Point of law: Matrimonial relationship – Suit for partition – Jurisdiction of Court – Suit cannot be held as one comes within the definition of S.7(1)(d) of the Family Courts Act, treating the same as one for a Suit or proceeding for an order in circumstances arising out of a marital relationship.

JUDGMENT :

This Original Petition (Civil) has been filed under Article 227 of the Constitution of India. The order in O.S.No.1001/2019 dated 05.11.2021 on the file of the Additional Munsiff-II, Thiruvananthapuram, produced as Ext.P6 herein, is under challenge in this Original Petition.

2. Heard the learned counsel for the petitioners as well as the respondents.

3. In this matter, as per Ext.P5 judgment of this Court in O.P(C).No.1464/2020, the court below was directed to expedite the disposal of the Suit when some other orders were put under challenge in the above O.P(C). As per the direction in Ext.P5, the Suit ought to have been decided before close for Christmas holidays during 2021. However, a preliminary issue was heard by the learned Munsiff as to maintainability of the Suit. According to the defendants, the Suit is not maintainable before the Munsiff Court since the subject matter of the Suit is one clearly covered under Section 7(1)(d) of the Family Courts Act, 1984. Though the contention was raised based on the decision reported in [2005 (3) KLT 665 (DB)], Leby Issac v. Leena M.Ninan, the learned Munsiff found that the Munsiff Court has jurisdiction to decide the matter. It has been observed by the learned Munsiff that the main issue to be decided in this case is the partible nature of the property and the genuineness of the Will propounded by the defendants.

4. The learned counsel for the petitioners reiterated the contentions put before the trial court to substantiate that the plaintiff herein is none other than the mother-in-law of the 1st defendant and, therefore, the Suit is one covered under Section 7(1) (d) of the Family Courts Act. In support of this contention, decision reported in [2015 (5) KHC 365], Krishna Moorthy v. Soumya Krishnan & anr. and [2016 (1) KHC 266], Janaki Amma& Ors. v. Renuka Sadanandan & Ors. have been highlighted.

5. Opposing this contention, the learned counsel for the plaintiff/1st respondent herein would contend that this is a simple Suit for partition consequent on the death of the son of plaintiff and this Suit cannot be considered as one covered under Section explanation (d) to Section 7(1) of the Family Courts Act. In the decision reported in Janaki Amma's case (supra), a Division Bench of this Court considered a Suit filed by the mother-in-law to declare title over the property left by her son as her own, on which a sale deed was executed in favour of his wife. In that case, the Division Bench observed that the said case would fall under explanation (d) to Section 7(1) of the Family Courts Act. In the decision in Krishna Moorthi's case (supra), when daughter instituted a Suit for recovery of an amount of Rs.40 lakh which the father had promised to pay for the marriage, the jurisdiction was held to be vested with the Family Court. Therein also it was held that the Suit in question and the cause of action agitated based on the right and obligations arose therein would clearly fall within explanation (d) to Section 7(1) of the Family Courts Act. In this connection, it is apposite to refer Section 7 as such for clarity. Section 7 of the Family Courts Act reads as follows:

“7. Jurisdiction:-- (1) Subject to the other provisions of this Act, a Family Court shall--

(a) have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes 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 in this subsection are suits and proceedings of the following nature, namely:--

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case