IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.P(C).No. 6 of 2009()
1. R.RAJESH, S/O.RAGHAVAN, VADAKKEKARA
... Petitioner
Vs
1. ANU P.DAS, D/O.RAM MOHANDAS, PARAMBANATT
... Respondent
2. REGISTRAR, HINDU MARRIAGE REGISTRATION
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent :SRI.K.GOPALAKRISHNA KURUP
The Hon'ble MR. Justice K.T.SANKARAN
Dated :04/03/2009
O R D E R
K.T.SANKARAN, J.
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TR.P.(C) NO. 6 OF 2009
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Dated this the 4th March, 2009
O R D E R
This Transfer Petition is filed seeking to transfer O.S.No.99 of
2008, on the file of the Munsiff’s Court, Perinthalmanna to the Family
Court, Palakkad, for being tried along with O.P.No.828 of 2008, pending
before the Family Court, Palakkad.
2. The petitioner filed O.P.No.828 of 2008, on the file of the Family
Court, Palakkad against the first respondent for restitution of conjugal
rights. The first respondent filed O.S.No.99 of 2008, on the file of the
Court of the Munsiff of Perinthalmanna, against the petitioner to set aside
the certificate of marriage issued by the second respondent on 26.6.2008.
According to the first respondent, there was no marriage between the
petitioner and the first respondent, but under the pretext that a marriage
was solemnized, a certificate of marriage was obtained from the office of
the second respondent.
3. The Transfer Petition is opposed by the first respondent.
According to the first respondent, a suit pending before the civil court,
which is not a matter coming within the purview of Explanation to Section
TR.P.(C) NO. 6 OF 2009
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7 of the Family Courts Act, cannot be transferred to a Family Court.
Learned counsel appearing for the petitioner submitted that O.S.No.99 of
2008 is not maintainable before the civil court as the dispute involved
therein squarely comes within the purview of Explanation to Section 7 of
the Family Courts Act. The counsel for the petitioner submits that the
petitioner intends to move the Munsiff’s Court, Perinthalmanna in
O.S.No.99 of 2008 challenging the jurisdiction of the civil court to deal
with the matter involved in the suit.
4. If O.S.No.99 of 2008 is not maintainable before the civil court,
naturally, the matter has to go before the Family Court having jurisdiction.
Now the suit is pending before the civil court. The petitioner has not so
far raised before the civil court his contention that the suit is not
maintainable and that the suit is hit by Section 7 of the Family Courts Act.
If such a contention is accepted, there is no necessity for granting the
prayer which is now sought for in the Transfer Petition. So the first
question to be considered is whether O.S.No.99 of 2008 is maintainable
before the civil court. The petitioner has to approach the Munsiff’s Court,
Perinthalmanna for that purpose.
5. Accordingly, the Transfer Petition is closed with liberty to the
petitioner to approach this Court if occasion arises.
TR.P.(C) NO. 6 OF 2009
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Learned counsel for the petitioner submits that if, by any chance,
there occurs delay in considering the question of jurisdiction of the civil
court in O.S.No.99 of 2008, there is a likelihood of O.P.No.828 of 2008
being proceeded with before the Family Court, Palakkad. Counsel for the
petitioner, therefore, prays that till the question of jurisdiction is decided in
O.S.No.99 of 2008, Munsiff’s Court, Perinthalmanna, proceedings in
O.P.No.828 of 2008, Family Court, Palakkad, may be directed to be kept
in abeyance. This request is just and reasonable and it is not opposed
by the learned counsel appearing for the respondents. Accordingly, there
will be a direction to the Family Court, Palakkad to keep in abeyance all
the proceedings in O.P.No.828 of 2008 till the question of jurisdiction of
the civil court is decided in O.S.No.99 of 2008, Munsiff’s Court,
Perinthalmanna.
(K.T.SANKARAN)
Judge
ahz/