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2012 DIGILAW 82 (KER)

S. Shibu v. Bibi K. Venu

2012-01-17

K.M.JOSEPH, M.L.JOSEPH FRANCIS

body2012
Judgment 1. The appellant is the husband of the respondent. The marriage was solemnised at Kottayam. The appellant filed original petition praying for dissolution of marriage under Section 13(1)(a) before the family court, Kottarakkara. By the impugned order, the Family Court has found that the petition has been filed on the premise that the parties have resided together lastly within the jurisdiction of that Court, in spite of the fact that the wife is presently residing at Kottayam and the marriage was also at Kottayam. It is also stated that D.V.(M.C.) No. 10 of 2010 is pending at Kottayam Court and hence the O.P. ought to have filed at the place where the wife presently resides. Hence the original petition was rejected for want of jurisdiction. 2. We heard learned counsel for the appellant and learned counsel for the respondent. 3. Learned counsel for the appellant would point out that the reasoning of the Family Court is unsustainable having regard to the provisions of the Hindu Marriage Act, 1955. Section 19 of the Act reads as follows: “19. Court to which petition shall be presented:- Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction- (i) the marriage was solemnised, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or] (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.” Thus a perusal of Section 19 would show that the petition under the Act is to be presented before the District Court/Family Court within the local limits of which the marriage was solemnised or the respondent resides or the parties last resided together. By virtue of amendment inserted on 23.12.2003 it is provided that when the wife is the petitioner, the petition can be filed at the place where she resides on the date of presentation of the petition. This, apparently, is a provision for the benefit of the wife. Further more the Section also deals with the situation where the respondent is residing outside the territories to which the Act extends or when the respondent has not been heard of as being alive for a period of 7 years or more by those persons who would naturally have heard of him if he were alive. 4. The petition filed by the appellant is on the basis that the parties last resided together within the jurisdiction of the Family Court, Kottarakkara. This is clearly permissible having regard to Clause (iii) of Section 19 of the Act. It is also true that the petition could have been filed before the Family Court at Kottayam being the place where the respondent resides. But the fact that the petition could have been filed at Kottayam under Clause (ii) does not have the effect of the right given to a party to invoke Section 19 (iii) being taken away. 5. We are completely unimpressed by the reasoning that since D.V.(M.C.) is pending before the Family Court, Kottayam, the case ought to have been filed where the wife presently resides .We feel that the Family Court has acted illegally in rejecting the O.P. for want of jurisdiction to entertain the same. Neither the fact that the wife is presently residing at Kottayam nor that the marriage was solemnised at Kottayam could have persuaded the court to hold that the petition which was filed on the basis that the parties have last resided together within the jurisdiction of the Family Court, Kottarakkara is not maintainable having regard to the provisions contained in Section 19(1)(3) of the Act. 6. Section 21A of the Hindu Marriage Act reads as follows: “21A. 6. Section 21A of the Hindu Marriage Act reads as follows: “21A. Power to transfer petitions in certain cases- (1) Where- (a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial seperation under Section 10 or for a decree of divorce under Section 13: and (b) another petition under this Act has been presented thereafter by the other party to the marriage praying for decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a difference district court, in the same state or in a different state, the petitions shall be dealt with as specified in sub-section (2). 1. In a case where sub-section (1) applies:- (a) If the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court; (b) If the petition are presented to different courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented. (3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district Court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said code.” 7. No doubt, the Family Court has also not apparently restored to the power under Section 21A of the Act, as it deals with the powers to transfer inter-alia under Section 21A(3). D.V.(M.C.)No. 10 of 2010 cannot be treated as a petition filed under the Hindu Marriage Act. Also the learned counsel for the petitioner points out that subsequent to the filing of the petition which culminated in the impugned order, the wife has filed a petition for restitution of conjugal rights before the Family Court, Kottayam at Ettumanoor. D.V.(M.C.)No. 10 of 2010 cannot be treated as a petition filed under the Hindu Marriage Act. Also the learned counsel for the petitioner points out that subsequent to the filing of the petition which culminated in the impugned order, the wife has filed a petition for restitution of conjugal rights before the Family Court, Kottayam at Ettumanoor. The original petition filed was not numbered on the basis of the illegal stand of the Court. 8. We find merit in the contention of the petitioner. The petitioner has made out a case for interference. We cannot sustain the impugned order. Accordingly we set aside the impugned order and direct the Family Court, Kottarakkara to number the O.P. filed by the appellant/petitioner, unless there is any other defect and proceed with the same as per law. Learned counsel for the respondent would point out that according to the petitioner the respondent is a person of under developed mind and therefore seeking permission to appoint a guardian for the said person is indispensable. We are not pronouncing on that issue and certainly that is a question to be considered by the Family Court in accordance with law. The Mat. Appeal is disposed of as above.