Dr.Varadarajan Subbiah vs Dr.Annamalai Subramanian And Others

Dr. R.N.Manjula, J

This Application has been filed to reject the plaint in C.S.No.18 of 2017 on the file of this Court.

The suit has been filed by the first respondent / plaintiff for recovery of a sum of Rs.3,08,25,000/- along with interest. The plaintiff’s daughter was married to the first defendant and the marriage failed subsequently. The defendants 2 and 3 are the parents of the first defendant. The first respondent / plaintiff has filed a suit stating that he has given monies on various occasions to defendants 1 to 3, but the defendants ruined the life of the fourth defendant.

It is pleaded by the plaintiff that the defendants 1 to 3 played fraud upon the plaintiff and made him to part with huge money as dowry and they are liable to be returned to the plaintiff. The first defendant was working in Unites States of America as a doctor and the fourth defendant was working in London as a doctor. The plaintiff is also a senior consultant surgeon working in the United Kingdom. The marriage between the first defendant and the fourth defendant did not go well and it had resulted in a complete failure. The plaintiff has filed a suit by claiming that the money claimed by him through the suit is the money parted by him and it has got nothing to do with any of the matrimonial relief that might have been claimed by the fourth defendant in any matrimonial suit.

However, the first defendant has filed this Application stating that the suit itself is not maintainable and there is no cause of action for the suit. It is submitted by the applicant that prior to the institution of the suit, the fourth defendant has filed a petition under Section 13 of the Hindu Marriage Act seeking divorce against the first defendant in O.P.No.3550 of 2012. The very same allegations which have been stated in the said petition have been reproduced in the pleadings of this suit. The gifts and jewels are given to the plaintiff's daughter as Sridhana and hence, the fourth defendant is the absolute owner of the same. In the matrimonial proceedings, the true owner viz., the fourth defendant who has absolute ownership over the suit claim had waived her right and she was happy with merely receiving an alimony in view of her divorce. So, it is claimed by the applicant that the plaintiff has no right to file a suit. It is further submitted that the suit has been filed by the plaintiff with vexatious and frivolous allegations without making any actionable cause of action. Hence, this application has been filed seeking the relief of rejection of plaint under Order VII Rule 11 of C.P.C.

No doubt, the first defendant came to know to the family of the plaintiff only as an alliance to his daughter, the fourth defendant. It is alleged in the plaint that the plaintiff has parted money to the first defendant on various occasions for the purpose of buying house and towards jewels and other costly things. It is alleged that the plaintiff has transferred two lakh US dollars from his bank account in United Kingdom to the joint account of the fourth defendant in the Unites States of America. It is further alleged that a portion of the money has been used by the first defendant to purchase the house. There are averments in the plaint to the effect that the plaintiff has transferred a hefty sum to the first defendant considering the wellness of his daughter who was married to the first defendant. The jewelleries and the silverware given to the fourth defendant have also been valued and included in the suit claim. Even though the fourth defendant who is the plaintiff's daughter has been impleaded in the suit, she has not chosen to file any written statement. The plaintiff himself has alleged that she is only a proforma party.

The application has been filed touching upon two grounds, the first ground is that all the transactions are connected to the marriage between the first defendant and the fourth defendant and they were treated as gifts. As the gifts given to the daughter during her marriage by the parents should be treated as gifts and hence, the original ownership lies with the fourth defendant but she has chosen to waive her right to return back the same. The other ground is that the plaintiff, who does not hold any ownership over the monies parted by him in view of the marriage and the entitlement of the fourth defendant to the money given by the plaintiff, cannot have locus standi or cause of action to file a suit.

However, it is contended by the plaintiff that various transactions have been made between the plaintiff and the first defendant involving money and those cannot be treated as gift given to his daughter. So, it is claimed that he has cause of action to maintain the suit to recover the money and whatever money given by him did not get converted into Sridhana and hence, the fourth defendant does not hold any title over the same.

