The main legal point established in the judgment is that the Family Court has jurisdiction to entertain disputes between parties to a void marriage with respect to their property, as per the provisions of the Family Courts Act 1984 and the Special Marriage Act.

JUDGMENT :

C. Pratheep Kumar, J.

This appeal is filed by the respondent in O.P. No.385 of 2018 on the file of Family Court, Kalpetta, against the judgment dated 5.1.2022, directing him to pay a sum of Rs.3,35,564/-with interest at the rate of 6% per annum to the petitioner.

2. According to the respondent, the appellant married her on 16.3.2016 as per the provisions of Special Marriage Act, 1954. It was the second marriage of the appellant and the third marriage of the respondent. Two weeks after the marriage, the respondent returned to Canada to continue her overseas employment. Thereafter she had arranged a student Visa to the appellant in Vancouver Island University. A sum of Rs.22 Lakhs was required for the completion of the Masters Degree of the appellant. The appellant arranged only a sum of Rs.7 Lakhs by availing a loan from Syndicate Bank, Mananthavady Branch and balance amount of Rs.15 Lakhs and flight charges of Rs.1,85,000/-was met by the respondent. Accordingly, the appellant went to Canada in August, 2016 and they lived together there for about three weeks.

3. Subsequently, the appellant joined the University to complete his education. Thereafter the marital relationship between them strained. It is also alleged that the appellant appropriated her 15 sovereigns of gold ornaments. He had repaid only a sum of Rs.8 Lakhs. In the OP she prayed for permitting her to realise a sum of Rs.3,30,000/-being the value of 15 sovereigns of gold and another sum of Rs.3,33,,654/-being the amount spent for education of the appellant.

4. The appellant denied the claim of the respondent. On the side of the respondent, PWs 1 and 2 were examined and Exhibits A1 to A10 were marked. On the side of the appellant, RW1 was examined and Exhibits B1 to B10 were marked. After appreciating the available evidence, the learned trial Judge rejected the claim for the price of the gold ornaments, but allowed the respondent to realise a sum of Rs.3,35,564/- along with interest at the rate of 6% per annum.

5. The main contention raised by the appellant is that the marriage between the appellant and the respondent was a void one as at the time of the alleged marriage, the earlier marriage of the respondent was not dissolved. Therefore, according to the appellant, the subject matter in dispute does not come within the purview of Section 7 of the Family Courts' Act and as such the Family Court has no jurisdiction to entertain the OP. Therefore, the learned counsel for the appellant would contend that on that ground itself, the petition is liable to be dismissed.

6. Now, the point that arise for consideration is the following:

Whether the Family Court lacks jurisdiction to entertain a suit or proceedings between the parties to a void marriage, with respect to the property of the parties or of either of them?

7. As per Explanation (c) to Section 7 (1) of the Family Courts Act 1984, a Family Court has jurisdiction to entertain a suit or proceedings between the parties to a marriage with respect to the property of the parties or of either of them.

8. In the instant case, when the marriage between the appellant and the respondent was solemnised as per the provisions of Special Marriage Act, on 16.3.2016, the earlier marriage of the respondent was subsisting and her spouse was also living. From Exhibit B2, it is revealed that the earlier marriage of respondent with Anoop Thomas was dissolved only on 18.7.2017. Therefore, it is clear that on 16.3.2016, when the respondent married the appellant, her spouse was living and as such, the marriage held on 16.3.2016 was void in view of Section 4 (a) read with Section 24 (1)(i) of the Special Marriage Act, 1954.

9. Now, the question to be considered is whether the dispute between the parties to a void marriage is to be tried by the Family Court or by the ordinary civil court? It was argued by the learned counsel for the appellant that since it is a void marriage, it could be treated as 'no marriage' and the parties to such a marr