATED 19.9.2015.** - **A3; TRUE COPY OF THE OBJECTION WITH COUNTER CLAIM FILED BY THE RESPONDENT.** - **A4: TRUE COPY OF THE ADDITIONAL OBJECTION DATED 27.2.2016.** - **A5: TRUE COPY OF THE INVENTORY PREPARED BY THE ADVOCATE COMMISSIONER DATED 30.8.2016** - **A6: TRUE COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT OF THE PETITIONER DATED 17.12.2016.** - **A7: TRUE COPY OF THE IA NO 1975/2017 DATED 12.4.2017.** ## **RESPONDENTS ANNEXURES: NIL** **---------------------** **K.V. P.S.TO JUDGE** ## ALEXANDER THOMAS, J. ----------------------------Tr.P(C).Nos.452/2017 & 18/2018 --------------------------------Dated this the 9th day of February, 2018. ## O R D E R The issue regarding the applicability of clause (d) of explanation appended to Sec.7(1) of the Family Courts Act, 1984, arises commonly in boh these petitions and both these petitions are disposed of by this common order. Tr.P(C).No.452/2017 2. The petitioner herein is the daughter-in-law of the respondent herein. The petitioner is also the defendant in Anx.A-1 O.S.No.341/2017 on the file of the Munsiff's Court, Kollam, instituted by the respondent herein/plaintiff. The said Original Suit, O.S.No.341/2017 has been instituted by the respondent herein (motherin-law) for declaring her title and ownership over the scheduled ornaments and a consequential mandatory injunction directing the petitioner/defendant to handover the said ornaments to the plaintiff/respondent herein and also to recover a sum of Rs.4,69,100/with future interest, etc. It is the case of the petitioner that there is matrimonial disputes between the petitioner and the son of the ::2:: Tr.P(C).Nos.452/2017 & 18/2018 respondent. The petitioner had filed O.P(HMA).No.151/2015 for restitution of conjugal rights against the husband and the said petition is pending before the Family Court, Attingal, and in the mediation process in that case, due to the stand of the husband, she wants to seek divorce, etc., the said O.P(HMA) was closed. It is further submitted that due to the matrimonial disputes between the petitioner and her husband, the petitioner had filed Anx.A-2 O.P.No.985/2015 before the Family Court, Attingal, against her husband seeking return of gold ornaments and money. Petitioner's husband has filed objections along with counter claim as per Anx.A-3. Further, the husband has filed Anx.A-4 objections in the said O.P.No.985/2015 additionally claiming that ornaments weighing around 50 sovereigns belong to his mother are also kept in the locker jointly opened by the petitioner and her husband. The petitioner had filed affidavit along with I.A.No.480/2016 in O.P.No.985/2015 before the Family Court, Attingal, to appoint an Advocate Commissioner to measure the gold ornaments of the petitioner kept in the joint name of the petitioner and husband in Co-operative Bank, Kollam. The said I.A was allowed by the Family Court, Attingal and the Advocate Commissioner had visited the Bank and opened the joint locker in the presence of both parties and the respective counsel ::3:: Tr.P(C).Nos.452/2017 & 18/2018 and Bank Manager for preparing the inventory of the gold articles and thereafter Anx.A-5 inventory of article was prepared with separate schedule of each item and its weight, wherein it is stated that the petitioner is having 136.37 sovereigns of gold and the 2nd respondent is having one bracelet weighing 7.34 gms. It is stated that Anx.A-5 inventory was signed by both parties and submitted before the Family Court, Attingal. It is further stated in the affidavit filed by the husband in Anx.A-2 O.P.No.985/2015, which is pending before the Family Court, Attingal, that his mother's gold ornaments weighing around 25-30 sovereigns of gold were given to the petiitoner for keeping it in the locker jointly opened by the petitioner and her husband, etc. It is further stated that the petitioner has also filed Anx.A-6 M.C.No.216/2016 filed under Sec.125 of the Cr.P.C before the Family Court, Attingal, etc. It is later, that Anx.A-1 suit, O.S.No.341/2017 has been filed by the respondent herein (mother-in-law). The respondent herein has also filed I.A.No.1975/2017 before the Munsiff's Court, Kollam along with the suit praying for an order of injunction restraining the defendant/petitioner from taking away the scheduled ornaments from the bank locker concerned. It is alleged that Anx.A-7 schedule description of the ornaments mentioned in that application is ::4:: Tr.P(C).Nos.452/2017 & 18/2018 in respect of the very same gold ornaments covered by Anx.A-5 inventory prepared by the Advoate Commissioner in O.P.No.985/2015 on the file of the Family Court, Attingal, etc. The main contention urged by the petiitoner is to the effect that going by the plaint averments in Anx.A-1 Original Suit, the matter therein arises out of circumstances arising out of matrimonial relationship as conceived under clause (d) of Sec.7(1) of the Family Courts Act. 3. Per contra, Sri.M.R.Rajesh, learned counsel for the respondent/mother-in-law, would contend that a perusal of the plaint averments in Anx.A-1 suit will make it clear that the said matter would not come within the sweep and ambit of Sec.7(1) Explanantion (d) of the Family Court Act and is it only a civil action that is to be maintained before the competent civil court concerned, etc., and that the Family Court has no jurisdiction in that regard and there is no need to transfer Anx.A-1 suit to the Family Court concerned. 