Rakhi M Nair and Others v. Devan and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 5TH DAY OF MARCH 2018 / 14TH PHALGUNA, 1939** **Tr.P(C).No. 278 of 2017** **---------------------OS 313/2016 of MUNSIFF COURT, PATHANAMTHITTA ---------** ## **PETITIONERS :** **-----------** **1 RAKHI.M.NAIR** **W/O. LATE RAJASEKHARAN NAIR, AGED 37 YEARS, KUMBAKKATTU HOUSE,ARUVAPULAM P.O, KONNI, PATHANAMTHITTA.** **2 LEKSHMI R NAIR,(MINOR),AGED 16 YEARS, D/O.RAJASEKHARAN NAIR, KUMBAKKATTU HOUSE, ARUVAPULAM P.O, KONNI, PATHANAMTHITTA. REPRESENTED BY THE LEGAL GUARDIAN 1ST PETITIONER.** **3 PARVANA R NAIR (MINOR),AGED 6 YEARS,** **D/O. RAJASEKHARAN NAIR, KUMBAKKATTU HOUSE, ARUVAPULAM P.O, KONNI, PATHANAMTHITTA.REPRESENTED BY THE LEGAL GUARDIAN, 1ST PETITIONER.** **BY ADVS.SRI.C.S.MANILAL** **SRI.S.NIDHEESH** ## **RESPONDENTS :** - **-----------** **1. DEVAN, S/O. GOVINDAN NAIR, SOPANAM HOUSE, MUDIYOOR KONAM, PANDALAM VILLAGE, ADOOR TALUK, PATHANAMTHITTA - 689 643.** **2. SUJAMMA,W/O. DEVAN, SOPANAM HOUSE, MUDIYOOR KONAM, PANDALAM VILLAGE, ADOOR TALUK, PATHANAMTHITTA - 689 534.** **3. JAYAN PILLAI,S/O. GANGADHARAN NAIR, MANIMALA HOUSE, V- KOTTAYAM, V- KOTTAYAM VILLAGE, KONNI, PATHANAMTHITTA - 689 531.** **4. AMMINI AMMA,W/O. BHASKARAN NAIR, KUMBAKKATTU HOUSE, ARUVAPULAM, KONNI, PATHANAMTHITTA - 689 531.** **R1 & R3, R4, BY ADV. SRI.G.UNNIKRISHNAN** **BY ADV. SRI.M.JAYAKRISHNAN** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-03-2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: bp/08.3.2018** **Tr.P(C).No. 278 of 2017** ## **-----------------** ## **APPENDIX** |**PETITIONER'S**|**ANNEXURES :**| |---|---| |**----------------------**|| |**ANNEXURE I:**|**COPY OF THE ORIGINAL PETITION IN OP 193/2015 ON THE FILE**| ||**OF FAMILY COURT, PATHANAMTHITTA DATED 2/2/2015.**| |**ANNEXURE II:**|**COPY OF THE PLAINT IN OS 313/2016 ON THE FILE OF**| ||**MUNISIFF COURT, PATHANAMTHITTA DATED 30/7/2016.**| |**RESPONDENT'S**|**ANNEXURES :**<br>**NIL.**| ||**//TRUE COPY//**| ||**P.A. TO JUDGE**| **bp/08.3.2018** ## ALEXANDER THOMAS, J. ----------------------------Tr.P(C).No.278 Of 2017 --------------------------------- Dated this the 5th day of March, 2018. ## O R D E R ## The prayer in this Transfer Petition (Civil) is as follows: “Transfer O.S.313/2016 on the file of the Munsiff Court, Pathanamthitta, to Family Court, Pathanamthitta for joint trial and disposal along with O.P.193/2015 on the file of the Family Court, Pathanamthitta.” 2. Heard Sri.C.S.Manilal, learned counsel for the petitioners and Sri.G.Unnikrishnan, learned counsel for the respondents. 3. It is stated that the 1st petitioner herein is the wife of late Sri.Rajasekharan Nair, who died on 31.10.2014. The marriage of the 1 st petitioner with the said Rajasekharan Nair was solemnized on 28.12.1998 and in the said wedlock 2nd and 3rd petitioners were born. The deceased husband of the 1st petitioner was a Government servant working as Junior Health Inspector under the Health Department of the State Government. The 4th respondent is the mother of the deceased husband of the 1st petitioner. 2nd respondent is the sister of the 1st petitioner's deceased husband. Respondents 1 & 3 are the sons-in-law of the 4th respondent. The 1st petitioner's husband is having 2.55 acres of land in Aruvapulam Village with a residential house as per settlement ::2:: Tr.P(C).No.278 Of 2017 deed No.2292/2006 of S.R.O., Konni, it is averred. That the petitioners were residing in the said house. It is stated that when there was an attempt to oust the petitioners from the family house situated in the property, the 1st petitioner has filed M.C.No.64/2014 under the provisions contained in Protection of Women form Domestic Violence Act and had obtained an protection order as well as prohibitory order not to transfer the sale of the property on 25.10.2014 directing not to transfer sale of the said property, etc. It is further alleged that on the very same day, the respondents by undue influence, fraud and coercion obtained a clandestine sale deed executed in their favour from the husband of the 1st petitioner, whose mental faculty was derailed