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
explanation (d). 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 Explanation (d) to
Section F(1) of the Act.
When the facts of the case at hand is analyzed
based on the above said parameters, it is evident that the
claim of the 1st respondent that she paid money to the 1st
appellant by disposing her own property for discharging
the bank liability of the mother-in-law, on the basis of a
specific understanding that the B-schedule property will be
assigned into her name, has got a clear stem arising out of a
circumstances connected to a marital relationship. Since
the alleged promise was not complied with and since the 1st
appellant had assigned the properties to her sons, the 1st
respondent is claiming declaration of title over the property
contained in B-schedule. The alleged transaction of the 1st
respondent selling her own property for discharging her
mother-in-law's debt on the basis that the B-schedule will be
assigned to her name, happens only because of the
matrimonial relationship of the parties as daughter-in-law
and mother-in-law. But for the marriage of the 1st
respondent with the son of the 1st appellant, such an alleged
transaction would not have taken place. Therefore the
cause of action agitated against the mother-in-law had
arisen from circumstance connected with the matrimonial
relationship . Whether the parties to the marriage are
parties to the lis, becomes immaterial in such
circumstances. Therefore considering the wider
interpretation to be given to the ambit and scope of the
explanation contained under clause (d), as guided by
binding precedents of this court and the hon'ble Supreme
Court, we are persuaded to hold that the cause agitated is
emerging from circumstances arising out of marital
relationship. It is rightly observed by the Family Court that
the alleged contract between the 1st respondent and the 1st
appellant is only due to the marriage of the 1st respondent
with the son of the 1st appellant. The entire transaction
took place after the marriage. Therefore it is found that the
dispute will squarely come within the purview of
explanation (d) to section 7(1) of the Act.
The Family Court observed that, the question as
to whether the transaction is a valid transaction, where
there is any bar of limitation, whether the relief claimed
under the other enactment can be claimed in the main
petition itself etc. are matters which need to be adjudicated
while contesting the suit. We perfectly agree with such
observations and hold that the original petition instituted
before the Family Court is maintainable before that court.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE C.K.ABDUL REHIM
&
MRS. JUSTICE MARY JOSEPH
Dated; 15TH DAY OF OCTOBER 2015
Mat.Appeal.No. 999 of 2015 ()
JANAKI AMMA, Vs RENUKA SADANANDAN,
Citation:AIR 2016 kerala 75
The appellants as well as the respondents 2 and 3
herein are the respondents in O.P No.1409/2014 instituted
before the Family Court, Thrissur by the 1st respondent
herein. The 1st appellant is the mother-in-law of the 1st
respondent. The 2nd appellant and the 2nd respondent are
her brothers-in-law. The 3rd appellant and the 3rd
respondent are the wives of 2nd appellant and 2nd
respondent, respectively.
2. Case before the Family Court was filed based on
the averments that, the 1st respondent was the owner in
possession of 'A'-schedule property situated at Kodungallur,
which is having an extent of 18 cents. The property
described as 'B'-Schedule is a property purchased by the 1st
appellant. Allegation is that, for the purpose of purchasing
'B'-Schedule property, the 1st appellant took loan from a
Bank by mortgaging the 'B'-Schedule property. But she
failed to repay the loan. The amounts due in the said loan
account was paid by the 1st respondent, by selling
'A'-Schedule property. It is alleged that, there was an
agreement that the 'B'-Schedule property will be assigned
by the 1st appellant to the 1st respondent. But, instead of
doing so the 1st appellant had created documents assigning
the 'B'-Schedule property in the name of the 2nd appellant
and the 2nd respondent herein, through Document
No.483/2006 of SRO Kalyassery. Therefore, case before the
Family Court was instituted by seeking a declaration that
the petitioner is the absolute owner of the properties
described as 'B' and 'C'-Schedules and for a consequential
relief of recovery of possession of those properties from
appellants 2 & 3.
3. The appellants and the respondents 2 and 3 entered
appearance before the Family Court and filed objections
refuting all the allegations and inter alia raising a
preliminary objection on the question of jurisdiction of the
Family Court, contending that in the absence of the
husband of the 1st respondent on the party array, the
original petition could not be maintained before the Family
Court, because it will not come within the purview of a
matrimonial dispute under Section 7 (1) (d) of the Family
Courts Act, 1984. It is contended that, even if all the
allegations in the suit are sustainable, the relief can be
sought for only in a civil court, is the contention.
