IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 Mat.Appeal.No. 311 of 2010(D) ----------------------------- AGAINST THE ORDER DATED 09/04/2010 IN IA 4813/2007 IN OP.1413/2007 of FAMILY COURT,THRISSUR .................... APPELLANT : RESPONDENT ------------------------- SINDHU SIDHARTHAN, W/O.K.K.SIDHARTHAN, 4H, CHELUR TOWER, POOTHOLE, THRISSUR. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT : PETITIONER ------------------------- K.K.SIDHARTHAN, S/O.KOPRA KUNJIMON, MANATHALA, CHAVAKKAD,THRISSUR DISTRICT. ADV. SRI.RAJIT FOR CAVEATOR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ********************** Mat.Appeal No.311 of 2010 ********************* Dated this the 3rd day of June, 2010 JUDGMENT BASANT, J. Construed in the light of the broad legislative intent does the dispute in the instant case fall within the sweep of Explanation (c) to Sec.7(1) of the Family Courts Act? This is the question that falls for consideration in this appeal. 2. To answer this question, the nature of the dispute must be first ascertained. Parties continue to be spouses. A petition for divorce is pending. The husband is a very wealthy and successful businessman. He did not have formal education beyond the 4th standard. He was working abroad at the time of his marriage. The wife is about 17 years younger to him. She holds a Degree in Law in addition to her M.Com. Degree. She is said to be the sister-in-law of the legal advisor of the husband. The marriage took place in 1964. Two children were born in the wed-lock. The spouses lived in harmony for some time, it appears. The wife was allegedly helping the husband in the management of his properties. He had business interests Mat.Appeal No.311 of 2010 2 abroad. According to the husband, he trusted and placed faith on his wife absolutely. As a wife, she was acting and was bound to act in trust in respect of his properties. To further facilitate her actions in management of his property and to enable her to manage his affairs as his wife/trustee while he was abroad he had executed a registered general Power-of-Attorney in her favour on 24/6/06. She was acting in trust as a wife and a Power-of-Attorney holder for some time. As days passed, the husband allegedly perceived a change in the attitude of his wife. He doubted her bona fides. He rushed to India and executed a registered document to revoke the instrument of Power-of- Attorney executed in favour of his wife. That deed of revocation was registered on 7/2/07. The act of revocation was communicated to her immediately. She allegedly refused to accept the communication. She went on a mischievous endeavour of executing documents in favour of herself and others of her choice on the strength of his Power-of-Attorney which had already been cancelled. He thus initiated the present suit. There are other litigations also between the parties. 3. This litigation i.e., O.P.No.1413/07 is pending before the Family Court. We note that the parties have already come to this Court on a number of occasions during the pendency of this Mat.Appeal No.311 of 2010 3 O.P. Time bound directions for disposal of O.P.No.1413/07 has already been issued. O.P.No.1413/07 must have been disposed of by 17/2/2010. It has not been disposed of yet. The respondent/wife had raised objection to the jurisdiction of the Family Court under explanation (c) to Sec.7(1) of the Family Courts Act. That preliminary objection was rejected by the court by the impugned order. Challenge is raised in this appeal against the said order rejecting the objection to jurisdiction raised by the appellant herein. The Family Court held that it has jurisdiction under explanation (c) to Sec.7(1) of the Family Courts Act to deal with the matter. 4. What is the nature of objections to jurisdiction that is raised by the appellant? The learned counsel for the appellant contends that the dispute in the instant case is not a family dispute. The learned counsel argues that explanation (c) to Section 7(1) of the Family Courts Act should not be construed merely literally. The dispute, going by the averments in the plaint, is really between an alleged author of the trust and trustee. It is the dispute between a principal and an agent in its core. True that the husband happens to be the alleged author/principal and the wife is allegedly trustee/agent. Going by the legislative intent as reflected in the statement of objects Mat.Appeal No.311 of 2010 4 and reasons, this is not a family dispute. The Family Courts Act was intended to confer jurisdiction on the Family Court to deal with family disputes. The dispute in the instant case is beyond the ken of a Family Court. Spirit and meaning of the Act must be taken into consideration apart from mere words. Such legislative purpose, intent, objects and reasons must be given primacy, contends the counsel. 5. The learned counsel for the respondent on the contrary contends that legislative purpose, object and intention have to be deciphered primarily from the plain language employed from the statute. A mere reading of explanation (c) to Section 7(1) must convince this Court that the dispute raised squarely falls within the sweep of the said clause. Abuse of matrimonial trust and misuse of the implicit faith placed by one spouse (husband) on his more educated and competent wife is soul of the dispute between parties. There cannot be semblance of doubt that the dispute is a family dispute by standards. The learned counsel for the respondent contends that the appellant is interested only in protracting the proceedings. The appellant has been appointed as party receiver to manage a costly business - a hotel. The position as party receiver is being grossly abused. Directions of the Court are being violated. Even Mat.Appeal No.311 of 2010 5 accounts are not furnished. An artificial and non existent dispute about the jurisdiction is raked up unnecessarily only to delay and protract the proceedings. A blanket order of stay was obtained on 11.05.2010 making it impossible for the court below even to consider the respondent's grievance about the non submission of accounts by the receiver. The objection to jurisdiction is without any substance and is only used as a ruse to protract the proceedings. The appeal may be dismissed with compensatory cost, urges the learned counsel for the respondent. 