4. Sec.7 of the Family Courts Act reads as follows: “S.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 ::5:: Tr.P(C).Nos.452/2017 & 18/2018 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) 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: - (b) a suit or proceeding 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. - (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise,- - (a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and - (b) such other jurisdiction as my be conferred on it by any other enactment.” Sec.8 of the Family Courts Act dealing with Exclusion of jurisdiction and pending proceedings reads as follows: ::6:: Tr.P(C).Nos.452/2017 & 18/2018 “ Sec.8.- Exclusion of jurisdiction and pending proceedings .- Where a Family Court has been established for any area,- (a) no district court or 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 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.” 5. Before dealing with the facts of the case, it would be relevant to note some of the rulings of this Court and that of the Apex Court on the matters connected with Sec.7 of the Family Courts Act. In the judgment in Leby Issac v. Leena M.Ninan , reported in 2005 (3) KLT 665, a Division Bench of this Court has dealt with a case where the suit was filed by the husband for recovery of money as compensation and damages from his wife and father-in-law and the Division Bench expressed that 'in circumstances arising out of a marital relationship' as occurring in Sec.7(1) of the Family Courts Act and held that the word 'circumstances' includes ::7:: Tr.P(C).Nos.452/2017 & 18/2018 all such circumstances surrounding, preceding and closely following a marital relationship. It was held therein that if a ‘petition’ is filed before a Family Court for an ‘order or injunction in circumstances arising out of a marital relationship’, such petition will be maintainable before a Family Court and the court has to firstly confirm from pleadings and other materials available in a case that a marital relationship is involved in the case. Secondly, the court has to consider whether the petition discloses existence of any circumstances arising out of marital relationship based on which relief in the petition is moulded and it has then to confirm whether relief sought for in the petition is either ‘injunction’ or other ‘order’. That on consideration of the above facts, if the court is satisfied that the case instituted before the court is a petition or “proceeding is for an order or injunction in circumstances arising out of a marital relationship”, the court can exercise jurisdiction to entertain such petition. 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 and the main requirement is that such ‘circumstances’ must have a direct bearing on marriage, since the marriage precedes, the ::8:: Tr.P(C).Nos.452/2017 & 18/2018 existence or origin of a ‘marital relationship’ and the ‘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. 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 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. It would be profitable to refer ::9:: Tr.P(C).Nos.452/2017 & 18/2018 ## to paras 10, 13 & 14 at pages 669-670, thereof which read as follows: '10. Therefore, it follows that if court finds that a ‘petition’ is filed before a Family Court for an ‘order or injunction in circumstances arising out of a marital relationship’, such petition will be maintainable before a Family Court. The court has to firstly confirm from pleadings and other materials available in a case that a marital relationship is involved in the case. Secondly, court has to consider whether the petition discloses existence of any circumstances arising out of marital relationship based on which relief in the petition is moulded. It has then to confirm whether relief sought for in the petition is either ‘injunction’ or other ‘order’. On consideration of the above facts, if the court is satisfied that the case instituted before the court is a petition or “proceeding is for an order or injunction in circumstances arising out of a marital relationship”, the court can exercise jurisdiction to entertain such petition. ## xxx xxx xxx 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 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. ::10:: Tr.P(C).Nos.452/2017 & 18/2018 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.' The above judgment of the Division Bench judgment in Leby Issac 's case (supra) was followed by in the case Krishna Moorthy v. Soumya Krishnan , reported in 2015 (4) KLT 471 in para 4 thereof. It was also contended by the appellants therein that those matters which are circumstances closely related to the marriage alone would be attracted