4. The Family Court considered the question of
maintainability as a preliminary issue and passed the order
impugned in this appeal, on 07.08.2015, by holding that the
dispute will squarely fall within the ambit and scope of
explanation (d) of Section 7(1) of the Family Courts Act. It
is found that the dispute had arisen out of circumstances
related to the marital relationship, and but for the marriage
of the 1st respondent with the son of the 1st appellant, there
would not have been any occasion for having the
transactions mentioned in the original petition. Therefore,
it is held that the original petition is maintainable before the
Family Court. It is aggrieved by the said order of the
Family Court this appeal is filed.
5. Contentions of the appellants in brief is that, the
case will not fall within the scope of Explanation (d) to
Section 7 (1) of the Family Courts Act. It is argued that for
bringing a suit or a proceedings within the ambit of Section
7 (1), it should be a suit or a proceedings between the
parties to the marriage or at least the cause of action
should be one casting a liability or obligation on a party to a
marriage. It is pointed out that the husband of the 1st
respondent, who is son of the 1st appellant and the brother
of the 2nd appellant and the 2nd respondent, is not a party in
the suit. The declaration sought for is with respect to the
title over a property which is exclusively belonging to the 1st
appellant, who is the mother-in-law of the 1st respondent.
There is also an allegation that the suit was instituted by
the 1st respondent in collusion with her husband, and it is
the husband who had caused a lawyer notice to the 1st
appellant demanding for assignment of the property into the
name of the 1st respondent. Therefore it is contended that,
any claim with respect to a property which is exclusively
belonging to the mother-in-law, will not fall within the
category of a suit or a proceedings for an order or
injunction "in the circumstances arising out of a marital
relationship". It is specifically contended that such a suit
instituted against the mother-in-law and brothers-in-law and
their wives, without the husband being impleaded on the
party array, cannot in any manner be sustainable as a suit
or a proceedings coming within the scope of Explanation (d)
to Section 7 (1).
6. Learned counsel for the appellant has placed
much reliance on a decision of this court in Shyni V.
George and others (AIR 1997 Ker. 231). His Lordship
Justice P.K. Balasubramanyan (as he was then) while
examining the scope of Section 7 of the Family Courts Act
observed that, a suit or a proceeding between the parties to
a marriage with respect to property of both the parties or
either of them, comes within the purview of the Family
Court. When a wife sues her husband for recovery of her
property and when in such a suit the wife is obliged to add a
close relative of the husband or even a stranger on the
allegation that the husband made over the property to that
close relative or stranger, the jurisdiction of the Family
Court will not stand ousted to deal with the claim. Mere
presence of the stranger or a close relative can only be as
agent of the husband or a confidant of the husband holding
the property, with respect to which claim is raised.
Therefore it is not possible to accept the argument that in
such a case the wife is obliged to file a suit before the civil
court. A further observation is made to the effect that, in a
given case if the property of the wife was entrusted with the
father-in-law and if it is merely a suit against the father-in-
law, it is clear that the suit could be instituted only in the
ordinary civil court. Based on the above observation it is
contended that, in the case at hand the suit in question is
one seeking declaration of title over a property belonging to
the mother-in-law and therefore the suit could be instituted
only in a civil court.
7. But we notice that, in the above quoted decision
this court was dealing only with the provision contained in
Explanation (c) to Section 7 (1) and has not taken any
decision specifically with respect to the ambit and scope of
Explanation (d). The passing observations are only in the
nature of a general analysis made with respect to the scope
of Section 7, in differentiating jurisdiction between the
Family Court and civil court, with respect to matters arising
out of claim for properties. In view of the subsequent
Division Bench decisions explaining the scope of
Explanation (d), we do not think that any ratio directly
binding on the issue has been declared in Shyni's case
(cited supra).
8. Learned counsel for the petitioner had cited an
unreported decision of a Single Bench of the High Court of
Delhi, in order to canvass the proposition that, a suit filed
by the daughter-in-law exclusively against her mother-in-
law is not maintainable before a Family Court. But on the
facts of the said case it is a suit filed by a father-in-law
seeking an injunction restraining his daughter-in-law from
entering into a house, upon which he claims absolute right.
Observations made by the learned Judge of the Delhi High
Court is that, the plaintiff in that case is claiming absolute
title upon his property and not as a representative or
trustee on behalf of the husband of the defendant.
