Kerala High Court
Leby Issac vs Leena M.Ninan Alias Lincy on 12 July, 2005
Equivalent citations: AIR 2005 KERALA 285, 2006 (5) ALL LJ EE 617, 2006 (1) ABR (NOC) 70 (KER), (2005) 2 KER LJ 652, (2005) 34 ALLINDCAS 549 (KER), (2006) 1 CIVLJ 213, (2005) 3 KER LT 665, (2006) 1 CURCC 479
Author: K.Hema
Bench: K.Hema
IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO No. 33 of 2004
1. LEBY ISSAC, S/O. ISSAC,
... Petitioner
Vs
1. LEENA M.NINAN ALIAS LINCY,
... Respondent
2. NINAN VARGHESE,
3. MR.PANIKAR,
For Petitioner :SRI.SHABU SREEDHARAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.SANKARASUBBAN
The Hon'ble MRS. Justice K.HEMA
Dated : 12/07/2005
O R D E R
.PL 55 .TM 4 .BM 3 ........L.......T.......T.......T.......T.......T.......T.....T.J S. SANKARASUBBAN & K. HEMA, JJ.@@ jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
------------------------------------@@ AjAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA F.A.O. No. 33 of 2004@@ AjAAAAAAAAAAAAAAAAAAAAAA
------------------------------------@@ AjAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA Dated this the 12th day of July , 2005@@ j JUDGMENT@@ jAAAAAAAA .SP 2 ((HDR 0 [FAO.33/04]
-: # :-@@ j )) .HE 1 Hema, J:@@ AAAAAAAA Does a family court have jurisdiction to entertain a suit filed by a husband for recovery of money as compensation and damages from his wife and father-in-law ? What are the requirements to invoke jurisdiction under section 7(1) read with explanation (d) of the Family Court's Act (the Act for short)? What is meant by the expression, `in circumstances arising out of a marital relationship' used in Explanation (d) to section 7(1) of the Act? Do such `circumstances' include only those occurrences which transpired during marital relationship alone? These are the main questions which arise in this appeal for consideration.
2. Facts in this case briefly, are as follows:
Appellant filed a suit before the Family Court against his wife, father-in-law and alleged adulterer of his wife as defendants 1 to 3. They are respondents 1 to 3 in this appeal. Relief sought for in the suit is to recover Rs.10 lakhs as compensation and damages from respondents 1 and 2 with costs. As per the averments in the suit, appellant married first respondent as per religious rites in in 1997. But, after marriage, appellant came to know that his wife was leading illicit relationship with third respondent prior to the marriage and even thereafter.
They are living in adultery. This fact was known to his wife's parents, but they suppressed this fact and committed fraud on appellant in solemnizing the marriage.
3. It is further averred in the plaint that all the efforts taken by appellant to correct first respondent were futile. His wife joined her parents who are employed at Muscat. Appellant filed O.P.No.336 of 2001 for dissolution of marriage before Family Court on the ground of adultery. The case is still pending for disposal. Appellant had spent Rs. 2.5 lakhs for conducting the marriage itself, but his wife refused to cohabit with him and discharge marital obligations in view of her illicit relationship with the 3rd respondent. All these resulted in pain and suffering to appellant and family which are unascertainable in terms of money. Respondents 1 and 2 are therefore liable to pay compensation and damages. Appellant limited his claim to Rs.10 lakhs and filed this suit for a decree allowing him to recover the amount as compensation and damages from respondents 1 and 2 and their assets with costs. These are in short, the averments in the plaint.
4. Lower court held that it has no jurisdiction to entertain the suit involved in this case. According to lower court, suit of the nature filed in this case will not be covered by Explanation (d) to Section 7(1) of the Family Courts Act. The court below found that cause of action set forth in the suit is the alleged misrepresentation on the part of the respondents, the defiant and wayward attitude of the first defendant in discharging their marital obligations culminating in mental agony and troubles to plaintiff/appellant and hence the suit cannot be treated as a suit or proceeding for an order of injunction in circumstances arising out of a marital relationship. Plaint was returned to appellant for presentation before proper court and hence this appeal.
5. According to learned counsel appearing for appellant, the cause of action in the suit arises from the marital relationship between appellant and respondents 1 and 2 and hence, Family Court has jurisdiction to entertain the suit as per section 7(1) read with Explanation (d) of the Family Courts Act (the Act, for short). To decide the issue on jurisdiction, a reading of Section 7 of the Family Court's Act, 1984 is necessary. Section 7 of the Act is extracted as ` hereunder:
.SP 1 "Sec. 7: Jurisdiction.--(1) Subject to the@@ i other provisions of this Act, a Family Court shall,--
(a) have and exercise all the jurisdiction@@ i exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising@@ i such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation:-- The suits and proceedings referred@@ i to in this sub-section are suits and proceedings of the following nature, namely,--
(a) suit or proceeding between the parties to a@@ i marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to@@ i the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a@@ i marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or@@ i injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to@@ i the legitimacy of any person;
(f) a suit or proceeding for maintenance;@@ i
(g) a suit or proceeding in relation to the@@ i guardianship of the person or the custody of, or access to, any minor, (2) Subject to the other provisions of this Act,@@ i a Family Court shall shall have and exercise,--
(a) the jurisdiction exercisable by a Magistrate@@ i of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b)such other jurisdiction as my be conferred on@@ i it by any other enactment."
