Family Law; Vasumathi Vs. Valsan [Kerala High Court, 11-07-2011]

Family Courts Act, 1984 – Section 7 (1) – Nature of dispute – 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.

2011 (3) KLT 638 : 2011 (3) KLJ 489 : ILR 2011 (3) Ker. 747 : 2011 (3) KHC 573

IN THE HIGH COURT OF KERALA AT ERNAKULAM

The Hon’ble MR. Justice R.BASANT

The Hon’ble MR. Justice K.SURENDRA MOHAN

Dated this the 11th July, 2011

O.P. (F.C) No. 976 of 2010 (R)

Vasumathi Vs. Valsan

WPC No.35146 of 2009

For Petitioner : Sunil Nair Palakkat K.M. Abhilash N.K. Sheeba R. Leela For Respondent : K.V. Sohan K. Sreeja Sohan

J U D G M E N T

Basant, J

How are the words “suit or other proceedings for an order or injunction in circumstances arising out of a marital relationship” in explanation (d) to Sec.7 to be understood? Does the unsatisfactory language deserve and need clarification by this Court before the legislature intervenes to amend the statutory provision? These questions disturb us in this appeal.

2. These petitions are filed under Article 227 of the Constitution by the petitioners asserting that the dispute involved in O.S.No.173 of 2006 on the file of the Munsiff’s Court, Thalassery and O.P.No.322 of 2006 before the Family Court, Kannur are to be settled and decided by the Family Court alone and not by any other court.

3. A brief resume of events which have led to these two petitions may be relevant and vital to correctly comprehend the disputes. We are referring to the parties and documents as they are ranked/marked in O.P.No.976 of 2010.

4. Petitioner No.1 is the wife of respondent No.1. Their marriage took place on 22.9.1984. Two children are born in the wedlock. The second petitioner is one of those two children. The other child, it is submitted at the Bar, is residing with the first respondent.

5. On 25.4.2006, Ext.P1 petition was filed by the petitioners herein against the first respondent claiming maintenance under Section 125 Cr.P.C. In paragraph-8 of Ext.P1, it is specifically stated that a charge is created over an item of property standing in the name of the first respondent.

6. Notice in that proceedings – M.C.No.150 of 2006 was ordered to the first respondent. He acknowledged receipt of notice under Ext.P3 dated 12.5.2006. According to the petitioners, hurriedly, to defeat the interests of the petitioners, the first respondent executed Ext.P2 sale deed on 5.6.2006 in favour of the second respondent, allegedly, a close relative of the first respondent. According to the petitioners, the second respondent is only a name lender to the first respondent in his scheme to vex and harass the petitioners.

7. With that end in view, the second respondent allegedly instituted Ext.P4 suit, i.e. O.S.No.173 of 2006 before the Munsiff’s Court, Thalassery. Altogether there were four defendants in that suit. First respondent – the transferor was arrayed as the first defendant. The first petitioner herein was the second defendant in that suit. The father and brother of the first petitioner were arrayed as defendants 3 and 4. No relief was claimed against the first respondent. It was specifically stated in paragraph-4 that the first defendant (first respondent herein) “was made a party to the suit only for proper justice and no relief is claimed against him, since no illegal act was there from the side of defendant No.1”. According to the petitioners herein, that suit was filed by the second respondent against the first petitioner herein and two others in collusion with the first respondent as a name lender of the first respondent only to vex and harass the petitioners.

8. That suit was filed on 23.6.2006. Immediately thereafter both petitioners herein, on 29.6.2006 filed O.P.No.322 of 2006 before the Family Court, Kannur against respondents 1 and 2. The relief claimed therein was a declaration that Ext.P2 sale deed is void and for a consequential injunction from throwing the petitioners out of the house situated in the property covered by Ext.P2 sale deed.

9. As these proceedings i.e. O.S.No.173/2006 and O.P.No.322 of 2006 were pending before the two different courts, the petitioners filed an application before this Court to transfer O.S.No.173 of 2006 pending before the Munsiff’s Court, Thalassery to the Family Court, Kannur. By Ext.P6 judgment, a learned Single Judge of this Court did not allow the transfer, but observed that the question whether O.S.No.173 of 2006 was maintainable before the civil court must be raised before the civil court.

10. That question was raised before the civil court and the civil court by Ext.P7 order took the view that the civil court continues to have jurisdiction. That order Ext.P7 is challenged before this Court in WPC No.35146 of 2009. When that matter was pending, the learned Single Judge who was dealing with the matter directed the Family Court to consider whether O.P.No.322 of 2006 is maintainable before it. The Family Court took up the said question for consideration and by Ext.P8 order, the Family Court took the view that the O.P. is not maintainable and is liable to be dismissed. That order Ext.P8 is challenged in O.P.No.976 of 2010.

