Sunday, 31 March 2019

Whether mother in law can recover money from son in law before family court?

Adjudication of matrimonial disputes in a congenial atmosphere is the function of the Family Court. No doubt, a broad and liberal approach is required in determining the jurisdiction of the Family Court. But, it does not mean that, the Family Court has the jurisdiction to adjudicate matters not even remotely connected with marriage and marital relationship. Exclusion of jurisdiction of civil courts cannot be readily inferred. The expression "in circumstances arising out of a marital relationship" in Clause (d) of the explanation to Section 7(1) of the Act, denotes such circumstances surrounding, preceding and closely following a marital relationship, that is, the principal event of marriage and the eventualities surrounding the same. The "circumstances" must have a direct bearing on marriage. Prime consideration should be as to whether the cause of the lis has got any bearing with marital relationship. If the cause of action is emerging out of any circumstances related to matrimonial relationship and the same could not have existed independently, then the suit can be maintained before the Family Court, and it will fall under Clause (d) of the explanation to Section 7(1) of the Act. It is not necessary that, parties to a suit or proceeding under that clause, shall be parties to a marriage.

23. On an analysis of the facts of the present case on the basis of the parameters stated above, it is evident that the foundation of the claim for money made by the appellant against her daughter and son-in-law is not any circumstance arising out of a marital relationship. The amount was allegedly given by her to the respondents purely on account of her confidence and faith in them. There is no plea, as contended by the learned counsel for the appellant, that she gave the money at the instance of her husband or due to the pressure or influence made on her by her husband. The transaction between the appellant and the respondents has no connection with her marital relationship with her husband. The cause of action for the claim of money made by the appellant does not relate to the matrimonial relationship between her and her husband. The cause of action for realisation of money from the respondents would exist independently. The jurisdiction conferred on the Family Court is settlement of issues arising out of matrimonial causes. The dispute in the instant case is purely a civil dispute which one could agitate and seek relief from an ordinary civil court. The dispute is not one arising out of any marital relationship.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Mat. Appeal No. 541 of 2016

Decided On: 09.11.2018

 Vijayalakshmy Vs.  P.K. Jayashree and Ors.

Hon'ble Judges/Coram:
C.K. Abdul Rehim and R. Narayana Pisharadi, JJ.

Citation: AIR 2019 Kerala 53


1. The appellant is the mother of the first respondent. The second respondent is the husband of the first respondent.

2. The appellant filed O.P. No. 536/2013 against the respondents in the Family Court for realisation of an amount of twenty six lakhs rupees allegedly due to her from them. The respondents filed an application as I.A. No. 457/2015 praying that the original petition may be dismissed for want of jurisdiction by the Family Court to try the case. They contended that the parties to the original petition are not parties to a marriage and therefore, the Family Court has got no jurisdiction under Section 7 of the Family Courts Act, 1984 (hereinafter referred to as 'the Act') to entertain and try the original petition. On the other hand, the appellant contended that the transaction, on the basis of which she claimed money from the respondents, is one that took place in circumstances arising out of a marital relationship and therefore, the original petition filed by her is maintainable under Clause (d) of the explanation to Section 7(1) of the Act. The Family Court negatived the contention of the appellant and ordered that the original petition shall be returned to her for presentation before the proper court having jurisdiction. The aforesaid order is challenged in this appeal.

3. We have heard the learned counsel for the appellant and also the respondents.

4. Before considering the rival contentions, we shall briefly refer to the material averments in the original petition filed by the appellant in the Family Court. The marriage between the appellant and her husband Krishnan was on 21/03/1977. The first respondent and another daughter were born in that wedlock. The daughters were given in marriage and they were residing with their husbands. The appellant and her husband were residing in their house at Perinthalmanna for the past 18 years. Then, on account of physical problems, the husband of the appellant wanted to reside near the residence of the first respondent. In the month of September 2011, the appellant and her husband entrusted the respondents the responsibility of purchasing a house for them. The appellant sold her property having an extent of 20 cents at Perinthalmanna. She gave a total amount of twenty six lakhs rupees to the respondents for purchasing a property and a house in her name. But, the appellant came to know that six cents of land with a building therein was purchased in the name of the first respondent and some other properties were purchased in the name of the second respondent. Therefore, the appellant claims that she is entitled to realise the amount of twenty six lakhs rupees given by her to the respondents.