under Clause (d) of Sec.7(1) and according to the appellant the expenses with relation to the marriage of the daughter and the education expenses of the son are not closely related to the marriage or marital relationship. The Division Bench repelled such contention in view of the liberal interpretation given by a Bench of this Court to the expression 'circumstances arising out of a matrimonial relationship' in the decision in Leby Issac 's case (supra), which was followed by another Division Bench of this Court in Thomas v. Ponnama Thomas , reported in 2013 (4) KLT 43, etc. It will be profitable to refer to para 7 of the decision in Krishna Moorthy v. Soumya Krishnan , reported in 2015 (4) KLT 471, which reads as follows: “7. But learned counsel for the appellant placed heavy reliance on the observations contained in the decision in Kamalasanan's case (supra). In the said case, a learned Judge of this court while deciding the question of ::11:: Tr.P(C).Nos.452/2017 & 18/2018 maintainability of a suit filed seeking for declaration that the defendant/father is bound to conduct marriage of his daughter and seeking mandatory injunction for directing him to provide sufficient funds for the marriage, held that the jurisdiction of the civil court is not ousted. There it is held that, matters enumerated under the Explanation to S.7(1) cannot be tried before any civil court. It is held that a suit for a declaration that the revision petitioner is bound to conduct marriage of the daughter and also for a mandatory injunction to provide her with necessary funds for the marriage, would not come under any of the Explanations contained in (a) to (g) of S.7(1). Learned counsel for the appellant pointed out that, in Suprabha's case (2006 (1) KLT 712) it is held that the decision in Kamalasanan's case (cited supra) to the effect that all matters not covered by S.7 of the Act would come with the civil courts jurisdiction, is upheld. The discussions in Suprabha's case (cited supra) on this aspect is to the effect that the learned Judge in Kamalasanan's case (cited supra) found that, a suit for declaration to the effect that the father is bound to conduct marriage of the daughter and also for a mandatory injunction to provide her with necessary funds for the marriage, would not come under any of the provisions of S.7 of the Family Courts Act. But at the same time in Suprabha's case (cited supra) it is held that the claim raised in the said case which is for recovery of value of gold ornaments, cash paid and other movables given at the time of marriage of Suprabha with Santhosh S/o. Sivaraman is clearly associated with the marital relationship. Therefore learned counsel for the appellants contended that only those matters which are circumstances closely related to the marriage alone would be attracted under clause (d) of S.7(1). According to him the expenses with relation to the marriage of the daughter and the education expenses of the son are not closely related to the marriage or marital relationship. But this court cannot accept such a contention in view of the liberal interpretation given by a Bench of this court to the expression 'circumstances arising out of a matrimonial relationship' in the decision in Leby Issac's case (supra) which is followed by another Bench of this court in Thomas v. Ponnama Thomas (2013 (4) KLT 43).” Similar view was reiterated by the Division Bench of this in the judgment in the decision in Janaki Amma v. Renuka Sadanandan , reported in 2016 (1) KLT 563, wherein it was held that in order to attract clause (c) of Sec.7(1), it should be a suit or a proceedings between the parties to a marriage with respect to the property of the parties or the property ::12:: Tr.P(C).Nos.452/2017 & 18/2018 of either of them. But that, in order to come under clause (d) it need to be only a suit or a proceedings for an order or injunction instituted under the circumstances arising out of the matrimonial relationship and therefore it is evident that in order to bring a suit or a proceedings within the ambit and scope of clause (d) of Explanation to Sec.7(1) there is no necessity that the parties to the marriage should be there in the party array (see para 12). It was further held in para 12 thereof that the suit/proceedings will be exclusively cognizable by the Family Court, if the dispute in such suit or proceedings is in circumstances arising out of a marital relationship and the words “for an order or injunction” together cover all reliefs that can be claimed in such suit or proceedings. That the non-specification of the nature of the “order or injunction” in clause(d) must convey that the relief claimed in such suit or proceedings can be anything i.e. “any order or injunction” and the expression “for an order or injunction” cannot obviously be read as an “order of injunction” and therefore there is no specific reference with respect to any decree in Clause (d) and hence the wording “as an order or injunction” must certainly be held to cover all possible reliefs that may be claimed in such suit or proceedings, including any