R. Rajeev v. Prasanna

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941 ## OP (FC).No.308 of 2019 AGAINST THE ORDER/JUDGMENT IN OP 1004/2018 of FAMILY COURT, PALAKKAD DATED 27-03-2019 ## PETITIONER/S: R.RAJEEV AGED 47 YEARS S/O. RAMANKUTTY, RESIDING AT KUNDUTHODI HOUSE, PADUR, KAVASSERY, ALATHUR, PALAKKAD-678 543 BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD SRI.P.S.APPU RESPONDENT/S: PRASANNA, W/O.RAJEEV RESIDING AT CHINIKKODU HOUSE, THENNILAPURAM,ALATHUR, PALAKKAD-678 682 THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 21.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **JUDGMENT** ## Annie John,J. The petitioner is the respondent in O.P No. 1004 of 2018 pending before the Family Court, Palakkad. The aforesaid O.P.(FC) No. 308/2019 : 2 : Original Petition is filed by the respondent seeking return of an amount of Rs.75,000/- and the value of 12 sovereigns of gold ornaments, which come to a total amount of Rs.3,51,000/-. The allegation against the petitioner is that he had made a promise to marry the respondent and thereafter had sexual relationship, in which a daughter was born. It is also alleged that an amount of Rs.75,000/- and 12 bangles were misappropriated by the petitioner to go abroad. 2. The petitioner had filed an objection to the Original Petition stating that the petition is not maintainable. The respondent has also filed Ext.P3 application seeking attachment before judgment, including the properties where the petitioner has got undivided shares. The petitioner has filed Ext.P4 counter affidavit. The court below, as per Ext.P5 order dated 27.03.2019, passed an order directing the petitioner to deposit or furnish security for the petition amount within two weeks. It was also ordered to issue an order of attachment of the share of the respondent in the schedule property for the petition O.P.(FC) No. 308/2019 : 3 : amount, if the petitioner fails to deposit or furnish security for the petition amount within the time stipulated. Highly aggrieved by the same, this Original Petition is filed. 3. We have heard Adv. Sri. P.S. Appu, the learned counsel appearing for the petitioner and the learned counsel for the respondent. 4. The grievance of the petitioner is that the Family Court has not considered the objection raised by the petitioner regarding the maintainability of the Original Petition. 5. According to the petitioner, there is no marital relationship between himself and the respondent. The respondent has filed OP for return of gold ornaments and money on the strength of which the petitioner has promised to marry her. She has further alleged that the gold ornaments and money belongs to her were misappropriated by the petitioner. The learned counsel for the petitioner has pointed out paragraph 3 of Ext.P2 objection, wherein it is stated that he is not the husband of the respondent and therefore, the petition is O.P.(FC) No. 308/2019 : 4 : not maintainable. It is also stated that there is no marital or any other relationship between them and that, such a petition for recovery of money and gold ornaments can only be filed against the husband as per Explanation (c) to Section 7 of the Family Courts Act, which reads thus: “The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:- (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them.” 6. He has also drawn our attention to the decision in P Srihari v. Sukunda [2000 (1) KLT SN 1], in which it is held that the essential ingredient should be a dispute between husband and wife and the said dispute can be with regard to their marital status, divorce, restitution of conjugal rights, judicial separation, child custody, maintenance, as also property sharing. But in no event, the Family Court can have a jurisdiction, if the above dispute is absent. 7. According to the learned counsel for the petitioner, the question of maintainability would have been considered by the Family Court before proceeding with the petition for attachment O.P.(FC) No. 308/2019 : 5 : of property belongs to the petitioner. In order to support his contentions, he has placed reliance on the decision in Srinivasa Murthy v. Mariyamma[1] and Holicross Hospital, Kollam v. E.T. Suresh [2016 (5) KHC 543]. In Srinivasa Murthy, it is held that if on a reading of the plaint, it is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, the trial court should exercise its power under Order VIII R.11 of CPC and nip it in the bud at the first hearing by examining the party searchingly under Order X of CPC. In E.T. Suresh, it is held that an interim order passed in a suit, wherein the plaint was later returned due to lack of jurisdiction for filing before proper court having jurisdiction, has no legal validity or enforceability and such order passed without jurisdiction is liable to be recalled or vacated. The learned counsel for the petitioner has vehemently argued that when the relationship between the petitioner and the respondent is seriously disputed, the Family Court ought to have considered it as a preliminary issue regarding the maintainability of the Original Petition and 1 O.P.(FC) No. 308/2019 : 6 : thereafter, Ext.P3 would have been considered. Eventhough the learned counsel for the petitioner has argued that the petition is not maintainable as the Original Petition itself is not maintainable for want of jurisdiction as there is no marital relationship between the petitioner and the respondent. No such specific contention is seen raised in the court. It has also come out in evidence that the respondent has filed a suit by stating that there was some promise on the part of the petitioner to marry the respondent and accordingly, sexual relationship was started. Ext.P3 affidavit filed by the respondent also reveals the same and it is stated in paragraph 1 that there was a promise to marry her and accordingly they started sexual relationship since 19.12.1991 and thereafter a female child was born. Ext.P3 is sufficient enough to prove that there is no marital relationship between the petitioner and the respondent and the court below without considering this fact, allowed Ext.P4 and granted an order attaching the property of the petitioner. O.P.(FC) No. 308/2019 : 7 : 8. On going through the objection filed by the petitioner and as per Exts.P2 and P3 counter affidavits of the respondent, we find that the court below has, without going through the objection filed by the petitioner, allowed the IA. Considering the fact, we find that the order of court below is erroneous and hence, we have no hesitation to set aside the order passed by the Family Court, Palakkad and we do so. Accordingly, we direct the Family Court, Palakkad to hear on the question of maintainability of the Original Petition in the light of Section 7(c) of the Family Court Act. With the above observations, this Original Petition is disposed of . sd/K. HARILAL, JUDGE. - sd/ ANNIE JOHN, JUDGE. _Rv_ O.P.(FC) No. 308/2019 : 8 : ## **APPENDIX** ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF O.P.NO.1004/2018 ON THE FILE OF THE FAMILY COURT, PALAKKAD DATED 30.10.2018 EXHIBIT P2 TRUE COPY OF THE COUNTER FILED BY THE PETITIONER TO EXT.P1 DATED 13.3.2019 EXHIBIT P3 TRUE COPY OF HE COUNTER FILED BY THE PETITIONER TO EXT.P3 DATED 6.2.2019 EXHIBIT P4 TRUE COPY OF I.A.NO.1815/2018 IN O.P.NO.1004/2018 ON THE FILE OF THE FAMILY COURT, PALAKKAD DATED 1.11.2018. EXHIBIT P5 TRUE COPY OF THE ORDER IN I.A NO.1815/2018 IN O.P.NO.1004/2018 ON THE FILE OF THE FAMILY COURT, PALAKKAD DATED 27.3.2019 ## RESPONDENT'S EXHIBITS: NIL /True Copy/ PS to Judge. rv