5. Section 7 of the Act deals with jurisdiction of the Family Courts. Section 7(1) of the Act reads as follows:

"7. Jurisdiction:--(1) Subject to the other provisions of this Act, a Family Court shall--

(a) 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; and

(b) be deemed for the purpose of exercising 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 jurisdiction of the Family Court extends.

Explanation:--The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:--

(a) a suit or proceedings between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to 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 the validity of marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceedings for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor."

6. Section 8 of the Act ousts the jurisdiction of the civil courts to entertain and try the suits and proceedings mentioned in Section 7 of the Act.

7. The original petition is filed by the appellant for realisation of money from the respondents. The parties to the proceedings are not parties to a marriage. Evidently, Clause (c) of the explanation to Section 7(1) of the Act has no application to the facts of the case.

8. Learned counsel for the appellant contended that the decision to sell the property of the appellant at Perinthalmanna and to shift the residence of the appellant and her husband to a place near the residence of the first respondent was taken at the instance of the husband of the appellant and it is a transaction which took place in circumstances arising out of the marital relationship of the appellant and her husband and therefore, the Family Court has jurisdiction to entertain and try the original petition under Clause (d) of the explanation to section 7(1) of the Act. In support of his contention, learned counsel for the appellant relies upon the averments contained in the original petition that, the husband of the appellant took a decision to shift their residence to a place near the residence of the first respondents and for that purpose summoned the respondents and entrusted them the responsibility of purchasing a property. According to the learned counsel, the aforesaid averments in the original petition would confer jurisdiction on the Family Court to try the case.

9. The husband of the appellant is not a party to the original petition filed before the Family Court. Learned counsel for the appellant submitted that the husband of the appellant died on 30.05.2012.

10. At this juncture, the question arises what is meant by the expression "circumstances arising out of a marital relationship" contained in Clause (d) of the explanation to Section 7(1) of the Act.

11. Learned counsel for the appellant has relied upon the following decisions in support of his plea. (1) Abdul Jaleel v. Shahida : MANU/SC/0301/2003 : AIR 2003 SC 2525, Leby Issac v. Leena : MANU/KE/0250/2005 : 2005 (3) KLT 665, Suprabha v. Sivaraman : MANU/KE/0016/2006 : 2006 (1) KLT 712, Anil Kumar v. Sheela : MANU/KE/1734/2011 : 2011 (3) KHC 942 and Krishna Moorthy v. Soumya Krishnan : MANU/KE/2129/2015 : 2015 (5) KHC 365.

12. In Abdul Jaleel (supra) the question considered was whether the Family Court has jurisdiction to adjudicate upon any question relating to the properties of divorced parties. The Hon'ble Supreme Court held that the expression "a suit or proceeding between the parties to a marriage" cannot be confined to parties to a subsisting marriage and that Clause (c) of the explanation to Section 7(1) of the Act would apply to disputes over properties of divorced parties. The dictum laid down in this decision has no application to the facts of the present case.

13. In Leby Issac (supra), the question arose was whether the Family Court has jurisdiction to entertain a suit filed by a husband for realisation of money as compensation and damages from his wife and father-in-law. This Court examined what is meant by the expression "circumstances arising out of a marital relationship". This Court has held as follows:

"14. The expression 'in circumstances arising out of marital relationship' thus means not only those occurrences which transpired during marital life, but those also include such circumstances which led to the marriage, which developed thereafter, which took place during marital life, which resulted in breaking down of marriage and also those which 'closely' followed as a consequence of all these. If the intention of legislature was to take in only those occurrences which take place during a 'marital relationship', there was no necessity to use the word 'circumstances' in explanation (d) to S. 7(1) of the Act. The same purpose could have been achieved if explanation (d) is worded without the term 'circumstances' also. So, the inclusion of word 'circumstances' in the relevant provision is quite significant and it must have been done to include all such circumstances surrounding, preceding and closely following a marital relationship i.e., the principal event of marriage and the eventualities surrounding the same".
This Court has further held as follows:

