Mukesh Babu v. Methil Devika

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 O.P.(FC) NO. 649 OF 2022** **AGAINST THE ORDER DATED 14.09.2022 IN O.P.NO.1176 OF 2021 ON THE FILE OF THE FAMILY COURT, PALAKKAD PETITIONER:** ## **MUKESH BABU** **AGED 64 YEARS, SON OF MADHAVAN, KIZHAKKEVEEDU, VADAKKEVILA P.O., KOLLAM - 691010 PRESENTLY STAYING AT 95-1119, MADHAVAM, DALAVAKUNNU, BOAT HOUSE ROAD, POTHUJANAM LANE, KUMARAPURAM, THIRUVANANTHPURAM, PIN – 695011.** **BY ADVS. GEO PAUL RADHIKA RAJASEKHARAN P. C.R.PRAMOD S.ASHOK KUMAR. JACOB GEORGE PALLATH NAVEEN T.U. SOHAIL AHAMMED HARRIS P.P.** ## **RESPONDENT:** **METHIL DEVIKA, AGED 45 YEARS, D/O N RAJAGOPALAN, RAKENDU, RAMANATHPURAM, PALAKKAD HEAD POST OFFICE, PALAKKAD 678001 PRESENTLY RESIDING AT 95/1119, MADHAVAM, DHALAVAKUNNU BOAT HOUSE ROAD, POTHUJANAM LANE, KUMARAPURAM, THIRUVANANTHAPURAM, PIN – 695011.** **BY ADV G.SREEKUMAR (CHELUR)** 2 O.P.(FC) No.649 of 2022 **THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL HEARING ON 06.03.2023, THE COURT ON 20.03.2023 DELIVERED THE FOLLOWING:** 3 O.P.(FC) No.649 of 2022 ## **JUDGMENT** ## P.G.Ajithkumar, J. The respondent in O.P.No.1176 of 2021 on the file of the Family Court, Palakkad has filed this Original Petition under Article 227 of the Constitution of India. He challenges Ext.P4 order by which the Family Court overruled the objection raised by him that the Family Court, Palakkad does not have jurisdiction to entertain O.P.No.1176 of 2021. 2. On 23.11.2022, notice on admission was directed to be served on the respondent. The respondent entered appearance through her learned counsel. On 20.12.2022, an interim order staying the proceedings in O.P.No.1176 of 2021 was granted for a period of three weeks. The interim order was extended from time to time. 3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 4. O.P.No.1176 of 2021 was filed by the respondent seeking a decree of dissolution of marriage. Ext.P1 is a copy of the said original petition. The respondent filed O.P.No.1176 of 2021 before the Family Court, Palakkad inferring 4 ## O.P.(FC) No.649 of 2022 jurisdiction to that court since she permanently resides at Palakkad. The petitioner contended that since the respondent was not residing at Palakkad at the time of presentation of the petition, the Family Court, Palakkad does not have jurisdiction to entertain the petition. The Family Court took the view that the words “is residing” occurring in clause (iiia) of sub-section (1) of Section 31 of the Special Marriage Act, 1954 needs to be assigned a wider meaning and therefore, permanent residence of the respondent at Palakkad is enough to confer jurisdiction on the Family Court, Palakkad. Accordingly, the objection of the petitioner was turned down. 5. The learned counsel appearing for the petitioner would submit that such a view is _per se_ incorrect, since the words of clause (iiia) of sub-section (1) of the Section 31 of the Special Marriage Act can never convey such a meaning, howsoever stretched the words therein. It is also submitted that the principle laid down by the Apex Court in **Jeewanti** ## **Pandey v. Kishan Chandra Pandey [(1981) 4 SCC 517]** was incorrectly applied to the facts of this case, resulting in rendering of a wrong decision. 5 ## O.P.(FC) No.649 of 2022 6. The learned counsel appearing for the respondent, on the other hand, would submit that clause (iiia) of subsection (1) of Section 31 of the Special Marriage Act was inserted by an amendment in 2003 to facilitate wives to present petitions under the Act at their convenience. As per the provisions originally contained in Section 31, a petition under Chapter V or Chapter VI of the Special Marriage Act should be filed at the places where the marriage was solemnised, the respondent has been residing or the parties to the marriage last resided together. By inserting clause (iiia) the wife, who is filing a petition, is entitled to file it where she is residing on the date of presentation of the petition. When such a beneficial provision is inserted, it has to be interpreted in such a way as to enable the wife to file the petition at her convenience. For that, a liberal interpretation, to the extent the provision allows, has to be adopted. Fundamental purpose of interpretation is to understand the intention of the Legislature for enacting a provision. Under the guise of a liberal interpretation one cannot attribute meaning to a provision, which never match with the legislative intention for 6 ## O.P.