Kerala High Court
Sathi N B vs Surendran K P on 3 June, 2022
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.
O.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,-
O.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
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
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
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
