Renny Elizabeth Oommen v. Amrutha Raj Baby

## **`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 19[TH] DAY OF DECEMBER 2022/28TH AGRAHAYANA, 1944 ``` ``` O.P.(FC)NO.59OF 2022 ``` ``` AGAINST THE ORDER DATED 03.01.2022 IN O.P.(DIV)NO.1434 OF ``` ``` 2020 OF FAMILY COURT, MAVELIKKARA ``` ``` PETITIONER: ``` ``` RENNY ELIZAABETH UMMAN, AGED 32 YEARS W/O. AMRUTHARAJ BABY, KOTTUVILAYIL HOUSE, ERAMATHOOR P.O., THRIPPERUNTHURA VILLAGE, CHENNITHALA, THRIPPERUNTHURA PANCHAYAT, MAVELIKKARA TALUK, MANNAR,ALAPPUZHA DISTRICT-689622. ``` ``` BY ADVS. JOHN K.GEORGE M.A.PRABHU ``` ## **`RESPONDENT:`** ``` AMRUTHA RAJ BABY, AGED 39 YEARS S/O. RAJAN VARGHESE, MELETHIL, THATTAYIL P.O., KEERUKUZHY, PATHANAMTHITTA DISTRICT, PIN - 691525. ``` ``` PARTY-IN-PERSON ``` ``` BY ADVS. PHILIP M.VARUGHESE MATHEWS JOSEPH CHACKO MATHEWS K. AISWARIA DEVI R. ``` ``` THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON ``` ``` 19.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 O.P.(FC) No.59 of 2022 ## **‘CR’** ## **JUDGMENT** Anil K. Narendran, J. The petitioner filed O.P.(Div)No.1434 of 2020 before the Family Court, Mavelikkara (Ext.P1), which is one filed against the respondent herein-husband, seeking a decree of divorce under Section 10 of the Divorce Act, 1869, to dissolve the marriage solemnised between the parties on 23.04.2018 at St.Mary’s Cathedral Church, Thumbaman. On receipt of the notice, the respondent entered appearance and filed I.A.No.2 of 2021 (Ext.P2) to return O.P.(Div)No.1434 of 2020 for presentation before the proper court. In that interlocutory application, the petitioner filed objection dated 04.10.2021 (Ext.P3). After considering the rival contentions, the Family Court passed Ext.P4 order dated 03.01.2022, whereby O.P.(Div)No.1434 of 2020 is returned for presentation before the proper court. The reasoning of the Family Court, as contained in the 3[rd] paragraph of Ext.P4 order reads thus; “3) Admittedly the marriage was beyond the jurisdiction of this court. It is also admitted that they lived together as husband and wife in the house of the respondent which 3 O.P.(FC) No.59 of 2022 is also beyond the jurisdiction of this court. Now in the counter statement to I.A.No.2 of 2021, the petitioner raised à contention that before she was deserted the petitioner and the respondent lived together in the house of the petitioner, which is within the jurisdiction of this court. Hence this court has jurisdiction to enter this petition. But there is no whisper in the original petition that the petitioner and the respondent lived together in the house of the petitioner at any point of time. The only allegation was that the respondent left the petitioner in her parent's house situated at Chennithala, which is within the jurisdiction of this court, on 09.07.2020. There is no allegation that the petitioner and the respondent lived together in this house before 09.07.2020. The jurisdiction of a court to entertain a case is to be determined based on the allegations in the petition. There is no averment or allegation in the petition that the petitioner and the respondent lived together as husband and wife in Chennithala. Therefore, this court would not get jurisdiction to try the case as per Section 3(iii) [sic: Section 3(3)] read with Section 10 of the Divorce Act, 1869. Therefore, this petition is liable to be returned. The petitioner may file an application, if any, under Order VII Rule 10A of the Code of Civil Procedure, 1908 within a period of three days from today.” 2. Feeling aggrieved by Ext.P4 order dated 03.01.2022 of the Family Court in I.A.No.2 of 2021 in O.P.(Div)No.1434 of 2020, the petitioner-wife is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 4 O.P.(FC) No.59 of 2022 3. On 02.02.2022, when this original petition came up for admission, this Court admitted the matter on file and issued urgent notice to the respondent by speed post. 4. The respondent has filed a counter affidavit, opposing the reliefs sought for in this original petition. The document marked as Ext.R1(a) is a true copy of the judgment of the Family Court dated 07.01.2022 in O.P.(Div)No.1434 of 2020, which reads thus; “This petition filed under Section 10 Divorce Act by Smt.Renni Elizabeth Oommen for divorce through Adv.Dr.Prabhu Mathew on 31.12.2020. The case was directed to be returned to petitioner for presentation before the proper court on this day 07.01.2022.” 5. Heard the learned counsel for the petitioner-wife and the respondent-husband, who appeared in person. 6. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P4 order dated 03.01.2022 of the Family Court in I.A.No.2 of 2021 in O.P.(Div)No.1434 of 2020, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 7. O.P.(Div)No.1434 of 2020 is one filed by the petitioner-wife, against the respondent-husband seeking a 5 O.P.