decree. In Janaki Amma 's case (supra), their Lordships were of the considered opinion ::13:: Tr.P(C).Nos.452/2017 & 18/2018 that the crucial aspect to be considered while deciding the question as to whether it is a suit or a proceedings instituted seeking an order or injunction in the circumstances arising out of the marital relationship, is the cause of the lis itself and not the parties to the lis and the prime consideration should be as to whether the cause of the lis has got any bearing with the marital relationship. That an objective assessment should be made as to whether the cause has got any stem from the circumstances arising out of the marital relationship. In other words, whether the cause should have been existed but for the marital relationship, shall be the basis of the assessment and if the answer is on the positive, definitely the lis can be categorized as one not coming within the scope of clause (d) of Explanation. But if the cause of action is emerging out of any circumstances related to the matrimonial relationship and the same could not have existed independently, then the suit can be maintained before the Family Court, and it will fall under clause(d) of Explanation to Sec.7(1) of the Act. It will be profitable to refer to paras 11, 12 & 16 of Janaki Amma's case (supra), which read as follows: > “11. Leby Issac's case (supra) was taken note of in a subsequent Division Bench decision of this Court in Suprabha v. Sivaraman (2006 (1) KLT 712). It was observed that, meaning of the word 'circumstances' as found in Law Lexicon and Black's Law Dictionary include those particulars which ::14:: Tr.P(C).Nos.452/2017 & 18/2018 closely precedes, surrounds, accompanies or follows a marital relationship. It is found that in order to attract clause (c) it should be a suit or a proceedings between the parties to a marriage with respect to the property of the parties or the property of either of them. But to come under clause (d) it need to be only a suit or a proceedings for an order or injunction instituted under the circumstances arising out of the matrimonial relationship. Therefore it is evident that in order bring a suit or a proceedings within the ambit and scope of clause (d) of Explanation to S.7(1) there is no necessity that the parties to the marriage should be there in the party array. 12. In a later decision of this court in Vasumathi v. Valsan (2011 (3) KLT 638) a Division Bench had distinctly considered the scope of both the clauses (c) and (d) of Explanation. It is observed that clauses (b) and (d) to (g) of Explanation do not make specific reference to the parties to the suit or proceedings. They refer only to the nature of the dispute that are brought before court. In that view of the matter, clause (d) of Explanation refers only to the nature of the suit or proceedings and it does not refer to the parties to the litigation. The emphasis under clause (d), as we perceive it, is on the fact that the suit or proceedings must have a stem from the circumstances arising out of a marital relationship. Any one can be parties to the suit or proceedings. The suit/proceedings will be exclusively cognizable by the Family Court, if the dispute in such suit or proceedings is in circumstances arising out of a marital relationship. The words “for an order or injunction” together cover all reliefs that can be claimed in such suit or proceedings. The nonspecification of the nature of the “order or injunction” in Clause (d) must convey that the relief claimed in such suit or proceedings can be anything i.e., “any order or injunction”. The expression “for an order or injunction” cannot obviously be read as an “order of injunction”. Therefore there is no specific reference with respect to any decree in Clause (d) and hence the wording “as an order or injunction” must certainly be held to cover all possible reliefs that may be claimed in such suit or proceedings, including any decree. xxx xxx xxx 16. We are of the considered opinion that the crucial aspect to be considered while deciding the question as to whether it is a suit or a proceedings instituted seeking an order or injunction in the circumstances arising out of the marital relationship, is the cause of the lis itself and not the parties to the lis. Prime consideration should be as to whether the cause of the lis has got any bearing with the marital relationship. An objective assessment should be made as to whether the cause has got any stem from the circumstances arising out of the marital relationship. In other words, whether the cause should have been existed but for the marital relationship, shall be the basis of the assessment. If the answer is on the positive, definitely ::15:: Tr.P(C).Nos.452/2017 & 18/2018 the lis can be categorized as one not coming within the scope of Clause (d) of Explanation. But if the cause of action is emerging out of any circumstances related to the matrimonial relationship and the same could not have existed independently, then the suit can be maintained before the Family Court, and it will fall under Clause (d) of