Property suit involving question on matrimony can’t be maintained in Munsif court: High court of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR FRIDAY THE 22ND DAY OF JANUARY 2021 2ND MAGHA 1942 OP(C).No.1807 OF 2015(O AGAINST THE ORDER DATED 06.04.2015 IN I.A.NO.2000 2014 IN O.S.NO.310 2014 OF MUNSIFF COURT PATHANAMTHITTA AGED 52 YEARS W O.LATE P.J.SURESH JAMINI NIVAS VENKURINJI KOLLAMULA VILLAGE RANNI TALUK NIRMAL SURESH AGED 12 YEARS MINOR REPRESENTED BY NEXT FRIEND MOTHER JAMINIMOL AGED 52 YEARS W O.LATE P.J.SURESH JAMINI NIVAS VENKURINJI KOLLAMULA VILLAGE RANNI TALUK PATHANAMTHITTA DISTRICT SMT.V.A.HARITHA SRI.P.A.MOHAMMED SHAH SMT.P.M.MAZNA MANSOOR SRI.K.NANDAKUMAR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL SMT.UMA THE FEDERAL BANK LTD. ADOOR BRANCH REPRESENTED BY ITS CHIEF MANAGER SHIJU K.V. AGED 51 YEARS S O.K.P.VARGHESE CHETTUPUZHA PULLAZHI VILLAGE THRISSUR TALUK THRISSUR DISTRICT) PIN NIKIL SURESH AGED 25 YEARS NIKIL HOUSE ARUKALICKAL WEST VAYALA PARAKKADU VILLAGE ADOOR TALUK PIN 686587 NEETHU SURESH AGED 24 YEARS :2: NIKIL HOUSE ARUKALICKAL WEST VAYALA PARAKKADU VILLAGE ADOOR TALUK PIN 686587 PARVATHY PERME AGED 51 YEARS E 238 BARPANI BAZAR & VETERINARY COMPLEX NAHARULAUGN PAPUMPARE DISTRICT ARUNACHAL AGED 70 YEARS W O.JANARDHANAN PALICKAL THEKKETHIL VAYALA PARAKKADAVU VILLAGE ADOOR TALUK PIN 686587 AGED 51 YEARS S O.DAMODARAN NIRAVUKALAYIL VEEDU PATHIRAPALLI WARD KUDAPPANAKKUNNU VILLAGE THIRUVANANTHAPURAM TALUK THIRUVANANTHAPURAM DISTRICT PIN 695005 R1 BY ADV. SRI.PETER THARAKAN R2 5 BY ADV. SRI.C.K.KARUNAKARAN R6 BY ADV. SRI.A.B.MOHANAKUMAR THIS OP HAVING BEEN FINALLY HEARD ON 22.01.2021 THE COURT ON THE SAME DAY DELIVERED THE :3: Dated this the 22nd day of January 2021 JUDGMENT Ext.P8 order passed by Munsiff Court Pathanamthitta is under challenge in this proceeding initiated under Article 227 of the Constitution of India at the instance of the plaintiffs in O.S.No.310 2014 2. The first defendant Bank raised question of maintainability of suit and contended that it was not liable to be tried before the Munsiff Court inasmuch as the issue involved is liable to be dealt with under the provisions of the Family Courts Act 1984(for short the Act ). Upholding the contention of first defendant bank impugned order returning the plaint to Family Court was The suit was filed by the petitioners for declaring them as wife and son of the deceased P.J.Suresh and also for declaring sale deed dated 28.03.2014 in respect of suit property executed by defendant Nos.2 to 4 in favour of sixth defendant at the instance of first defendant are void and not binding on the :4: The plaint schedule property was mortgaged by late P.J. Suresh in favour of first defendant bank at the time of availment of loan When he committed default in repayment of the loan the first defendant proceeded under the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002[SARFAESI Act) and brought the property to sale. During the course of the auction proceeding with the permission of the first defendant the property was sold to sixth defendant by defendant Nos.2 to 5 who claimed to be the children wife and mother of the deceased According to the petitioners the first petitioner is the legally wedded wife of the deceased P.J.Suresh and second petitioner is the son and they alone being the sole legal heirs are the property owners and consequently the sale deed executed in favour of the sixth defendant is null and void. In the suit the main relief that is sought is for declaring the first petitioner as the legally wedded wife of the deceased :5: The question that arises for consideration is whether the view taken by the court below ordering return of plaint to be presented before Family Court is legal. According to the court below the issue as to the matrimonial status of first plaintiff is a matter which could be adjudicated only by a Family Court having regard to the provisions in Section 7 of the Act. Having heard the learned counsel appearing on both sides I am of the opinion that the view taken by the court below appears to be correct and in accordance with law As per Explanation to Section 7(1)(b) of the Act a suit or proceeding for a declaration as to the validity of marriage or as to the matrimonial status of any person could be brought