(FC) No.59 of 2022 decree of divorce under Section 10 of the Divorce Act, 1869, to dissolve the marriage solemnised between the parties on 23.04.2018 at St.Mary’s Cathedral Church, Thumbaman in Pathanamthitta District. 8. Clause (3) of Section 3 of the Divorce Act, 1869 defines the term ‘District Court’ to mean, in the case of any petition under the said 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. As per Section 10 of the Act, any marriage solemnised, 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 grounds enumerated under clauses (i) to (x) of sub-section (1). 9. In view of the provisions under clause (iiia) of sub-section (1) of Section 19 of the Hindu Marriage Act, 1955 and clause (iiia) of sub-section (1) of Section 31 of the Special Marriage Act, 1954, inserted by the Marriage Laws (Amendment) Act, 2003 (Act 50 of 2003), with effect from 6 O.P.(FC) No.59 of 2022 23.12.2003, a petition for divorce under the provisions of the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954 shall be presented, in case the wife is the petitioner, to the District Court within the local limits of whose ordinary original civil jurisdiction where she is residing on the date of presentation of the petition. In the absence of a similar provision in the Divorce Act, 1869 a petition for divorce under the said Act shall be presented only to the court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under the said Act the marriage was solemnised or the husband and wife reside or last resided together. 10. The learned counsel for the petitioner would place reliance on the provisions under Section 7 of the Family Courts Act, 1984, which deals with the jurisdiction of the Family Court, and also the decision of this Court in **Denny Antony v. Marykutty Abraham [2007 (1) KLT 776]** . 11. In view of the provisions under clause (a) of subsection (1) of Section 7, read with clause (a) to the Explanation, subject to the other provisions of the Act, a 7 O.P.(FC) No.59 of 2022 Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any subordinate civil court under any law for the time being in force in respect of a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage. In view of the provisions under clause (a) of sub-section (2) of Section 7, subject to the other provisions of the said Act, a Family Court shall also have and exercise the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Criminal Procedure Code, 1973. 12. In **Denny Antony [2007 (1) KLT 776]** a learned Single Judge of this Court held that sub-section (2) of Section 7 of the Family Courts Act, 1984 enables the wife (respondent therein) to make an application for maintenance as provided under Section 125 of the Criminal Procedure Code, 1973 before the Family Court at Thiruvalla, where she is presently residing. Explanation to sub-section 8 O.P.(FC) No.59 of 2022 (1) of Section 7 of the Act unambiguously shows that a Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any subordinate civil court under any law for the time being in force, in respect of a suit or proceeding between the parties to a marriage for restitution of conjugal rights, judicial separation, dissolution of marriage, etc. or a suit or proceeding for maintenance or in respect of the properties of the parties or of either of them. In the said decision, the respondent-wife was residing at Thiruvalla, within the territorial limits of the Family Court at Thiruvalla. Therefore, the learned Single Judge held that the respondent-wife can maintain a suit or proceedings against her husband for return of the money paid to him at the time of marriage, before the Family Court at Thiruvalla, since she is residing within the territorial limits of that Family Court. In that view of the matter, the learned Single Judge rejected the contention of the petitioner-husband, that the Family Court at Thiruvalla does not have jurisdiction to maintain the two petitions filed before it by the respondent-wife. 9 O.P.(FC) No.59 of 2022 13. Section 126 of the Criminal Procedure Code deals with the procedure for the proceedings under Section 125. As per sub-section (1) of Section 125 of the Code, proceedings under Section 125 may be taken against any person in any district where he is, or where he or his wife resides, or where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. Therefore, as rightly held by the learned Single Judge in **Denny Antony [2007 (1) KLT 776]** , sub-section (2) of Section 7 of the Family Courts Act enables the respondentwife (respondent therein) to make an application for maintenance as provided under Section 125 of the Criminal Procedure Code, before the Family Court in the district where she is presently residing. 