at that time due to alcohol consumption. Under these circumstances, that the petitioners have filed Anx-1 O.P.No.193/2015 before the Family Court, Pathanamthitta, praying for cancellation of the sale deed dated dated 25.10.2014 and for declaration of a right over it and in addition to that, the petitioners have also sought for a right to realise the value of gold ornaments charged on the property. The four respondents herein are the four respondents in Anx-I O.P.No.193/2015 pending before the Family Court, Pathanamthitta. That while so, the mother of the deceased husband of the 1st petitioner (4th respondent herein) had filed ::3:: Tr.P(C).No.278 Of 2017 Anx-II Original Suit, O.S.No.313/2016 before the Munsiff's Court, Pathanamthitta, seeking partition of the property concerned in which the petitioners herein have been arrayed as defendants therein. It is this Anx-II O.S.No.313/2016, that is sought to be transferred to the Family Court, Pathanamthitta, on the ground that the civil court does not have jurisdiction to entertain and try the said suit in view of Secs.7 & 8 of the Family Courts Act. Petitioners have also placed reliance on the Division Bench decision of this Court in Vasumati v. Valsan , reported in 2011 (3) KLT 638. 4. Clause (d) of Explanation appended to Sec.7(1) of the Family Courts Act reads as follows: “S.7: Jurisdiction. -- (1) Subject to the other provisions of this Act, a Family Court shall,-xxx xxx xxx Explanation: -- The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely,- xxx xxx xxx (d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; The scope and ambit of the expression “circumstances arising out of a marital relationship” as envisaged in clause (d) of Explanation appended to Sec.7(1) of the Family Courts Act, has been dealt with in a catena of decisions of this Court in cases as in Leby Issac v. Leena M.Ninan , ::4:: Tr.P(C).No.278 Of 2017 reported in 2005 (3) KLT 665, Suprabha v. Sivaraman , reported in 2006 (1) KLT 712, Syamaladevi v. Saraladevi , reported in 2009 (1) KLT 892, Anil Kumar v. Sheela , reported in 2011 (4) KLT 120, Krishna Moorthy v. Soumya Krishnan , reported in 2015 (4) KLT 471, Thomas v. Ponnama Thomas , reported in 2013 (4) KLT 43, Janaki Amma v. Renuka Sadanandan , reported in 2016 (1) KLT 563, etc. 5. A Division Bench of this Court in Leby Issac v. Leena M.Ninan , reported in 2005 (3) KLT 665, has held that the expression “in circumstances arising out of a marital relationship” as occurring in Sec.7(1) of the Family Courts Act would include all such circumstances surrounding, preceding and closely following a marital relationship. It would be profitable to refer the gist of the ruling of this Court as contained in paras 10, 13 & 14 at pages 669-670, 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. ::5:: Tr.P(C).No.278 Of 2017 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. 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.' Further a Division Bench of this Court in Janaki Amma v. Renuka Sadanandan , reported in 2016 (1) KLT 563, has held 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 ::6:: Tr.P(C).No.278 Of 2017 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 appended to Sec.7(1), etc. Now, the test to be adopted in tush case is to examine the plaint averments in such a suit and see whether the cause of action on the basis of the said plaint claims are in relation to circumstances arising out of marital relationship as envisaged in the above provision and on the basis of the above judgment. 