6. We shall first of all refer to explanation (c) to Section 7(1) of the Family Courts Act. It reads as follows: Section 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) .............................. Explanation: The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely: a) ................................. b) .................................... c) A suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them.” Mat.Appeal No.311 of 2010 6 7. This is a proceedings between parties to marriage and the bone of contention is the property of one of them. We are in complete agreement with the learned counsel for the respondent that going by the plain language employed by the legislature, this dispute between the spouses regarding property of the husband (claimed by the wife under the document dated 08.02.2007 executed by her in favour of herself as the power of attorney holder of the husband after alleged cancellation/revocation of the instrument of power of attorney) would squarely come within clause (c). 8. It will be quite apposite in this context to refer to the decision of the Supreme Court in Abdul Jaleel v. Sahida [2003 (2) KLT 403(SC)] as to how the law relating to jurisdiction of a Court, created specially for resolution of disputes of a specified nature should be construed. In para.14, it is clearly stated that “it is now a well settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally”. 9. Even without pressing into service this cannon relating to liberal interpretation, a plain understanding of the language in the light of the semantics employed in explanation (c) clearly brings the case within the sweep of the said clause. Mat.Appeal No.311 of 2010 7 10. The learned counsel for the appellant submits that not mere language but the legislative objects, reasons and intention will have to be understood. We have gone through the statement of objects and reasons of Act 66 of the Family Courts Act, 1984. We do not think it necessary to extract the same. It is true that the purpose, objects and reasons is to constitute a court for settlement of family disputes. But as to what family disputes are one has to go by the language of Sec.7. Subjective concepts of what a family dispute is are not to be imported and in Sec.7 where jurisdiction of a Family Court is defined and powers conferred, it is clearly revealed as to what sort of disputes are to be comprehended by the Family Courts true to the objects and reasons which prompted the legislature to enact this piece of legislation. 11. The learned counsel for the appellant heavily relies on the decision of a Division Bench of this Court in Abdul Jaleel v. Sahida [1997(1) KLT 734]. The counsel contends that a reading of para-7 of the decision in Abdul Jaleel v. Sahida [1997(1) KLT 734] must convey to the court that the instant one cannot be reckoned as a family dispute as to clothe the Family Courts with jurisdiction to deal with the same. Since heavy reliance is placed on para-7, we extract the same in extenso below: Mat.Appeal No.311 of 2010 8 “7. Section 7 of the Family Court Act gives the various types of proceedings over which the Family Court has jurisdiction to try. S.7(1) © is one such proceedings which reads as follows: “A suit or proceeding between the parties to a marriage with respect to the property of the parties or either of them”. We are unable to accept the contention of the appellant that the parties to a marriage referred to therein shall only confine to the parties to the subsisting marriage. The object of the Family Courts Act is to settle the family disputes. The disputes relating to family may be there even after the dissolution of the marriage. In the instant case, the allegation of the respondent is that the property for which she seeks declaration and partition was purchased by the appellant using the money belonged to her. Such a dispute arose between the parties consequent on the dissolution of the marriage. This dispute between them is closely connected with family dispute. If the declaration or partition was sought in respect of an item of property independently acquired by one of the parties after the dissolution of the marriage, certainly the Family Court may not have the jurisdiction. If the dispute relating to the properties which were jointly acquired at the time when they were husband and wife, any dispute relating to such properties could be decided only a forum like the Family Court. The expression `parties to a marriage' used under S.7(1)c) of the Family Courts Act is to be construed having due regard to the Objects and Reasons of the Family Courts Act. 12. The learned counsel relies on the decision in Abdul Jaleel v. Shahida [2003 (2) KLT 403 (SC)] also to drive home his contention that the dispute in order to be a cognizable by the Mat.Appeal No.311 of 2010 9 Family Court must be a family dispute. Reliance is placed on paras-10 to 13 of the said decision. We have been taken through these passages in detail. We do not think it necessary to extract the said passages. 13. We note that both these decisions were cases where the question that arose for consideration was the play of the expression “between the parties to a marriage”. The question that the courts were called upon to decide was whether the expression “parties to the marriage” would include parties to a dissolved marriage or would apply only to a subsisting marriage. It is interpreted that Clause (c) would apply not merely to disputes between the parties to a subsisting marriage; but also to dispute between parties to a dissolved marriage - a marriage which does not subsist. 