Eventhough the petitioner is raising her claim in her
capacity as widow and nominee of the deceased husband,
merely because the cause of action referred is related to the
matrimonial relationship the suit cannot be included as one
in the circumstances arising out of a matrimonial
relationship to bring it within the ambit of Explanation (d),
the finding
9. The scope and ambit of Section 7 of the Family
Courts Act, especially that of Section 7 (1) (c) was the
subject matter of discussion in a decision of the hon'ble
Supreme Court in Abdul Jaleel V. Shahida (2003 (2)
KLT 403) (SC). It was observed that, on a perusal of the
statement of objects and reasons it appears that the Family
Courts Act inter alia seeks to exclusively provide within the
jurisdiction of the Family Courts all the matters relating to
property of the spouses or either of them. Section 7 of the
Act provides jurisdiction of the Family Courts in respect of
suits and proceedings as referred to in the explanations
appended thereto. The wording, "dispute relating to
marriage and family affairs and for matters connected
therewith" contained in the objects and reasons must be
given a broad construction by the courts. The objects and
reasons would clearly go to show that the jurisdiction of the
Family Courts extends inter alia in relation to properties of
spouses or either of them, which would clearly mean that all
the property claims of the parties as a spouse, irrespective
of whether the claim is made during subsistence of a
marriage or otherwise, would fall within its ambit. It is held
that, the well settled principle of law is that the jurisdiction
of a court created specially for resolution of disputes of
certain kinds should be construed liberally. If restricted
meaning is ascribed to Explanation (c) appended to Section
7 of the Act, it would frustrate the objects for which the
Family Courts were set up, is the observation.
10. While dealing with the subject, in Leby Issac V
Leena M. Ninan (2005 (3) KLT 665) a learned Judge of
this court observed that, the expression 'circumstances'
contained in Explanation (d) would means 'the surrounds of
an act', as per Law Lexicon (by P. Ramanatha Iyer, Reprint
Edition, 1992). Referring to Salter V. State (163 Ga.80,
135 S.E. 408, 409) the word 'circumstances' in relation to
a matrimonial relationship was interpreted as 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 the marriage. The main
requirement is that such circumstances must have a direct
bearing on the marriage, because the marriage precedes
the existence or origin of a 'marital relationship'. The
'circumstances' arising out of a marital relationship are
therefore, occurrences or things which stands around or
about, which are attendant upon, which closely precede or
closely follow, which surround and accompany, which
depend upon, or which support or qualify the principal
event of a marriage or a marital relationship. Thus it is
observed that, clause (d) would takes in not only those
occurrences which transpired during the marital life, but
should also include such circumstances which led to the
marriage, which developed thereafter, which took place
during the marital life, which resulted in breaking down of
the marriage and also those which closely followed as a
consequence of all these. It is observed in the said decision
that, if the intention of the legislature was to take in only
those circumstances which took place during the marital
relationship, there was no necessity to use the word
'circumstances'. Therefore inclusion of word 'circumstances'
is quite significant and it must have been done to include all
the circumstances surrounding, preceding and closely
following a marital relationship in which the principal event
is the 'marriage' and the eventualities surrounding it.
11. Leby Issac's case (supra) was taken note of in a
subsequent Division Bench decision of this court in
Suprabha V. Sivaraman (2006 (1) KLT 712). It was
observed that, meaning of the word 'circumstances' as
found in Law Lexicon and Black's Law Dictionary include
those particulars which closely precedes, surrounds,
accompanies or follows a marital relationship. It is found
that in order to attract clause (c) it should be a suit or a
proceedings between the parties to a marriage with respect
to the property of the parties or the property of either of
them. But to come under clause (d) it need to be only a suit
or a proceedings for an order or injunction instituted under
the circumstances arising out of the matrimonial
relationship. Therefore it is evident that in order bring a
suit or a proceedings within the ambit and scope of
Explanation (d) to Section 7 (1) there is no necessity that
the parties to the marriage should be there in the party
array.
12. In a later decision of this court in Vasumathi
V. Valsan (2011 (3) KLT 638) a Division Bench had
distinctly considered the scope of both the explanations (c)
and (d). It is observed that, Explanations (b) and (d) to (g)
do not make specific reference to the parties to the suit or
proceedings. They refer only to the nature of the dispute
that are brought before court. In that view of the matter,
Explanation (d) refers only to the nature of the suit or
proceedings and it does not refer to the parties to the
litigation. The emphasis under clause (d), as we perceive it,
is on the fact that the suit or proceedings must have a stem
from the circumstances arising out of a marital relationship.
Any one can be parties to the suit or proceedings. The
suit/proceedings will be exclusively cognizable by the
Family Court, if the dispute in such suit or proceedings is in
circumstances arising out of a marital relationship. The
words "for an order or injunction" together cover all reliefs
that can be claimed in such suit or proceedings. The non-
specification of the nature of the "order or injunction" in
clause (d) must convey that the relief claimed in such suit or
proceedings can be anything i.e. "any order or injunction".
The expression "for an order or injunction" cannot obviously
be read as an "order of injunction". Therefore there is no
specific reference with respect to any decree in Clause (d)
and hence the wording "as an order or injunction" must
certainly be held to cover all possible reliefs that may be
claimed in such suit or proceedings, including any decree.