6. On a perusal of the plaint averments in Anx-II Original Suit filed by the plaintiff (4th respondent herein, who is the mother of the deceased husband of the 1st petitioner herein), it is seen that 1st defendant therein married to the plaintiff's son and in the said wedlock 2nd and 3rd defendants were born and that the plaintiff's son (husband of the 1st defendant) had died and because of difference of opinion between the parties, the 1st defendant left the residence of the plaintiff ::7:: Tr.P(C).No.278 Of 2017 and therefore plaintiff seeks partition. It is more crystal clear from Anx-II suit that the entire alleged incidents, which form cause of action of that suit, could have existed only because of the marital relationship between the deceased husband and the 1st defendant and this Court has no hesitation to hold that the cause of action for the suit are eminently within the zone of 'circumstances arising out of marital relationship' as occurring in clause (d) of Explanation appended to Sec.7(1) of the Family Courts Act. Therefore, the Family Court is conferred with the jurisdiction in that regard. It is also not in dispute that the plaint has been filed long after the coming into force of the Family Courts Act as well as the notification for establishment of the Family Court in the area concerned. Going by Sec.8 of the Family Courts Act, jurisdiction of the Family Court is excluded. On a combined reading of Secs.7 & 8 of the Family Courts Act, it is clear that the civil court is denied of the jurisdiction and the jurisdiction in that regard is only with the Family Court concerned. Sec.24 of the Code of Civil Procedure regulates the powers of the High Court and District Court in relation to matters concerning transfer of cases and sub-section (5) of Sec.24 of the Code of Civil Procedure clearly provides as follows: > “ Sec.24. General power of transfer and withdrawal.- xxx xxx xxx ::8:: Tr.P(C).No.278 Of 2017 (5) A suit or proceeding may be transferred under this Section from a Court which has no jurisdiction to try it.” Thus, it is clear from sub-section (5) of Sec.24 of the Code of Civil Procedure that, the Court should transfer a case from a court, which is not having jurisdiction, to other court to try the subject matter of the suit. Hence in the facts of this case, the provisions contained in subsection (5) of Sec.24 of the C.P.C., thereof could be fittingly invoked and that Anx-II suit is transferred from the Munsiff's Court to the Family Court where the issue in O.P.No.193/2015 is pending. 7. Accordingly, it is ordered that O.S.No.313/2016 pending on the file of the Munsiff's Court, Pathanamthitta, will stand transferred to the file of the Family Court, Pathanamthitta. The petitioner will produce a certified copy of this order before the Munsiff's Court, Pathanamthitta, without any further delay. Upon receipt of the copy of the order, the Munsiff's Court, Pathanamthitta, will take steps to ensure that the case papers and case records in relation to O.S.No.313/2016 pending on the file of that court are transmitted to the Family Court, Pathanamthitta. After receiving the case papers and case records in relation to O.S.No.313/2016, the Family Court, Pathanamthitta, will issue notice to both parties and proceed further with the matter, in accordance with law. ::9:: Tr.P(C).No.278 Of 2017 8. In order to alleviate the difficulties expressed by both parties, it is ordered in the interest of justice that it will be open to both 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 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. 8. Sri.C.S.Manilal, learned counsel for the petitioners would urge that this Court may also may pass necessary orders to ensure joint trial of Anx-II O.S.No.313/2016 along with O.P.No.193/2015 by the Family Court, Pathanamthitta, This Court is not now appraised as to the present stage of O.P.No.193/2015 and O.S.No.313/2016 and as to whether evidence in any one or both the cases have commenced or not. Moreover, it would only appropriate in the scheme of things that a decision on that aspect is taken by the Family Court itself. Accordingly, it is ordered that the petitioners will be at liberty to file appropriate application before the Family Court concerned seeking joint trial of the O.P and the O.S., and if such an application is filed, it is for the Family Court concerned to consider the application and pass appropriate ::10:: Tr.P(C).No.278 Of 2017 orders after hearing both sides and taking note of the well settled legal principles regarding joint trial by the trial court. With these observations and directions, the above Transfer Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.