K.C. ABRAHAM, S/O. CHERIAN, PUTHUKKAYIL HOUSE, THANGALAM, KOTHAMANGALAM Vs. LEENA GEORGE, PALATHINKAL HOUSE, PADMAM

JUDGEMENT

(1.) The above revision has been filed by the defendants in O.S. 85/2012 on the file of the Sub Court, Muvattupuzha against the order in I.A. 1326/2012 in O.S. 85/2012 in that court under Sec. 115 of the Code of Civil Procedure.

(2.) The suit was filed by the respondent herein as O.S. 85/2012 on the file of the Sub Court, Muvattupuzha for partition of the plaint schedule properties. It is alleged in the plaint that respondent herein is the wife of Sri. Reji K. Abraham, who is the son of the first revision petitioner and brother of the second revision petitioner. The respondent married Sri. Reji K.Abraham on 31.01.1994. Due to some misunderstanding between them, they started residing separately and she filed O.P. 206/2001 before this court for dissolution of marriage and during the pendency of that proceedings, the respondent and the said Reji K. Abraham filed joint petition for divorce under Sec. 10A of Indian Divorce Act. This court passed a decree rule nisi. Thereafter respondent married a widower by name Biju Varghese on 26.08.2002, who was having a child. After sometime, there was some difference of opinion arose between the respondent and the said Biju Varghese, she filed O.P. 783/2005 for restitution of conjugal rights against him and Biju Varghese filed O.P. 1220/2005 to declare the marriage as nullity as the earlier marriage with Reji K.Abraham was not dissolved and it was not confirmed after a period of six months after passing a decree nisi. The Family Court allowed O.P.1220/2005 and dismissed O.P. 783/2005 declaring the marriage as null and void. According to the plaintiff thereafter the Reji K. Abraham had taken her back and they resided together as husband and wife and while so, he died on 27.12.2006 due to heart failure. He was having right over the plaint schedule property which he obtained as per sale deed No. 6763/1986 of S.R.O. Kothamangalam. Since he died intestate, his right in the property devolved on the respondent as his wife and the first petitioner. The respondent filed M.A. 233/2007 before this court against the judgment in O.P. 1220/2005 and the same was also dismissed declaring the marriage as null and void by judgment dated 16.08.2007, holding that the first marriage of the respondent is still subsisting. The first petitioner had relinguished his share in the plaint schedule property as legal heir of Reji K. Abraham in favour of second petitioner. Though the respondent approached the revision petitioners, they were not amenable for partition. So she filed the suit for partition as wife of late Reji K. Abraham for dividing the plaint schedule properties into two equal shares and allotment of one such share to her. Revision petitioners appeared and filed joint written statement contending that the property is not available for partition. The plaintiff is not entitled to get any right as she is not the wife of the deceased as their marriage was dissolved and the dispute regarding the status of the petitioner is covered by Sec. 7 of the Family Courts Act as it comes within the explanation of (a) to (g) of Family Court Act and by virtue of Sec. 8 of the Family Court Act, the jurisdiction of the Civil Court is ousted. They also contended that, since the marriage has been dissolved, the plaintiff is not entitled to get any right and they prayed for dismissal of the suit.

(3.) The question regarding the jurisdiction of the Civil Court was considered by the court below as a preliminary issue and the court below found that the contention of the defendants that the suit is not maintainable before this court by virtue of Sec. 7 and 8 of the Family Courts Act is not sustainable and found that, that court has got jurisdiction as the jurisdiction is not barred by Sec. 7 read with Sec. 8 of the Family Court Act. Aggrieved by the same, the present revision has been filed by the petitioners who are the defendants before the court below.