Saju Thomas v. Sheeja (Tr.P(C).488/2017 & Tr.P(C).489/2017)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939** **Tr.P(C).No. 488 of 2017** **TO TRANSFER O.S.NO. 183/2016 OF THE MUNSIFF COURT, CHANGANACHERRY TO THE FAMILY COURT, ETTUMANOOR** **-----------** ## **PETITIONER(S)** **SAJU THOMAS, AGED 44 YEARS, S/O.THOMAS, KARAKKATTUKUNNEL HOUSE, KORUTHODE POST, KORUTHODE KARA, MUNDAKAYAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT- 686 513.** **BY ADV.SRI.V.R.KESAVA KAIMAL** ## **RESPONDENT(S):** **SHEEJA,** **AGED 38 YEARS, W/O.RAJEEV THOMAS, KOCHUKANIKKAD HOUSE, PERUMBANACHI POST, MADAPPALLY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT- 686 536.** **BY ADV. SRI.RAJESH SIVARAMANKUTTY** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-03-2018, ALONG WITH Tr.P(C).No.489 OF 2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Msd.** **26.03.2018** ## **Tr.P(C).No. 488 of 2017** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** |**ANNEXURE A1:**|**TRUE COPY OF THE PLAINT IN O.S.NO.183/2016 ON THE FILES**| |---|---| ||**OF MUNSIFF COURT, CHANGANACHERRY DATED 20.05.2016.**| |**ANNEXURE A2:**|**TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENT**| ||**TO ANNEXURE A1.**| |**ANNEXURE A3:**|**TRUE COPY OF THE ORIGINAL PETITION IN O.P.NO.300/2016 ON**| ||**THE FILES OF THE FAMILY COURT, ETTUMANOOR DATED 09.03.2016.**| |**ANNEXURE A4:**|**TRUE COPY OF THE PETITION IN I.A.NO.1581/2016 IN**| ||**O.S.NO.183/2016 ON THE FILES OF MUNSIFF COURT,**| ||**CHANGANACHERRY DATED 22.07.2016.**| ## **RESPONDENT(S)' ANNEXURES :** **//TRUE COPY//** **P.S.TO JUDGE** **Msd.** **26.03.2018** ## **ALEXANDER THOMAS, J.** ================== Tr.P(C).Nos.488/2017 & 489/2017 ================== Dated this the 2[nd] day of March, 2018 ## **O R D E R** The prayers in Tr. P (C) No. 488 of 2017 are as follows; - _“(a) Pass an order withdrawing Annexure A1 (O.S. No. 183/2016) from the files of the Munsiff Court, Changanassery and transfer the same to the Family Court, Ettumanoor for trial and disposal along with Annexure A3 (O.P. No. 300/2016._ - _(b) Pass such other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ The prayers in Tr. P (C) No. 489 of 2017 is as follows; - _“(a) Pass an order withdrawing Annexure A1 (O.S. No. 111/2016) from the files of the Munsiff Court, Changanassery and transfer the same to the Family Court, Ettumanoor for trial and disposal along with Annexure A3 (O.P No. 300/2016)._ - _(b) Pass such other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ 2. Heard Sri.V.R.K.Kaimal, learned counsel appearing for the petitioner and Sri.Rajesh SivaramanKutty, learned counsel appearing for the respondent. 3. The petitioner herein has filed O.S.183 of 2016 [produced as Anx.A1 in Tr.P(C)No.488/2017] as well as O.S.No.111 of 2016 [produced as Anx.A-1 in Tr.P(C) No.489/2017] both before the Munsiff's Court, Changanassery, wherein the respondent herein has been arrayed as the defendant therein. The prayers in O.S.No.111/2016 are for prohibitory injunction to restrain the defendant therein, from altering the lie and nature of the plaint schedule building and property and other allied reliefs. _Tr.P(C)488/17 & cc._ - : 2 :- The prayers in O.S.183/2016 are for mandatory injunction so that the defendant surrenders the vacant possession of the plaint schedule building and property and for payment of monthly amount of Rs.10,000/- for the use and occupation of the premises, etc. 4. The plaint averments in these two suits are to the effect that the petitioner had purchased the plaint schedule building and the property from the husband of the respondent herein, on the basis of sale deeds. That after the registration and execution of sale deeds, the sister of the respondent's husband was permitted to reside in that building as a tenant. The respondent's husband's sister, her family and in-laws were residing in that building as tenants. That some time later, the respondent, who was earlier residing in a gulf country with her husband, had come back to Kerala and started residing in the very same building, which was then occupied by the above said sister-in-law and family. Serious matrimonial disputes have arisen between the respondent and her husband and she had filed an application under the provisions of the Protection of Women from Domestic Violence Act before Judicial First Class Magistrate Court and had obtained orders from that court, whereby it was directed that she should not be evicted from that building. Later, the respondent's husband's sister and family members were forced to quit the premises and the said premises are now being occupied by the respondent herein, along with the children. That the petitioner is a bona fide purchaser and that he is being _Tr.P(C)488/17 & cc._ - : 3 :- unnecessarily troubled only because of the matrimonial disputes between the respondent and her husband. It is in the light of these aspects, that the above suits have been filed. 