only before a Family Court and there is exclusion of jurisdiction of Civil Court in this respect The question as to whether sale deed in favour of sixth defendant is null and void is consequential upon the decision on the alleged status claimed by the first petitioner. Without deciding the question as to the status of first petitioner the validity as to the sale deed could not be decided :6: In that view of the matter in my opinion the suit could be said to be one falling under Explanation to Section 7(1)(d)of the Act as well inasmuch as the relief sought appears to be covered by that provision. The declaration of sale deed as being null and void could be said to be a question that emerges in the circumstances arising out of a matrimonial relationship. But for the dispute as to the matrimonial status claimed by the first petitioner the institution of the instant suit would not have occasioned. For all these reasons I am of the opinion that the impugned order of the court below returning plaint to be presented before Family Court is perfectly legal and it is not liable to be interfered with In the result original petition fails and it All pending interlocutory applications will P.A.To Judge PETITIONER S EXHIBITS :7: TRUE COPY OF THE PLAINT IN O.S.NO.310 2014 BEFORE MUNSIFF COURT TRUE COPY OF CERTIFICATE OF MARRIAGE ISSUED BY REGISTRAR OF MARRIAGE TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 27.04.2005 ISSUED BY THE SNDP TRUE COPY OF THE PASSPORT OF THE 1ST THE TRUE COPY OF THE PASSPORT OF THE TRUE COPY OF FIR NO.1272 2014 OF ADOOR A TRUE COPY OF THE PETITION FILED BY 1ST RESPONDENT IN I.A.2000 2014 OF THE COURT OF MUNSIFF PATHANAMTHITTA A TRUE COPY OF THE ORDER IN I.A.2000 2014 IN O.S.310 2014 DATED 6.4.2015 OF THE COURT OF MUNSIFF. RESPONDENTS EXHIBITS: NIL

Summary: Any case which involves a major legal question of determining the validity of a matrimonial relationship cannot be decided by a court other than a family court as per Section 7(1) (d) of the Family Courts Act. This was held and reiterated by Hon’ble Justice T.V. Anilkumar in a land dispute case of Jaminimol v Federal Bank of India and Ors. [OP (C) No. 1807 of 2015] in the High Court of Kerala.  The facts of the case are such that a property was mortgaged by a man, now deceased, in favor of The Federal bank of India for default in repayment of loan to the bank. This bank is the first defendant in the instant case. This aforementioned property was then sold by the other defendants of this case who claim to be the legal heirs of the deceased man at an auction as per the procedure laid down in the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest act, 2002 [SARFAESI Act}. The petitioner, on the other hand, asserts that as a legally wedded wife of the deceased, she and her son are the rightful heirs of the property and without their consent the property could not be sold. A petition in this regard was filed at the Munsif court which was dismissed on grounds of being unmaintainable in that jurisdiction. This writ petition was filed in response to the order given by the Munsif after invoking Article 227 of the Constitution. The contention of the plaintiff is that the sale deed executed Is null and void because she is the sole legally wedded wife of the deceased and her son is the legal heir which makes them the sole property owners. The substantial question of law involved in the case presented to the high court is whether the order taken by the lower court of returning to the plaint for decision in the family court is legally sound or not. The reasoning put forth by the lower court is that a dispute which involves the issue of a matrimonial status can only be adjudicated by a Family court as per the provision is Section 7 of the Family Court Act. A close analysis of the facts of the case would reveal that any ascertainment of the validity of the sale deed is consequential upon the status of the petitioner. This status falls under the purview of matters dealing with matrimony which are the territory of a family court. This court examined the said provision and came upon the conclusion that a matter of such nature is excluded from the jurisdiction of a Civil Court. Due to these reasons, the order given by the lower court is devoid of any error as per the law.