(FC) No.649 of 2022 enacting such a provision. Clause (iiia) of sub-section (1) of Section 31 of the Special Marriage Act reads,- - “(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petitioner.” 7. The Apex Court in **Jeewanti Pandey** (supra) has interpreted the meaning of clause (ii) of Section 19 of the Hindu Marriage Act, 1955. Section 19 relates to the territorial jurisdiction of the District Court to entertain petitions under the said Act. Clause (ii) reads, “the respondent, at the time of presentation of the petition, resides”. The Apex Court interpreted the word ‘resides’ as follows:- “13. It is plain in the context of clause (ii) of Section 19 of the Act, that the word 'resides' must mean the actual place of residence and not a legal or constructive residence; it certainly does not connote the place of origin. The word 'resides' is a flexible one and has many shades of meaning, but it must take its colour and content from the context in which it appears and cannot be read in isolation. It follows that it was the actual residence of the appellant, at the commencement of the proceedings, that had to be considered for determining whether the District Judge, Almora, had jurisdiction or not. That being so, the High Court was clearly in error 7 ## O.P.(FC) No.649 of 2022 in upholding the finding of the learned District Judge that he had jurisdiction to entertain and try the petition for annulment of marriage filed by the respondent under Section 12 of the Act.” 8. Clause (ii) of Section 19 of the Hindu Marriage Act is differently worded, whereas clause (iiia) of Section 19 of the Hindu Marriage Act and clause (iiia) in sub-section (1) of Section 31 of Special Marriage Act are _pari materia._ Both were inserted by the same Amendment Act. As against ‘resides’ in clause (ii), “is residing” is used in clause (iiia). When the present continuous tense is used in clause (iiia), the time has become more specific and precise. An expansive meaning that can be given to the word ‘resides’ cannot be assigned to the words “is residing”. When the provision says that the place where the petitioner-wife “is residing” on the date of presentation of the petition, it exemplifies that the place is the actual and ordinary place of residence of the petitioner at the time of presentation of the petition. This provision cannot admit an interpretation to mean thereby the place of permanent residence, where the petitioner is not actually residing. Applying the principle laid down by the Apex Court in 8 O.P.(FC) No.649 of 2022 **Jeewanti Pandey** (supra) also, such a meaning alone can be ascribed to the provisions of clause (iiia) of sub-section (1) of Section 31 of the Special Marriage Act. 9. Indisputably, clause (i), (ii), (iii) or (iv) of Section 31(1) of the Special Marriage Act does not apply to this case. Only if it is shown that the respondent was residing on the date of presentation of the petition at Palakkad, the Family Court at Palakkad has jurisdiction to entertain O.P.No.1176 of 2021. Going by the pleadings in Ext.P1, the only overt act to infer that the place of residence of the respondent is Palakkad is the assertion in paragraph No.14 of the petition. It says that she “permanently resides” at Palakkad. Of course, in the cause title, her address is shown as at Palakkad also. It is beyond dispute that the respondent is a native of Palakkad and her permanent residence is at Palakkad. But nowhere in Ext.P1 it is not stated that she was actually residing at Palakkad at the time of presentation of the petition. Therefore, we are of the view that the Family Court went wrong in holding that that court has jurisdiction to entertain O.P.No.1176 of 2021. The Family Court drew analogy of the 9 ## O.P.(FC) No.649 of 2022 provisions of Section 31(1)(iiia) of the Special Marriage Act with Section 27(1)(a) of the Protection of Women from Domestic Violence Act, 2005, which in our view is incorrect. Section 27(1)(a) of the Domestic Violence Act qualifies the word ‘resides’ by permanently or temporarily; whereas clause (iiia) of Section 31(1) is more restrictive by using “is residing”, which conveys a meaning that the wife actually resides at that point of time. The said difference in fact points to the restrictive meaning of the provisions contained in clause (iiia) of Section 31(1) of the Special Marriage Act. 10. The learned counsel appearing for the respondent would submit that Ext.P4 being an order of the Family Court regarding territorial jurisdiction of the Court rendered after considering all the relevant materials, this Court, invoking the provisions of Article 227 of the Constitution of India, cannot interfere with it as in the case of an appeal. 11. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals 10 ## O.P.(FC) No.649 of 2022 throughout the territories in relation to which it exercises jurisdiction. 12. In **Shalini Shyam Shetty v. Rajendra Shankar** **Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 13. In **Jai Singh v. Municipal Corporation of Delhi** **[(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all 11 O.P.(FC) No.649 of 2022 subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 14. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 12 O.P.(FC) No.649 of 2022 15. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1)** **KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 16. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. But the supervisory jurisdiction can certainly be exercised to correct patent error in the order or judgment of a lower court or tribunal. We held above that by giving a wrong interpretation to clause (iiia) to Section 31(1) of the 13 O.P.(FC) No.649 of 2022 Special Marriage Act, the Family Court had inferred jurisdiction to that court. Ext.P4 order therefore is incorrect and does not sustain in law. It is liable to be set aside. 18. This original petition is allowed. Ext.P4 dated 14.09.2022 in O.P.No.1176 of 2021 is set aside. The Family Court, Palakkad has no territorial jurisdiction to try O.P.No.1176 of 2021. Hence the Family Court, Palakkad is directed to return it to the respondent for presentation before the proper court. **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** dkr 14 O.P.(FC) No.649 of 2022 ## **APPENDIX OF OP (FC) 649/2022** ## **PETITIONER EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE OP 1176/2021 FILED BY THE RESPONDENT AT THE FAMILY COURT AT PALAKKAD** - **EXHIBIT P2 TRUE COPY OF THE PRELIMINARY OBJECTION FILED BY THE PETITIONER HEREIN IN OP 1176/2021 AT THE FAMILY COURT AT PALAKKAD** - **EXHIBIT P3 TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT** - **EXHIBIT P4 CERTIFIED COPY OF THE ORDER OF THE HONOURABLE FAMILY COURT AT PALAKKAD IN OP 1176/2021 DATED 14-09-2022** - **EXHIBIT P5 TRUE COPY OF THE NOTICE SENT BY THE RESPONDENT TO THE PETITIONER** ## **RESPONDENT EXHIBITS** - **EXHIBIT R1 B TRUE COPY OF THE ADHAAR CARD DATED NIL EXHIBIT R1 A A TRUE COPY OF THE PASSPORT ISSUED ON 02.05.2018** - **EXHIBIT R1 C A TRUE COPY OF THE SCHOOL IDENTITY CARD OF THE SON OF THE RESPONDENT DATED NIL 5-12-22** - **EXHIBIT R1 E A TRUE COPY OF THE TAX RECEIPT ON THE PROPERTY IN PALAKKAD 13-12-2022** - **EXHIBIT R1 D A TRUE COPY OF THE REGISTRATION DOCUMENT OF THE DANCE SCHOOL PROPERTY IN PALAKKAD DATED 28-7-2011 WITH TYPED COPY** 15 O.P.(FC) No.649 of 2022 **EXHIBIT R1 F** **A TRUE COPY OF THE DESIGNER BUILDER MEDIA REPORT OF THE DANCE SCHOOL PROPERTY IN PALAKKAD PUBLISHED IN 144-2012 WITH TYPED COPY.**