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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. MUHAMED MUSTAQUE, SOPHY THOMAS, JJ.
P.T. Philipose & Ors. - Appellants
Versus
Sunil Jacob, S/o. Jacob Kurian & Ors. - Respondents
Mat. Appeal Nos. 64 of 2011 & 601 of 2013
Decided On : 01-12-2021
Family Courts Act, 1984 - Section 7, 7(2) and 8 - Divorce Act, 1869 - Section 3(3) - Code of Civil Procedure, 1908 - Section 20 - Practice and Procedure - Jurisdictional competence or territorial jurisdiction - Service of notice/summons - What are circumstances arising out of a marital relationship - Aggrieved by judgment and decree, contesting respondents 2 and 3 filed Mat.Appeal No.64 of 2011 and the 1st respondent/wife filed Mat.Appeal alleging that no notice was served on her, and petitioner/husband deliberately did not take steps in her correct address though he was well aware of her residential address in USA. She is assailing impugned judgment and decree on the ground that she was denied an opportunity to defend case for want of proper notice, leading to an ex parte decree against her - Petitioner married the 1st respondent as per Christian religious rites and ceremonies and 2nd respondent father-in-law was running a business at Bangalore. As he was suffering from financial crisis, he borrowed amounts from petitioner on various occasions assuring that it could be returned with 18% interest as and when demanded. Rs.1 lakh was repaid towards interest and in June 2008, Rs.19,11,080/- was returned to petitioner - Balance outstanding is Rs.75,90,522/-. Even after sending lawyer notice, amount was not repaid.
Finding of the Court:
The 'circumstances' in relation to a marital relationship will be those particulars which closely precedes, surrounds, accompanies and follows a marital relationship. The main requirement is that such 'circumstances' must have a direct bearing on marriage, since the marriage precedes, the existence or origin of a 'marital relationship' - As the jurisdictional competence of Family Court is found against, we leave the question of limitation of the claim open to be decided by a competent civil court where the petition will be re-presented after return from the Family Court - There is actual notice. R1 and R4 set ex parte’. The proceedings of the Family Court will not show that any earnest efforts were made by the Family Court to serve notice on the 3rd appellant. The service on her father cannot be treated as service on her, especially when she was permanently residing in USA. The 3rd appellant has no case that her father received notice on her behalf as her agent. There is nothing to show that the 3rd appellant authorised her father to receive notice or summons on her behalf - Order V CPC regarding issue and service of summons governs service of summons in Family Court also. So, without serving notice/summons on the 3rd appellant or her agent, or by effecting substituted service, the Family Court ought not have declared her ex parte. Therefore, judgment and decree passed without serving notice on her will not be binding on her. So her Mat.Appeal is liable to be allowed on that ground - Family Court had no jurisdictional competence or territorial jurisdiction to entertain O.P. and the 3rd appellant ought not have been set ex parte without proper service of notice/summons on her or on her agent. So, the impugned judgment and decree are liable to be set aside and we do so - Hence, setting aside impugned judgment and decree.
Result: Mat. Appeals allowed.
JUDGMENT :
Sophy Thomas, J.
These appeals arise out of the judgment in O.P. No.168 of 2010 of the Family Court, Kottayam. The petitioner Sri. Sunil Jacob filed that O.P. against respondents 1 to 4 i.e. his wife, parents in law and brother-in-law respectively, for recovery of amounts borrowed from him by the 2nd respondent-father-in-law.
2. The facts could be summarised as follows:
The petitioner married the 1st respondent on 15.04.1996 as per Christian religious rites and ceremonies. The 2nd respondent father-in-law was running a business by name M/s.Sinai Pharmaceuticals Pvt. Ltd at Bangalore. As he was suffering from financial crisis, he borrowed amounts from the petitioner on various occasions totaling 81,300 U.S. dollars assuring that it could be returned with 18% interest as and when demanded. Rs.1 lakh was repaid towards interest and in June 2008, Rs.19,11,080/- was returned to the petitioner. The balance outstanding is Rs.75,90,522/-. Even after sending lawyer notice, the amount was not repaid.
3. According to the petitioner, he advanced the amounts to the 2nd respondent on the insistence of his wife. Their marriage was solemnized at Kottayam and they last resided together within the jurisdiction of Family Court, Kottayam. So he filed that O.P. before Family Court, Kottayam arraying his wife, parents in law and brother-in-law as respondents 1 to 4 respectively to realise the amount, as the transaction, according to him, occurred on account of his marital relationship with the 1st respondent.
4. Respondents 1 and 4 were set ex parte. Respondents 2 and 3 filed written statement challenging the transaction as well as maintainability of the O.P. before Family Court, Kottayam. The parties went on trial. PWs 1 to 3 were examined and Exts.A1 to A23 were marked from the side of the petitioner. RWs 1 and 2 were examined and Exts.B1 to B18 were marked from the side of the contesting respondents 2 and 3. On an appraisal of the available facts and evidence, the Family Court, Kottayam was found to have jurisdictional competence, and the O.P was allowed in part with cost of Rs.5,000/- permitting the petitioner to realise Rs.15,78,716/- from respondents 1 and 2 with 12% interest from the date of demand till realisation.
5. Aggrieved by the judgment and decree, the contesting respondents 2 and 3 filed Mat.Appeal No.64 of 2011 and the 1st respondent/wife filed Mat.Appeal No.601 of 2013 alleging that no notice was served on her, and the petitioner/husband deliberately did not take steps in her correct address though he was well aware of her residential address in USA. She is assailing the impugned judgment and decree on the ground that she was denied an opportunity to defend the case for want of proper notice, leading to an ex parte decree against her.
6. The main grounds of attack against the impugned judgment and decree are on four grounds;
(ii) The courts at Kottayam had no territorial jurisdiction to entertain that O.P as no cause of action or any part of the cause of action arose within the limits of courts at Kottayam.
(iii) The money claim put forward by the petitioner was barred by limitation.
(iv) The 1st respondent was denied an opportunity to defend the case and she suffered an ex parte decree as no steps were taken in her correct address and no notice was served on her.
7. For the sake of convenience, the appellants in Mat.Appeal No.64 of 2011, Sri. P.T. Philipose and Smt. Annamma Philipose, and the appellant in Mat.Appeal No.601 of 2013 Smt. Bindu Philips shall be referred as appellants 1, 2 and 3 respectively, and the 1st respondent in both the appeals Sri. Sunil Jacob shall be referred as the respondent hereinafter.
The jurisdictional competence of Family Court to entertain the O.P.
8. The case of the respondent is that the 1st appellant-father-in-law borrowed 8
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