5. The main contention raised by Sri.V.R.K.Kaimal, learned counsel appearing for the petitioner in these cases is that even going by the plaint averments in the two suits, the cause of action disclosed in those suits is emanating the circumstances, which arise out of marital relationship and disputes as envisaged in Clause (d) of the Explanation appended to Sec. 7(1) of the Family Courts Act, 1984. Therefore, it is urged by the petitioner that the jurisdiction to entertain and try the suits vests only with the Family Court concerned and the jurisdiction in that regard of the Civil Court concerned is excluded by the mandatory provisions contained in Sec 8 of the Family Court's Act, 1984. Accordingly, it is pointed out that the petitioner was not properly instructed when he had filed suits before the Civil Court and this Court could exercise powers under Section 24 of the C.P.C., more particularly, sub section 5 thereof, to order the transfer of a case from a Civil Court, which is not having jurisdiction to entertain and try the suit, to the Family Court concerned, which alone is having the competence to try the subject matter of the case. 6. 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 _Tr.P(C)488/17 & cc._ - : 4 :- catena of decisions of this Court in cases as in _**Leby Issac v. Leena M.Ninan**_ , 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. 7. A Division Bench of this Court in the case 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 of _**Leby Issac's**_ case supra, 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._ _Tr.P(C)488/17 & cc._ - : 5 :- _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.'_ 8. Further a Division Bench of this Court in _**Janaki Amma v. Renuka Sadanandan**_ , reported in 2016 (1) KLT 563, para 16 thereof, has held that the crucial aspect to be considered while deciding the question as to whether it is a suit or a proceeding 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, _Tr.P(C)488/17 & cc._ - : 6 :- 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 the one not coming within the scope of clause (d) of Explanation appended to Sec.7(1), etc. It will be profitable to refer to para 16 of the decision in _**Janaki Amma's case**_ supra, which reads as follows: _“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 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.”_ 9. Now, the test to be adopted in such cases 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 is in relation to circumstances arising out of marital relationship, as envisaged in the above provision and on the basis of the above well settled position stated herein above. 10. A mere glance of the of the plaint averments would disclose that the very case of the petitioner is that though he had purchased property from the respondent's husband, later he had given said property on rent to the respondent's husband's sister and the respondent started _Tr.P(C)488/17 & cc._ - : 7 :- occupying the said premises and the respondent's sister and family were forced to quit the premises and that she had secured an order from the Judicial First Class Magistrate's Court in proceedings under the Domestic Violence Act, whereby she could not be evicted from that building. The further case put up by the petitioner/plaintiff in those suits is to the effect that the entire disputes actually arise out of the matrimonial disputes between the respondent's husband and the respondent and that the petitioner is the bona fide purchaser of the property and that his only remedy is to seek eviction of the respondent as per the prayers in the above proceedings. Therefore, it is crystal clear that the cause of action disclosed in the two suits is eminently in respect of circumstances fall within the category of “ _circumstances which arise out of matrimonial relationship_ ” envisaged in clause (d) of Explanation of Sec. 7(1) of the Family Courts Act, 1984. Therefore, the Family Court