IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 Mat.Appeal.No. 42 of 2010() --------------------------- OP.455/2009 of FAMILY COURT,ERNAKULAM .................... APPELLANTS/RESPONDENTS ------------------------------------- 1. ROSE SHIBU, D/O.P.J.FRANCIS, PALLIKKATHAYIL HOUSE, CONVENT SQUARE, ALAPPUZHA VILLAGE, ALAPPUZHA-1. 2. P.J.FRANCIS, -DO- , -DO- BY ADV. SRI.P.R.VENKETESH RESPONDENT(S): PETITIONER ------------------------- SHIBU JOSE, S/O.K.T.JOSEPH, KANAPPILLY HOUSE, EDAVANAKAD KARA, EDAVANAKAD VILLAGE, KOCHI TALUK. THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 20/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - Mat.Appeal No.42 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of January, 2010 JUDGMENT Joseph, J. Appellants are the respondents in O.P.455/2009 on the file of Family Court, Ernakulam. The respondent is the husband of the first appellant. Second appellant is the father of the first appellant. O.P.No.455/2009 was filed by the respondent husband claiming a sum of Rs. 26 lakhs with interest @ 12% per Annum. The allegation therein in short as follows : The respondent had sent about 45 lakhs at the time when he was employed in Beharin and first appellant had withdrawn that amount from the Federal Bank, Alappuzha, Edavanakkad and Paravur branch. It is his further case that apart from this, he had brought gold ornaments at the time when he returned from Beharin and he entrusted the same with the first appellant as a trustee for and on his behalf . First appellant is alleged to have misappropriated a sum of Rs. 19 lakhs for the requirements of herself and her children. She had invested the MA.No.42/2010 Page numbers remaining 26 lakhs in Fixed Deposits, other savings and chitties. It is his further case that first respondent developed intimacy with one Br. Varkey and that first appellant had gifted gold ornaments and money sent by him to Br. Varkey. It is not in dispute that there are allegations against the second appellant also. 2. The appellants filed counter statement. Thereafter they raised preliminary objection to the effect that the O.P. is not maintainable before the Family court. The Family Court considered their objections and has passed the impugned order. The Family Court found that the first appellant and respondent are husband and wife. The respondent has sought for return of money entrusted with the first appellant after the marriage. The Family Court makes reference to Section 7(1)(c) of the Family Courts Act. It was found that prima facie there was no materials on record to arrive at a conclusion that the court has no jurisdiction and the Family Court proceeded to hold that the O.P. is maintainable. 3. We heard the learned counsel for the appellant . Learned counsel for the appellant would submit that it may not come under MA.No.42/2010 Page numbers Section 7(1)(c). He would further submit that in a matter of this nature, elaborate evidence has to be adduced and going by the scheme of the Family Courts Act, it may not be appropriate for the Family Court to try this matter. It is contended that in Section 7(1)(c) what is referred to is property and it may not take in specie of property claimed and what is claimed in this case is return of money which was misappropriated. Section 7(1) (c) and (d) of the Act reads as follows : “Subject to the other provision of this Act, a Family Court shall ,- 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 the jurisdiction of the Family Court extends. Explanation - The suits and proceedings referred to this Sub Section are suits and proceedings of the following nature, namely .- (c) a suit or proceeding between the MA.No.42/2010 Page numbers parties to a marriage with respect to the property or the parties or of either of them. d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship.” 4. There is no dispute that the respondent and the first appellant are husband and wife. Going by the case of the respondent, the amount in question was sent to the first respondent only in her capacity as wife of the respondent and therefore it can be treated as a case where money it if can be treated as property otherwise belonging to the respondent was made over to his own wife naturally after the solemnization of the marriage. We see no merit in the contention of the learned counsel for the appellant that the word 'property' as used in Section 7(1)(c) would not take in amounts sent by the husband to his wife or gold ornaments which have been made over by the husband again to his wife. We see no reason why we should in any way abridge the width of the word 'property'. We see no indication in the scheme of the Act which would confine or crib the word 'property' so as to MA.No.42/2010 Page numbers exclude amounts sent by the husband or gold ornaments given by him after the marriage to his wife. The prayer in the suit is for realisation of Rs. 26 lakhs which according to the respondent he is entitled to as the same has been misappropriated by the appellants. We would also think that apart from Section 7(1)(c) this can also be treated as a case which would come under Section 7(1)(b) . We notice the decision of the learned Single Judge of this court in Leby Issac v. Leena M.Ninan (2005(3)KLT 665) in this regard. We see no merit in this appeal. The appeal fails and it is accordingly dismissed. No order as to costs. K.M.JOSEPH, JUDGE P.Q.BARKATH ALI, JUDGE sv. MA.No.42/2010 Page numbers