IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 Mat.Appeal.No. 146 of 2003() ---------------------------- OP.1008/2003 of FAMILY COURT, THIRUVALLA .................... PETITIONER(S): APPELLANTS/PETITIONERS. -------------------------------------- 1. C.MADHAVAN, MYLADUM PARAYIL VEETTIL, MEENTHALAKKARA MURI, MANJADI P.O. KUTTAPPUZHA VILLAGE. 2. KUTTYAMMA, W/O.MADHAVAN, DO. DO. DO. BY ADV. SRI.SATHISH NINAN RESPONDENT(S): --------------- 1. CHELLAMMA, VADKE KALAPARAMBIL VEEDU, MUDIYAPPALLY MURI, MUNDIYAOPPALLY P.O. KAVIYOOR VILLAGE. 2. V.K.SOMAN DO. DO. DO. 3. V.K.MOHANAN, DO. DO. DO. 4. V.K.GOPI, DO. DO. DO. 5. V.K.SATHEESAN, DO. DO. DO. 6. LIFE INSURANCE CORPORATION OF INDIA, REP. BY BRANCH MANGER, PALAKKAD. 7. DISTRICT COLELCTOR, PALAKKAD COLLECTORAT E, PALAKKAD. 8. THE THIRUVALLA GOVERNMENT EMPLOYEES CO-OPERATIVE BANK LITD.NO.4213, REP BY THE SECRETARY, GOVERNMENT EMPLOYEES CO-OPERATIVE BANK LTD., COURT ROAD, THIRUVALLA. ADV. SRI.V.V.NANDAGOPAL NAMBIAR FOR R1 TO R5 SRI.T.P.PRADEEP FOR R1 TO R5 SMT.PRABHA R.MENON FOR R6 GOVERNMENT PLEADER FOR R7 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * Mat.Appeal No.146 of 2003 ---------------------------------------- Dated this the 25th day of May 2009 J U D G M E N T BASANT,J The appellants were the petitioners before the Family Court. They filed the O.P for a declaration that they are entitled to recover the share amount and value of gold ornaments given to the respondents at the time of the marriage of their daughter, deceased Sreedevi. The petitioners/appellants are the father and mother of deceased Sreedevi. During the pendency of the appeal, the 1st appellant died and the 9th respondent has been brought on record as the only other legal heir of the deceased 1st appellant, the 2nd appellant being the other legal heir. The 9th respondent has not entered appearance. His cause is effectively represented by the 2nd appellant, his mother. Deceased Sreedevi was married to one Ramanan, son of the 1st respondent and brother of respondents 2 to 5. The prayer in the O.P was inter alia for release of amounts paid to the said Ramanan, his parents and siblings at the time of marriage. M.A.No.146/09 2 2. The O.P was filed before the Family Court. The Family Court, by the impugned order, took the view that the dispute does not fall within the sweep of explanation (a) to (g) of Section 7 of the Family Court Act. Accordingly, the petition was held to be not maintainable and was returned for presentation before proper court. 3. The appellant claims to be aggrieved by the impugned order. The learned counsel for the appellant submits that the question of jurisdiction has to be decided on the basis of the averments in the petition. The averments in the petition show that the substantial portion of the claim relates to return of amounts handed over to the husband/his parents by the parents of the wife. Both the spouses are no more. In these circumstances, the court below must have held that the substantial portion of the claim falls squarely under explanation (d) to Section 7 of the Family Court Act and the return of the plaint on the ground that the same is not maintainable is not justified. 4. We have heard the learned counsel for the appellant in detail. The learned counsel for the appellant submits that in any view of the matter, substantial portion of the claim falls squarely under Section 7(d) on the basis of the averments in the M.A.No.146/09 3 petition and return of the same by the Family Court is not justified. At this stage, the court is not to concern itself with the acceptability of the averments and allegations. The Family court must have considered whether on the averments raised in the petition, the petition is substantially maintainable before the court. 5. There are four reliefs claimed in the petition and the learned counsel for the appellant submits that, at any rate, claimants 1 and 2 come squarely under explanation (d) to Section 7. 6. We find force in that submission. Claims 1 and 2 relate to return of amounts handed over at the time of the marriage to the in-laws by the appellants. Amounts and ornaments were allegedly handed over. 7. Earlier, another Bench has taken the view as per order dated 11/11/2003, that this appeal under Section 19 is maintainable. Another Bench of this court had occasion to consider whether such a claim for return of amounts/ornaments handed over at the time of marriage is maintainable under Section 7 of the Family Court Act. It was held that notwithstanding the fact that one of the spouses is not alive and the claim is made against the legal heirs of the deceased spouse, M.A.No.146/09 4 such a claim, though it would not come under Section 7(c) would fall squarely under Section 7(d). In Suprabha v. Sivaraman [2006(1)KLT 712] in paragraph 6, this specific question has been considered in detail. Our attention has also been drawn to the decisions in Absul Jaleel v. Shahida [2003(2)KLT 403] (SC), Leby Issac v. Leena M.Ninan [2005(3)KLT 665] and Syamaladevi v.Saraladevi [2009(1)KLT 892]. 8. It is trite and well established from the above decisions that when parties to the marriage are staking the claim, such a claim would be maintainable under explanation (c) to Section 7 of the Family Court Act whereas when the legal heirs are staking the claim, going by the nature of the dispute raised, the same would be maintainable under clause (d) of the explanation. The only difference in facts appears to be that while in Suprabha (Supra), only one of the spouses was dead and the other spouse was staking a claim against the legal heirs of the deceased spouse, in this case, both the spouses are dead and the parents of one of them is staking the claim against the legal heirs of the other. That distinction, on facts, cannot affect the dictum in Suprabha (Supra). M.A.No.146/09 5 9. We may hasten to observe that we have not chosen to hold that the claims are maintainable on merits. We have chosen only to hold that on the averments made in the petition, the same is maintainable in law before the Family Court at least in so far as the claim for reliefs 1 and 2 is concerned. All other questions will have to be considered by the Family Court on merits. The return was not justified. The claim must be considered on merits. 9. In the result, a) This appeal is allowed. b) The petitioner is permitted to represent O.P.No.1008/03 before the Family Court, Thiruvalla within a period of 15 days from this date, if the petition has already been taken back. c) The learned Judge of the Family Court, Thiruvalla shall dispose of the claim on merits as expeditiously as possible. (R.BASANT, JUDGE) (M.C.HARIRANI, JUDGE) jsr M.A.No.146/09 6 M.A.No.146/09 7 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009