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