Y. JEREMIAH YESUPATHAM Vs. MRS. DEENAMMA YESUPATHAM

JUDGEMENT

(1.) The petitioner is the husband. He has filed the petition for judicial separation under S. 22 of the Indian Divorce Act. The petitioner and the respondent were married on 5th May 1969 at Vellore. At that time petitioner was employed as an accountant at Vellore and his wife was employed as nurse at Scudded Memorial Hospital, Ranipet. Till November 1969 the petitioner and the respondent were residing respectively at Vellore and Ranipet. In November 1969, she resigned her post and went to Kerala where she took up the position of a sister tutor. Medical Mission Hospital, Tiruvalla, Kerala. They have got a female child born on 1st August 1970. It is stated in the petition that she never returned to the petitioner's place since then. According to him, the respondent is guilty of desertion without any justifiable cause for a period of more than two years. The petitioner continues to reside at Vellore. On receipt of the petition, the office raised a query as to why this petition could not be filed in the District Court. The petitioner's counsel made an endorsement saying that the petition could be filed either in the District Court or in the High Court. As the further clarification made by the counsel for the petitioner was not satisfactory to the Office, the matter was placed before me and I directed it to be posted for hearing. There is a judgment of Sadasivam, J., in O.M.S. No. 13 of 1963. I shall first examine the matter independently of the judgment and then go into it.

(2.) S. 23 of the Indian Divorce Act provides that an application for judicial separation may be made either by the husband or wife by petition to the District Court or the High Court. Under S. 10 as well as under S. 18 of the Act similarly the husband or the wife may file a petition for dissolution or nullity either in the District court or in the High Court. S. 43 of the same Act provides that subject to the provisions of this Act, all proceedings under this Act between party and party would be regulated by the C.P.C. So the applicability of the Code is thus subject to the provisions of this Act. If there is any inconsistency or conflict, then the Indian Divorce Act would govern the proceedings under this Act. S. 15 of the C.P.C. provides that every suit shall be instituted in the court of the lowest grade competent to try it. Cl. 35 of the Letters Patent provides that the High Court at Madras shall have jurisdiction, within the Presidency of Madras. In matters matrimonial between subjects professing the Christian religion. There is a proviso which says that nothing contained in Cl.35 should be held to interfere with the exercise of any jurisdiction in matters matrimonial by any court not established by Royal Charter within the said Presidency lawfully possessed thereof.

(3.) Based on these provisions, the learned counsel for the petitioner submitted that the Letters Patent conferred jurisdiction on this court to try all matrimonial matters and that the proviso should be understood as merely preserving the power of other subordinate courts to try the matrimonial matters. His submission was that there was a concurrent jurisdiction between this court and the District Court as regards matrimonial matters under the Indian Divorce Act and the petitioner could choose on the has is of convenience the forum where the matter could be decided. There can be no dispute that this court has concurrent jurisdiction in respect of matrimonial matters. The jurisdiction of this court to take up the matrimonial matters can be traced independently of the Letters Patent to S. 23 of the Indian Divorce Act. The question is as to whether in a matter where there is a concurrent jurisdiction in this court and the District court the petitioner is entitled to have the matter decided by this court. With reference to this matter, there is nothing in the Indian Divorce Act, which provides anything contrary to S. 13, C.P.C. Hence, the C.P.C., would apply by virtue of S. 45 of the Indian Divorce Act. In the absence of any inconsistency between the Indian Divorce Act and the C.P.C., the provisions of the Code are directly attracted under S. 43 of the Indian Divorce Act. S. 15 of the C.P.C., would thus have application so as to require the matter to be presented before the court of the lowest grade competent to try. The same view has been taken by Sadasivam, J. in O.M.S. No. 13 of 1963. The learned counsel submitted that similar petitions have been presented in this court without any objection. Any failure to notice the defect on the earlier occasions cannot convert it into a practice by which this court should be governed. The unreported judgment of Sadasivam, J., has been passed 10 years ago and I do not think that the ruling requires any reconsideration in the light of any point which has not been noticed therein. I have myself gone into the matter independently and arrived at the same conclusion. If both the parties had left the particular jurisdiction, then there would be some special feature which would require consideration. This is not such a case, as even in the petition the husband has stated that he is living in Vellore. I would, therefore, direct the petition to be returned for being presented in the District Court at Vellore which has jurisdiction to entertain the petition. Ordered accordingly.