Retnamma v. Sivanandan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 WP(C).No. 2820 of 2008(S) ------------------------- PETITIONER: ------------ RETNAMMA, D/O.BHAVANI, KALADIVILA PUTHEN VEEDU, KADAMBANADU VADAKKUM MURI, KADAMBANADU VILLAGE, ADOOR TALUK. BY ADVS. SRI.V.N.ACHUTHA KURUP (SR.) SRI.B.S.SWATHY KUMAR SRI.BINDU SREEKUMAR RESPONDENT: ------------- SIVANANDAN, S/O.KESAVAN, THANDASSERIL SIVA BHAVANAM, PERINGALA MURI, KAYAMKULAM VILLAGE. BY ADVS. SRI.R.REJI FOR R1 SRI.B.BIPIN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX ## PETITIONER'S EXHIBITS: Ext.P1: True copy of the order in O.S. No.485/2004 dated 6.8.2007 of the Munsiff Court, Kayamkulam. ## RESPONDENT'S EXHIBITS: NIL ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ.** ## **---------------------------------------------------------------W.P.(C)NO. 2820 OF 2008** **----------------------------------------------------------------** Dated this the 18th day of June, 2008 ## **JUDGMENT** ## **Kurian Joseph, J.** The petitioner is aggrieved by Ext.P1 order passed by the Munsiff's Court, Kayamkulam in O.S. No.485 of 2004. The petitioner is the plaintiff in the suit and the defendant is her divorced husband. The suit is one for partition and separate possession of the plaintiff's share over the plaint schedule property. The parties were married on 15.4.1987. The plaint schedule property was purchased in the joint name of the parties on 23.4.1987. The marital relationship between the parties came to an end by a decree of divorce on 15.11.1990. Thereafter both parties pursued separate litigations for the property as O.S. No.73 of 1991 and O.S. No.354 of 1994 before the Sub Court, Pathanamthitta. Both the suits were dismissed. 2. The contention of the learned counsel appearing for the petitioner is that the petitioner was no more a party to the marriage subsisting with W.P.(C)NO.2820/2008 2 the respondent at the time of the institution of the suit and hence, the Family Court has no jurisdiction to try the suit for partition; the jurisdiction is exclusively with the civil court. But, the undisputed fact remains that the property was purchased in the joint name of the parties when the marriage was subsisting. If that be so, the expression `parties to the marriages' as appearing under Explanation (c) to Section 7(1) of the Family Courts Act, 1984 squarely takes in such transactions effected at the time of marriage. This issue was specifically considered by this Court in the decision reported in **K.A.Abdul Jaleel v. T.A. Sahida, 1997(1) K.L.J. 457** wherein it has been held as follows: "The object of the Family Courts Act is to settle the family disputes. The disputes relating to family may be there even after the dissolution of the marriage. In the instant case the allegation of the respondent is that the property for which she seeks declaration and partition was purchased by the appellant using the money belonged to her. Such a dispute arose between the parties consequent on the dissolution of the marriage. This dispute between them is closely connected with family dispute. If the declaration or partition was sought in respect of an item of property independently acquired by one of the parties after the dissolution of the marriage, certainly the Family Court may not have the jurisdiction. If the dispute relating to the properties which were jointly acquired at the time when they were husband and wife, any dispute relating to such properties could be decided only by a forum like W.P.(C)NO.2820/2008 3 the Family Court. The expression ''parties to a marriage" used under Sec.7(1)(c) of the Family Courts Act is to be construed having due regard to the objects and reasons of the Family Courts Act." We also find that the Supreme Court had occasion to deal with the objects and reasons behind the enactment, in a later decision reported in **K.A.Abdul Jaleel v. T.A. Sahida(2003) 4 S.C.C. 166** wherein it has been held as follows: "The wording"disputes relating to marriage and family affairs and for matters connected therewith" must be given a broad construction. The Statement of objects and reasons clearly shows that the jurisdiction of 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 the other; irrespective of the claim whether the property is claimed during the subsistence of a marriage or otherwise. To read the words " a suit or proceeding between the parties to a marriage" to mean "parties to a subsisting marriage" would lead to miscarriage of justice." 3. In view of the authoritative pronouncements as above, we do not find any merit in the contention raised by the petitioner that the Family Court has no jurisdiction to try the suit for partition. The jurisdiction is exclusively with the Family Court and, therefore, Ext.P1 order is perfectly W.P.(C)NO.2820/2008 4 in order. The Writ Petition is without any merit and it is accordingly dismissed. **(KURIAN JOSEPH, JUDGE)** **(HARUN-UL-RASHID, JUDGE)** **sp/** W.P.(C)NO.2820/2008 5 **KURIAN JOSEPH & HAURN-UL-RASHID, JJ.** **W.P.(C) NO. 2820/2008** **JUDGMENT** **18th June, 2008** W.P.(C)NO.2820/2008 6