SHYNI Vs. GEORGE

JUDGEMENT

(1.) This Original Petition is filed by a spouse to a subsisting marriage. She is the wife. She filed a suit against the other spouse to the marriage, her husband and her father inlaw. The suit was for recovery of amounts belonging to her and given into the hands of either the husband or the father inlaw at or about the time of the marriage for being held by them. It could probably be contended that they were to hold them in trust for her. She instituted the suit originally in the Family Court, Trichur. By an order of this court, the said suit was transferred to the Family Court, Ernakulam for being tried with an application for restitution of conjugal rights filed by the husband in the District Court of Kottayam. This court transferred that proceeding also to the Family Court, Ernakulam.

(2.) Before the Family Court, Ernakulam an objection was taken that since one of the parties arrayed as a defendant is not a party to the marriage but is only the father inlaw of the plaintiff and the suit relates to recovery of money entrusted to him also at the time of the engagement, the Family Court does not have jurisdiction to entertain or decide the suit. It was contended on behalf of the wife that the suit was by a spouse to a marriage against the other spouse and the claim for recovery of amounts under three heads was sought to be made jointly against the other spouse, the husband and the father inlaw and that there was nothing in the Family Courts Act which precluded the court from trying such a suit. The learned Family Court Judge took the view that a suit could be entertained by the Family Court in respect of the property of one of the spouses only against the other spouse and not against the father of the other spouse and consequently it was necessary for the plaintiff wife to delete the second defendant father inlaw from the array of parties and only if she does so, the Family Court can proceed with the suit. The contention raised on behalf of the wife that the claim was for recovery jointly against the husband and the father inlaw and if the suit is not maintainable against the father inlaw, she would be forced to file another suit on the same cause of action against the father inlaw in another court and to maintain the present suit against the husband in the Family Court simultaneously and such a situation cannot be normally contemplated was brushed aside by the Family Court. The order of the Family Court ordering the plaintiff wife to amend the plaint suitably by deleting the claim against the father inlaw, second defendant and further holding that if the plaint is not so amended the suit will be proceeded with as if it is only one against the first defendant is challenged in this Original Petition filed by the wife. The prayers in the Original Petition are resisted by the husband and the father inlaw arrayed as respondents 1 and 2.

(3.) The Family Court is established by the Family Courts Act, 1984 with the object of establishing courts with a view to promote conciliation in and secure speedy settlement of disputes relating to marriage and family affairs and for matters connected therewith. The court is established by the issue of a Notification under S.3 of the Act and a Judge is appointed in terms of S.4 of the Act. Sub-s.3 of S.4 provides that no person shall be qualified to be appointed as a Judge of the Family Court unless he had held for seven years a Judicial Officer or office of a member of a Tribunal or any post under the Union or a State requiring special knowledge of law or has for at least seven years been an Advocate of a High Court or possessed such other qualification as the Central Government may with the concurrence of the Chief Justice of India prescribe. In this State, the Judges appointed under S.4 of the Act are the District Judges in service or retired District Judges who had not attained the age of 62 years. The jurisdiction is conferred on the Family Court under S.7 of the Act. It provides that subject to the other provisions of the Act a Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation to that Section. Clause (b) of S.7(1) of the Act provides that the Family Court shall be deemed for the purpose of exercising such jurisdiction to be a District Court or a subordinate civil court to which its jurisdiction extends. There is a clear emphasis in S.7(1) of the Act that the Family Court is to be deemed a civil court and that it shall have and exercise all the jurisdiction exercisable by the District Court or a subordinate court. Explanation to S.7(1) deal with suits, which are within the purview of the Family Court. Sub-section 2 by clause (a) provides for the exercise of jurisdiction by the Family Court the jurisdiction exercisable by a Magistrate of the 1st Class under Chap.9 of the Code of Criminal Procedure and clause (b) provides that such other jurisdiction as may be conferred on it by any other enactment. S.8 of the Act excludes the jurisdiction of the ordinary civil court by providing that no District Court or any subordinate civil court shall in relation to an area where a Family Court has been established have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in Explanation to S.7(1) of the Act after the constitution of the Family Court. Similarly the jurisdiction of the Magistrate under Chap.9 of the Code of Criminal Procedure is also ousted. Clause (c) provides for transfer of pending business in the civil courts to the Family Courts on its establishment. S.10 of the Act provides that subject to the other provisions of the Act and the Rules the provisions of the Code of Civil Procedure shall apply. It is also provided that the Code of Criminal Procedure shall also apply. There is a further provision that for the purpose of the provisions of the Code of Civil Procedure a Family Court shall be deemed to be a civil court and shall have all the powers of such court. Sub-s.2 similarly provides for the exercise of jurisdiction under the Code of Criminal Procedure and sub-s.3 provides that the Family Court is not prevented from laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the dispute. S.15 provides for the recording of evidence and gives the Judge the discretion to record only a Memorandum of the substance of what the witness deposes. S.16 provides for acceptance of affidavits in evidence. S.17 provides for the form of judgment and S.18 provides for execution of a decree or order passed by the Family Court. S.18 says that the decree shall have the same force and effect as a decree or order of a civil court and shall be executed in the same manner as is prescribed by the Code of Civil Procedure for the execution of decrees and orders. Sub-s.2 provides for execution of orders under Chap.9 of the Code of Criminal Procedure through the procedure prescribed by that Code. Sub-s.3 enables the Family Court either to execute it by itself or have execution through ordinary civil court to which it is sent for execution. S.19 provides for an appeal to the High Court and the power of the High Court to revise any order passed in exercise of jurisdiction under Chap.9 of the Code of Criminal Procedure. It is also provided that an appeal shall be heard by a bench of two Judges. S.20 provides that the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. A scrutiny of the above provisions to my mind indicates that the Family Court while dealing with a suit is a civil court. In fact it is a substitute for the civil court while dealing with matters coming within its purview. It does not supplant the civil court. It is the original court or the court of first instance.