Explanation to S.7(1) of the Act.” The Division Bench of this Court in Leby Issac's case (supra) has referred to the statement of objects and reasons in the Family Courts Act as well as the judgment of the Apex Court in Abdul Jaleel v. Shahida , reported in 2003 (2) KLT 403 (SC) = (2003) 4 SCC 166. In this context, it will be apposite to refer to paras 19 & 20 of the above said judgment in Leby Issac's case (supra) at pages 671 & 672, which read as follows: '19. In this context, it is also worthy to bear in mind, objects for enacting the Act. The relevant portion from Statement of Objects and Reasons of the Act reads as follows: “ _......The Law Commission in its 59th report (1974) had also stressed that in dealing with disputes concerning the family the court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the courts in adopting this conciliatory procedure and the courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails. The need was, therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family disputes.”_ 20. Learned counsel appearing for the petitioner also cited a decision reported in Abdul Jaleel v. Shahida (2003 (2) KLT 403 (SC)) emphasising object of the Act. The relevant portion from the judgement can be extracted as hereunder: _“The Statement of Objects and Reasons, as referred to hereinbefore, would clearly go to show that the jurisdiction of_ ::16:: Tr.P(C).Nos.452/2017 & 18/2018 _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. ...It is now well-settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation (c) appended to S.7 of the Act, in our opinion, would frustrate the object wherefor the Family Courts were set up.'_ The above said legal position settled in the aforesaid Division Bench judgments has also been reiterated in many other Division Bench judgments of this Court as in Suprabha v. Sivaraman , reported in 2006 (1) KLT 712, Syamaladevi v. Saraladevi , reported in 2009 (1) KLT 892, Vasumati v. Valsan , reported in 2011 (3) KLT 638, Anil Kumar K.B. v. Sheela N.S. & ors . reported in 2011 (4) KLT 120, Thomas v. Ponnama Thomas , reported in 2013 (4) KLT 43, etc. These judgments need not be explained any longer. 6. So the prime task of this Court is to assess the matter from the angle as to whether the matter would come within the broad sweep and ambit of clause (d) of Explanantion to Sec.7(1) of the Family Courts Act. Coming to the factual averments in Anx.A-1 Original suit, it can be seen that the specific acvements are to the effect that the defendant therein/petitioner herein is the wife of the plaintiff's son and that the plaintiff had about 60 sovereigns of gold at the time of marriage and a lion share of that was kept in the locker and for the purpose of ::17:: Tr.P(C).Nos.452/2017 & 18/2018 marriage of the elder son, the plaintiff took around 35 soverigns of gold were taken from the locker and after marriage ceremony those were kept in the house and thereupon the defendant had impressed upon the plaintiff that the defendant is going to the bank in order to keep her gold ornaments taken out of the locker and that she would also carry the gold ornaments of the plaintiff to keep in the bank locker, etc., and that it is in these circumstances the daughter-in-law has took away the same and had promised to keep them on trust. That later, difference of opinion arose between the defendant and plaintiff's son. They started living separately and disputes are also pending between them in the Family Court, Attingal. The defendant has assured the plaintiff on all occasions inspite of disputes with the plaintiff's son that the defendant will return the plaint schedule ornaments without fail. During October, 2016, the defendant has lodged a complaint before the Attingal Police station and has caused to register a crime against the the plaintiff as Crime No.2073/2016 alleging commission of offences under Secs.498A, 323 and 34 of the IPC and the plaintiff was constrained to seek anticipatory bail from the Sessions Court concerned and during the course of the mediation, the defendant has disclosed to the plaintiff that she will not return the schedule ornaments unless the plaintiff ::18:: Tr.P(C).Nos.452/2017 & 18/2018 pressurizes her son to pay compensation she has claimed and to agree for a divorce, etc. These are the main factual averments in Anx.A-1 suit on the basis of which the relief is sought therein by the respondent herein/plaintiff. The relief sought for from the civil court is for a declaration that the schedule ornaments belong to the plaintiff and for a conseqeuntial mandatory injunction to direct the defendant to handover the same to the plaintiff and in the alternative for recovery of money having the value of the said ornaments, etc. Going by these averments, one of the tests laid down by the Division Bench in Janaki Amma v. Renuka Sadanandan, reported in 2016 (1) KLT 563, more particularly in para 16 thereof, that the crucial aspect to be considered while deciding the question as to whether it is a suit or a proceedings instituted seeking an order or injunction in the