"23. So, the prime question to be asked on institution of a proceeding before Family Court under S. 7(1) read with Explanation (d) of the Act is 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".
14. The dictum laid down in Leby Issac (supra) does not in any way help the appellant. It would rather destroy or negative the contention raised by her regarding jurisdiction of the Family Court to entertain the dispute raised by her. The foundation of the claim for money made by the appellant against her daughter and son-in-law is not the marital relationship between her and her husband. It cannot be considered as a claim emerging out of the circumstances closely preceding, surrounding or following a marital relationship. The claim made by the appellant did not arise in circumstances which had a direct bearing on the marital relationship between her and her husband.

15. In Suprabha (supra), the question considered was, whether the claim for return of gold ornaments and cash raised by the wife against the parents of her husband, when the husband was no more, was maintainable. This decision has no application to the facts of the present case.

16. In Krishna Moorthy (supra), a Division Bench of this Court consisting one of us (Justice C.K. Abdul Rehim) considered the question whether the decree sought by a daughter against the father for declaration of right over a property and claiming marriage expenses could be entertained by the Family Court. It was held that,

"Since the suit in question is clearly pertaining to a cause of action agitated based on the rights and obligations of the appellant which arises out of the marital relationship between the appellant and the mother of the respondents, it will clearly fall within Explanation (d) to S. 7(1) of the Family Courts Act, because it is a suit/proceedings filed seeking an order "in the circumstances arising out of a marital relationship." Therefore we are inclined to hold that the original petition instituted before the Family Court is maintainable under Clause (d) of the Explanation to 7(1)".
In the instant case, the cause of action for the claim for money made by the appellant against her daughter and son-in-law is not based on the rights and obligations of the appellant or her husband towards the first respondent, their daughter.

17. Learned counsel for the appellant heavily relies upon the decision in Anil Kumar (supra) in support of his plea that the claim of the appellant would come under Clause (d) of the explanation to Section 7(1) of the Act. It was a case in which the question arose whether the claim made by the wife against her husband's brother for realisation of money would come under Clause (d) of the explanation to Section 7(1) of the Act. It was a case in which the wife pleaded that while the marital relationship between her and her husband was subsisting, as directed and influenced by her husband, she stood as a surety for the brother of her husband in a chitty transaction and since the brother of her husband defaulted payment of the amount, a sum of Rs. 28,500/- was recovered from her salary and thereafter she remitted Rs. 92,200/- to close the loan transaction so as to avoid recovery of amount from her salary. It was contended on behalf of the wife that she happened to stand as a surety to the brother of her husband in the chitty transaction due to the pressure exerted and due to the influence of her husband and it was only to maintain harmony in the matrimonial home she happened to stand as a surety. It was further contended that the wife would not have stood as a surety but for the fact that the debtor was the brother of her husband and to avoid disputes, she obliged her husband to stand as a surety. In this context, it was held by this Court as follows:

"The case of the wife, as has been mentioned earlier, arose during the subsistence of the marital relationship and the circumstances projected in this case have a direct bearing on the marriage. ...... So far as the case on hand is concerned, there can be no doubt that the first respondent happened to stand as a surety for the appellant for the amount due from him to K.S.F.E. when the marital relationship between her and her husband was subsisting and also when she was staying in her matrimonial home. She happened to stand as a surety only because of the influence or compulsion of her husband. Therefore, the amount due from the appellant (the brother of the first respondent's husband) arose 'in circumstances arising out of a marital relationship'. It is a 'dispute' coming under explanation (d) to S. 7(1) of the Act. As such, the suit/petition before the Family Court is perfectly maintainable".
18. In the instant case, the transaction alleged by the appellant has no direct bearing on her marriage. The appellant has no case that she gave money to her daughter and son-in-law due to the pressure exerted or influence made on her by her husband. There is no pleading that it was at the instance of her husband that she gave money to the respondents. The dictum laid down in Anil Kumar (supra) has turned on the facts of that case and it has no application to the facts of the present case.

