ANILKUMAR Vs. SHEELA

JUDGEMENT

(1.) The short question that arises for consideration in this appeal filed under Section 19 of the Family Courts Act, 1984 is whether the Family Court lacks jurisdiction to decide the claim made by the first respondent-wife against her husband's brother for return of money and whether the O.P. filed by her before the Family Courts is a suit or proceeding 'in circumstances arising out of a marital relationship' as mentioned in Explanation (d) to Section 7(1) of the Family Courts Act (for short 'the Act'). The first respondent-wife filed O.P. before the Family Courts against her husband and his brothers. As against the appellant herein, the claim made by her was for recovery of Rs. 1,20,700/-. Her case is that while the marital relationship between her and her husband (1st respondent in the O.P.) was subsisting, as directed and influenced by her husband, she stood as a surety for the appellant in a chitty transaction and since the appellant defaulted payment of the amount, a sum of Rs. 28,500/- was recovered from her salary and thereafter she remitted Rs. 92,200/-to close the loan transaction so as to avoid recovery of amount from her salary which was attached for recovery of the amount due from the appellant. The appellant and other respondents in the O.P. remained ex parte. Accepting the affidavit filed by her in lieu of chief examination, the Court below granted a decree for return of the said amount of Rs. 1,20,700/- and also granted the reliefs sought for against the other respondents.

(2.) The main plank of the argument advanced by Mr. R.T. Pradeep, the learned counsel for the appellant is that the Family Court has no jurisdiction to try the suit since the appellant is not a party to the marriage. According to the learned counsel, the Family Court shall have and exercise the jurisdiction exercisable by any civil Court in respect of suits and proceedings and such a suit or proceeding should be between the parties to a marriage with respect to the property of the parties or of either of them.

(3.) The decision of Krishnan Nambudiri v. Thankamani, 1994 1 KerLT 607 is not applicable to the facts of this case since that decision was rendered interpreting Explanation (c) to Section 7(1) of the Act. In that case the subject-matter of the suit belonged not only to the parties to the marriage, the plaintiff and the first defendant, but belonged to others also. Hence, it was held that it is not enough that the suit is between the parties to the marriage, but the same should be with respect to the property of the parties or either of them.