circumstances arising out of the marital relationship, is the cause of the lis itself and not the parties to the lis. The prime consideration should be as to whether the cause of the lis has got any bearing with the marital relationship. An objective assessment should be made as to whether the cause has got any stem from the circumstances arising out of the marital relationship. Their Lordships of the Divison Bench held therein that whether the cause should have been existed but for the marital relationship shall be basis of the ::19:: Tr.P(C).Nos.452/2017 & 18/2018 assessment, etc. That if cause of action is emerging out of any circumstances related to the matrimonial relationship and the same could have existed independently, then the suit can be maintained before the Family Court, and it will fall under clause (d) of Explanation to Sec.7(1) of the Family Courts Act. Going by the plaint averments in this case, this Court is of the considered opinion that since theissues and questions alleged by the plaintiff are all arising out of matrimonial relationship between the plaintiff's son and the defendant and it was on the basis of her status as daughter-in-law of the plaintiff, that the plaintiff had handed over the gold ornaments to the defendant, etc. Going by the fine tuned legal principles laid down by the Division Bench in the aforecited judgmnets, this Court is constrained to hold that the matter in Anx.A-1 suit would certainly come within the ambit of circumstances arising out of clause (d) of Sec.7(1) of the Family Courts Act. Sub-section (5) of Sec.24 of the Code of Civil Procedure specifically provides that a suit or proceeding may be transferred under this Section from a Court which has no jurisdiction to try it. Since the matter comes within the zone and realm of Sec.7 of the Family Courts Act, 1984, the civil court's jurisdiction is ousted as per the mandate of Sec.7 of the Family Courts Act. In the light of these provisions in the Family Courts Act, ::20:: Tr.P(C).Nos.452/2017 & 18/2018 1984, and in view of Sub-sec.(5) of Sec.24 of the Code of Civil Procedure, Anx.A-1 suit should be transferred to the Family Court concerned. 7. In the light of these aspects, it is ordered that Anx.A-1 suit, O.S.No.341/2017 on the file of the Munsiff's Court, Kollam, will stand transferred to the Family Court, Attingal, which is dealing with Anx.A-2 O.P.No.985/2015. The petitioner will produce a certified copy of this judgment before the Munsiff's Court, Kollam, upon which the said court shall transfer and transmit the entire case papers and case records in relation to Anx.A-1 suit O.S.No.341/2017 to the Family Court, Attingal, upon which the Family Court, Attingal will issue notice to the parties and thereafter proceed with the matter. The petitioner is also seeking directions for joint trial of the above said transferred suit along with pending O.P.No.985/2015. As of now, this Court need not issue any specific direction in that regard as it is primarily coming within the province of the trial court concerned, viz., in the instant case, the Family Court, Attingal. It is for the petitioner to file appropriate application before the Family Court, Attingal seeking joint trial of the present suit O.S.No.341/2017 along with O.P.No.985/2015 and thereupon the said court shall take a decision thereon without much delay. In the light of ::21:: Tr.P(C).Nos.452/2017 & 18/2018 the difficulties expressed by both sides, it is also ordered that both sides will be at liberty to file application seeking excemption from personal appearance in which case the said court shall consider the request favourably, provided they are represented through advocates. However, it is made clear that the parties will have to appear before the Family Court at the time of counselling and mediation process, etc., and as and when specifically so directed by the Family Court. With these observations and direction, the Tranfer Petition (Civil).No.452/2017 will stand finally disposed of. Tr.P(C)18/2018 8. The prayer in Tr.P(C).No.18//2018 is as follows: “....................... to transfer O.S.No.289/2016 pending before the Munsiff Court, Kottarakkara to Family Court, Kottarakkara to try along with O.P.No:202/2017 and M.C.No:287/2016.” 9. The petitioner herein is the wife of the 5th respondent (husband). Respondents 1 & 2 are the parents of R-5. R-3 and R-4 are the brother and mother respectively of the petitioner (wife). It is stated that the 5th respondent is now working abroad in connection with his employment. The petitioner and R-5 have two minor daughters. Differences of opinion between the spouses have led to matrimonial disputes between them. ::22:: Tr.P(C).Nos.452/2017 & 18/2018 10. Heard Sri.B.Mohanlal, learned counsel for the petitioner and Sri.M.P.Liju, learned counsel appeared for R-1 & R-2. Though notice has been served on all the respondents respondents, 3 to 5 have not entered appearance. 