.SP 2
6. A reading of Section 7 of the Act shows that it provides for jurisdiction of Family court to entertain certain class of suits and proceedings. As per the said section, a Family Court shall have, and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation. According to appellant, present suit falls under explantation (d) appended to Section 7(1) of the Family Court's Act. Can this contention be accepted?
7. Section 7(1) read with Explanation (d) provides that a Family Court has jurisdiction to entertain "a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship". That means, to exercise jurisdiction and to entertain a case by a family court under section 7(1) and Explanation (d), following requirements are to be satisfied. Those are, 1) there must be a `suit' or `proceeding' 2) the relief sought for in such suit or proceeding must be for an "injunction" or "order" and 3) those must have emerged in the circumstances arising out of a marital relationship. If, on considering the pleadings and records produced in the case, the court finds that the above requirements are satisfied, it can entertain such suit or proceeding.
8. But, referring to Explanation (d) of section 7(1) of the Act, lower court found thus: "a suit for damages as in the present case cannot come within the scope and sweep of the said explanation. The explanation deals with granting of an `order' or `injunction'" etc. and found that the court did not have jurisdiction to entertain the suit. It appears from the above observations that court below was of view that the suit being one for damages, is not a proceeding involving either an "injunction" or "order" as required under the said provision. It is true that the proceeding was initiated by appellant as a suit and necessarily, relief sought for in the suit will be `a decree' and not `an order'. That apart, there is no prayer in the suit for `injuction', but the prayer is for recovery of money as compensation and damages.
9. But, can it be said that the case will not come within the purview of explanation (d) for the mere reason that no `injuction' or `order' is involved in the suit? In this connection, rule 3 of the `The Family Courts (Kerala) Rules, 1989' (Rules, for short) framed under section 23 of the Act is quite relevant. The said rule provides that all proceedings except those under the code of criminal procedure which are instituted before the Family Court shall be by way of petition. In this case, proceedings were initiated by way of a suit. But, in view of Rule 3 of the Rules, a suit filed before a family court has to be treated only as `petition' and consequently, relief sought for in any such proceeding will be an `order' or `injuction', as the case may be. Section 18 of the Act provides that an order passed by a Family Court shall have the same force and effect of a decree or order of a civil court.
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 `injuction' 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.
11. But, a further question arises now. What is meant by the expression, `in circumstances arising out of a marital relationship' used in Explanation (d) to section 7(1)? Since the above provision refers to `marital relationship' and not `marriage', will the circumstances adverted to in Explanation (d) confine only to those circumstances which arose during subsistence of marital relationship alone? Or, do those include such `circumstances' which arose surrounding marriage also? Will the expression, `arising out of marital relationship' taken in only those things which transpired during the marital life and not in or about a marriage? To un-knot these questions, a probe into the meaning of the term `circumstances' is necessary.
12. The expression, "circumstances" means `the surroundings of an act', as per Law lexicon by P. Ramanatha Aiyar, reprint edition, 1992. It also means `the particulars which accompany an act', The word "circumstances" is explained in Salter v.State, 163 Ga. 80, 135 S.E.408, 409 also as, "related or accessory facts, 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 a principal fact or event. (vide Black's Law Dictionary Forth edition).
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@@ AAAAAAAA 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 section 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.
15. So, having understood the requisites of section 7 (1) read with explanation (d) as discussed above, the next question to be dealt with is whether those are satisfied in the case at hand. It is clear from the pleadings in the plaint/petition that the appellant's claim emerged in circumstances arising out of marital relationship between appellant and first respondent. It is alleged in the plaint/petition that respondents 1 and 3 were having illicit connections and that this fact was known to his wife's parents, but they suppressed this fact and committed fraud on appellant in solemnizing the marriage.
16. In paragraph 13 of the plaint, it is specifically stated that cause of action to the proceeding arose on the date of engagement of the marriage and on the date of marriage when the first respondent-wife disclosed that the marriage was held against her will, and the date on which the wife made a confession to the plaintiff/appellant regarding the adulterous life at the place where the marriage was solemnized etc. All these are circumstances surrounding, preceding and accompanying a marital relationship.
17. From the averments in the petition/plaint it is evident that suit/petition itself arose because of the marriage, the circumstances which led to the marriage and what transpired during marital life. Those reveal the alleged illicit relationship between respondents 1 and 3, suppression of these facts, subsequent confession made, ensuing breaking down of the marital relationship, defiant conduct of appellant's wife, her failure to discharge marital obligations etc. and the mental agony caused to appellant as a result of all these. Thus, from the facts stated in plaint/petition, it is clear that petition/suit in this case originated in circumstances arising out of a marital relationship.
