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2002 DIGILAW 441 (KER)

Thomas K. Vargese v. The family Court

2002-07-09

R.BHASKARAN

body2002
Judgment :- R. Bhasksaran.J. A petition for divorce was filed by the 2nd respondent herein before the Family Court, Thiruvananthapuram. The allegations in the petition was that the husband and wife last resided together in Thiruvananthapuram and therefore that court Ha jurisdiction to hear the case. Before the written statement was filed in the main original petition, the Indian Divorce Act was amended and Sec.3(3) provided that the District Court within whose jurisdiction the marriage was solemnized was also competent to decided to the considered as per orders passed by this court in O.P.No. 11602 of 2002. It was thereafter that the Indian Divorce Act was amended with effect from 3-10-2001. The Family Court held that though it is not proved that the parties last resided together within Thiruvananthapuram District, by virtue of the amended, that Court has got jurisdiction and that the case could be continued. 2. The short question therefore is whether when on the date of the filing of the petition for divorce, it is found that the petition was not maintainable before that particular court whether the amended of the Act which claim into force before the case was disposed of could confer jurisdiction. 3. Before me, it was agreed by both sides that all amendments affecting substantive rights of parties can be only prospective unless it is made retrospective by the only prospective unless it is made retrospective by the Amending Act itself. It is also agreed that amendments which are deemed to be retrospective in nature. Therefore, the question to be decided in this case whether the amendment to Sec. 3(3) of the Divorce Act conferring the jurisdiction the marriage was solemnized will validate the petitions already filed which on the finding of facts could not be filed before that court but for the amendment. 4. The learned counsel for the 2nd respondent stated that there is nothing standing in the way of withdrawing of the present petition and filing a fresh petition as per the amended Act which will be maintainable before the same court even according to the petitioner in the O.P. Therefore no prejudice counsel for the petitioner was asked as to how his client is prejudiced by continuing the same O.P. and he stated that since the filing of the petition was before a court without jurisdiction he is entitled to get it dismissed. 5. 5. Therefore, the question to be decided is whether the amendment of the Act by including within the territorial jurisdiction of the District Court, the place of marriage also will affect the substantive right of parties or it affects only the procedural rights. Both sides relied on various decisions and I will refer to some of the of them which are applicable in this case. 6. In new India Assurance Co., Ltd, v. P. Chandran (1999 (2) KLJ 574), a Full Bench of this Court has held that the amendment of theWomen's Compensation Act enhancing the compensation top the injured workmen operates only prospectively and has no retrospective effect. The Full Bench held that merely because the claim was pending before the Commissioner for workmen's compensation at the time when the amendment came into force it will not enable the claimant to get compensation as per the amendment Act. 7. The learned counsel for the petitioner referred me to the decision of the Mysore High Court in Yandkapa v. Shavakka (AIR 1960 Mysore 265). That was a case where the suit filed for restitution of conjugal right before the coming into force of the Hindu Marriage Act was sought to be defeated on the ground that after the commencement of the Act only the District Court has got jurisdiction to hear such cases. It was fund that when the suit was filed the joint civil judges had jurisdiction and there is nothing in the Act which takes away such jurisdiction in the new Act. It was takes away such jurisdiction in the new Act. It was observed as follows: "It is now well settled that a statute relating to matters of procedure operates retrospectively, unless otherwise provided in the statute. But this principle is not applicable when the statute in question affects the jurisdiction of Court." 8. The learned counsel for the respondent bought to my notice the decision of the Supreme Court reported in New India Insurance Co. v. Shanti Misra (AIR 1976 SC 237). In that a claim was made before the Motor Accidents Claims Tribunal in respect of an accident which occurred more than two months prior to the Constitution of the Tribunal. At the time of the accident the remedy was to file a civil suit in the ordinary civil suit. v. Shanti Misra (AIR 1976 SC 237). In that a claim was made before the Motor Accidents Claims Tribunal in respect of an accident which occurred more than two months prior to the Constitution of the Tribunal. At the time of the accident the remedy was to file a civil suit in the ordinary civil suit. On and after the commencement of the working of the Tribunal the jurisdiction of the civil court was expressly taken away. The Supreme Court as follows: On the plain language of Sections 110A and 110F there should be no difficulty in taking the view that the change in law was merely a change of forum i.e. change of adjectival or procedural law and not of substantive law. It is a well established proposition that such a change of law operates retrospectively and the person has to go to the new forum even if his cause of action or right of action accrued prior to the change of forum." 9. The amendment Act came into force on 3-10-2001. As already noted noted no written attainment is filed so far by the respondent who is the petition in the O.P. Since at present the Family Court has jurisdiction no right of the petitioner is affected by the fact that it was earlier filed before the Family Court. The mere formality of the petitioner withdrawing the case and representing the same matter in a fresh O.P. is all that the petitioner can above. 10. Both sides relied on the Division Bench decisions in S.M.R.No. 1 of 2002. In that case, this Court considered the effect of the Amendment to the Divorce Act. Though it is held that the Amendment is not having retrospective effect all pending cases in the High Court after the Amendment are directed to be sent to the District Court. It is also held in paragraph 11 of the decision as follows:- "The most practical and pragmatic view which would save considerable inconvenience, expenditure and hardship to the litigants is to hold that all proceedings whether pending in the District Court or of the High Court initiated under the provisions of the unamended Act, which had not resulted into a decree shall be governed and disposed of in accordance with the amendments made by Act 51 of 2001. If such proceedings were pending before the District Court has been established, they shall forthwith be transferred to the family court for hearing and disposal by the Family Court." 11. No substantive right of the petitioner is taken away by the amendment and the change of Forum is only procedural in nature as held by the Supreme Court in N.I. Insurance Co. case. Therefore, the Family Court Thiruvananthapuram, has jurisdiction to entertain the counter of the petitioner in the divorce case and dispose of the same on merits without insisting on the 2nd respondent to file a fresh divorce petition which the petitioner in the O.P. admits will be in order. Ext.P1 order is correct and no case is made out to interfere under Article 226 or 227 of the constitution of India. O.P. is dismissed without any order as to costs.