19. We shall now advert to some other precedents on the point. In Vasumathi v. Valsan : MANU/KE/1419/2011 : 2011 (3) KLT 638, it was noticed that explanations (b) and (d) to (g) to Section 7(1) of the Act 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. It was held that the emphasis under clause (d) is on the fact that the suit or proceedings must stem from circumstances arising out of a marital relationship and any one can be parties to the suit or proceedings.

20. In Janaki Amma v. Renuka Sadanandan : MANU/KE/2392/2015 : 2016 (1) KHC 266 : 2016 (1) KLT 563, a Division Bench of this Court, consisting one of us (Justice C.K. Abdul Rehim), has held as follows:

"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 S. 7(1) of the Act".

(emphasis supplied).

21. In Manita Khurana v. Indra Khurana: MANU/DE/0198/2010 : AIR 2010 Delhi 69, the mother-in-law instituted the suit against the daughter-in-law for evicting her from the house. The allegation was that the son of the plaintiff, to whom the defendant was married, was residing with the plaintiff in the house and on marriage, the defendant also started living in the same house but the defendant picked up quarrel with the plaintiff and forced her to leave the house. The plaintiff, claiming to be the absolute owner of the house, sued her daughter-in-law for possession and mesne profits. The Delhi High Court held that though the defendant is admitted to have been inducted into the suit premises owing to the marriage with the son of the plaintiff, it was not the cause of action for the suit. It was held that the cause of action for the suit was the refusal of the defendant to vacate the house of which the plaintiff claimed to be the exclusive owner and merely because certain facts leading to the cause of action referred to the marital relationship of the defendant, it would not make the suit as one 'in circumstances arising out of a marital relationship'.

22. Adjudication of matrimonial disputes in a congenial atmosphere is the function of the Family Court. No doubt, a broad and liberal approach is required in determining the jurisdiction of the Family Court. But, it does not mean that, the Family Court has the jurisdiction to adjudicate matters not even remotely connected with marriage and marital relationship. Exclusion of jurisdiction of civil courts cannot be readily inferred. The expression "in circumstances arising out of a marital relationship" in Clause (d) of the explanation to Section 7(1) of the Act, denotes such circumstances surrounding, preceding and closely following a marital relationship, that is, the principal event of marriage and the eventualities surrounding the same. The "circumstances" must have a direct bearing on marriage. Prime consideration should be as to whether the cause of the lis has got any bearing with marital relationship. If the cause of action is emerging out of any circumstances related to matrimonial relationship and the same could not have existed independently, then the suit can be maintained before the Family Court, and it will fall under Clause (d) of the explanation to Section 7(1) of the Act. It is not necessary that, parties to a suit or proceeding under that clause, shall be parties to a marriage.

23. On an analysis of the facts of the present case on the basis of the parameters stated above, it is evident that the foundation of the claim for money made by the appellant against her daughter and son-in-law is not any circumstance arising out of a marital relationship. The amount was allegedly given by her to the respondents purely on account of her confidence and faith in them. There is no plea, as contended by the learned counsel for the appellant, that she gave the money at the instance of her husband or due to the pressure or influence made on her by her husband. The transaction between the appellant and the respondents has no connection with her marital relationship with her husband. The cause of action for the claim of money made by the appellant does not relate to the matrimonial relationship between her and her husband. The cause of action for realisation of money from the respondents would exist independently. The jurisdiction conferred on the Family Court is settlement of issues arising out of matrimonial causes. The dispute in the instant case is purely a civil dispute which one could agitate and seek relief from an ordinary civil court. The dispute is not one arising out of any marital relationship.

24. In the aforesaid circumstances, we find no ground to interfere with the impugned order passed by the Family Court. There is no merit in the appeal and it is liable to be dismissed.

Consequently, we dismiss the appeal. No costs.


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