## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE K.HARILAL**
## **&**
**THE HONOURABLE MRS. JUSTICE ANNIE JOHN**
**WEDNESDAY, THE 13TH DAY OF MARCH 2019 / 22ND PHALGUNA, 1940**
**Mat.Appeal.No. 202 of 2019**
**AGAINST THE ORDER IN I.A.NO.871/2018 IN OP 8/2018 of FAMILY COURT, ALAPPUZHA**
## **APPELLANT/ RESPONDENT/ PETITIONER :**
**SEETHU THANKACHAN, AGED 23 YEARS, MANNARAMBIL HOUSE, ERUTTUKATHAM, IDUKKI, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, SINDHU THANKACHAN, MANNAMPARAMBIL HOUSE, AMBAZHACHAL, THOKKUPARA, VELLATHUVAL, IDUKKI DISTRICT, KERALA STATE.**
**BY ADV. SRI.A.K.HARIDAS**
## **RESPONDENT/ PETITIONER/ RESPONDENT :**
**JUSTIN.K.JACOB, KURISINKAL, PATHIRAPPALLY, ALAPPUZHA.**
**BY ADV. SMT.GISA SUSAN THOMAS**
**THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 13.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## JUDGMENT
## K.Harilal, J.
The appellant herein is the wife of the respondent. Now the marital relationship has become strained and they are residing separately. The respondent/ husband herein preferred OP.No.8/2018 before the Family Court, Alappuzha seeking a decree dissolving the marriage between the petitioner and the respondent. The appellant herein filed IA.No.146/2019 challenging the territorial jurisdiction of the Family Court, Alappuzha to entertain and try the aforesaid original petition. The original petition has been filed with the averment that the spouses residing together lastly at Alappuzha, within the jurisdiction of the Family Court, Alappuzha. In the aforesaid interlocutory application, the
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appellant herein contended that she never lived along with her husband, the respondent herein at Alappuzha and the proper Court to decide the dispute is the Family Court at Thodupuzha in Idukki District. After considering the rival pleadings, the Family Court, Alappuzha dismissed the said Interlocutory Application on a finding that, at this stage there is no material to come to a conclusive finding that the court lacks original jurisdiction to try the original petition. The legality and correctness of the aforesaid findings are challenged in this appeal.
2. Heard the learned counsel for the appellant and the learned counsel for the respondent.
3. The learned counsel for the appellant advanced arguments highlighting the contentions raised in the objection raised in the Family Court. According to
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the appellant, she never resided in the house of the petitioner at Alappuzha. Therefore, the Family Court, Alappuzha has no jurisdiction to entertain and try the present original petition. Besides, the learned counsel for the appellant contended that the respondent has not domiciled in India at the time when the original petition was presented before the Family Court. Therefore, in view of Section 2 of the Indian Divorce Act, the court cannot pass a decree dissolving the marriage under the provisions of the Divorce Act, 1869.
4. Per contra, the learned counsel for the respondent advanced arguments challenging the maintainability of the appeal itself. According to the learned counsel, the order under challenge is an order passed on an interlocutory application. Therefore, the
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impugned order is not an appealable order before this Court in view of Section 19 of the Family Court Act. Further, it is contended that in the original petition itself, the respondent has specifically averred that his family is at his tharavadu house at Alappuzha and after the solemnization of the marriage at Thodupuzha, the appellant was brought to the tharavadu house at Alappuzha and they resided together there till their departure to USA. The learned counsel invited our attention to the other averments in the Rent Control Petition and contended that all the events in connection with the marriage including in the engagement was held at Alappuzha, within the jurisdiction of the Family Court, Alappuzha. In India they resided together at last as husband and wife at Alappuzha.
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5. In view of the arguments, the first point to be considered is whether the appeal is maintainable or not. On a reading of Section 19 (1) of the Family Court Act, it could be seen that no interlocutory orders are not made appealable under the said provision. The learned counsel for the appellant cited a ruling held in Abdul Jaleel v. Sahida [1997 (1) KLT 734 ] and contended that a Division Bench of this Court has specifically considered the question whether an order passed on an application challenging the maintainability is appealable or not and answered positively.
6. We have meticulously gone through the aforesaid decision wherein it is specifically held that an appeal may not lie against an interlocutory order, which does not affect the rights of the parties. The expression
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“interlocutory order” has to be understood in the context of the meaning of the expression “case decided” in 115 of the CPC. The expression “case decided” is not limited in its import to the entirety of the matter in dispute in a notion. Case includes a part of the case. The expression 'case' does not always mean the whole suit. Here, the impugned order has finally decided the rights of the parties as regards the maintainability of the petition. Therefore, we hold that an appeal would lie against such an order passed on an application challenging the maintainability of the original petition, under Section 19(1) of the Family Court Act.
