MARYA TERESA MARTIN Vs. E MARTIN MADRAS

JUDGEMENT

(1.) Judgment (debtor in E.P. 6 of 1992 in S.F.C.O.P. 283 of 1992 pending in the District Court, Kollam is the revision petitioner. Respondent is the decree holder and husband of the revision petitioner. They have only one issue, a daughter aged 5 years. Respondent is residing at Madras. According to the revision petitioner she left him along with her child in May 1989 and started living at Kollam on account of the cruelty of the respondent who according to her is living with a concubine. Revision petitioner filed M.C. 26 of 1991 before the Chief Judicial Magistrate's Court, Kollam claiming maintenance for herself and the child. According to "the revision petitioner, as a counter blast to the said proceeding, the respondent filed S.F.C.O.P. 283 of 1992 in the Family Court at Madras for appointing him as guardian of his minor daughter and also for the custody of the child. It is alleged by the revision petitioner that the respondent has also filed an O.P. for restitution of conjugal rights. In S.F.C.O.P. 283 of 1992 an ex parte order was passed directing the revision petitioner to give custody of the child to the respondent. The said order was sent for execution to the District Court, Kollam within whose jurisdiction the petitioner is living along with the child.

(2.) Revision petitioner filed objection to the execution petition contending that the decree is not executable as the same was rendered by a court which has no jurisdiction to entertain the petition. It was also contended by the revision petitioner that even if the decree is executable, the same could be executed only by the Family Court at Thiruvananthapuram. Both the objections were over ruled by the lower court as per the impugned order.

(3.) Learned counsel for the revision petitioner maintained that the very approach of the Execution Court that the Madras Court was lacking only territorial jurisdiction and since the judgment debtor did not object to the jurisdiction, the same cannot affect the executability of the decree is wrong in law as according to the learned counsel, a District Judge when exercises jurisdiction under S.7 of the Family Courts Act, 1984 (for short 'the Act') does not function as a court in relation to matters falling under the Guardians & Wards Act, 1890; there is inherent lack of jurisdiction for the District Judge to deal with a child who is not a resident within his jurisdiction. Therefore the revision petitioner is entitled to question the executability of the decree. It is maintained by the learned counsel that the decree therefore should be treated only as a nullity. But in the circumstance, the more important question to be considered is whether the District Court, Kollam has got jurisdiction to execute the decree. If it is found that the District Court, Kollam has no jurisdiction to execute the decree, on that ground itself the order under attack has to be vacated as one rendered without jurisdiction. In that event, it will not be necessary to go into the question as to whether the decree itself is a nullity; the occasion for considering the said question can arise only when the order is sought to be executed by the Family Court at Thiruvananthapuram.