IN THE HIGH COURT OF KERALA AT ERNAKULAM
Tr.Appeal(C).No. 7 of 2009()
1. MATHAI JOSEPH ALIAS JOSEPH,
... Petitioner
Vs
1. MARYKUTTY JOSEPH,AGED 46 YEARS,
... Respondent
For Petitioner :SRI.JOICE GEORGE
For Respondent :SRI.S.JAMES VINCENT
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :27/05/2009
O R D E R
P.R. RAMAN & P. BHAVADASAN, JJ.
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TR. APPEAL NOS. 7 & 8 OF 2009
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DATED THIS, THE 27TH DAY OF MAY, 2009.
J U D G M E N T
Raman, J.
Matrimonial disputes between the parties were pending before two
courts. The divorce petition filed by the husband was pending before the
Family Court, Thodupuhza whereas a petition for return of the money and
gold ornaments filed by the wife was pending before the Family Court,
Ettumanoor. Both of them filed transfer petitions. While the husband
sought transfer of the case filed by the wife to the court where his divorce
petition is pending, the wife sought transfer of the petition filed by the
husband for divorce to the same court where she had applied for return of
gold ornaments etc.
2. The main contention raised in the appeal memorandum is that the
transfer petition filed by the wife is not maintainable under Section 24 of the
Code of Civil Procedure. The appellant contends that a transfer can be
made of a proceeding only to a court competent to try or dispose of the
same. According to him, in so far as the divorce petition is concerned, it has
TR. APPEALS 7 & 8/2009 :2:
to be filed and tried only by a court having jurisdiction in terms of Section 3
(3) of the Divorce Act. According to him, as per Section 3(3) of the
Divorce Act, the competent court is the District Court. The “District Court”
means, in the case of any petition under the Act the Court of the District
Judge within the local limits of whose ordinary jurisdiction or of whose
jurisdiction the marriage was solemnized or the husband and wife reside or
last resided together. Therefore, according to him, the marriage having
solemnised within the local limits of the District Court, at Thodupuzha and
also that the husband and wife resided together last with the local limits of
the jurisdiction of that court and within the local limits of jurisdiction of the
District Court, Thodupuzha, the only court competent to try the divorce
petition is the District Court at Thodupuzha.
3. Per contra, it is contended by the learned counsel for the
respondent that the word ‘competent’ as stipulated in the section does not
mean territorial jurisdiction and as per Section 15 of the Code it is required
that the institution of the suit shall be in the court of the lowest grade
competent to try the same . According to him, the word “competent”
referred to in Section 24 cannot be understood in the same manner as having
jurisdiction to try the suit and it can not be meant that the transfer court
should also have jurisdiction within the manner of Section 3(3) of the
TR. APPEALS 7 & 8/2009 :3:
Divorce Act. Otherwise the very object and purpose of the transfer will be
defeated.
4. For the limited purpose of deciding this case, it may not be
necessary to decide as to what the word “competent” referred to in the
section means. Section 8 of the Divorce Act itself provides a specific
power of transfer to the High Court as per which the High Court can
withdraw any suit or proceeding and transfer it for trial or disposal to the
court of any other such District Judge. Thus the very same statute
empowers the High Court to transfer a case to any other such District Judge.
If that be so, it cannot be said that the transfer court should also have the
pecuniary jurisdiction in terms of Section 3(3) of the Act. In the above
view, we find no reason to interfere with the order passed by the learned
Single Judge.
Accordingly, both the transfer appeals are dismissed.
P.R. RAMAN, JUDGE.
P. BHAVADASAN, JUDGE.
KNC/-