14. In **Denny Antony [2007 (1) KLT 776]** , the learned Single Judge held that, since the respondent-wife is residing at Thiruvalla, within the territorial limits of the Family Court at Thiruvalla, she can maintain a suit or proceedings for return of money paid to the petitionerhusband at the time of marriage, before the Family Court at Thiruvalla. 10 O.P.(FC) No.59 of 2022 15. The provisions under Section 20 of the Code of Civil Procedure, 1908 governs the place of institution of such a suit or proceedings for recovery of money, which has to be instituted by the wife within the territorial limits of the Family Court where her husband at the time of commencement of the suit or proceedings actually and voluntarily resides or the cause of action, wholly or in part, arises. Therefore, the proposition of law by the learned Single Judge in **Denny Antony [2007 (1) KLT 776]** that, the wife can maintain a suit or proceedings for return of money paid to her husband at the time of marriage, before the Family Court within the territorial limits of which she is residing at the time of initiation of such suit or proceedings, is not the correct position of law, and the same is hereby overruled. Since Section 20 of the Code of Civil Procedure governs the place of institution of such a suit or proceedings, it has to be instituted within the territorial limits of the Family Court where her husband at the time of commencement of the suit or proceedings actually and voluntarily resides or cause of action, wholly or in part, arises. 11 O.P.(FC) No.59 of 2022 16. In the instant case, admittedly the marriage between the petitioner and the respondent was solemnised at St.Mary’s Cathedral Church, Thumbaman in Pathanamthitta District, which is beyond the jurisdiction of the Family Court, Mavelikkara in Alappuzha District. They lived together as husband and wife in the house of the respondent-husband in Pathanamthitta District, which is also beyond the jurisdiction of the Family Court, Mavelikkara. Though in the counter filed to I.A.No.2 of 2021, the petitioner-wife raised a contention that before she was deserted, the husband and wife lived together in her house at Mavelikkara in Alappuzha District, which is within the jurisdiction of the Family Court, Mavelikkara, there is no whisper in the original petition that they lived together at her house, at any point of time. The only allegation in the original petition is that the respondent-husband left the petitioner-wife in her parent's house situated at Chennithala, on 09.07.2020, which is within the jurisdiction of the Family Court, Mavelikkara. There is no allegation that they lived together in that house before 09.07.2020. 12 O.P.(FC) No.59 of 2022 17. In view of the provisions under clause (3) of Section 3 of the Divorce Act, 1869, a petition for divorce under Section 10 of the said Act can be presented only before the Family Court 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. In the absence of a provision similar to clause (iiia) of sub-section (1) of Section 19 of the Hindu Marriage Act, 1955 and clause (iiia) of sub-section (1) of Section 31 of the Special Marriage Act, 1954, a petition for divorce under Section 10 of the Divorce Act, 1869 shall be presented only to the court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under the said Act the marriage was solemnised or the husband and wife reside or last resided together. It cannot be presented, in case the wife is the petitioner, to the Family Court within the local limits of whose ordinary original civil jurisdiction where she is residing on the date of presentation of the petition. Since there is no averment or allegation O.P.(Div.)No.1434 of 2020 that the parties lived together as 13 O.P.(FC) No.59 of 2022 husband and wife in the house at Chennithala, the reasoning of the Family Court, Mavelikkara in Ext.P4 order in I.A.No.2 of 2021 in O.P.(Div)No.1434 of 2020 that it has no jurisdiction to try the case, in view of the provisions under clause (3) of Section 3 read with Section 10 of the Divorce Act, 1869 is perfectly legal, which warrants no interference in this original petition. In the above circumstances, this original petition fails and the same is accordingly, dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** bkn/- 14 ## O.P.(FC) No.59 of 2022 ## **`APPENDIX OF OP (FC) 59/2022`** ## **`PETITIONER EXHIBITS`** |**`Exhibit P1`**|**`A TRUE COPY OF THE ORIGINAL PETITION`**| |---|---| ||**`FILED UNDER SECTION 7 OF THE FAMILY`**| ||**`COURT ACT BEFORE THE FAMILY COURT,`**| ||**`MAVELIKKARA DATED 30/12/2020.`**| |**`Exhibit P2`**|**`A TRUE COPY OF THE AFFIDAVIT ALONG WITH`**| ||**`THE PETITION DATED 02/08/2021 SUBMITTED`**| ||**`BY THE RESPONDENT BEFORE FAMILY COURT,`**| ||**`MAVELIKKARA.`**| |**`Exhibit P3`**|**`A TRUE COPY OF THE OBJECTION DATED`**| ||**`04/10/2021 SUBMITTED BY THE PETITIONER.`**| |**`Exhibit P4`**|**`A TRUE COPY OF THE ORDER PASSED BY THE`**| ||**`FAMILY COURT, MAVELIKKARA, DATED`**| ||**`03/01/2020.`**|