IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 Tr.P(C).No. 227 of 2009() ------------------------- ( TO TRANSFER OS.160/2009 of PRINCIPAL SUB COURT,ATTINGAL AND OS.172/2009 of MUNSIFF COURT,VARKALA FOR TRIAL ALONG WITH O.P.NO.689/09 OF FAMILY COURT, NEDUMANGAD) .................... PETITIONER/PETITIONER ----------------------------------------- SHEEJA, W/O.LATE SHAJAHAN, AGED 32, SILENT COTTAGE, VAKKOM VILLAGE, CHIRAYANKEEZHU TALUK. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENTS/ RESPONDENTS -------------------------- 1. ABDUL KHARIM, AGED 68, S/O.MOHD SALI, C.V.HOUSE, NEAR KOCHUPALLI, VAKKOM VILLAGE, CHIRAYANKEEZHU TALUK, THIRUVANANTHAPURAM. 2. ABDUL GAFOOR, AGED 65, S/O.MOHD SALI, THODUPPUVILA VEEDU, NEAR VALIYAPALLI, VAKKOM VILLAGE, CHIRAYANKEEZHU TALUK, THIRUVANANTHAPURAM. 3. RAFEEQ, AGED 62, S/O.MOHD SALI, R & R PARADISE, NEAR KOCHUPALLI, VAKKOM VILLAGE, CHIRAYANKEEZHU TALUK, THIRUVANANTHAPURAM. 4. NABEESA BEEVI, AGED 71, D/O.MOHD SALI, R & R PARADISE, NEAR KOCHUPALLI, VAKKOM VILLAGE, CHIRAYANKEEZHU TALUK, THIRUVANANTHAPURAM. 5. LAILA BEEVI, AGED 58, D/O.MOHD SALI, NISSAR BUILDING, KUTTARA, VAMANAPURAM VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM. 6. SAIYD HUMAM, AGED 35, S/O.ABDUL RAHIM, ARIFA MANZIL, ALAMKODU VILLAGE, ATTINGAL, CHIRAYANKEEZHU TALUK, THIRUVANANTHAPURAM. Tr.P.C.227/09 7. THE BRANCH MANAGER, FEDERAL BANK LTD, VAKKOM BRANCH, CHIRAYANKEEZHU, THIRUVANANTHAPURAM. ADV. SRI.P.K.MUHAMMED FOR R1,2 &3 SRI.JOHN JOSEPH(ROY) FOR R7 SRI.LAWRENCE D'CUNHA FOR R7 THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Tr.P.(C) No.227 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 5th October, 2009 ORDER Petition for transfer is filed under Section 24 of the C.P.C. Petitioner is the widow of one Shajahan. The respondents 1 to 6 are the brothers and sisters of the above said Shajahan. The 7th respondent is a Bank in which late Shajahan had some deposits. After the death of Shajahan, petitioner filed a petition as O.P.No.689 of 2009 before the Family Court, Nedumangad seeking refund of valuables and money alleged to have been given at the time of marriage, from respondents 1 to 6, and also for injunction. The respondents 1 to 3 have filed a suit as O.S.No.160 of 2009 before the Sub Court, Attingal for partition of the property left behind by late Shajahan. Petitioner is the sole defendant in that suit. They have also filed another suit as O.S.No.172 of 2009 before the Munsiff Court, Varkala to restrain the petitioner, the first defendant in the suit, from withdrawing the amount from the 7th respondent, the 2nd defendant, out of the deposits made by late Shajahan. Petitioner seeks transfer of the two suits filed by the respondents to the Family Court, Nedumangad. Tr.P.C.No.227/09 - 2 - 2. Notice being given, all the respondents have entered appearance. I heard the counsel on both sides. From the submissions made and the facts and circumstances presented, it appears, the cardinal question to be resolved is whether on the date of death of late Shajahan, the marital tie subsisted between the petitioner and Shajahan. Whereas the respondents 1 to 6 have got a case that a divorce had been effected between them as per the custom and religious tenets and it was so declared at the mosques of the respective parties the severance of the marital tie is challenged by the petitioner wife contending that so far as a muslim wife, a dissolution of marriage at her instance can be given effect to under law only in accordance with the provisions of the Dissolution of Muslim Marriages Act, 1939. A civil court decree is a must to recognise such a dissolution of the marriage at the instance of wife is the case canvassed by the petitioner. So much so, in all the three suits, as already indicated, the main question to be adjudicated is the status of the petitioner, whether she continued as the wife of late Shajahan at the time of his death. So much so, with reference to the provisions under Section 7 of the Family Courts Act, in the given facts, whether the Munsiff Court, Varkala and the Sub Court, Attingal Tr.P.C.No.227/09 - 3 - have jurisdiction to entertain the dispute arising for adjudication in the respective suits emerge for consideration. It is open to the petitioner to move applications before the respective courts for determination of the question of jurisdiction and if any such petition is moved within two weeks from the date of receipt of this order, the concerned court shall pass appropriate orders thereof, after hearing both sides, within one month thereafter. Subject to the above observation, the transfer petition is closed. Handover a copy of this order to the counsel on both sides on usual terms and communicate a copy of this order to the Sub Court, Attingal and Munsiff Court, Varkala. srd S.S. SATHEESACHANDRAN, JUDGE