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2005 DIGILAW 332 (KAR)

KALLU DANIEL v. G. D. HEMALATHA

2005-05-31

ANAND BYRAREDDY

body2005
JUDGMENT The present appeal is filed against the order of the Additional Civil Judge (Senior Division), Hubli, returning the petition of the appellant, seeking a decree of divorce filed under Section 12 of the Divorce Act, 1869, to present it before the proper Court. 2. The respondent has been served, she remains unrepresented. The only question to be considered in this appeal is: "Whether the Additional Civil Judge (Senior Division), Hubli, did not have jurisdiction to entertain the petition seeking divorce under the Divorce Act, 1869?' The reasoning of the Court in returning the petition is two-fold. Firstly, that the petition was filed under Section 12 of the Divorce Act, 1869, whereas it should have been filed under Section 10 of the Divorce Act and secondly, that the Act prescribes that a petition for divorce under Section 10 shall be presented before the District Court or the High Court and therefore, that Court did not have jurisdiction to entertain the petition. 3. Firstly, the reasoning that the petition ought to have been filed under Section 10 and not under Section 12 of the Divorce Act, 1869, need not detain me for long. Even if the petition had been preferred under a wrong provision of law, it was incumbent upon the Court to look at the relief sought and it was immaterial whether the provision was wrongly mentioned. Insofar as the second ground is concerned, though it appears that a petition for divorce cannot be maintained before the Additional Civil Judge and that Court would not have jurisdiction to entertain the petition for: divorce, the legal position is as pointed out by the learned Counsel for the appellant. The definition of 'District Court' and 'District Judge' though under the Act is confined to the Principal Civil Court of original jurisdiction, it necessarily has to be read along with the provisions of the Karnataka Civil Courts Act, 1964 and Section 23 of the Karnataka Civil Courts Act, 1964 enables the High Court to invest the Civil Judge with jurisdiction under certain Acts and the High Court may my notification invest such powers upon a Civil Judge as may be conferred on the District Judge or the District Court. Accordingly, in terms of a Notification dated 31-11-1978, the High Court has conferred power of a District Court or District Judge on all the officer::;; presiding over the Civil Judge's Courts in the State under the following Acts viz., (1) The Divorce Act, 1869; (2) The Lunacy Act, 1912; and (3) The Special Marriage Act, 1954. This petition of law has been stated in a Special Bench decision of this Court in the case of Chandramohan Kumar v. Mrs. Florence Indravathi and Another. 4. In the light of the above, this appeal is allowed. The order returning the petition is set aside. The matter is remitted for fresh consideration. Insofar as the application seeking a direction in respect of a certain amount in deposit before the Trial Court, it is open for the appellant to approach the Trial Court for appropriate directions.