IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
O.P.(FC) NO. 210 OF 2022
AGAINST THE ORDER DATED 23.11.2021 IN I.A.NO.1 OF 2021 IN
O.P.(HMA) NO.716 OF 2020 OF THE FAMILY COURT, ALAPPUZHA
PETITIONER:
SATHI N.B.,
AGED 56 YEARS, WIFE OF SURENDRAN K P,
PERUMBILLY VADAKKATHIL HOUSE, KARTHEDAM ROAD,
MALIPPURAM P.O, ERNAKULAM, PIN - 682511.
BY ADV K.G.RAJEESH
RESPONDENT:
SURENDRAN K.P.,
AGED 63 YEARS, SON OF LATE PARAMESWARAN,
PERUMBALLY VADAKKETHIL HOUSE, ELAMKUNNAPUZHA,
KOCHI, PRESENTLY RESIDING AT CARE OF
SUKUMARAN K.P. LAKSHMI BHAVAN, CHATHANVELI ROAD,
THURAVAUR PO, CHERTHALA, ALAPPUZHA, PIN - 688534.
THIS OP (FAMILY COURT) HAVING COME UP FOR FINAL
HEARING ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
2
O.P.(FC) No.210 of 2022
JUDGMENT
Ajithkumar, J.
The petitioner is the wife. The respondent-husband filed Ext.P1, O.P.(HMA) No.716 of 2020 before the Family Court, Alappuzha, seeking a decree of divorce. The petitioner filed Ext.P2, I.A.No.1 of 2021 in O.P.(HMA) No.716 of 2020 requesting the court to return that Original Petition for presentation of it before the proper court pointing out that the Family Court, Alappuzha, did not have territorial jurisdiction. The Family Court dismissed that application as per Ext.P3 order. The petitioner seeks to set aside that order for which he has filed this Original Petition invoking Article 227 of the Constitution of India.
2. On 08.04.2022, a notice by speed post was ordered to the respondent. Notice was served. But the respondent did not choose to appear before this Court. On 20.05.2022, 02.06.2022 and today, the respondent remained absent and no one has appeared for him.
3. Heard the learned counsel appearing for the petitioner.
3O.P.(FC) No.210 of 2022
4. Family Court, Alappuzha, dismissed I.A.No.1 of 2021 in O.P.(HMA) No.716 of 2020 as per Ext.P3 stating as follows:
"5. The original petitioner produced a copy of notice issued by the Family Court, Ernakulam which is seen served on this petitioner in Thuravoor address. Postal envelopes are also produced which contain the address of the original petitioner at Thuravoor or Aroor. In this original petition also the petitioner's address is shown at Thuravoor and the same is within the jurisdiction of this Court. As per Section 19(iv) of the Hindu Marriage Act, the petitioner can institute proceedings in the Court in whose jurisdiction the petitioner is residing. In the circumstances, the petitioner is justified in instituting this proceedings before this Court and therefore this Court has got territorial jurisdiction. For the said reasons this I.A. is not maintainable and hence I.A. dismissed with costs."
5. The learned counsel appearing for the petitioner would submit that none of the situations mentioned in Section 19(iv) of the Hindu Marriage Act, 1955, exists in this case and therefore the impugned order is untenable. Section 19, which deals with the jurisdiction of a court where a petition under the said Act shall be filed, reads,-
4O.P.(FC) No.210 of 2022 "19 Court to which petition shall be presented. Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction,-
(i) the marriage was solemnised, or
(ii) the respondent, at the time of the presentation of the petition, resides, or
(iii) the parties to the marriage last resided together, or (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive."
6. A reading of the provisions shows that clauses (i) to (iii) are the common situations; whereas clause (iv) governs special situations. If any of the conditions mentioned in clause (iv) does exist only, a petition by a husband under the Act can be presented in the court where he is residing at the time of presentation of the petition. The conditions are,-
(i) the respondent is residing outside the territory to which 5 O.P.(FC) No.210 of 2022 the Act extends, and (ii) the respondent has not been heard of as being alive for a period of seven years or more by that person, who naturally would have heard of if he were alive. The Family Court upon finding that the petitioner-husband has been residing since 2019 at Thuravoor, a place within the jurisdiction of that court, held that Section 19(iv) of the Act would apply to the case. The only contention raised in I.A.No.1 of 2021 is mentioned in Ext.P3 order, and it is that since 2019 the husband has been residing at Thuravoor. That is not enough to attract Section 19(iv) of the Act. Any one of the further conditions in Section 19(iv), which are mentioned above, should exist. In the absence of any such plea, the Family Court should have dismissed Ext.P2 application.
7. The learned counsel appearing for the petitioner submits that two other cases between the same parties are pending before the Family Court, Ernakulam. The respondent should have filed Ext.P1 petition before the Family Court, Ernakulam only, since the averments in paragraph No.1 in Ext.P1 are to the effect that the place where the marriage was 6 O.P.(FC) No.210 of 2022 solemnized and the place where they last resided together are within the territorial jurisdiction of Family Court, Ernakulam. The fact that the respondent, who is the husband is now residing at Thuravoor without there being no contention of the existence of any of the further conditions in Section 19(iv) of the Hindu Marriage Act, the Family Court, Alappuzha should not have assumed jurisdiction. Therefore Ext.P3 order does not sustain in law.
This Original Petition is allowed. Ext.P3 is set aside. Family Court, Alappuzha will return the petition in O.P.(HMA) No.716 of 2020 to the petitioner therein to present it before the proper court.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
P.G. AJITHKUMAR, JUDGE dkr 7 O.P.(FC) No.210 of 2022 APPENDIX OF OP (FC) 210/2022 PETITIONER EXHIBITS Exhibit P1 ORIGINAL PETITION, O.P(HMA)NO.
716/2020 FILED BY RESPONDENT BEFORE
FAMILY COURT, ALAPPUZHA DATED
8.10.2020
Exhibit P2 TRUE COPY OF THE INTERLOCUTORY
APPLICATION, I.A NO.1/2021 IN O.P.
(HMA)NO.716/2020 DATED 23.3.2021 FILED BY PETITIONER BEFORE THE FAMILY COURT, ALAPPUZHA Exhibit P3 TRUE COPY OF THE ORDER IN I.A NO.1/2021 DATED 23-11-2021 IN O.P (HMA) NO. 716/2020 OF THE FAMILY COURT, ALAPPUZHA