has jurisdiction to entertain and try such a petition/suit. It is not in dispute that both the suits have been filed long after the coming into force of the Family Courts Act, 1984 and after the establishment of the Family Court for the area concerned. Therefore, by the mandate of Sec.8 of the Family Courts Act, 1984, the jurisdiction of the civil courts stands completely excluded. Therefore, the necessary fall out in the combined effect of Secs.7 and 8 of of the Family Courts Act, 1984, is that for a matter, which falls within the competence of the Family Court, it alone will have exclusive jurisdiction and the jurisdiction which could be _Tr.P(C)488/17 & cc._ - : 8 :- exercised previously by the civil courts, stands completely excluded. Therefore, Sri.V.R.K.Kaimal, learned counsel appearing for the petitioner is right in contending that the civil courts have no jurisdiction and that the Family Court alone has the competence to try these matters. Moreover, it is also not in dispute that the respondent has filed O.P.No.300/2016 before the Family Court, Ettumanoor, Kottayam, wherein the husband and the petitioner herein have been arrayed as the respondents therein, for a declaration that the sale deeds covering the abovesaid property and the building executed by the respondent's husband in favour of the petitioner herein is null and void on the ground that the said properties have been purchased using her funds, etc. Anx. A-3 is the copy of the said Original Petition filed by the respondent herein before the Family Court, Ettumanoor, Kottayam. 11. Sub section (5) of Sec.24 of the C.P.C. provides as follows: ## _**“Sec.24: General power of transfer and withdrawal.-**_ _(1) ....._ _xxx xxx xxx (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.”_ In view of the provisions contained in Sec.24 of the C.P.C. more particularly sub section 5 thereof, enabling powers are conferred so as to order transfer of a case, which is pending before a civil court which is not having jurisdiction in that regard to a court which is otherwise having competence to try the subject matter of the suit. In the light of these aspects, the _Tr.P(C)488/17 & cc._ - : 9 :- prayers made for transfer in these petitions is to be considered. Accordingly, it is ordered that O.S.No. 111/2016 and O.S.No. 183/2016 now pending on the file of the Munsiff's Court, Changanassery, will stand transferred to the Family Court, Ettumanoor, Kottayam. The petitioner will produce a certified copy of this order before the Munsiff's Court, Changanassery, without further delay. Upon receipt of the copy of the order, the Munsiff's Court, Changanassery, will take steps to ensure that the case papers and case records in relation to O.S.No.111/2016 and O.S.No. 183/2016 pending on the file of that court are transmitted to the Family Court Kottayam at Ettumanoor. After receiving the case papers and case records in relation to O.S.No.111/2016 and O.S.No. 183/2016, the Family Court Kottayam at Ettumanoor will issue notices to both parties and proceed further with the matter, in accordance with law. 12. In order to alleviate the difficulties of the parties for personally attending the family court proceedings, 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 they are represented by Advocates. However, it is made clear that the parties will have to appear before the Family Court as and when specifically so directed by the Family Court. 13. Sri.V.R.K.Kaimal, learned counsel appearing for the petitioner _Tr.P(C)488/17 & cc._ - : 10 :- submits that this Court may direct the Family Court, Kottayam at Ettumanoor, to ensure the joint trial of the present transferred suit along with O.P. 300/2016 already pending before that court filed by the respondent herein and to complete the trial of these cases within a time frame. This Court is not now appraised as to the present stage of all these cases and as to whether evidence has commenced in any of these cases. Moreover, it is for the parties concerned to make necessary applications in the matter of joint trial of the cases and for time bound disposal of those cases and if such an application is filed by any of the parties concerned, it is for the Family Court, Kottayam at Ettumanoor, to consider and pass necessary orders thereon after hearing both sides. With these observations and directions, the above Transfer Petitions (Civil) stand finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge