Kerala High Court

Eldho Varghese vs Liya Jose on 6 June, 2024

Author: Anil K.Narendran

Bench: Anil K.Narendran

                                      1
Tr.Appeal(C) Nos.4 and 5 of 2024

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
           THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                     &
       THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
  THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
                       TR.APPEAL(C) NO. 4 OF 2024
AGAINST THE ORDER DATED 01.04.2024 IN Tr.P(C) NO.132 OF 2024
                                      -------
APPELLANT:

             ELDHO VARGHESE, AGED 35 YEARS,
             S/O. VARGHESE, NEDIYANIKUZHIYIL HOUSE, KAKKAD
             KARA, PIRAVOM VILLAGE, MUVATTUPUZHA, ERNAKULAM
             REPRESENTED BY POWER OF ATTORNEY HOLDER VARGHESE,
             AGED 64 YEARS, NEDIYANIKUZHIYIL HOUSE, KAKKAD
             KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK,
             ERNAKULAM, PIN - 686664.

             BY ADV. AKHIL ALPHONSE G.



RESPONDENT:

             LIYA JOSE, AGED 35 YEARS,
             D/O. JOSE, KOORAN HOUSE, THONDIYIL POST,
             KANNUR DISTRICT, KERALA, PIN - 670673.

             BY ADVS.
             P.JERIL BABU
             SRINATH GIRISH(K/340/1994)



THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON
06.06.2024, ALONG WITH Tr.Appeal(C).5/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
                                       2
Tr.Appeal(C) Nos.4 and 5 of 2024


             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
           THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                      &
       THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
  THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
                       TR.APPEAL(C) NO. 5 OF 2024
AGAINST THE ORDER DATED 01.04.2024 IN Tr.P(C) NO.827 OF 2023
                                   --------
APPELLANT:

             ELDHO VARGHESE, AGED 35 YEARS,
             S/O. VARGHESE, NEDIYANIKUZHIYIL HOUSE, KAKKAD
             KARA, PIRAVOM VILLAGE MUVATTUPUZHA, ERNAKULAM
             REPRESENTED BY POWER OF ATTORNEY HOLDER VARGHESE,
             AGED 64 YEARS, NEDIYANIKUZHIYIL HOUSE, KAKKAD
             KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK,
             ERNAKULAM, PIN - 686664.

             BY ADV. AKHIL ALPHONSE G.



RESPONDENT:

             LIYA JOSE, AGED 35 YEARS,
             D/O. JOSE, KOORAN HOUSE, THONDIYIL POST,
             KANNUR DISTRICT, KERALA, PIN - 670673.

             BY ADVS.
             P.JERIL BABU
             SRINATH GIRISH(K/340/1994)

THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON
06.06.2024, ALONG WITH Tr.Appeal(C).4/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
                                        3
Tr.Appeal(C) Nos.4 and 5 of 2024

                                                           "CR"


                                   JUDGMENT

[Tr.Appeal(C) Nos.4 and 5 of 2024]

Harisankar V. Menon, J.

Tr. Appeal (c) No.4 of 2024 is filed against the order dated

01.04.2024 in Tr. Petition(C) No.132 of 2024. Tr. Appeal No.5 of

2024 is filed against the order dated 01.04.2024 in Tr. Petition(C)

No.827 of 2023 by a learned Single Judge of this Court.

2. The petitioner in Tr. Petition(C) No.132 of 2024 is the

husband. The petitioner in Tr. Petition(C) No.827 of 2023 is the

wife. The appellant (husband) and the respondent (wife) were

married at Onakkoor, Muvattupuzha Taluk. It is alleged that they

resided together at the residence of the husband within the

jurisdiction of the Family Court, Muvattupuzha. Since their

relationship was not cordial, the following petitions were

presented:

(i). O.P.No.859 of 2023 is filed by the husband (appellant herein)

for divorce under the provisions of the Divorce Act, 1869

before the Family Court, Muvattupuzha.

(ii).The wife filed O.P.No.902 of 2023 seeking divorce before the

Family Court, Thalassery.

Tr.Appeal(C) Nos.4 and 5 of 2024

(iii).The wife filed O.P.No.913 of 2023 for past maintenance

before the Family Court, Thalassery.

(iv). The wife filed O.P.No.914 of 2023 before the Family Court,

Thalassery seeking the return of gold and money.

3. The wife filed Tr. Petition(C) No.827 of 2023 before this

Court, praying for transfer of O.P.No.859 of 2023 filed by the

husband before the Family Court, Muvattupuzha to the Family

Court, Thalassery. The husband filed Tr. Petition (C) No.132 of

2024 praying for transfer of O.P.No.902 of 2023 filed by the wife

before the Family Court, Thalassery to the Family Court,

Muvattupuzha.

4. The learned Single Judge of this Court disposed of both

transfer petitions filed by the husband and wife by a common

judgment dated 01.04.2024. Transfer Petition No.132 of 2024

filed by the husband is dismissed. As regards the Tr. Petition

No.827 of 2023 filed by the wife, taking note of the convenience

of the wife, the same is allowed and O.P.No.859 of 2023, pending

before the Family Court, Muvattupuzha, is withdrawn and

transferred to the Family Court, Thalassery.

5. Aggrieved by the dismissal of Tr. Petition(C) No.132 of

2024, the husband has filed Tr. Appeal(C) No.4 of 2024 and as

Tr.Appeal(C) Nos.4 and 5 of 2024

against the judgment in Tr. Petition(C) No.827 of 2023, by which

the prayer for transfer by the wife is allowed, Tr. Appeal(C) No.5

of 2024 is filed.

6. On 10.05.2024, both these appeals have been admitted,

staying the operation of the judgment impugned. However, the

Presiding Officer of the Family Court, Muvattupuzha, has reported

by her letter dated 21.05.2024 that the files had already been

transferred to the Family Court, Thalassery on 19.04.2024 itself,

even before the order of stay is issued by this Court.

7. We have heard the learned counsel appearing for the

appellant-husband and the learned counsel representing the

respondent-wife.

8. The learned counsel for the appellant-husband mainly

pointed out that the learned Single Judge is not justified in

ordering the transfer from the Family Court, Muvattupuzha to the

Family Court, Thalassery, without noticing that the Thalassery

Court has no jurisdiction in the matter. For this proposition, he

relied on the judgment of this Court in Renny Elizaabeth

Umman v. Amrutha Raj Baby [2023 (1) KHC 655]. He also

points out the provisions of the Divorce Act, 1869 (for short, the

'Act'), to contend that the Family Court, Thalassery, has no

Tr.Appeal(C) Nos.4 and 5 of 2024

jurisdiction in the matter.

9. The learned counsel for the respondent-wife has sought

to justify the transfer ordered by pointing out the circumstances

under which the transfer was sought for, as highlighted in the

petition filed under Section 24 of the Code of Civil Procedure (for

short, the 'Code').

10. We have considered the submissions made by either

side as well as the connected records.

11. The main contention raised by the appellant is that the

learned Single Judge ought to have noticed that the Family Court

Thalassery, did not have jurisdiction to try the petition filed by

the Husband. He referred to the provisions of Section 3(3) of the

Act, in support of the above contention. Section 3(3) of the Act

reads as follows:

"'District Court' means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, (or of whose jurisdiction under this Act the marriage was solemnized or), the husband and wife reside or last resided together."

Thus, according to the appellant, it is only before the court within

whose local limits the marriage between the parties was

solemnised or where the husband and wife reside or last resided

Tr.Appeal(C) Nos.4 and 5 of 2024

together, has the jurisdiction to consider the petition presented

under the Act. He pointed out that the marriage between the

parties were not within the jurisdiction of the Family Court,

Thalassery. Similarly, there is no averment in any of the petitions

presented by the wife before the Family Court, Thalassery, that

the parties resided together within the jurisdiction of the said

court. Instead, the only averment in the divorce petition

presented by the wife is that she was residing permanently at her

parental house which falls within the jurisdiction of the Family

Court, Thalassery.