7. The learned counsel for the respondent per contra cited the ruling held in Manga Lakshmi v. K.Basanth Kumar [2016 (3) KHC 111] and in
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Sudheerkumar v. Praveena [ 2018 (4) KHC 460] and contended that this Court specifically held that an interlocutory order is not appealable under Section 19 of the Family Court Act. We have gone through the aforesaid decision and we find that in s Manga Lakshmi' case (supra), the Division Bench of this Court concurred with proposition laid down by the earlier Division Bench in Abdul Jaleel's case (supra). In 2018 (4) KHC 460 the Division Bench of this Court broadly considered the question whether the order passed on interlocutory application maintainable and held positively. But, in the earlier decision in 1997 (1) KLT 734 , a Division Bench of this Court specifically considered the question “Is the order passed on an application challenging the maintainability appealable and answered positively”?
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But, we further noticed that the aforesaid decision was not considered in the subsequent decision held in 2018 (4) KHC 460 . In 2018 (4) KHC 460 , the question was, whether an order passed on an application filed under Order 39 Rule I of CPC is an interlocutory application or not. Therefore, in the matter of maintainability of an appeal against the order determining maintainability of an original petition, 1997 (1) KLT 734 still governs the field and we find that the appeal is maintainable.
8. It is the specific case of the respondent in the O.P. that his parents' tharavadu house is situated at Alappuzha and they decided to conduct the marriage of their son at native place. The marriage was solemnized in a church at Thodupuzha and after the marriage, the appellant was brought to the tharavadu house at
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Alappuzha and they resided together till their departure to USA. In paragraph No.3, it is specifically stated that the engagement in connection with the marriage was held at Camelot Hotel Convention Centre, Alappuzha. Further, in the same paragraph, it is specifically stated that a premarital counselling was also held at IMS Dhyana Bhavan, Paravoor, Alappuzha. In paragraph 4, further it is stated that at the time of reception, she had shown her hatred to him. So, he left to his destination at Alappuzha without his bride and before leaving to USA, the appellant again met the respondent in Alappuzha on 18.02.2016 and there was no change on her attitude to have a closeness and affection to her husband. Lastly, it is specifically stated in para 11 that the petitioner and the respondent were last resided together in India at Pathirappilly, Alappuzha as the
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permanent residence of the petitioner is at Pathirappilly, Alappuzha, within the territorial jurisdiction of the Family Court, Alappuzha. Thus, on an analysis of the entire averments in the original petition, we find that the appellant has again and again reiterated in several paragraph that, after the marriage, the appellant and the
respondent resided together at Alappuzha in his tharavadu house.
9. Going by the averments in the interlocutory application challenging territorial jurisdiction of the OP, we find that the appellant has not challenged the contention that the tharavadu house of the parents of the
respondent is at Alappuzha. They have not raised any challenge against the averments referred above in the various paragraphs except the mere denial that the
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appellant never resided along with the respondent at Alappuzha as husband and wife. The absence of challenge against all other averments except the cause of action alone would show the lack of bona fides in the contention challenging maintainability.
10. The appellant has no case that after the marriage at Thodupuzha, they have resided in a place other than Alappuzha. They have not disclose the place where they have resided together after the marriage till the departure to USA. The absence of such positive assertion, as regards their residence during the period between the solemnization of marriage and their departure to USA, would reinforce our earlier finding that there is no bona fides in the contention raised in the application challenging the maintainability of the original
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petition.
11. As regards the territorial jurisdiction is concerned, we are of the opinion that the averments in the petition are decisive as well as determinant and unless otherwise proved, territorial jurisdiction must be determined on the basis of the averments in the original petition. Mere assertions, denying the territorial jurisdiction, made in the counter statement or the application challenging the maintainability, are not sufficient to deny the territorial jurisdiction. Thus, the appellant miserably failed to prove the bona fides of the contentions challenging the territorial jurisdiction.
12. Coming to challenge against the absence of jurisdiction raised under Section 2 of the Indian Divorce Act, we find that in the interlocutory application
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challenging the territorial jurisdiction, the appellant has
not raised a contention that the respondent has not domiciled in India. When such a contention was not
raised in the application filed before the Family Court, challenging the territorial jurisdiction, the appellant cannot be allowed to raise such a contention afresh in
appeal only. Therefore, we reject the argument challenging the jurisdiction on the basis of the domicile under Section 2 of the Indian Divorce Act.
In the above analysis, we do not find any reason to interfere with the impugned order under challenge and hence this appeal will stand dismissed.
Sd/-
## K.HARILAL, JUDGE
Sd/-
ANNIE JOHN, JUDGE
RKM
