S LEELAVATHI Vs. M S SHIVASHANKAR

JUDGEMENT

(1.) THE petitioners are the wife and son of one M.S.Mahesh. THEy have preferred this revision against the order passed by the V Addl. JMFC, (Jr.Dn.) Mysore, dismissing their execution petition No.255/2002 declining to enforce the decree passed in O.S.No.62/1996 in their favour against the respondents.

(2.) THE facts relevant for consideration are: That petitioners 1 and 2 filed a suit in O.S.No.62/1996 on the file of the Civil Judge (Jr.Dn.) contending that 1st petitioner married the 2nd respondent and through the wedlock she gave birth to a son named M.S.Manjunath. Despite such matrimony her husband S.Mahesh, who was living in the joint family with his father and other coparceners namely M. S .Shivashankar, Vijayshankar, Basavaraju and Bharathi, deprived comfort and consortium and failed to maintain her and her child. She was neglected and her sustenance was impossible. She therefore sought for a decree to direct the defendants to pay to her alimony at Rs.1000/- per month. THE original defendant Shivashankar died and was represented by the legal heirs namely Vijayashankar, Mahesh, Basavaraju and Bharathi. After contest the suit was decreed directing the defendants to pay to the revision petitioner and her son Rs.1000/- towards maintenance and as alimony. THE revision petitioners having obtained a decree passed on 7.12.2001 filed Execution Petition No.2855/2002- to enforce the decree and to recover the alimony. But the learned Civil Judge (Jr.Dn.) dismissed the execution on the ground that the decree obtained by her was a nullity. To form such a opinion the executing Court noticed that the petitioners undoubtedly claim to be wife and son of one Mahesh had sought for recovery of the maintenance by virtue of right germinating from marital relationship and as such action was against her husband and her in-law's, namely the father-in-law, they come within definition of Parties to the marriage' and thus such a dispute had to be necessarily decided by the Family Court constituted under the Family Court's Act 1998 (sic) and not by the Civil Court. As on the date the decree was passed Family Court was established in the district of Mysore, the suit had to be tried by the Family Court which was bestowed with the jurisdiction and Civil Court had lost jurisdiction. THE relevant date being 25-05-1998. THErefore, it held that as on the date the decree was passed on 7.12.2001 the Family Court was in existence and the decree was a nullity.

(3.) IT is necessary to observe that the question regarding the jurisdiction of the Court has to be considered at the earliest. The questions relating to jurisdiction are: