THOMAS K VARGHESE Vs. FAMILY COURT

JUDGEMENT

(1.) THIS Writ Appeal is filed against the judgment in O. P. No. 6500 of 2002 which was dismissed by the learned Single Judge. The appellant is the petitioner in the Original Petition and the respondents herein are the respondents in the Original Petition.

(2.) THE petitioner Thomas K. Varghese and the second respondent Asha Mary Alexander are husband and wife. THEy professed the christian religion and their marriage was solemnized at Jerusalem Marthoma Church, nanthencode, Thiruvananthapuramon 25th May, 1995. THE petitioner has his permanent residence at Ernakulam and he has been residing at Palarivattom, ernakulam along with his parents in their own house. At the time of marriage the petitioner was employed at Ernakulam as Civil Engineer with M/s. Penta Group. THE second respondent filed O. P. (I. D. A.) No. 942 of 1997 before the Family court, Thiruvananthapuram praying for divorce on the ground of cruelty and desertion by the husband. She filed the case before the Family Court, thiruvananthapuram claiming that she and her husband last resided together for a month at Thiruvananthapuram in her house and that the husband deserted her on 10th September, 1995 at her house at Thiruvananthapuram. THE petitioner raised a preliminary objection regarding the territorial jurisdiction of the first respondent - (Family Court, thiruvananthapuram) and a petition was filed praying that the preliminary objection may be heard first. THE petitioner contended that he did not reside in the second respondent's house at Thiruvananthapuram for a month as alleged and that he was employed at Ernakulam during the relevant period. However by an order dated 15th January, 2000 the first respondent held that the preliminary objection would be considered at the time of trial. Hence the petitioner filed o. P. No. 11602 of 2000 before the High Court praying for a direction to the first respondent to decide first the preliminary objection regarding territorial jurisdiction. By Judgment dated 7th April, 2000 in O. P. No. 11602 of 2000 the High Court directed that the petitioner be allowed to adduce evidence on territorial jurisdiction and that the Family Court may pass an order on the question of jurisdiction first and then proceed with the matter expeditiously. After recording evidence on territorial jurisdiction and after hearing the parties on the preliminary objection regarding territorial jurisdiction the first respondent passed Ext. P1 order dated 7th January, 2002 holding that the first respondent has territorial jurisdiction to entertain o. P. (I. D. A.) No. 942 of 1997 in view of the amendment to S. 3 (3) of the Divorce act, 1869 by Act No. 51 of 2001. Though the first respondent found that the allegation of the second respondent that she and the petitioner last resided at thiruvananthapuram was not at all correct, the first respondent held that it has got jurisdiction to entertain the O. P. on account of the Indian Divorce (Amendment) Act, 2001 (Act 51 of 2001) since the marriage of the petitioner and the second respondent was solemnized at Thiruvananthapuram. Aggrieved by Ext. Pl order of the first respondent the petitioner filed the present Original petition (O. P. No. 6500 of 2002) under Arts. 226 and 227 of the Constitution of india praying for quashing Ext. Pl order to the extent it held that the first respondent has territorial jurisdiction to entertain O. P. (I. D. A.) No. 942 of 1997 and also for a declaration that the Indian Divorce (Amendment) Act, 2001 is not applicable to O. P. (I. D. A.) No. 942 of 1997. He also prayed for a direction to the first respondent to return O. P. (I. D. A.) No. 942 of 1997 to the second respondent for want of territorial jurisdiction to entertain the same. THE learned Single Judge dismissed the Original Petition holding that the Family court, Thiruvananthapuram has jurisdiction to entertain the counter of the petitioner in the divorce case and to dispose of the same on merits without insisting the second respondent to file a fresh divorce petition. According to the learned Single Judge, Ext. Pl order is correct and no case is made out to interfere under Art. 226 or 227 of the Constitution of India. Aggrieved by the judgment of the learned Single Judge the petitioner in the Original Petition has filed this Writ Appeal.

(3.) IT is not disputed by the second respondent that going by the definition of 'district Court' in S. 3 (3) of the Divorce Act, 1869 as it stood on the date of filing of O. P. (I. D. A.) No. 942 of 1997, a petition for divorce could be filed only in the District Court within the local limits of whose ordinary jurisdiction the husband and wife reside or last resided together. In Ext. Pl order the first respondent has held that the appellant and the second respondent did not reside together and had not last resided together within the local limits of the jurisdiction of the first respondent and therefore on the date of filing of O. P. (I. D. A.) No. 942 of 1997 the first respondent did not have territorial jurisdiction to entertain the said O. P. IT is not disputed by the parties that during the pendency of O. P. (I. D. A.) No. 942 of 1997, S. 3 (3)of the Divorce Act, 1869 was amended by the Indian Divorce (Amendment) Act, 2001 (Act 51 of 2001) and that as per the said amendment the Family Court, thiruvananthapuram has got jurisdiction to entertain a petition for divorce if the marriage was solemnized within the local limits of jurisdiction of that court. Hence the only question that arises for consideration is whether, by the amendment to S. 3 (3) of the Divorce Act, 1869 by Act 51 of 2001, territorial jurisdiction to entertain O. P. (I. D. A.) No. 942 of 1997 was conferred on the family Court, Thiruvananthapuram (first respondent herein) which had no jurisdiction to entertain that case on the date on which it was filed and till the date on which the amendment came into effect.