13. In yet another decision of a Division Bench of this
court, in Syamaladevi V. Saraladevi (2009 (1) KLT
892) it was observed that, various clauses contained in the
explanation (a) to (g) cannot be restricted to disputes
confining to the parties to the marriage, either during
subsistence of the marriage or thereafter. Some of the
disputes may even arise after either of them dies. Referring
to Clause (d) of the explanations it was observed that, it
refers to a suit or a proceeding for an order or injunction in
the circumstances arising out of the marital relationship.
Therefore clause (d) will be attracted if the dispute is
arising out of the marital relationship and need not
necessarily be between the spouses.
14. In another decision of this court in Anil Kumar
K.B. V. Sheela N.S. and others (2011 (3) KHC 942)
a Division Bench of this court had dealt with the scope of
section 7(1) (d). It is a case where the wife stood as a
surety for the brother of the husband in a chitty transaction,
in which payment was defaulted by the brother and
amounts were realised from the wife. The wife instituted
the suit for recovery of the amount paid by her, against the
brother of the husband in the Family Court. This court held
that since the transaction which forms the cause of action
arose "in circumstances arising out of a marital
relationship", it is a dispute coming under Explanation (d)
to section 7(1) of the Act . The Bench held that there can be
no doubt that plaintiff stood as a surety for the brother of
her husband for the amounts due from him to KSFE, only
due to the marital relationship between herself and her
husband and only because she was staying in her
matrimonial home. She happened to stand as a surety only
because of the influence or compulsion of her husband.
15. Considering all the above cited precedents, we
have already rendered a decision in Blessy Varghese
Edattukaran V. Sonu (2015 (4) KLT 572) = (2015
(5) KHC 458). In the said case, children of the deceased
mother raised claim against the father seeking declaration
of title over the scheduled properties and also for
realization of amounts towards marriage expenses.
Contention was raised that the suit will not be maintainable
before the Family Court with respect to the property,
because it will not fall within the ambit and scope of a suit
under of Explanation (c) to Section 7 (1). After elaborate
consideration of the scope of Explanation (c) and (d) it was
found that, eventhough the suit will not lie under Clause (c),
it will perfectly fall within the scope of Clause (d). Therefore
it is observed that if the cause of action agitated is based on
the rights and obligations of the parties which are arising
out of a matrimonial relationship, it will clearly fall within
Explanation (d) to Section 7 (1) of the Family Courts Act.
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
explanation (d). 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 Explanation (d) to
Section F(1) of the Act.
17. When the facts of the case at hand is analyzed
based on the above said parameters, it is evident that the
claim of the 1st respondent that she paid money to the 1st
appellant by disposing her own property for discharging
the bank liability of the mother-in-law, on the basis of a
specific understanding that the B-schedule property will be
assigned into her name, has got a clear stem arising out of a
circumstances connected to a marital relationship. Since
the alleged promise was not complied with and since the 1st
appellant had assigned the properties to her sons, the 1st
respondent is claiming declaration of title over the property
contained in B-schedule. The alleged transaction of the 1st
respondent selling her own property for discharging her
mother-in-law's debt on the basis that the B-schedule will be
assigned to her name, happens only because of the
matrimonial relationship of the parties as daughter-in-law
and mother-in-law. But for the marriage of the 1st
respondent with the son of the 1st appellant, such an alleged
transaction would not have taken place. Therefore the
cause of action agitated against the mother-in-law had
arisen from circumstance connected with the matrimonial
relationship . Whether the parties to the marriage are
parties to the lis, becomes immaterial in such
circumstances. Therefore considering the wider
interpretation to be given to the ambit and scope of the
explanation contained under clause (d), as guided by
binding precedents of this court and the hon'ble Supreme
Court, we are persuaded to hold that the cause agitated is
emerging from circumstances arising out of marital
relationship. It is rightly observed by the Family Court that
the alleged contract between the 1st respondent and the 1st
appellant is only due to the marriage of the 1st respondent
with the son of the 1st appellant. The entire transaction
took place after the marriage. Therefore it is found that the
dispute will squarely come within the purview of
explanation (d) to section 7(1) of the Act.
18. The Family Court observed that, the question as
to whether the transaction is a valid transaction, where
there is any bar of limitation, whether the relief claimed
under the other enactment can be claimed in the main
petition itself etc. are matters which need to be adjudicated
while contesting the suit. We perfectly agree with such
observations and hold that the original petition instituted
before the Family Court is maintainable before that court.
19. In the result, the above appeal deserves no merit
and the same is hereby dismissed.
Sd/-
C.K. ABDUL REHIM, JUDGE.
Sd/-
MARY JOSEPH, JUDGE.
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