Even if any money or property claim between the parties to the marriage that arise out of the marriage, that could also be disputed before the Family Court itself which has got comprehensive jurisdiction to entertain all such types of suits. The types of the suit which can be raised before the Family Court has been enlisted under Section 7 of the Family Courts Act. Hence, it is appropriate to extract the provisions as below:

“7. Jurisdiction.—(1) Subject to the other provisions of this Act, a Family Court shall—

(a) 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; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation.—The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:—

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise—

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any other enactment.”

Though Section 7 has enlisted out all those items which can be maintained in a Family Court for which the cause of action has arisen only in view of the marriage between the couple, the above provision does not say who are all the persons who can file such suits. It is broadly understood that the suits might be only between the parties to the marriage and not between any third parties. But the plaintiff has cited a decision reported in Geeta Anand Vs. Tanya Arjun and Ors, reported in 2024 SCC Online Del 2327.

The case involved in the above judgment is the suit between the parents-in-law and the estranged daughter-in-law with regard to the ownership and consequential possession and injunction. In the said suit, a reference has been made to the judgment of the Kerala High Court held in Shyni Vs. George, reported in AIR 1997 Kerala 231. In the said case, the father-in-law has also been impleaded as a party along with her husband on the ground that the property of the wife or portion of it has been handed over to him. It is held by the High Court of Kerala that just because the third party has been impleaded as a party to the proceedings, that will not take away the suit from the purview of the Family Court. It is further held that the jurisdiction of the Family Court is not confined to the proceedings initiated by one spouse against the another and the suits before the family court are maintainable irrespective of the fact that persons other than spouses have been added as necessary parties.

When there is a common cause of action, it is unnecessary to split the litigation by filing against the spouse before a family Court and another against any close relatives of the spouse before the Civil Court. In the case of Manita Khurana Vs. Indra Khurana, reported in 2010 SCC Online Del 225, it is held that the jurisdiction to try the suit can still be in the family Court. However, where there is a sharer to the property other than the parties to the marriage and such a sharer could not be compelled to bring a suit for partition before the Family Court, just because the other sharers have a marital relationship. For a better clarity, paragraph No.17 of the judgment is extracted hereunder:

“17. What is however significant in the present case is that the husband of the petitioner is not a party to the suit. The Kerala High Court has had occasion to consider whether a suit to which persons other than spouses are a party would continue to be governed by the Family Court Act or not. A Single Judge of the Kerala High Court in Shyni v. George, AIR 1997 Kerala 231, held that merely because a stranger to the marriage (in that case the father-in-law) is also impleaded in the suit along with the husband on the ground that the property of the wife or a portion of it also has been handed over to him would not take away the suit from the purview of the Family Court. It was further held that the jurisdiction of the Family Court is not confined to proceedings by one spouse against another and that so long as the suit is of one spouse against the other, the suit would be maintainable in the Family Court even if for the purpose of seeking relief in respect of the cause of action put forward in the suit, the suing spouse is forced to implead persons other than the other spouse or include the close relatives of the other spouse. It was further held that the cause of action if common could not be permitted to be split up by filing a suit against the husband in a Family Court and against the father-in- law in the Civil Court. However, in the same judgment, it was observed that a suit for partition in which a party to a marriage claims a share in the property not only along with her husband or as against her husband but also along with the various other members of the joint family would be totally different from a case where a wife files a case for recovery of her exclusive property against her husband and someone else who is holding the property on her behalf like the father-in-law in that case. On the aforesaid reasoning,in Devaki Antharjanam v. Narayanan Namboodiri , AIR 2007 Kerala 38, another Bench of the Kerala High Court held that a suit for partition in which not only the husband and wife but their children were also parties did not fall within the exclusive jurisdiction of the Family Court and as such the decree in the suit passed by the Civil Court could not be held to be void. The reasoning was that the property belongs not only to the parties to the marriage but to others as well. It was further held that where other parties to the suit are merely a proforma party or a party with whom the money or the property of the parties to the marriage or either of them is entrusted or where the third party claims through either or both the parties to the marriage or a legal representative of a party to a marriage or a person in possession of such third party being party to the suit, the exclusive jurisdiction to try the suit would still be of the Family Court; however where there is a sharer to the property other than the parties to the marriage, such a sharer could not be compelled to bring a suit for partition before the Family Court merely because the other sharers were married to each other. However, a Division Bench of the Kerala High Court in Joseph v. Mariutn Thomas, MANU/KE/0034/2006, held that the claim of a stranger over a property over which the wife had a charge for her maintenance was not required to be adjudicated in the Family Court. It was held that Section 7 excludes the jurisdiction of the civil Court only in certain matters which are relating to proceedings between parties to a marriage; however, the claim of a total stranger could not be covered by Section 7 of the Act.”

