High Court Kerala High Court

Susan Samuel vs Oommen Mathew on 26 February, 2009

Kerala High Court
Susan Samuel vs Oommen Mathew on 26 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 1913 of 2009(S)


1. SUSAN SAMUEL, D/O.MR. P.S. SAMUEL,
                      ...  Petitioner

                        Vs



1. OOMMEN MATHEW, S/O.MR. A.M. MATHEW
                       ...       Respondent

                For Petitioner  :SRI.V.V.NANDAGOPAL NAMBIAR

                For Respondent  :SRI.S.SUBHASH CHAND

The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :26/02/2009

 O R D E R
              P.R.RAMAN & P.S.GOPINATHAN, JJ.

                     -------------------------------

                      W.P.(C) No.1913 of 2009

                     -------------------------------

                 Dated this the 26th February, 2009

                           J U D G M E N T

Raman, J.

Petitioner who is the wife has initiated proceedings

for getting a decree of divorce under the Divorce Act before the

Principal Family Court, Bangalore, as M.C.No.2687 of 2006,

Ext.P1 produced in the case. At the same time, the respondent

herein, also filed a petition for divorce, O.P.(Div) No.652 of 2007,

before the Family Court, Thiruvalla, Ext.P2 in this case, though

later in point of time. Hence, the petitioner moved the Family

Court, Thiruvalla, under Section 10 of the Civil Procedure Code,

where the latter proceedings was filed, for a stay of further

proceedings, in view of the matter pending before the Family

Court, Bangalore, as per Ext.P3. By the impugned order under

challenge, Family Court, Thiruvalla, held that the Family Court at

Bangalore has no jurisdiction to entertain the dispute in question

and refused to stay the further proceedings pending before the

W.P.(C) No.1913 of 2009

2

Family Court, Thiruvalla. The petitioner challenges the

correctness of the order passed by the Family Court, Thiruvalla,

in this writ petition.

2. Sri.V.V.Nandagopal Nambiar, the learned

counsel appearing on behalf of the petitioner submits that as per

Section 7 of the Family Court Act, Bangalore Court, where the

proceedings have been initiated by his client is fully competent

to entertain the same. According to him, the nature of the

dispute will squarely come under Section 7 of the Family Courts

Act (hereinafter referred to as ‘the Act’ for short).

3. It is true that the nature of the relief to be

granted in the proceeding is a decree for divorce and necessarily,

the Family Court is the competent forum for getting such a relief.

Therefore, the question is not whether the Family Court has

jurisdiction or not, but the question is which Family Court is

having jurisdiction. As per Section 7, the jurisdiction of a

District Court in respect of matters which could be filed before it

is with reference to the various nature of the disputes mentioned

W.P.(C) No.1913 of 2009

3

in the explanation to Section 7. If the Family Court was not

constituted, it must be the District Court which has to entertain

the dispute, and that will depend upon the provisions under which

the reliefs are claimed.

4. Admittedly, the petitioner has filed the petition

seeking divorce under Section 10 of the Divorce Act. As per

Section 10 of the Divorce Act, any marriage solemnized, whether

before or after the commencement of the Indian Divorce

(Amendment) Act, 2001, may, on a petition presented to the

District Court, either by the husband or the wife, be dissolved on

the various grounds mentioned thereunder. The word ‘District

Court’ defined under Section 3 of the Divorce Act, means, in the

case of any petition under this Act, the Court of the District Judge

within the local limits of whose ordinary jurisdiction, (or of whose

jurisdiction under this Act, the marriage was solemnised or) the

husband and wife reside or last resided together. Therefore, the

competent District Court to entertain a dispute under Section 10

of the Divorce Act would be the District Court within whose area

W.P.(C) No.1913 of 2009

4

of jurisdiction the marriage has taken place. Admittedly, in this

case, the marriage was solemnised at Thiruvalla. The husband is

now working abroad, though his permanent residence is at

Thiruvalla, the wife is employed at Bangalore, and both of them

are neither the residents of Bangalore nor resided together at

Bangalore. Hence, the Family Court, Bangalore, has no

jurisdiction in the matter.

5. In order to stay the latter proceedings under

Section 10 of the Divorce Act, the earlier proceedings must be

pending before a court having jurisdiction. Necessarily, when an

application is made to the latter court, where the subsequent

proceedings are filed, it will have to consider whether the earlier

proceedings are under the court of competent jurisdiction.

Therefore, there is nothing wrong in the order of the Family

Court, Thiruvalla, dismissing the application for stay, having

found that the Bangalore Court, where the earlier proceedings

are initiated by the petitioner herein, has no jurisdiction. In such

W.P.(C) No.1913 of 2009

5

circumstances, we find no merit in the writ petition. Accordingly,

the writ petition is dismissed.

P.R.RAMAN, JUDGE

P.S.GOPINATHAN, JUDGE.

nj.