Wednesday, 25 May 2016

When property dispute between mother-in-law and daughter-in-law will come within jurisdiction of family court?

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.
 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:

                          THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
                                                               &
                           THE HONOURABLE 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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