KRISHNA MOORTHY Vs. SOUMYA KRISHNAN AND ORS.

JUDGEMENT

(1.) In this Mat. Appeal, which is filed by the respondent before the Family court, the challenge is against an order passed in IA No. 1031/2014 in OP (HMA) No. 1152/2013. The case before the Family Court was instituted by the respondents herein seeking declaration of 1/3rd right for each of them in the scheduled properties and for recovery of an amount of Rs. 40,00,000/ -, which the appellant had promised to pay for the marriage of the 1st respondent, along with another sum of Rs. 5,00,000/ - towards compensation. The appellant filed IA No. 1031/2014 questioning maintainability of the original petition. It is contended that, the original petition instituted under Sec. 7(c) of the Family Courts Act can be maintained before that court only if it is between parties to the marriage. Since the respondents herein, who are the petitioners before the Family Court, are not parties to the marriage, the original petition is not maintainable before the Family Court, was the contention raised. The Family Court on consideration of the interim application, passed the impugned order holding that the claim advanced in the original petition arises out of the marital relationship and hence the case will fall under Sec. 7(1)(c) & (d). Therefore it is found that the Family Court gets jurisdiction to entertain the original petition. The findings of the court below is assailed as legally unsustainable and totally erroneous. Heard; counsel on both sides. Contentions of the learned counsel for the appellant is that, the parties in the original petition before the court below are not parties to the marriage and hence the suit instituted by them with respect to any property of the parties to the marriage or that of either of them, cannot be sustained. Contention is that the suit will not fall within Explanation (c) of Sec. 7(1) of the Act. He placed reliance on the decisions of this court in Kamalasanan v/s. Valsala, : 1994 (1) KIT 373 and in Suprabha v/s. Sivaraman, : (2006) (1) KLT 712.

(2.) It is a fact that the original petition before the Family Court is not between the parties to the marriage. Hence the suit will not come within the purview of Explanation (c) to Sec. 7(1). But a question arises as to whether the suit will be maintainable under Explanation (d) to Sec. 7(1). For a proper appraisal, it is necessary to have a scanning of the cause of action agitated in the suit. Allegation levelled by the respondents herein before the Family Court is that, the appellant is not taking care of any of the needs of the respondents, who are his children. Marriage of the 1st respondent was solemnized on 15 -09 -2010 with the help of the mother of the respondents and her relatives with borrowings made from both. It is alleged that at the time of the marriage of the 1st respondent the appellant had agreed to meet all the expenses, to the extent of Rs. 40,00,000/ -. Despite such promise made by the appellant in the presence of many persons and despite the fact that the appellant got huge amounts when he took voluntary retirement from the Bank, he had failed to make payment of any amount. It is further contended that the respondents have got right in the scheduled property upon which the appellant had derived title by virtue of a will executed by the appellant's mother. According to the respondents, each of them have got 1/3rd title and right over the said property. Hence they are approaching the court below seeking declaration of their 1/3rd right each in the said property and to recover the amounts mentioned as above.

(3.) Explanation (d) to Sec. 7(1) illustrates that, any suit or proceedings referred to under Sec. 7(1) would include suits or proceedings for an order or injunction in the circumstances arising out of a marital relationship. Scope and interpretation of Explanation (d) to Sec. 7(1) came up for consideration before a Division Bench of this court in Leby Issac v/s. Leena M. Ninan, : 2005 (3) KIT 665. This court held that, the expression 'circumstances' means 'the surrounds of an act', as per Law Lexicon by P. Ramanatha Iyer, Reprint Edition, 1992. It also means 'the particulars which accompany an act.' Reference was also made by this court to a foreign decision in Salter v/s. State, 163 Ga. 80, 135 S.E. 408, 409. It was found that 'circumstances' in relation to a matrimonial relationship will be those particulars which closely precedes, surrounds, accompanies and follows a marital relationship. That means, primarily those can be the marriage itself and the surrounding occurrences in connection with marriage. The main requirement is that such 'circumstances' must have a direct bearing on the marriage because the marriage precedes the existence or origin of a 'marital relationship'. The 'circumstances' arising out of a marital relationship are therefore, occurrences or things which stands around or about, which attend upon, which closely precede or follow, which surround and accompany, which depend upon, or which support or qualify the principal event of a marriage or marital relationship. The expression 'in circumstances arising out of a marital relationship' contained in clause (d) of the Explanation thus means not only those occurrences which transpired during the marital life, but should also include such circumstances which led to the marriage, which developed thereafter, which took place during marital life, which resulted in breaking down of the marriage and also those which closely followed as a consequence of all these. In the decision cited above, Justice Hema J., speaking for the Bench observed that, if the intention of the legislature was to take in only those circumstances which took place during marital relationship, there is no necessity to use word 'circumstances' in Explanation (d) to Sec. 7(1) of the Act. Therefore the inclusion of word 'circumstance' in the relevant provision is quite significant and it must have been done to include all the circumstances surrounding, preceding and closely following a marital relationship in which the principal event is the 'marriage' and the eventualities surrounding it.