IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 Tr.P(C).No. 304 of 2008 --------------------------------- OS.173/2006 OF MUNSIFF COURT, THALASSERY. .................... PETITIONERS/2ND DEFENDANT:- ----------------------------------------------- VASUMATHI .N, W/O. VALSAN P.P, AGED 40 YEARS, HINDU RELIGION, ARADHANA, VADAKKUMBAD P.O., THALASSERY, KANNUR. BY ADVS. MR.SUNIL NAIR PALAKKAT, MR.K.N.ABHILASH, SMT.R.LEELA. RESPONDENTS/ PLAINTIFF, 1ST DEFENDANT, 3RD & 4TH DEFENDANTS: -------------------------------------------------------------------------------------------------------- 1. VAZHAPARAMBIL SHIBU, S/O. KANNAN, AGED 30 YEARS, HINDU RELIGION, VAZHAPPARAMBIL HOUSE KARA, PERAVOOR, P.O. KAYANIYIL, MATTANNUR, KANNUR. 2. VALSAN V.P. K. BHASKARAN, S/O. KANNAN, AGED 45 YEARS, HINDU RELIGION, VAZHAPPARAMBIL HOUSE, KARA PERAVOOR , P.O. KAYANIYIL, MATTANNUR, KANNUR. 3. SREENIVASAN, S/O. RAIRU, AGED 28 YEARS, NHALILHOUSE, KANAD P.O., EDAYANOOR, KANNUR. 4. RAIRU, AGED 65 YEARS, NHAILIL HOUSE, KANAD , P.O. EDAYANOOR, KANNUR. R1 BY ADV. MR.K.V.SOHAN. THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. S.S. SATHEESACHANDRAN, J. ------------------------- T.P.(C) No. 304 OF 2008 ----------------------------- DATED THIS THE 24TH DAY OF JULY 2009 JUDGMENT Petition is filed for transfer under Section 24 of the Code of Civil Procedure. 2. Petitioner is the 2nd defendant in O.S No. 173/2006 on the file of the Munsiff's Court, Thalassery. The above suit was instituted by the 1st respondent seeking a decree of perpetual prohibitory injunction against the petitioner and some others, who are the other respondents in the petition. The 2nd respondent is the first defendant in the suit and he is the husband of the petitioner. The 3rd and 4th defendants in the suit are the 3rd and 4th respondents in the petition and they are the brother and father respectively of the petitioner. It is the case of the petitioner that after she filed a petition for maintenance under Section 125 of the Code of Criminal Procedure as M.C No.150/2006 before the Family Court, Kannur stating gross neglect of her husband, the 2nd T.P.(C) No. 304 OF 2008 2 respondent, to maintain her and the child born out of their wedlock, who is under her care and custody, and her lack of means for sustenance in life, the 2nd respondent husband created a document in favour of his cousin over the suit property involved in O.S No.173/2006 referred to above. Petitioner wife has a case that spending more than one lakh rupees out of her fund a residential building was constructed by her in the property having an extent of 33 cents, and she has joint ownership rights with her husband in the property. To defeat the claim for maintenance a deed has been created in favour of the plaintiff in O.S No.173/2006, a cousin of the husband. She has also filed another petition before the Family Court O.P.No.322/2006 for a declaration that the document executed by the husband, 2nd respondent in favour of the plaintiff in O.S No.173/2006 is a fraudulent transfer and it is null and void and not binding on her. In the above O.P, she also sought for a decree for consequential injunction to restrain the 1st respondent from interfering with her possession and enjoyment over the property. In the present T.P.(C) No. 304 OF 2008 3 petition wife seeks for transfer of O.S No.173/2006 from the Munsiff Court, Thalassery to the Family Court, Kannur since in both suits identical issues arise for adjudication, and, further, Family Court alone has jurisdiction to decide the disputed question involved in both the suits. Notice was given to the respondents. The 1st respondent plaintiff in O.S 173/2006 on the file of the Munsiff's Court has entered appearance and filed a counter contending that the transfer sought for is not permissible under law as the disputes arising under the suit are not amenable to the jurisdiction of the Family Court. 3. I heard the counsel on both sides. 4. Having regard to the submissions made and the facts and circumstances presented, I find the question whether the dispute arising in O.S 173/2006 on the file of the Munsiff's Court, Thalassery falls under Sec.7(d) of the Family Courts Act or not, is a matter to be decided by the Munsiff Court. If the petitioner has a case that though the plaintiff in the suit is not a party to the matrimonial dispute, the circumstances of transfer of title over T.P.(C) No. 304 OF 2008 4 the property claimed by the plaintiff come within the ambit of Sec.7(d) of the Family Courts Act and the suit has therefore to be adjudicated by the Family Court only she has to move an application stating such allegations before the Munsiff Court where the suit is pending inviting its decision on that question. If any such application is moved by the petitioner, then, necessarily, the plaintiff or any other parties to the suit, if so desire, can file objection as to why the suit should be tried by the civil court and not by the Family Court. A decision, after hearing both sides, on the question of jurisdiction has to be entered by the Munsiff Court,which unless reversed by the superior forum,will be binding on the parties. The learned counsel for the petitioner submits that all most all the previous decisions rendered by the High Court have been considered in 'Shyamaladevi vs. Saraladevi' reported in 2009(1) KLT 892, by a Division Bench of this Court how the question of jurisdiction with respect to matters coming under Sec. 7 (b) and (d) of the Family Court Act are to be dealt with and considered, and therefore a direction be given to the T.P.(C) No. 304 OF 2008 5 learned Munsiff to consider the facts presented in the case in the light of the above decision to determine whether it has jurisdiction to try the suit. No direction from this Court is necessary as canvassed by the counsel since the learned Munsiff is expected to follow the principles laid down in a judicial pronouncement of this court in examining the question whether it has jurisdiction to entertain and adjudicate the issues raised in a suit. The question as to whether the civil court has jurisdiction, it has to be pointed out, depends upon the facts involved in the case, and if it forms a conclusion that the disputes involved have close nexus with the circumstances arising out of a marital relationship, as coming under Sec.7(d) of the Family Court Act, then, necessarily, it has to lay of its hands from adjudicating the disputes as such disputes can be considered only by the Family Court. On the other hand, if it finds that the suit does not fall within any of the categories of Sec.7(d) of the Family Court Act then, it has to proceed with the trial of the suit. I make it clear that the observations made by this Court in their judgment shall T.P.(C) No. 304 OF 2008 6 not have any bearing or reflection on the decision to be formed by the court on the question of jurisdiction, if any application is moved by the petitioner inviting a decision thereof . Reserving the right of the petitioner to move an application before the Munsiff Court as indicated above on the question of jurisdiction , the writ petition is closed . If any such application is filed within three weeks from the date of receipt of a copy of this judgment, the Court below shall dispose it of within the next 30 days. S.S.SATHEESACHANDRAN (JUDGE) pkk