The maintainability of petitions in Family Court should be determined after trial, based on evidence, rather than on preliminary opinions.

JUDGMENT :

1. The petitioners challenge Ext.P16 order of the learned Family Court, South Paravur, which has found that OP (Others) No.1594/2023 filed by the 1st respondent herein, is maintainable before it.

2. Sri. Pirappancode V.S. Sudheer - learned counsel for the petitioners, argued that Ext.P16 is illegal because it has entered into an affirmative conclusion that OP (Others) No.1594/2023 is maintainable, without properly adverting to his client’s contentions. Though Sri. Pirappancode V.S. Sudheer was vehement in his afore submission, he was however, unable to inform us on which application Ext.P16 order has been issued; explaining that, in fact, the cause title of the said order is in error since it shows the 1^st respondent as the petitioner. He pointed out that the cause title appears to be that as shown in the Original Petition, but could not inform us if his clients had moved a separate application against the maintainability of the said original petition, or if this was an objection raised by them in their counter/written statement.

3. We have examined Ext.P6, and as rightly shown by Sri. Pirappancode V.S. Sudheer, its cause title appears to be that as available in the Original Petition; and further, there is no mention of any application having been preferred by the petitioners herein against its maintainability.

4. Be that as it may, the question of maintainability appears to have been urged by the petitioners herein, in their counter statement filed against the original petition. Further, certain events appear to have happened during the pendency of the Original Petition, which are enumerated in the impugned order; and we are, therefore of the firm view that the contest of maintainability is one that ought to be decided after trial, especially when such, prima facie, seems to have been impelled in the counter/written statement only. In such view, there was no requirement for the learned Family Court to have issued Exhibit P16 order at this stage.

5. We are sure that if the petitioners have raised the question of maintainability in their pleadings, a point for determination would have to be drawn up qua such, to be finally decided after the trial.

6. When we are persuaded to the above view, the opinion of the learned Family Court in Ext.P16 requires to be clarified as being only prima facie or preliminary in nature, with the issue of maintainability of the Origin Petition - if urged in the pleadings - to be decided by it after trial. In the afore circumstances, we order that the learned Family Court will decide the question of maintainability of OP (Others) No.1594/2023 - if it all has been raised by the petitioners in their pleadings – in terms of law, without being influenced, trammeled or fettered by its opinion in the impugned order and based on the evidence and the materials to be placed on record by the parties during trial.

7. This Original Petition is thus disposed of.