11. Both these petitions have been taken up together for consideration. Arguments of the learned counsel have been heard. The learned counsel for the petitioners contends that both the civil suit and the Original Petition before the Family Court are to be heard and disposed of only by the Family Court as only the Family Court under

Section 7(1) of the Family Courts Act, 1984

has exclusive jurisdiction to deal with the matter. The learned counsel for respondent No.2 on the contrary contends that respondent No.2 is not a party to the matrimonial dispute and that in these circumstances, the suit filed by the second respondent has to be tried by the civil court itself. He contends that the Family Court has no jurisdiction to decide the dispute raised in O.P.No.322 of 2006 with him on the party array. The learned counsel for the second respondent hence contends that both these writ petitions may be dismissed and the civil court may be directed to dispose of O.S.No.173 of 2006 in accordance with law. The first respondent, though served has not chosen to appear before this Court.

12. The learned counsel for the petitioners contends that O.P.No.322 of 2006 is squarely covered by Explanation-(c) and/or (d) to Section 7(1). O.S.No.173/2006 also comes within the exclusive cognizance of the Family Court under Explanations-(c) and/or (d) to Section 7(1) of the Family Courts Act, contends the learned counsel for the petitioners.

13. We will have to first of all ascertain the precise nature of the dispute in this case. There is virtually no dispute between respondent No.1 and respondent No.2, i.e. the husband and his transferee. The husband has transferred his property under Ext.P2 sale deed to the second respondent, allegedly a close relative, vide Ext.P2 dated 5.6.2006. This was done by the husband after he got notice of the proceedings in M.C.No.150 of 2006 under Section 125 Cr.P.C. According to the wife, it is a sham transaction between respondents 1 and 2. According to her, she has rights over the property covered by Ext.P2. At any rate there is a charge over the property. It is to defeat her rights that her husband hurriedly transferred the property to the second respondent after the disputes between the spouses arose. The real dispute in the suit O.S.No.173 of 2006 is between respondent No.1 on the one hand and the petitioners on the other. Respondent No.2 is only a mercenary fighting the battle on behalf of respondent No.1. Therefore, the real dispute between the parties is about the right of the petitioners to continue to reside in the property covered by Ext.P2. There is no dispute between the first and second respondents as admitted in the plaint in O.S.No.173 of 2006. The suit is one for injunction to restrain the first petitioner and her relatives from interfering with the alleged rights of the second respondent transferred to him by the first respondent under Ext.P2. According to the petitioners, the real dispute in Ext.P4 suit has arisen out of the matrimonial relationship between the first petitioner and the first respondent. Though described as a suit between the second respondent on the one side and the first petitioner and her relatives on the other in substance the dispute is between petitioner No.1 and respondent No.1 who are parties to the marriage and the dispute between them is “with respect to the property of the parties or either of them” under Explanation-(c) to Section 7(1). In this view of the matter, the learned counsel for the petitioners contends that if not under Explanation (c) to Sec.7(1) at any rate under Explanation- (d) to Section 7(1), Ext.P4 suit is exclusively within the jurisdictional competence of the Family Court.

14. So far as Ext.P5 Original Petition No.322 of 2006 pending before the Family Court is concerned, petitioners contend that the said suit is also between the parties to the marriage about the property which stood in the name of the first respondent and which the first respondent transferred under Ext.P2 sale deed to the second respondent. That suit is to declare Ext.P2 document to be null and void and for an order of injunction to restrain the respondents in that O.P. from interfering with the right of the petitioners to reside in the property.

15. Thus, the crucial question is only whether under Explanation-(c) and/or (d) of Section 7(1), the dispute is one exclusively within the jurisdictional competence of the Family Court.

16. We shall initially consider the applicability of Explanation-(c). Ext.P4 is not technically a suit or proceedings between the parties to the marriage. The parties to the marriage are together on one side on the party array whereas the second respondent is the party on the other side. But, virtually, the dispute is between the parties to the marriage and the dispute is with respect to the property standing in the name of one of them. The jurisdiction under Explanation-(c), according to us, is not to be determined by looking at the position of the parties on the array of parties. What has virtually got to be considered is the very nature of the dispute which is sought to be resolved in such suit or proceedings. So reckoned, we have no hesitation to agree that the suit/ proceedings is initiated virtually to resolve the disputes between the petitioners on the one hand and respondent No.1 on the other, though they together are arrayed as defendants in the suit filed by the second respondent. In that view of the matter, we hold that the real dispute raised in O.S.No.173 of 2006 is between the parties to the marriage with respect to the property of one of them. The mere fact that immediately after the commencement of the dispute, before the institution of the suit, there has been a transfer of property by the first respondent in the name of respondent No.2 under Ext.P2 sale deed and that the second respondent as a mercenary of the Ist respondent has initiated the proceedings does not militate against the real nature of the dispute between the parties. The dispute raised in both the suit and the O.P. are hence disputes (suit/proceedings) falling under Explanation (c) to Sec.7(1) and consequently within the exclusive jurisdiction of the Family Court.

