DALIYA GOPINATH @ PREETHI Vs. STEAVE XAVIER

JUDGEMENT

(1.) This appeal arises from the order passed by the Family Court, Alappuzha on 8.11.2017 in O.P.No.11 of 2016. By the said order the Family Court returned O.P.No.11 of 2016 filed by the appellant against her brother-in-law on the ground that the respondent is not a party to the marriage and therefore, the Family Court has no jurisdiction.

(2.) The appellant had in O.P.No.11 of 2016 prayed for a declaration that she is the lawful owner of the petition schedule property as the legal heir of her husband who is incidentally is the brother of the respondent. Upon receipt of notice from the Family Court, the respondent entered appearance and filed a written statement denying and disputing the status of the petitioner. He denied the factum of marriage and claimed absolute right over the property scheduled to O.P.No.11 of 2016 through intestate succession. It was thereafter that the impugned order was passed returning the petition for proper presentation on the ground that the parties to the litigation are not parties to a marriage.

(3.) The very same question arose before a Division Bench of this court in Suprabha v. Sivaraman (2006 (1) KLT 712). Suprabha was married to one Santhosh, who later committed suicide. She had in the petition filed by her in the Family Court, Thiruvalla through her next friend claimed the sum of Rs.9,55,160/- which represents the value of gold ornaments, cash paid and other movables given at the time of her marriage with Santhosh. The respondents in the petition filed by her in the Family Court were the parents of Santhosh. The Family Court returned the petition stating that one of the parties to the marriage is no more and therefore, the petition is not maintinable before the Family Court. Suprabha challenged that order by filing F.A.O.No.6 of 2006 in this court. A Division Bench of this court held that when either the husband or the wife is not alive and the suit is filed against the parents of either of them, it cannot be said that it is a suit or proceeding between the parties to a marriage. It was held that in the context of section 7(c) of the Family Courts Act, 1984 (hereinafter referred to as "the Act' for short), the meaning of the words "parties to a marriage" cannot be given such a wide interpretation so as to include all those who are interested in the welfare of the couple or those who take part to the marriage ceremony. The Division Bench held that for the purpose of section 7(1)(c) of the Act, the suit or proceeding must be between the husband and the wife with respect to the property of the parties or either of them. However, in Suprabha (supra), the Division Bench set aside the order passed by the Family Court on the ground that sub-section (d) of section 7(1) of the Act would come into play. Section 7(1)(d) of the Act stipulates that the suits and proceedings referred to in that sub-section include a suit or proceeding for an order of injunction in circumstances arising out of a marital relationship. It was held that a petition for return of gold and cash paid at the time of marriage will come within the scope of section 7(1) (d) of the Act, though one of the spouses is not alive at the time when the petition was filed.