IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 WP(C).No. 26135 of 2009(O) --------------------------------------- [OS.NO.81/2008 OF SUB COURT, QUILANDY] .................... PETITIONERS/PLAINTIFFS IN THE SUIT: --------------------------------------------------------- 1. CHANDRAMATHI, W/O.LATE KUTTIATIKUNI GOPALAN, AGED 61 YEARS, EACHAROTH HOUSE, MANAMMAL, PANTHALAYANI AMSOM, DESOM, KOYILANDY TALUK. 2. E.SATHYAN, S/O.LATE KUTTIATIKUNI GOPALAN, AGED 44 YEARS, EACHAROTH HOUSE, MANAMMAL, PANTHALAYANI AMSOM, DESOM, KOYILANDY TALUK. BY ADVS. SRI.K.M.JAMALUDHEEN, SMT.LATHA PRABHAKARAN. RESPONDENTS/DEFENDANTS IN THE SUIT: --------------------------------------------------------------- 1. SREENI, S/O.LATE KUTTIATIKUNI GOPALAN, AGED 31 YEARS, VIYYUR AMSOM DESOM, KOLLAM P.O., KOYILANDY TALUK. 2. PUSHPA, W/O.RAMESHAN, AGED 34 YEARS, THIRUMANGALATHMEETHAL, MAVATTU, ARIKKULAM, KOYILANDY TALUK. 3. SREERAJ, S/O.LATE KUTTIATIKUNI GOPALAN, AGED 29 YEARS, VIYYUR AMSOM DESOM, KOLLAM P.O., KOYILANDY TALUK. 4. JANAKI, M/O.SREENI, AGE NOT KNOWN, KUTTIATIKUNIYIL, VIYYUR AMSOM DESOM, KOLLAM P.O., KOYILANDY TALUK. R1, R2 & R4 BY ADVS. SRI.R.PARTHASARATHY, SRI.C.JAYACHANDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.26135/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PLAINT IN O.S. 81/2008 OF THE SUB COURT, KOYILANDY. EXT.P.2: COPY OF THE WRITTEN STATEMENT IN O.S. 81/2008 OF THE SUB COURT, KOYILANDY. EXT.P.3: COPY OF THE ADDITIONAL WRITTEN STATEMENT IN O.S. 81/2008 OF THE SUB COURT, KOYILANDY. EXT.P.4: COPY OF THE ORDER DTD. 19/08/09 IN ISSUED NO.9 IN O.S. 81/2008 BY SUB COURT, KOYILANDY. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.26135 OF 2009 ------------------------------- DATED THIS THE 3RD DAY OF NOVEMBER, 2010 JUDGMENT Ext.P4 order dated 19/8/2009 passed by the Sub Judge, Koyilandy is under challenge. Plaintiffs are the petitioners herein. The suit was filed for partition of the property by metes and bounds and to allot 2/5 share to the plaintiffs. The suit was filed on the basis of the averment that the lst plaintiff is the legally wedded wife of deceased Gopalan and the 2nd plaintiff is their son. Defendants 1 to 3 in the suit are the children born to Gopalan through the additional 4th defendant. The plaintiffs' case is that lst plaintiff is the legally wedded wife of deceased Gopalan and that the 2nd plaintiff is their son. It is also stated that the defendants 1 to 3 are the children born to deceased Gopalan through the additional 4th defendant. It is further pleaded that the additional 4th defendant is not the legally wedded wife of deceased Gopalan. The plaintiffs admitted that defendants 1 to 3 are also entitled to the share in the -2- WP(C).No.26135/2009 plaint schedule property. Additional 4th defendant contended inter alia that she is the legally wedded wife of deceased Gopalan. Defendants 1 to 3 are the children born to deceased Gopalan in his wedlock with the additional 4th defendant. 2. Issues were framed by the learned Sub Judge. The additional issue No.9 framed is “whether the Sub Judge has jurisdiction to decide the suit on account of the bar under Section 7 of the Family Court Act”. In view of the contentions raised by the respective parties, the learned Sub Judge heard issue No.9 and held that the Family Court is the court having jurisdiction to try and dispose of the suit. My attention is invited to the relevant clause in Section 7 of the Family Court Act. Explanation (b) of Section 7(1) mandates that a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person is a suit or proceeding to be tried by the Family Court. Explanation © refers to a suit or proceeding between the parties to a marriage with respect to the properties or either of them. -3- WP(C).No.26135/2009 In view of the contentions raised by the parties the question agitated by the parties is the marital status of the lst plaintiff and the additional 4th defendant. Whether the lst plaintiff or the additional 4th defendant is the legally wedded wife of the deceased Gopalan is a question to be decided before extending the relief to the plaintiffs in the suit. The court below rightly observed that in the light of the contentions raised by the parties, without entering into the finding regarding the marital status of the parties, the plaint schedule property cannot be partitioned. It is also observed that no doubt the power to decide the marital status of the parties in a proceeding can be exercised only by the Family Court, in view of the inhibition under Section 7(b) read with Section 8 of the Family Court Act. Ext.P4 order was passed after considering the contentions of the parties and after referring to the relevant provisions in the Family Court Act. The finding of the Sub Judge that the Family Court has jurisdiction to decide the dispute is legal and I find no infirmity or jurisdictional error in passing the -4- WP(C).No.26135/2009 impugned order. In the result, the writ petition fails and accordingly dismissed. The learned counsel for the plaintiffs submitted that at present the income from the property is taken by the defendants in the suit and unless the matter is disposed of at an early date, the plaintiffs will be put to severe hardship and irreparable injury. In the light of the submission made by the learned counsel for the plaintiffs, this Court order that the suit shall be disposed of by the Family Court having jurisdiction within a period of nine months from the date of appearance of the parties. The parties shall appear before the Family Court on 30th November, 2010. The learned Sub Judge shall return the plaint and the documents produced before it immediately for presentation before the appropriate court. HARUN-UL-RASHID, Judge. kcv.