17. We now come to Explanation-(d) of Section 7(1). As per the explanation, “a suit or proceedings for an order or injunction in circumstances arising out of a marital relationship” falls within the jurisdictional competence of the Family Court. The language of clause-(d) is of course not found to be elegant. It relates to a suit or proceedings and such suit or proceedings must be in circumstances arising out of a marital relationship. In the instant case, the real dispute is between the first petitioner and the first respondent about their rights over Ext.P2 property. The dispute has arisen out of the marital relationship. In this view of the matter, we are of the opinion that the dispute squarely comes within the sweep of explanation- (d), if the suit or proceedings is “for an order or injunction”.

18. A suit or proceedings “for an order or injunction” in circumstances arising out of a marital relationship falls within the jurisdictional competence of the Family court. Thus, the words “for an order or injunction” qualifies both the suit or proceedings. This is the first aspect that causes difficulty. The expression ‘a suit for an order’ is cumbersome and contrary to the nature of the proceedings initiated by way of a suit. A suit can be only for a decree. The expression “for an order or injunction” in that strict view of the matter does not appear to be intended to qualify the suit referred to in clause-(d). ‘Proceedings’ referred to in clause-(d) can certainly be “for an order or injunction”.

19. Therefore, it appears to be more appropriate to assume that the expression “for an order or injunction” qualifies proceedings and not the suit. A suit for injunction also appears to be possible. In that view of the matter, both O.S.No.173 of 2006 and O.P.No.322 of 2006 are for injunction. In that view of the matter also, it is possible to conclude that both these proceedings would fall within the sweep of clause(d). It appears to us that it will be appropriate to understand that “suit or proceedings” for whatever relief including “for an order or injunction” must be within the jurisdictional competence of the Family Court, if such suit or proceedings are in circumstances arising out of the marital relationship. The expression “for an order or injunction” in clause(d), we must assume, only conveys that the suit or proceedings may be for any relief whatsoever including an order or injunction. If such relief is claimed and the suit or proceedings are in circumstances arising out of a marital relationship, such suit or proceedings will be exclusively within the jurisdictional competence of the Family Court. This appears to be the only fair and reasonable way of understanding the expression “suit or proceedings for an order or injunction”. It is not possible to read clause(d) as meaning “a suit for injunction or proceedings for an order”. It also appears to be not possible to read the same as ‘a suit for an order or injunction’. It is hence that we feel it appropriate to understand clause(d) as intending to convey that it must be a suit or proceedings – whether for an order or injunction or whatever relief, in circumstances arising out of a marital relationship. Parties who file the suit or proceedings is not important. The nature of the relief claimed is also not of significance. Any relief – any order (including decree) or injunction can be claimed. It is enough if in the suit/proceedings relief is sought in circumstances arising out of a marital relationship.

20. That we note is of crucial significance when we consider the Explanations to Sec.7(1) of the Act. All the explanations i.e. (a) to (g) deal with “suit or proceedings”. All proceedings under Section 7(1)before the Family Court, going by the Rules are to be numbered before the Family Court as applications (OAs) notwithstanding the fact that before the Civil Court such proceedings if initiated would have been numbered as suits. It is to cover all such instances – whether the proceedings are pending/initiated as suits or other proceedings, that Sec.7 employs the expression “suit or other proceedings” in explanation a to g, we feel. Explanation (a) and (c) refer the parties to a marriage. Such disputes under (a) and (c) must be between the parties to the marriage. If the real dispute is between the parties to the marriage, the fact that there are other parties also arrayed in the suit is irrelevant. A party to a marriage cannot nullify the jurisdiction of the Family Court under explanation (c) by arraying one more party to the array of parties. According to us, their position in the array of parties is also not crucially relevant so long as the suit or proceedings in substance and in its core is between the parties. Application of clause (c) cannot be decided in a myopic manner by ascertaining the position of the parties on the array. They may be on opposite sides or may be together on one side on the array, but the suit or proceedings does not lose its character as one “between the parties” because they happen to be arrayed together on one side on the array. In a dispute like the one in this case, merely because the dispute between the parties is brought before the Court by another mercenary or name lender to one of the spouses, the suit or proceedings cannot lose its character as one between the parties to the marriage. A purposive interpretation is warranted and when so reckoned, the position in the party array cannot be given undue importance. A suit/ proceedings does not lose its essential character as one between parties merely because that proceedings is initiated by a name lender to one of the parties who on his own showing has no dispute with one of the spouses.

21. Other explanations to Sec.7(1) i.e. Explanation (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 disputes that are brought before Court. In that view of the matter explanation (d) refers to the nature of the suit or proceedings only and 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 stem from 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, according to us, 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”. The arguments that Explanation (d) can apply only when the relief claimed is one of injunction cannot certainly be accepted. The fact that a decree is not specifically referred to in clause (d) also appears to be irrelevant as “as an order or injunction” must certainly be held to cover all possible reliefs that may be claimed in such suit or proceedings including a decree. This it appears to us, is the only way of purposively interpreting clause (d) of explanation to Section 7(1).

22. The Supreme Court has not so far interpreted clause (d) of Section 7(1), we are assured. We have not been able to trace any decision by the Supreme Court on this aspect.

23. The Kerala High Court had occasion to consider the language of Sec.7(1)(d) earlier. Our attention has been drawn to all those four precedents. In