11. The petitioner has filed Anx.A-1 M.C.No.287/2016 and Anx.A-3 O.P.No.202/2017 against the husband seeking return of money and gold ornaments before the Family Court, Kottarakkara. Respondents 1 & 2 herein (father-in-law and mother-in-law of the petitioner herein) have filed Anx.A-2 O.S.No.289/2016 before the Munsiff's Court, Kottarakkara, to restrain the defendants therein from trespassing into the plaint schedule property and the building, by a permanent prohibitory order of injunction, etc. The brother and mother of the petitioner have been arrayed as defendants 1 & 2 in the said suit. The petitioner and her husband are the defendants 3 & 4 therein. The issue to be decided herein is also identically dealt with in by this Court in Tr.P.(C).No.452/2017 hereinabove. The prime issue to be decided is as to whether by going by the plaint averments in Anx.A-2 suit, the matters disclosed as per the admitted plaint averments in Anx.A-2 suit can be said to be in relation to “circumstances arising of marital relationship” as contemplated in clause (d) of Explanation appended to ::23:: Tr.P(C).Nos.452/2017 & 18/2018 Sec.7(1) of the Family Courts Act. Since the legal principles in relation to the said aspects have been elaborately dealt within in the above referred judgment rendered today in Tr.P.(C).No.452/2017, there is no necessity to again refer to those legal aspects. 12. Suffice to say, the crucial aspect to be considered while deciding the question as to whether it is a suit or a proceedings instituted seeking an order or injunction in the circumstances arising out of matrimonial relationship, is the cause of the lis itself and not the parties to the lis. An objective assessment has to be made about the circumstances arising out of the marital relationship and in other words the cause should have been existed but for the marital relationship, shall be the basis of the assessment, etc. If the cause of action is arising out of any such circumstances related to matrimonial relationship and the same could not have existed independently, then the suit can be maintained before the Family Court and it will fall under clause (d) of Explanation to Sec.7(1) of the Family Courts Act. 13. Now, coming to the admitted plaint averments in Anx.A-2 Suit, O.S.No.289/2016, it is seen as follows: The specific plaint averments are to the effect that plaintiffs are the father and mother of the 4th defendant and 3rd defendant is the wife ::24:: Tr.P(C).Nos.452/2017 & 18/2018 of their son (D-4). Defendants 1 & 2 are the brother and mother respectively of the 3rd defendant/petitioner herein. It is the case of the plaintiffs that the marriage between the 3rd defendant and 4th defendant was solemnised on 2.4.2009. That later, the first plaintiff has constructed a residential building and he is residing with his wife and that the petitioner/3rd defendant was living in a house belonging to the plaintiffs and that the said house was the matrimonial home of the petitioner. That later, the 1st plaintiff has constructed a separate residential building in the plaint schedule property and he was residing with the 2nd plaintiff, his wife, since December, 2014. That differences of opinion occurred between their son and his wife (petitioner) and the 3rd defendant-petitioner had misused her freedom and with the instigation of her brother amd mother (D-1 & D-2) the petitioner (D-3) had demanded the plaintiff to vacate the newly constructed building in the plaint schedule rpoperty and to re-occupy the old residence (which was then being occupied by the petitioner). That the plaintiffs would not accept the unreasonable demand of their daughter-in-law and accordingly, defendants 1 to 3 had taken steps to evict the plaintiffs by force from the newly constructed building in the plaint schedule property. That defendants 1 to 3 had informed that they will not allow ::25:: Tr.P(C).Nos.452/2017 & 18/2018 the plaintffs to live in the newly constructed building in the plaint schedule property. That later on 11.5.2016 at about 7:30 p.m., a lot of hooligans had come to the newly constructed residence in the plaint schedule property in motor cycles and bikes and that they used filthy and threatening language and demanded the plaintiffs to vacate the new residential building and to handover the key. That later, the people in the locality had informed the 1st defendant (brother of the petitioner) was also seen along with the hooligan persons. It is in the light of these aspects that the petitioner seeks grant of permanent order of injunction so as to restrain the defendants from trespassing into the plaint schedule property. 14. Going by these plaint averments, it can be seen that the case projected in this matter in Anx.A-2 suit is stemming from the circumstances arising out of marital relationship between the 3 rd and 4th defendants, who are the daughter-in-law and son of the plaintiffs. The entire incidents as alleged in the plaint would not have happened but for the matrimonial relationship between the defendants 3 & 4, who are the daughter-in-law and son of the plaintiffs. It can also be seen that these alleged incidents averred in the plaint would not have happened but for the the circumstances arising out of the maritial relationship of ::26:: Tr.P(C).Nos.452/2017 & 18/2018 the above said spouses. In this view of the matter, this Court is constrained to hold that the matters in relation to Anx.A-2 suit are in relation to circumstances arising out of marital relationship as contemplated in clause (d) of Explanation to Sec.7(1) of the Family Courts Act. 15. The Family Court has been notified and designated Family Courts have been established in the area and therefore the civil court's jurisdiction to try the suit is ousted. Sub-sec.