The Supreme Court has referred various cases in order to understand how Section 7(d) of the family Court has been interpreted so far as it relates to the phrase “in circumstances arising out of a marital relationship”. The Court has put a question to itself about the meaning conveyed by the said expression. It is held that circumstances in marital relationship is about those particulars which closely precedes, surrounds, accompanies and follows a marital relationship which can be the marriage itself or the surrounding occurrences in connection with the marriage. But the main requirement is that such circumstances must have direct bearing to the marriage. Hence, the circumstances arising out of a marital relationship are occurrences or things which stand around or about which might closely precede or follow which surround and accompany. The principal event of marriage can be considered as surrounding circumstances. The above import which stands in the language of the Kerala High Court is given as under:

“23. Avoiding the temptation to embark on a long legal discourse, it would be apposite to refer to a few decided cases to understand how the law on the subject has evolved. The Kerala High Court in the case of Leby Issac v. Leena M. Ninan alias Lincy10 was presented with a matter wherein the appellant- husband had filed a suit before the Family Courts against his wife, father-in-law and alleged adulterer of his wife as defendant Nos. 1 to 3 respectively, seeking compensation from his wife and father-in-law for allegedly having knowledge even before his marriage that she was having an illicit relationship with the third defendant. In the aforesaid background it was held as follows: -

“11. But, a further question arises now. What is meant by the expression, “in circumstances arising out of a marital relationship” used in Explanation (d) to Section 7(1) Since the above provision refers to 'marital relationship and not 'marriage', will the circumstances adverted to in Explanation

(d) confine only to those circumstances which arose during subsistence of marital relationship alone? or, do those include such circumstances which arose surrounding marriage also? Will the expression, “arising out of marital relationship taken in only those things which transpired during the marital life and not in or about a marriage? To un-knot these questions, a probe into the meaning of the term 'circumstances' is necessary.

The expression, circumstances means “the surroundings of an act”, as per tow Lexicon by P. Ramanatha Aiyar, reprint edition, 1992 It also means the particulars which accompany an act The word "circumstances" is explained in Salter v. State 163 Ga 80, 135 St 408, 409 also as, related or accessory facts, occurrences or things which stand around, or about, which attend upon, which closely precede or follow, which surround and accompany, which depend upon, or which support or quality principal fact or event, (vide Black's Law Dictionary Forth edition).

13.So, circumstances in relation to a marital 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 marriage, since the marriage precedes, the existence of origin of a martial relationship. “Circumstances” arising out of a marital relationship are therefore, “occurrences or things which stand 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 marital relationship” thus means not only those occurrences which transpired during marital life, but those also include such circumstances, which led to the marriage, which developed thereafter, which took place during marital life, which resulted in breaking down of marriage and also those which “closely” followed as a consequence of all these. If the intention of legislature was to take in only those occurrences which take place during a “marital relationship”, there was no necessity to use the word “circumstances” in explanation (d) to section 7 (1) of the Act. The same purpose could have been achieved if explanation (d) is worded without the term 'circumstances' also. So, the inclusion of word “circumstances” in the relevant provision is quite significant and it must have been done to include all such circumstances surrounding, preceding and closely following a marital relationship i.e. the principal event of marriage and the eventualities surrounding the same.

