Tr.P.(C).No. 370 of 2017

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 28TH DAY OF FEBRUARY 2018 / 9TH PHALGUNA, 1939** **Tr.P(C).No. 370 of 2017** **TO TRANSFER OS.NO. 135/2017 of MUNSIFF'S COURT-I,KOZHIKODE TO THE FAMILY COURT, MALAPPURAM.** **--------** **PETITIONER(S)/RESPONDENTS -------------------------** **1 MOIDEENKUTTY. K..K, AGED 48 YEARS, S/O. MUHAMMED, ERALIKKADU HOUSE, KOTTUKKARA, KONDOTTY, MALAPPURAM DISTRICT 673 638.** **2 SHAHIDA P, AGED 42 YEARS, W/O. MOIDEENKUTTY K.K, ERALIKKADU HOUSE, KOTTUKKARA, KONDOTTY, MALAPPURAM DISTRICT 673 638.** **3 FASNA K.K, AGED 21 YEARS, D/O. MOIDEENKUTTY K.K, ERALIKKADU HOUSE, KOTTUKKARA, KONDOTTY, MALAPPURAM DISTRICT 673 638.** **BY ADV.SRI.R.RANJITH (MANJERI)** ## **RESPONDENT(S)/PETITIONER:** **------------------------** **MUHAMMED ASHARAF, AGED 31 YEARS, S/O. KUTTYAMU, PURAYIL HOUSE, MANIPURAM P.O, KODUVALLY, KOZHIKODE DISTRICT, PIN 673 572.** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-02-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **TS** **Tr.P(C).No. 370 of 2017** **APPENDIX** **PETITIONER(S)' ANNEXURES -----------------------** **ANNEXURE A:- TRUE COPY OF THE O.S FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT-1,KOZHIKODE(IP)AS O.S.NO.135/2017 DATED 16.3.2017.** **RESPONDENT(S)' ANNEXURES - NIL** **------------------------------** **/TRUE COPY/** **PS TO JUDGE** **TS 06/03/2018** ## **ALEXANDER THOMAS, J** . ------------------------------------------------- Tr.P.(C) No. 370 of 2017 ------------------------------------------------Dated this the 28[th] day of February, 2018 ## **O R D E R** The main prayer in this Transfer Petition (Civil) filed under Section 24 of the Code of Civil Procedure is as follows : “In the circumstances, it is most humbly prayed that this Hon'ble Court may be pleased to transfer O.S. No.135/2017 of Munsiff Court-I, Kozhikode (IP) to the Family Court, Malappuram, in the interests of justice.” 2. Heard Sri.R. Ranjith (Manjeri), learned counsel appearing for the petitioners. Though notice has been duly served on the respondent, there is no appearance for that party. 3. The 1[st] and 2[nd] petitioners herein are the father and mother respectively of the 3[rd] petitioner herein. The 3[rd] respondent is the wife of the respondent herein. Difference of opinion has led to the matrimonial disputes between the spouses. The 3[rd] petitioner (wife) had filed M.C. No. 49/2017 before the Family Court, Malappuram seeking maintenance under Section 125(1) of the Cr.P.C. The 3[rd] petitioner had also filed O.P. No.77/2017 seeking recovery of gold ornaments and a motor vehicle before the Family Court, Malappuram and she had also filed O.P. No.78/2017 Tr.P.(C) : 370 of 2017 -:2:- before the same court seeking dissolution of marriage. The respondent/husband has filed O.P. No.34/2017 before the Family Court, Kozhikode and this Court as per order dated 27.11.2017 has allowed Tr.P.(C) No.236/2017 filed by the wife directing that the said O.P. No.34/2017 pending before the Family Court, Kozhikode will stand transferred to Family Court, Malappuram, as the wife is residing at Kondotty in Malappuram District. 4. The respondent/husband has filed the present Annexure A Original Suit, O.S. No.135/2017 before the Munsiff's Court-I, Kozhikode, wherein the three petitioners herein are the three defendants therein. The prayer in Annexure A Original Suit is seeking compensation from the defendants therein (petitioners herein), based on the allegations raised by the respondent herein on various aspects regarding the matrimonial life of the spouses. The petitioners herein has filed the present Transfer Petition seeking transfer of that Suit to the Family Court, Malappuram. It is the case of the plaintiff therein that he had married the 3[rd] defendant/3rd petitioner herein who was already married to one Muhammed Arshad, S/o. Alungathodiyil Muhammed, Kondotty on Tr.P.(C) : 370 of 2017 ## -:3:- 08.08.2017 which fact was suppressed from him and the above fact was came to his knowledge later. Various averments are made in Annexure A suit about the hardships and difficulties caused to this marital life and he seeks compensation from the defendants therein/petitioners herein. 