SHAJAN T I Vs. BINY MATHEW

JUDGEMENT

(1.) This appeal is filed by the respondent husband in a petition filed by wife for declaration that the marriage is a nullity or in the alternative for dissolution of marriage. The present appellant filed a Civil Miscellaneous Petition praying that the question of jurisdiction had to be heard and decided as a preliminary issue. The learned Single Judge dismissed the C. M. P. on finding that this Court has the jurisdiction to entertain the petition. The finding arrived at by the learned Single Judge was that as per S.45 of the Indian Divorce Act (hereinafter referred to as "the Act"), all proceedings will be regulated by the Code of Civil Procedure (hereinafter referred to as "the Code") and hence the jurisdiction of the Court has to decided with reference to S.15 to 20 of the Code. The learned Single Judge found that since there is a prayer in the Original Petition for declaration that the marriage is a nullity on the ground that consent for the marriage was obtained by fraud, the cause of action arose on the date of marriage within the jurisdiction of this Court. The marriage was solemnised in Kerala and so the finding by the learned Single Judge is that cause of action arose within the jurisdiction of this Court and hence this Court has the jurisdiction to entertain the Original Petition. The learned Single Judge also observed that the question of jurisdiction was not raised at the appropriate time and it was raised only at a later stage.

(2.) The Original Petition was filed by the wife against the husband under S.18 and 19 of the Act. The case of the wife was that her consent for the marriage was obtained by fraud and hence the marriage had to be declared as null and void. Dissolution of marriage was sought for by the wife alleging that the husband was cruel in his behaviour towards her. The husband contested the Original Petition by filing a counter affidavit. The wife gave evidence before the learned Single Judge as PW 1 and four witnesses were examined on her side as PWs. 2 to 5. Evidence of the wife was closed and it was after that the husband filed C. M. P. No. 12151 of 2000 praying that the question of jurisdiction may be heard as a preliminary issue.

(3.) The statement in the affidavit filed in support of the C. M. P is that the husband and wife last resided together in Bangalore and this Court is not having the territorial jurisdiction to entertain the Original Petition. S.45 of the Act says that subject to the provisions contained in the Act, all proceedings under the Act between party and party shall be regulated by the Code of Civil Procedure. The learned Single Judge on the basis of what is said in S.45 of the Act found that S.15 to 20 of the Code apply to the proceedings under the Act for the purpose of determining the jurisdiction of the Court. On finding that S.20 C.P.C. applies to proceedings under the Act, the learned Single Judge said that proceedings have to be initiated where the defendants reside or cause of action arises. The learned Single Judge proceeded on to observe that since Original Petition was filed for declaration that the marriage was a nullity on the ground that consent for the marriage was obtained by fraud, the cause of action arose on the date of marriage and the marriage between the parties was solemnised in Kerala and hence part of the cause of action arose within the jurisdiction of this court.