So, having understood the requisites of Section 7(1) read with explanation (d) as discussed above, the next question to be dealt with is whether those are satisfied in the case at hand. It is clear from the pleadings in the plaint/petition that the appellant's claim emerged in circumstances arising out of marital relationship between appellant and first respondent. It is alleged in the plaint/petition that respondents 1 and 3 were having illicit licit connections and that this fact was known to his wife's parents, but they suppressed this fact and committed fraud on appellant in solemnizing the marriage.

In paragraph 13 of the plaint, it is specifically stated that cause of action to the proceeding arose on the date of engagement of the marriage and on the date of marriage when the first respondent wife disclosed that the marriage was held against her will, and the date on which the wife made a confession to the plaintiff/appellant regarding the adulterous life at the place where the marriage was solemnized etc. All these are circumstances surrounding, preceding and accompanying a marital relationship.

From the averments in the petition/plaint it is evident that suit/petition itself arose because of the marriage, the circumstances which led to the marriage and what transpired during marital life. Those reveal the alleged illicit relationship between respondents 1 and 3, suppression of these facts, subsequent confession made, ensuing breaking down of the marital relationship, defiant conduct of appellant's wife, her failure to discharge marital obligations etc. and the mental agony caused to appellant as a result of all these. Thus, from the facts stated in plaint/petition, it is clear that petition/suit in this case originated in circumstances arising out of a marital relationship.

So, the prime question to be asked on institution of a proceeding before Family Court under Section 7(1) read with Explanation (d) of the Act is therefore, whether the foundation of the claim was a marital relationship and whether the petition and relief emerged in the circumstances closely preceding, surrounding and following a marital relationship. If the answer is in the affirmative, the Court can entertain the petition. In this particular case that a divorce petition also was pending before the Family Court between the parties. The present proceeding also arose more or less from the same set of facts and circumstances and hence the lower Court ought to have retained the case in the same Court instead of driving the parties to the ordinary Civil Court. The whole dispute between the parties can be attempted to be settled in the Family Court itself. The couple cannot be deprived of the facilities available in the Family Court to arrive at a quicker settlement of their issues. Looking at the issue from any angle, this is a fit case which ought to have been entertained by the Family Court itself.”

After having referred to various cases and the preposition laid down therein, it has been concluded by the Hon'ble Supreme Court with regard to the exclusive jurisdiction of the Family Court and it is observed as under:

“31. It is a well ordained principle in law that exclusion of the jurisdiction of the civil court should neither be readily inferred nor be construed liberally. There must be either a specific exclusion of its jurisdiction or it must be shown to be ousted by necessary implication. A bare perusal of the entire scheme and structure of the Family Courts Act would show that Section 8 of the FC Act does create a specific provision for excluding the jurisdiction of the civil courts. Section 8 provides that where a Family Court has been established for an area, no District Court or any subordinate Civil Court referred to in section 7(1) in relation to such area shall exercise any jurisdiction in respect of any suit or proceedings of the nature referred to in the Explanation to that sub-section. Section 8(c) further provides that upon establishment of a Family Court, any proceedings pending immediately before the establishment of such Family Court before any District Court or subordinate Court shall stand transferred to such Family Court on the date on which it is established. However, the situations provided for by the Legislature in the Explanation forming part of the section 7(1)(a) of the FC Act and exclusion provided for under section 8 of the FC Act does not illustrate the whole gamut of eventualities and disputes that may arise in a matrimonial relation. In the case of Darshan Singh v. Ram Pal Singh21, the Supreme Court observed in the said context as under:

“24…Neque leges neque senatus consulta ita scribe possunt ut omnes casus qui quandoque inciderint comprehendatur; sed sufficet ea quœ pleramque accident contineri. Neither laws nor Acts of a Parliament can be so written as to include all actual or possible cases; it is sufficient if they provide for those things which frequently or ordinarily happen. What is material is to see the expressed objects and reasons and the language used…”