5. The main issue to be decided here is as to whether the plaint averments in Annexure A Suit would disclose the cause of action in relation to circumstances which arise under the matrimonial relationship as envisaged in Clause (d) of the Explanation appended to Section 7(1) of the Family Court's Act. The scope and the ambit of the expression, “circumstances arising out of a matrimonial relationship” as envisaged in Clause (d) of the Explanation appended to Section 7(1) of the Family Courts Act, 1984 has been dealt with in detail in a _catena_ of rulings of the Division Bench of this Court, more particularly as reported in **Leby Issac v. Leena M. Ninan** [2005 (3) KLT 665], **Suprabha v. Sivaraman** [2006 (1) KLT 712], **Syamaladevi v. Saraladevi** [2009 (1) KLT 892], **Vasumathi v. Valsan** [2011 (3) KLT 638], **Anilkumar v. Sheela** [2011 (4) KLT 120], **Thomas v.** Tr.P.(C) : 370 of 2017 -:4:- **Ponnamma Thomas** [2013 (4) KLT 43], **Krishna Moorthy v. Soumya Krishan** [2015 (4) KLT 471], **Janaki Amma v. Renuka Sadanandan** [2016 (1) KLT 563] etc., it has been held by the Division Bench of this Court in **Leby Issac** 's case (supra), more particularly in paragraphs 10, 13 and 14 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. xx xx xx xx 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 ## Tr.P.(C) : 370 of 2017 ## -:5:- 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 i.e., the principal event of marriage and the eventualities surrounding the same.” ## 6. It was also held in **Janaki Amma** 's case (supra) in paragraph 16 thereof as follows : “16. We are of the considered opinion that the crucial aspect to be considered while deciding the question as to whether ## Tr.P.(C) : 370 of 2017 ## -:6:- 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.” 7. Going by the aforesaid legal principles laid down in the aforesaid _catena_ of rulings by the Division Bench of this Court, it can be seen from a mere reading of the plaint averments in Annexure A Original Suit that the cause of action emanates out of circumstances arising out of the matrimonial relationship between the plaintiff therein/respondent herein and the 3[rd] defendant therein/3rd petitioner herein. Therefore, in view of the provisions contained in Section 7(1), the jurisdiction in that regard is vested with the Family Court. As the suit has been filed long after the ## Tr.P.(C) : 370 of 2017 -:7:- coming into force of the Family Courts Act and after the establishment of the Family Court for the area concerned, the jurisdiction to be imposed will be barred in view of Section 8 of the Family Courts Act, 1984. Therefore, Section 24(5) of the CPC provides as follows: ## “ **24. General power of transfer and withdrawal** xx xx xx (5) A suit or proceeding may be transferred under this section from a court which has no jurisdiction to try it.” 8. Therefore, in the light of the above said provision, it is only to be held that the civil court is not having jurisdiction to entertain a suit like this as the exclusive jurisdiction in that regard is vested with the Family Court concerned. By virtue of the power under Section 24(5) of the CPC, this Court can exercise its power to transfer a case from a court, which is not having jurisdiction, to a court which is otherwise having competence to try the subject matter of the Suit. More over, three litigative proceedings between the spouses are already pending before the Family Court, Malappuram and it is only in the interest of both sides that all the litigative proceedings between them are before the same court, so that it will give a better litigative management to both sides. In the light of all these Tr.P.(C) : 370 of 2017 -:8:- aspects, it is ordered in the interest of justice that Annexure A Original Suit, O.S. No.135/2017 before the Munsiff's Court-I, Kozhikode will stand transferred to the Family Court, Malappuram. The petitioners will produce a certified copy of this judgment before the trial court for necessary information. With the above observations and directions, this Original Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** ttb