Nassarudheen vs K.H. Sajitha

J.M. James

The contention that has been raised by the petitioners, who were impleaded in O.P. No. 303/2004 on the file of Family Court, Ernakulam, is that the dispute between themselves and the respondent, Sajitha, cannot be adjudicated by the Family Court. Sajitha filed O.P. No. 303/2004, before the Family Court, Ernakulam, praying for realization of the money against her husband and her mother-in-law. During the pendency, she bought petitioners herein, as additional respondents 3 and 4. Under Ext. P3 Order, the implement was allowed. This was challenged on the ground that, they were strangers and they were not present at the time of the transaction of the properties during the marriage between Sajitha and her husband.

Both sides relied on the decision in Shiny v. Goerge and others (AIR 1997 Kerala 231). After a detailed discussion, the learned Single Judge of this Court (P.K. Balasubramanyan, (J)), as he then was, came to the conclusion that

the very scheme of the Family Court Act, would stand defeated, and the spouse who is sued, can always take up the stand that he had made over the property to a stranger, and when the suing spouse is compelled to implead that person, the suit would be taken out of the purview of the Family Court and a cause of action would be maintainable before the Family Court when the suing spouse is forced to implead persons other than the other spouse including the close relatives of the other spouse or a stranger.

In the case at hand, a plea has been advanced by the wife, Sajitha, that her father had handed over 30 sovereigns of gold ornaments, one washing machine and one lakh rupees the total amount being Rs. 2,73,610/-. Khadeeja, mother-in-law, Nassarudheen, the brother of her husband, the wife of Nassarudheen, and another brother of her husband, Sakeer, who had squandered away the entire assets given at the time of the marriage, and during the pendency of the proceedings in order to defeat the decree that would be obtained by Sajitha. Khadeeja had transferred the property in favour of Nassurdheen and his wife. Therefore, they have to be brought in the proceedings, O.P. No. 303/2004, being tried by the Family Court. This contention is challenged by the counsel for the petitioners.

On going through the facts of this case, I am of the view that, both sides can raise their respective contentions before the Court below, which shall appreciate the evidence that would be adduced by both sides. The Family Court, under in Section ''7'' of the Family Court Act, is to dispose of the disputes raised before it, not only by the spouses, but also their wives, relatives or others, to who the transfer of the property, which had been given during the marriage, or thereafter, is brought in for decision. Without entering into any discussion on the merit of this matter, I sustain the parties impleaded, vis., the respondent 3 and 4 through I.A. No. 1829/2004 in O.P. No. 303/2004. The learned Family Court Judge shall appreciate the rival contentions of the parties and dispose of the same, according to law. The rights of the parties over the properties alleged or pleaded by Sajitha, and also challenged by Nassurudeen and his wife, shall also be considered by the Family Court.

The Writ petition is disposed of with the above directions.