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HIGH COURT OF KERALA
A. Muhamed Mustaque, SOPHY THOMAS, JJ
BINDU PHILIPS, D/O.PHILIPOSE – Appellant
Versus
SUNIL JACOB, S/O.JACOB KURIAN – Respondent
Mat.Appeal 601 2013
Jurisdiction - Family Court Case - Family Courts Act, 1984 - Section 7
Fact of the Case:
The petitioner sought recovery of amounts lent to his father-in-law due to financial assistance conferred during their marital relationship. The Family Court partially ruled in favor of the petitioner, prompting appeals concerning jurisdiction and notification issues.
Finding of the Court:
The court held that the case did not stem from a marital relationship and therefore failed to fall under the jurisdiction of the Family Court as per the Family Courts Act. It established that the transaction was a commercial matter, distinct from matrimonial issues.
Issues: Key issues included whether the Family Court had jurisdiction over the monetary claim, whether the case was barred by limitation, and whether the 3rd appellant was denied due process in the absence of proper notice.
Ratio Decidendi: The dispute was determined as a commercial transaction unrelated to the marital relationship, thus outside the Family Court's jurisdiction under Section 7(1)(d) of the Family Courts Act.
Final Decision: The appeals were allowed and the judgment set aside, returning the case to the competent civil court.
J U D G M E N T
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;
(i) The dispute involved in the above mentioned O.P is not a dispute coming under the jurisdictional competence of a Family Court under Section 7 of the Family Courts Act, 1984 .
(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 81,3
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