18. In other words, it can be concluded that there was a "proceeding" before the family court for an "order" for recovery of compensation and damages from respondents 1 and 2 "in circumstances arising out of a marital relationship" as stated in Explanation (d) to section 7(1). Thus, all requirements under section 7(1) read with Explanation (d) of the Act are satisfied in the present proceeding. Hence family court can exercise jurisdiction to entertain the petition/suit filed by appellant. But, court below lost sight of the relevant aspects and hence erred in holding that it has no jurisdiction to entertain the present suit.
19. In this context, it is also worthy to bear in mind, objects for enacting the Act. The relevant portion from Statement of Objects and Reasons of the Act reads as follows:
.SP 1 "......The Law Commission in its 59th report@@ i (1974) had also stressed that in dealing with disputes concerning the family the court ought to adopt an approach radically different from that adopted in ordinary civil proceedings and that it should make reasonable efforts at settlement before the commencement of the trial. The Code of Civil Procedure was amended in 1976 to provide for a special procedure to be adopted in suits or proceedings relating to matters concerning the family. However, not much use has been made by the courts in adopting this conciliatory procedure and the courts continue to deal with family disputes in the same manner as other civil matters and the same adversary approach prevails.
The need was, therefore, felt, in the public interest, to establish Family Courts for speedy settlement of family disputes."
.SP 2
20. Learned counsel appearing for the petitioner also cited a decision reported in Abdul Jaleel v.@@ AAAAAAAAAAAAAAAAA Shahida [2003(2) KLT 403 (SC)] emphasising object of the@@ AAAAAAA Act. The relevant portion from the judgement can be extracted as hereunder:
.SP 1 "The Statement of Objects and Reasons, as@@ i referred to hereinbefore, would clearly go to show 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 other; irrespective of the claim whether property is claimed during the subsistence of a marriage or otherwise. ...It is now well-settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation (c) appended to S.7 of the Act, in our opinion, would frustrate the object wherefor the Family Courts were set up." .SP 2
21. It is evident from the above discussion that the Special Act was enacted to provide a special procedure to be adopted in matters concerning marriage, marital relationship and family. Though provisions are available in the Code of Civil Procedure itself providing for settlement and conciliation by courts in matters concerning family, such provisions were found to be not quite effective. That is why, special provisions are brought into the Act for settlement of family issues. Settlements of family courts are made easier and more effective, since intervention of social welfare agencies, counsellors, experts etc. can be made available in a proceeding before family courts as per the provisions of the Act. The court is also permitted to adopt its own procedure as the court thinks fit in arriving at settlements.
22. The provisions in the Act also allows the court to sit even after ordinary court hours and also on holidays. There are also various other special and significant provisions in the Act which are not available in any other enactments for the courts to arrive at an effective solution to the lingering problems of the victims of broken marriages. Those are all are intended to benefit the couples whose marriages are broken for reasons, either man-made or otherwise to obtain a quicker and final relief to their problems. Such generous objects behind the enactment can be achieved only by a liberal interpretation of the relevant expressions in the provisions of the Act, understanding real import of the social legislation. A narrow approach will not serve the purpose. Matters being so, we find that the interpretation already given to the relevant expression as per the discussion made in foregoing paragraphs is only consistent with the object of the Act.
23. So, the prime question to be asked on institution of a proceeding before family court under section 7(1) read with Explanation (d) of the Act is .PA therefore, whether the foundation of the claim was a marital relationship and whether the petition and relief emerged in the circumstances closely preceding, surrounding and following a marital relationship. If the answer is in the affirmative, the court can entertain the petition. In this particular case that a divorce petition also was pending before the Family Court between the parties. The present proceeding also arose more or less from the same set of facts and circumstances and hence the lower court ought to have retained the case in the same court instead of driving the parties to the ordinary civil court. The whole dispute between the parties can be attempted to be settled in the family court itself. The couple cannot be deprived of the facilities available in the Family Court to arrive at a quicker settlement of their issues. Looking at the issue from any angle, this is a fit case which ought to have been entertained by the Family Court itself.
24. The present case falls squarely under Explanation (d) to section 7 (1) of the Act. The order .PA under challenge is therefore set aside. Court below is directed to register the suit as O.P. and dispose of the matter in accordance with law.
The appeal is allowed.
.JN Sd/-
S.SANKARASUBBAN, JUDGE.@@ AAAAAAAAAAAAAAAAAAAAAAA Sd/-
K. HEMA, JUDGE.@@ AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA krs.
.PA A suit for damages as in the present case cannot come within the scope and sweep of the said explanation. The explanation deals with granting of an "order" or "injunction" the foundation of which is a marital relationship in between parties concerned. The cause of action set forth in the suit is the alleged misrepresentations on the part of the defendants the defiant and wayward attitude of 1st defendant in discharging her marital obligations to plaintiff culminating in mental agony and troubles to plaintiff. The explanation (d) cannot take in a suit of this nature.