It is no longer res integra that the question as regards exclusion of jurisdiction of the civil court is to be considered having regard to the scheme of the FC Act as also the objects that the enactment seeks to subserve. Whenever there is an express bar on the jurisdiction of the civil court, it becomes imperative to examine the nature of the Act and the provision of the adequate remedies can be relevant but cannot be considered to be the sole ground to sustain the ouster of the jurisdiction of a civil court. In M. Hariharasudhan v. R. Karmeam, it was observed by the Supreme Court that “we say no more but reiterate that the plea of bar to jurisdiction of Civil Court must be considering having regard to the contention raised in the plaint, which is to be read as whole and for that purpose the averments must disclose cause of action and the reliefs which are sought must be considered in its entirety.” The jurisdiction of civil court or exclusion thereof, cannot and must not depend only on few averments made in the plaint or petition and/or all the reliefs claimed thereupon.”

The cause of action for the suit is very essential to determine whether the phrase “circumstances” adopted in Section 7(d) has its root in the marriage or marital relationship. The averments about the same in the plaint are relevant. To find out whether the cause of action will bring the suit within the jurisdiction of the Family Court, the Supreme Court has held that the Court should be careful while doing such an analysis, by giving scope to include all kinds of disputes between all the relationships arising out of marriage within the ambit of the Family Court. Paragraph No.36 of the above judgment of the Hon'ble Supreme Court is most relevant on this aspect:

“36. The interplay as between the expressions “cause of action” and the term “circumstances” in the context of the subject provision must be deciphered in the follow manner; firstly, the averments in the plaint must explain the “cause of action” for instituting a suit or legal proceedings for injunction; and secondly that this “cause of action” is one which falls within the jurisdiction of the Family Courts. The cause of action, in order to bring the case under the subject provision and so as to confer jurisdiction upon the Family Court must encapsulate a tangible averment that the dispute is one which has an intrinsic nexus with the martial relationship. The circumstances should be of such a nature that it is demonstrable that the dispute is closely emanating from and surrounded by such matters which are integral to the marital relationship. Mere existence of a marital relationship between the litigating parties howsoever tangential cannot be the basis or the foundation for the proceedings being brought before a Family Court. We hasten to add that if we allow the interpretation that has been placed to the subject provision in the case of Avneet Kaur, it is likely to open a pandora's box, which would risk inclusion of all disputes as between the parents and their married children and even siblings within its ambit.”

In the context of marriage and marital relationship, it is normally understood that the dispute is between the parties to the marriage, but there are certain circumstances where the issues may arise not exactly between the parties to the marriage, but also between one party to the marriage and the other parties who are incidentally surrounding the marital relationship of the two. For instance, if a father-in-law or a mother-in-law files a suit against the daughter-in-law from entering into the property which they claim to be the absolute owners, it cannot be considered as the one falling within the jurisdiction of the Family Court. In such cases, only the Civil Court has got the jurisdiction on such cause of actions.

The Supreme Court has laid down a test by asking a question on the basis of the averments made in the plaint and the cause of action for the suit. The question is whether the foundation of the claim was on a marital relationship and whether the plaint and the relief had emerged in the circumstances closely preceding, surrounding and following a marital relationship. If the answer is in the affirmative, the Family Court alone can entertain those litigations. Bringing those kind of litigations into the folder of Family Court serves an another purpose and it facilitates the couple to arrive at a quicker settlement of the issues which are directly or incidentally connected to or inherently arisen out of their marital relationship.

By applying the above test, now it can be found out whether the present suit would fall under the jurisdiction of the Family Court. Firstly, the suit is not between the parties to the marriage. The ex-father-in-law of the first defendant has filed the suit for the relief of recovery of money on the basis of the monetary transactions that were made prior to or during or subsequent to the marriage. Though these transactions have been done surrounding the marital arrangement between the first defendant and the fourth defendant who is the daughter of the plaintiff, it is claimed by the plaintiff that all those monies parted for the alleged transactions are the monies belonged to the plaintiff. So, it is claimed by the plaintiff that he has got a cause of action to maintain the suit before the Civil Court.

