Vandana C.V. v. Abhilash Mark

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR ``` ``` TUESDAY, THE 31[ST] DAY OF JANUARY 2023/11TH MAGHA, 1944 MAT.APPEAL NO.570 OF 2021 ``` ``` AGAINST THE JUDGMENT DATED 15.09.2021 IN O.P.(DIV.)NO.440 OF 2020 OF THE FAMILY COURT, PATHANAMTHITTA APPELLANT/PETITIONER: ``` ``` VANDANA C.V., AGED 36 YEARS, D/O. K.VASUDEVAN, G-1, ANMOL SOCIETY, KHASRA NO.65/27, NUMBARDAR COLONY, BURARI, DELHI-110084, HAVING PRESENT ADDRESS AT MARINATTU HOUSE, PARAKODE, ADOOR P.O., PATHANAMTHITTA DISTRICT, PIN-691523. ``` ## **`BY ADV M.NARENDRA KUMAR`** ## **`RESPONDENT/RESPONDENT:`** ``` ABHILASH MARK, AGED 41 YEARS S/O. LATE K.J.MARKOSE, PENIEL MISSION SCHOOL MAHAL, JAMMU-180010. ``` ``` THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 31.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Mat.Appeal No.570 of 2021 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant filed O.P.(Div.)No.440 of 2020 before the Family Court, Pathanamthitta under Sections 10(ix) and (x) of the Divorce Act, 1869, against the respondent herein-husband seeking a decree of divorce to dissolve the marriage solemnised between them on 12.07.2012, at New Delhi, as per the custom prevailing in their community. On the ground that the Family Court, Pathanamthitta is not having any territorial jurisdiction to proceed with that original petition, the same was returned by the order dated 15.09.2021, to present before the proper court. Feeling aggrieved, the appellant is before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act, 1984. 2. On 20.10.2021, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post. 3. By the order dated 01.12.2022 in I.A.No.1 of 2022, the appellant was permitted to take out notice to the respondent by paper publication, in Times of India daily having circulation in Jammu. In terms of the said order, service of notice on the respondent is effected through paper publication, 3 Mat.Appeal No.570 of 2021 which is placed on record along with a memo dated 14.01.2023 of the learned counsel for the appellant. 4. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the order dated 15.09.2021 of the Family Court in O.P.(Div.)No.440 of 2020, whereby that original petition is returned for presenting before the proper court. Though captioned as judgment, it is an order issued by the Family Court under Order VII Rule 10 of the Code of Civil Procedure, 1908. 5. 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 subsection (1). 4 Mat.Appeal No.570 of 2021 6. In view of the provisions under clause (iiia) of subsection (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 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. 7. 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 5 Mat.Appeal No.570 of 2021 Court, and also the decision of this Court in **Denny Antony v. Marykutty Abraham [2007 (1) KLT 776]** . 8. 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 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 subsection (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. 9. 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 6 Mat.Appeal No.570 of 2021 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 (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 petitionerhusband, that the Family Court at Thiruvalla does not have 7 Mat.Appeal No.570 of 2021 jurisdiction to maintain the two petitions filed before it by the respondent-wife. 10. 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 respondent-wife (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. 11. 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 petitioner-husband at the time of marriage, before the Family Court at Thiruvalla. 8 Mat.Appeal No.570 of 2021 12. 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, in the judgment dated 19.12.2022 in O.P.(FC)No.59 of 2022, this Court held that the proposition of law by the learned Single Judge in **Denny Antony [2007 (1) KLT 776]** that 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 proposition of law, and the same was overruled. In the said decision, it was held that 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. 9 Mat.Appeal No.570 of 2021 13. In the instant case, the marriage between the petitioner and the respondent was solemnised at the Community Hall, Delhi on 12.07.2012. The said fact is evident from Ext.A1 copy of the marriage register of Sharon Fellowship Church, Thiruvalla. It is also evident from the said document that, at the time of marriage, the petitioner was residing at Delhi and the respondent was at Jammu. The Family Court, in the order dated 15.09.2021, noticed that, except the permanent address of the petitioner shown in the cause title of the original petition, there is nothing to show that the petitioner has any connection to any place within the jurisdiction of Family Court, Pathanamthitta. It was after considering the pleadings and materials available on record that the Family Court, in the order dated 15.09.2021 found that it has no territorial jurisdiction to proceed with O.P.No.440 of 2020. Hence, the Family Court returned that original petition to the petitioner for presentation before the proper court. 14. 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 10 Mat.Appeal No.570 of 2021 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. 15. In the above circumstances, the reasoning of the Family Court, Pathanamthitta in the order dated 15.09.2021 in O.P.(Div)No.440 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. 11 Mat.Appeal No.570 of 2021 In the result, this original petition fails and the same is accordingly, dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/03/02 The words “this original petition” occurring in the 15[th] paragraph and also in the last paragraph of the judgment dated 31/01/2023 in Mat. Appeal 570/2021, stand corrected as “this appeal” vide order dated 03/07/2023 in Mat. Appeal 570/2021. Sd/- Deputy Registrar