14. The learned counsel contends that though the question that arose in both those cases were not exactly identical, certain observations in the decision in Abdul Jaleel v. Sahida [1997(1) KLT 734] must suggest to this court that even disputes between the parties to a marriage regarding properties owned by one of them would not fall within the sweep of Explanation (c) if the properties were acquired without any reference to their marital status. The counsel particularly relies Mat.Appeal No.311 of 2010 10 on the observations in para-7 extracted and emphasized above and contends that the mere fact that the parties to a marriage happen to be spouses, is not crucially relevant. The question is whether the dispute in its core is a family dispute. The counsel places heavy reliance on the following statement of law in paragraph 7 of Abdul Jaleel v. Sahida [1997(1) KLT 734]. “It has been observed in the book `Craies on Statute Law” 7th Edition at Page 102 that: `a court of justice will take into consideration the spirit and meaning of the act apart from the words; in other words, there is still, as Jessel M.R. said, in Re Bethlem Hospital, such a thing as construing an Act according to its intent, though not according to its words'.” (emphasis supplied) In short the counsel argues that even a dispute which going by the mere language may fall within explanation (c) to Sec.7(1) may not be cognisable by the Family Court if the same is not a family dispute, as commonly understood. 15. The question is whether the instant dispute which falls within the language of explanation (c) goes out of the sweep of the same for the alleged reason that it is not a family dispute. For this purpose we have scanned through the pleadings. Mat.Appeal No.311 of 2010 11 16. A careful reading of the plaint clearly shows that the spouses while the matrimony was in subsistence had initially great trust and faith in each other. The wife who was more educated, competent and qualified was assisting the husband in the management of his properties. It is to facilitate such management by her that the husband placing absolute matrimonial trust and implicit faith executed the Power-of- Attorney document. It is the alleged abuse of the position and status as a spouse (on whom complete matrimonial trust and faith was placed and in whose favour the Power-of-Attorney document was executed to facilitate her to act on behalf of the other spouse) which is the foundation of the cause of action in this case. Even accepting any standards we find it impossible to construe that the dispute in the instant case is unrelated to the marital status of the parties or that it has to be reckoned as a non-family dispute. 17. To summarise, the dispute is between the spouses. It relates to an item of property of the husband. The dispute is whether the document executed by the wife in her capacity as a Power-of-Attorney Holder after the revocation of the instrument of Power-of-Attorney is valid or not. But the underlying Mat.Appeal No.311 of 2010 12 substratum of the case is that the matrimonial trust and faith reposed had been abused. We are unable to accept the argument that the dispute is not a family dispute or that for that alleged reason it would go out of the sweep of Explanation (c) to Sec.7(1). 18. The observation in para.7 of the Abdul Jaleel v. Sahida [1997(1) KLT 734] that “ If the declaration or partition was sought in respect of an item of property independently acquired by one of the parties after the dissolution of the marriage, certainly the Family Court may not have the jurisdiction” cannot be understood artificially or out of context. While interpretationally expanding the expression “parties to a marriage” to include “parties to a marriage which was not subsisting on the date of the suit” caution was administered that such interpretational expansion cannot cover all subsequent disputes between such parties independent of and unrelated to their marital status as spouses. That observation can have no effect/impact on disputes between spouses to a subsisting marriage. A dispute between parties to a subsisting marriage Mat.Appeal No.311 of 2010 13 which answers clause (c) of explanation to Sec.7(1) cannot ever go out of the sweep of the explanation, or be out of bounds for the Family Court on the strength of that observation. 19. The challenge raised in this appeal, in these circumstances, will have to be turned down. We find merit in the contention of the learned counsel for the respondent that the appellant had raised such a dispute with the apparent intention of protracting the proceedings. Notwithstanding the fact that this unworthy objection to jurisdiction had been raised even before the respondent was appointed as a party receiver, we condemn the dilatory tactics employed. Our disapproval will be reflected by an order directing payment of costs. 20. The learned counsel for the appellant submits that the case is posted for trial to 7/6/10. We need only reiterate that the Family Court must now dispose of the case as expeditiously as possible - at any rate, within a period of three months from 7/6/10 on which day the case stands posted for trial. The Registry shall verify why the time bound directions have not been complied with and whether any application for extension of time has been received from the Family Court. We direct that the respondent, in any proceedings initiated hereafter before Courts superior to the Family Court must bring to the notice of Mat.Appeal No.311 of 2010 14 the Court that time bound directions have been issued by this Court. We say so because we find that the earlier directions regarding time bound disposal do not appear to have been brought to the notice of the Bench that admitted the appeal and granted the order of stay. 21. The learned counsel for the respondent submits that the appellant is not complying with the directions of the Family Court with respect to her functioning as a Receiver. Even accounts have not been filed in spite of specific directions of the Family Court. The counsel prays that directions on this aspect may be issued. We find it unnecessary to issue any specific directions. It is true that the appointment of a party Receiver was directed by this Court. But we had directed the Family Court to issue orders of appointment subject to appropriate terms and conditions to be fixed by the Family Court. We need only observe that if there be any improper functioning or/non- observance of directions by the Family Court, the Family Court shall be at liberty to take appropriate further action as is necessary in the interests of justice. No further order or better directions need be given by us in the matter. Mat.Appeal No.311 of 2010 15 22. In the result: (a) This appeal is dismissed. (b) In these circumstances, we direct the appellant to pay costs of the respondent in this appeal. Advocate fee is fixed at Rs.15,000/-. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/