This original petition challenged the Family Court's order allowing a petition by a deceased wife's daughter. The High Court held that maintainability, involving evidence appreciation under Section 10(3), is a mixed question of fact and law to be decided after trial, leaving the challenge open.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 21ST DAY OF JUNE 2023 / 31ST JYAISHTA, 1945
OP (FC) NO. 190 OF 2023
AGAINST OP(OTHERS) 87/2020 OF FAMILY COURT, KOTTARAKKARA
PETITIONER/2nd RESPONDENT:
MADHUSOODHANAN NAIR
AGED 64 YEARS
PRASHANTHI, VAYYANAM P.O., ITTIVA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN - 691533
BY ADV M.SREEKUMAR
RESPONDENTS/ADDITIONAL PETITIONER NO.2 ABD RESPONDENTS 3 TO 5:
1 GAYATHRI S.V. AGED 27 YEARS THENGIL VEEDU, PERUMON P.O., PANAYAM VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT, PIN - 691601 2 ADARSH M.R. AGED 32 YEARS S/O.MADHUSOODANAN NAIR, PRASHANTHI, VAYYANAM P.O., ITTIVA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN - 691533 3 MIDHUN MURALI AGED 29 YEARS S/O.MURALEEDHARAN, KRISHNA KRIPA, PRASHANTHI, VAYYANAM P.O., ITTIVA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN - 691533 4 ARYANANDA AGED 22 YEARS D/O.MURALEEDHARAN, KRISHNA KRIPA, PRASHANTHI, VAYYANAM P.O., ITTIVA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN - 691533 BY ADVS. VISHNU BHUVANENDRAN Anjana P B.ANUSREE(K/000951/2016) RESHMA UNNIKRISHNAN(K/533/2016) THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 21.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(FC).No.190 OF 2023
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J U D G M E N T
Dated this 21 st d ay of June, 2023
A.Muhamed Mustaque, J.
This original petition raise an interesting
question as to the maintainability. The original
petition before the Family Court was filed by
Smt.Vasanthakumari as against her husband raising certain monetary claims. In that, she impleaded husband's brother and children alleging that husband transferred the property anticipating decree in her favour .
Smt.Vasanthakumari and her son were found murdered
thereafter, husband committed suicide.
joined in the petition to prosecute the claim of
the late Smt.Vasanthakumari. Brother and children
of her husband were already on record. The persons whom the husband had transferred the
OP(FC).No.190 OF 2023
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property resisted the petition stating that, such
petition before the Family Court is not
maintainable. The Family Court overruled the objection, holding that, the maintainability is a matter of appreciation of evidence and it cannot be decided at the threshold. It is challenging this order, the respondent in the original petition has
come up before this Court with this original petition.
petitioner Sri.M Sreekumar and the learned counsel appearing for the respondents Sri.Vishnu Bhuvanendran.
petitioner, none of the parties to the marriage are alive. Further it is submitted that, there is none to defend the matrimonial claim in as much as that the husband is no more. Therefore, no petition is maintainable before the Family Court. According to the learned counsel, the proper remedy is before the Civil Court. It is further submitted that, the
OP(FC).No.190 OF 2023
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present petitioner - the daughter of the deceased
already approached the Civil Court and withdrew the suit.
maintainability at this stage, when a
maintainability becomes a mixed question of fact and law, it is not safe for a court to decide such
matters at threshold. The onus of proof and
discharge of the burden, all that matters to be considered at the time of appreciating evidence.
It is to be noted that, the Family Court is not
only a Court of adjudication but a Court with empowered to conduct enquiry to find out truth irrespective of nature of litigation. It is open
for the Family Court to conduct in any enquiry as
under Section 10(3) of the Family Court Act to find
out the truth. The truth in such matter for the
Family Court is not mere the appreciation of
evidence. The maintainability as of now have to be decided with reference to allegations referred in
the petition filed by the deceased wife. That
OP(FC).No.190 OF 2023
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itself, constitute elements to sustain a petition before the Family court, though, it has to be substantiated through evidence. Further, we have
no doubt that cause of action would survive to the
daughter on death of the her mother. But, again the matter related to appreciation of evidence in the absence of the husband, what amount of evidence can be relied upon the Family Court to sustain or negate the claim, is a matter to be decided at the time of trial. We are only now pointing out the maintainability being a mixed question of facts and law, will have to be decided at the time of trial, not as a preliminary issue. Therefore, leaving open the question relating on maintainability to be decided after trial, we dispose of this original petition without interfering the impugned order.
Sd/- A.MUHAMED MUSTAQUE JUDGE
Sd/- SOPHY THOMAS JUDGE
TR
OP(FC).No.190 OF 2023
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APPENDIX OF OP (FC) 190/2023
| PETITION | ER EXHI | BITS |
|---|---|---|
| Exhibit | P1 | TRUE COPY OF THE ORIGINAL PETITION, OP 87/2020, DATED 27..02..2020 FILED BEFORE THE FAMILY COURT, KOTTARAKKARA. |
| Exhibit | P2 | TRUE COPY OF THE ORDER DATED 25..6..2020 IN IA 1/2020 & IA NO.4/2020 IN OS NO.207/2020 OF THE MUNSIFF COURT, KOTTARAKKARA |
| Exhibit | P3 | TRUE COPY OF THE JUDGMENT OF THE MUNSIFF COURT, KOTTARAKKARA IN OS NO.207/2020 DATED 25..08..2020 |
| Exhibit | P4 | TRUE COPY OF THE WRITTEN STATEMENT DATED 20..12..2021 FILED BY THE PETITIONER IN OP(OTHERS)NO.87/2020 ON THE FILE OF THE FAMILY COURT, KOTTARAKKARA |
| Exhibit | P5 | TRUE COPY OF THE ORDER DATED 10..01..2023 IN IA NO.5/2020 IN OP(OTHERS)NO.87/2020 OF THE FAMILY COURT, KOTTARAKKARA |
| Exhibit | P6 | TRUE COPY OF THE PROCEEDINGS IN OP(OTHERS) 87/2020 ON THE FILE OF THE FAMILY COURT, KOTTARAKKARA |
2 issues framed by the court
Whether aFamily Court petition is maintainable when none of the parties to the marriage are alive, requiring an enquiry under Section 10(3) of the Family Court Act.
Whether the question of maintainability of a petition where evidence appreciation is necessary should be decided as a preliminary issue or only after trial.
1 provisions across 1 enactments
Madhusoodanan Nair
Arayanda
A.Muhammed Mustaque
Sophy Thomas
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