(5) of Sec.24 of the Code of Civil Procedure provides as follows: “ Sec.24. General power of transfer and withdrawal.- xxx xxx xxx (5) A suit or proceeding may be transferred under this Section from a Court which has no jurisdiction to try it.” Since the matter comes within the zone and realm of Sec.7 of the Family Courts Act, 1984, the civil court's jurisdiction to try the case is ousted as per the mandate of Sec.7 of the Family Courts Act. In the light of these provisions in the Family Court, Act, 1984 and in view of Sub-sec.(5) of Sec.24 of the Code of Civil Procedure, Anx.A-2 suit should be transferred to the Family Court concerned. In the light of these aspects, it is ordered that Anx.A-2 suit, O.S.No.289/2016 on the file of the Munsiff's Court, Kottarakkara, will stand transferred to the Family ::27:: Tr.P(C).Nos.452/2017 & 18/2018 Court, Kottarakkara, which is dealing with Anx.A-3 O.P.No.202/2017. The petitioner will produce a certified copy of this order before the Munsiff's Court, Kottarakkara, upon which the said court shall transfer and transmit the entire case papers and case records in relation to Anx.A-2 suit O.S.No.289/2016 to the Family Court, Kottarakkara, upon which the Family Court, Kottarakkara, will issue notice to the parties and thereafter proceed with the matter. The petitioner is also seeking direction for joint trial of the above said transferred suit along with pending O.P.No.202/2017. As of now, this Court need not issue any specific direction in that regard as it is primarily coming within the province of the trial court concerned, viz., in the instant case, the Family Court, Kottarakkara. It is for the petitioner to file appropriate application before the Family Court, Kotttarakkara, seeking joint trial of present suit O.S.No.289/2016 along with O.P.No.202/2017 and thereupon the said court shall take a decision thereon without much delay. In the light of the difficulties expressed by both sides, it is also ordered that both sides will be at liberty to file application seeking excemption from personal appearance in which case the said court shall consider the request favourably, provided they are represented through advocates. However, it is made clear that the parties will have ::28:: Tr.P(C).Nos.452/2017 & 18/2018 to appear before the Family Court at the time of counselling and mediation process, etc., and as and when specifically so directed by the Family Court. 16. Sri.M.P.Liju, learned counsel appearing for R-1 & R-2, submits that his parties were constraiend to file prosecution petition before the Munsiff Court, Kottarakkara, in the above said suit. In these circumstances the petitioner herein (D-3) had knowingly violated the order of temporary injunction granted by the Munsiff Court in favour of the plaintiffs and as against the 3rd defendant and that the said interim application in that rgard was allowed by the Munsiff Court and the property of the petitioner was ordered to be attached in spite of the orders from the Civil Court. The petitioner has been consistently violating the order of injunction and thereupon the plaintiffs were constrained to file Interim Appliation in the suit praying for a direction to main status quo ante as I.A.No.3108/2017 and that this Court may direct the Family Court, Kottarakkara to ensure early disposal of I.A.No.3108/2017 without any further delay. It is also pointed out by respondents 1 & 2 that the petitioner has already filed counter/objections to that I.A. Sri.B.Mohanlal, learned counsel for the petitioner submits that he has no information of these aspects. ::29:: Tr.P(C).Nos.452/2017 & 18/2018 Accordingly, Sri.M.P.Liju, learned counsel for R-1 & R-2 prays that this Court may issue necessry directions to the Family Court to ensure early disposal of that I.A without any further delay. Sri.B.Mohanlal, learned counsel for the petitioner, submits that if as a matter of fact the said I.A.No.3108/2017 has been filed by respondents 1 & 2 in the above suit, then the Family Court, Kottarakkara will ensure that orders are passed in accordance with law so as to dispose of that I.A. without much delay and after granting a reasonable opportunity of being heard to both sides. In case the petitioner has not filed counter/objections to that I.A, then it is for that party to do so without much delay, at any rate, within a period of 2 weeks from the date of first appearance of the parties before the Family Court, Kottarakkara. With these observations and directions, the aforecaptioned Transfer Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.