DAVID CHAKRAVARTHY ARUMAINAYAGAM Vs. GEETHA CHAKRAVATHY ARUMAINAYAGAM

JUDGEMENT

(1.) APPLICATION filed by the applicant/defendant under Order 14, Rule 8 of Original Side Rules read with Order 14, Rule 2 of Civil Procedure Code to decide the maintainability of the O.M.S. before this Court on the ground of jurisdiction based on domicilary requirement as a preliminary issue.

(2.) THE case in brief is as follows:THE applicant is the defendant in the main original matrimonial suit. THE respondent filed the main case under section 10 of the Indian Divorce Act. Even in para. 3 of the main petition, the respondent had conceded that the applicant is domiciled in the United Kingdom. It is also conceded that the co-respondent is in Ireland and the alleged matrimonial wrong took place in Malaysia. THE applicant sent a notice for grant of divorce from England where she is domiciled. k THE respondent also filed an Application as 4438 of 1993 under section 39 of the Indian Divorce Act. He also filed O.A.No.107 of 1993 to restrain the applicant from alienating her property. THEre is a candid admission on the part of the respondent that the applicant is no longer in India and she is domiciled in United Kingdom. THE marriage solemnized between the parties was already dissolved by a decree passed by the County Court in United Kingdom where she is domiciled. Under section 2 of the Indian Divorce Act, domicile is the relevant factor for exercising jurisdiction, it goes to the root of the case. THEre is no need to waste the judicial time of this Court. THE respondent is only interested in usurping her property situated at Anna Nagar. THE daughters are majors and have their lives to lead independently. A petition for dissolution of the marriage under the Indian Divorce Act envisages that the parties should be domiciled in India. In this case, the matrimonial suit is not maintainable. THE question is a pure question of law. In the event, this Court decides that the suit is not maintainable, the entire case can be finally decided. No prejudice can be caused to the respondent if the jurisdictional issue is decided as a preliminary issue and hence, the petition.

(3.) PER contra, learned counsel for the respondent mainly contended that the question of domicile depends upon the question of fact and law and as it requires evidence, it cannot be tried as a preliminary issue. Learned counsel further stated that the main suit itself was filed in the year 1993 and after lapse of seven years only, the applicant had filed this application raising the ground of jurisdiction to be tried as a preliminary issue and on the ground of delay, the application has to be dismissed.