In the cause of action pleaded in the plaint, it is stated that the defendants 2 and 3 received a cash of Rs.25,00,000/- as payment of dowry from the plaintiff and thereafter, gave pressure to him to pay another Rs.25,00,000/-on the day of engagement between the first defendant and the fourth defendant and between the period from 06.07.2009 to 11.07.2009; immediately after the marriage, the defendants 2 and 3, had got a cheque for Rs.1,00,00,000/- from the plaintiff and all the subsequent days, the defendants 1 to 3 treated the plaintiff's daughter as a tool to make money and extracted money on various dates.

The suit has been filed for a hefty sum of Rs.3,08,25,000/- on various heads. The amount said to have been given by the plaintiff was not only for the first defendant and the fourth defendant who are parties to the marriage, but also to the defendants 2 and 3 who are the parents of the first defendant. Even though the transactions alleged by the plaintiff could be the transactions surrounding the marriage between his daughter and the first defendant, due to the subsequent bitterness, it is not just a dispute between the parties to the marriage or cause of action arising and surrounding simply due to a marriage or marital relationship.

As the issues involved in this case is shelling out money by the plaintiff and it makes out a cause of action for the suit for recovery of money, it cannot be strictly said that for such types of suits, the jurisdiction of the Civil Court is excluded in view of Section 7 of the Family Court Act or that the Family Court has got jurisdiction under Section 14(d) of the Act.

It is the contention of the defendants that those money however was huge, have been given as Sridhana to the plaintiff's daughter, the fourth defendant and she being the owner of the property, did not choose to file any such suit for recovery and hence, the plaintiff cannot maintain the suit. It is further contended that the fourth defendant had relinquished her right in respect of her jewels and all other things. When the owner of the property has relinquished and satisfied with the maintenance award arising out of the marital dispute between the first and fourth defendant, the plaintiff has got no locus standi to file a suit.

It is not the contention of either of the parties that the money involved in the alleged transactions belonged to the fourth defendant. But, it is just stated that the plaintiff has spent those amounts for the things purchased or acquired for the benefit of the marriage of the fourth defendant or to give them as Sridhana to the fourth defendant. Though it is stated that the fourth defendant is the owner of the property, the fourth defendant did not choose to claim that she is the owner of the suit claims and not her father. So, the burden would be upon the defendants 1 to 3 to prove that the ownership of the monies parted by the plaintiff belongs exclusively to the fourth defendant and that can be done only at the time of the trial.

So, the character of the suit amount whether it is Sridhana or money belonged to the plaintiff can be figured as an issue and for which, the jurisdiction of the Civil Court is not ousted. As the Court is forbidden to look into the merits of the matter at the threshold stage by appreciating the materials beyond the level of finding out a prima facie case based on the averments and documents, it is not necessary to dwell into those issues at this stage. Basing upon the allegations made in the plaint and the cause of action pleaded, I feel a prima facie case has been made out by the plaintiff for recovery of money which is maintainable before the Civil Court. Though the transactions surrounded the marriage between the first and fourth defendants, the claim is not between the parties to the marriage and it is between the father-in-law against the ex-son-in-law and his parents.

As the jurisdiction of the Family Court is attracted only when it is shown that the cause of action has arisen out of the marriage or matrimonial relationship, it cannot be claimed that the plaintiff can maintain the suit only before the Family Court or that he has no cause of action for recovery of money. In the instant case, the timings of the transaction may surround the marriage, but the nature of the transaction between the plaintiff and the defendants 1 to 3 are not due to the marital relationship, as how it can be between the couple. In view of the above stated reasons, I hold that the plaintiff has cause of action to maintain the suit and that the jurisdiction of the Civil Court is not ousted for this suit filed for recovery of money on the basis of the averments and cause of action pleaded in the suit. Hence, I don’t find any merit in the application filed by the applicant seeking the relief of an order to reject the plaint.

In the result, this Application is dismissed.