SIVAN PILLAI Vs. OMANA AMMA

JUDGEMENT

(1.) This is a petition filed under Art.227 of the Constitution of India seeking a direction to the Court of Additional Sub Judge, Kollam to transfer the files relating to O. P. (H. M. A) No. 138 of 1990 to the Family Court, Thiruvananthapuram for disposal. The petitioner submits that he filed the said petition under S.13 of the Hindu Marriage Act seeking decree of divorce dissolving marriage between him and the 1st respondent. It was posted on 17-6-92 for evidence. Petitioner could not be present in court on the said day due to temporary paralysis on his left limb and consequently his counsel applied for time to adduce evidence in the case. Inspite of that, the case was dismissed for default as per Ext. P2, stating that the petitioner had been absent. The petitioner moved Ext. P3 application for restoration. That was dismissed by Ext. P4 on the ground that the court had no jurisdiction since the Family Court has been established. Again, the petitioner submitted Ext. P5 petition with an affidavit for an order correcting the order of dismissal dated 17-6-1992 and to transmit the records of the said petition to the Family Court, Thiruvananthapuram.

(2.) The petitioner now submits that when Ext. P2 order was passed by the Additional Sub Judge, Kollam dismissing his petition for dissolution of marriage, that court had no jurisdiction to deal with such a petition. Exhibit P2 judgment was pronounced on 17-6-1992. Government have issued G. O. (MS) No. 117/92/Home dated 6-6-1992 and it was notified in the Kerala Gazette No. 679/92 of the same date constituting the Family Courts in consultation with this court and exercising the powers vested in the Government under S.3 of the Family Court Act, 1984. Thus, a notification had been issued on 6-6-1992 i.e. ten days earlier than Ext. P2, constituting the Family Court. S.8 of the said Act provides that where a Family Court has been established in an area, no District Court or any Subordinate Civil Court referred to in S.7(1) shall have or exercise any jurisdiction in relation to the area of such court in respect of any suit or proceeding of the nature referred to in the Explanation to S.7(1). A suit relating to dissolution of marriage under Hindu Marriage Act also comes within such Explanation. Therefore, from the said date of establishment of the Family Court, the 2nd respondent, the Court of Additional Sub Judge, Kollam, had no jurisdiction to entertain any petition for dissolution of marriage under the Hindu Marriage Act. S.8(c) further provided that any such suit or proceeding pending before any court "shall stand transferred to such Family Court on the date on which it is established."

(3.) Thus, when the notification dated 6-6-92 was issued establishing the Family Courts including for the district of Kollam, the case which was disposed of as per Ext. P2 had stood transferred to the Family Court concerned. That is a statutory transfer. Therefore, the 2nd respondent Court had no jurisdiction to entertain or pass any orders on O. P. (H. M. A.) No. 138/90 on 17-6-1992. It had lost the jurisdiction on 6-6-1992 onwards. Therefore, the order Ext. P2 is totally without jurisdiction and can have no enforceability or efficacy. When the restoration application was filed, the 2nd respondent had rightly found in Ext. P4 that court had no jurisdiction since the Family Court has been established. Same was the position when Ext. P2 judgment was also pronounced. So, Ext. P2 is without jurisdiction. The case stood transferred as per the statutory provision from the date when the Family Courts were established i.e. on 6-6-1992. There was only a ministerial action left, to simply pack the case and send it to the registry of the Family Court. No further judicial action was contemplated as per S.8 of the said Act after 6-6-1992. The 2nd respondent had no jurisdiction to pass any order on O. P. (H. M. A) 138/90 after 6-6-1992. So, Ext. P2 is set aside and the 2nd respondent is directed to transmit the files relating to O. P. (H. M. A.) No. 138/90 to the Family Court having jurisdiction over the area concerned.