12. The learned counsel also referred to the judgment of

the Division Bench of this court in Renny Elizaabeth [2023 (1)

KHC 655], wherein one among us [Anil K. Narendran, J.] was a

party. The provisions of Section 3(3) of the Act are true, provided

that a divorce petition has to be presented with reference to the

place of marriage or the last residence of the husband and wife.

However, this is only for the purpose of the institution of the suit.

In the present case, the divorce petition filed by the husband is

ordered to be transferred. Admittedly, the said petition is filed

before the Family Court, Muvattupuzha, and the marriage

between the parties as well as the last residence together were

Tr.Appeal(C) Nos.4 and 5 of 2024

within the jurisdiction of the said court. Therefore, the reliance

placed under Section 3(3) of the Act by the counsel for the

appellant with reference to the divorce petition presented by the

husband, which is ordered to be transferred, is out of place. As

regards the divorce petition presented by the wife, the same has

not been ordered to be transferred. The petition for transfer

presented by the husband is rejected.

13. The provisions under Section 24 of the Code, under which the transfer is sought for, read as follows:

"24. General power of transfer and withdrawal.

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion, without such notice, the High Court or the District Court may, at any stage;

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it; and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn."

Under Section 24 (1) of the Code, the High Court or District Court

Tr.Appeal(C) Nos.4 and 5 of 2024

may at any stage withdraw any suit, appeal or other proceeding

pending in any court subordinate to it; and transfer the same for

trial or disposal to any court subordinate to it and competent to

try or dispose of the same. Thus when a suit is transferred from

one court to another, this Court only needs to make sure that the

court to which the suit is transferred is "competent to try" the

same. Here, the term competence under Section 24 of the Code

is with reference to the status of the court and not with reference

to the territorial jurisdiction. Even the appellant does not have a

case that the Family Court, Thalassery, is competent enough to

try the divorce petition.

14. Section 7(1) of the Family Courts Act, 1984, reads as

under:

7. Jurisdiction.― (1) Subject to the other provisions of this Act,

a Family Court shall-

(a) have and exercise all the jurisdiction exercisable by any District Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a District Court or, as the case may be, such subordinate Civil Court for the

Tr.Appeal(C) Nos.4 and 5 of 2024

area to which the jurisdiction of the Family Court extends.

Explanation. The suits and proceedings referred to in this sub- section are suits and proceedings of the following nature, namely:-

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

Under the above Section, a Family Court shall have all the powers

with respect to a suit or proceedings between the parties to a

marriage for a decree of nullity, which can be exercised by any

District Court. Here, the petition for divorce presented by the

husband is being transferred to the Family Court, Thalassery from

the Family Court, Muvattupuzha, and the former court is

Tr.Appeal(C) Nos.4 and 5 of 2024

competent enough to try and dispose of the same.

15. The judgment relied on by the appellant in Renny

Elizaabeth Umman [2023 (1) KHC 655], is pertaining to a

situation where the petition for divorce presented by the wife

under the provisions of the Divorce Act was returned by the court

finding that it has no jurisdiction to try the same, since there was

no averment in the petition that the parties lived together within

the limits of the said court. This Court considered the above issue

in the light of the judgment of the learned Single Judge in Denny

Antony and Another v. Marykutty Abraham [2007 (1) KLT

776].

16. In Denny Antony [2007 (1) KLT 776], the learned

Single Judge of this Court held that the wife residing at Thiruvalla,

can maintain a suit or proceedings against her husband for return

of money paid to him at the time of marriage, before the Family

Court at Thiruvalla, since she is residing within the territorial

limits of that Family Court. However, in Renny Elizaabeth

Umman [2023 (1) KHC 655], it is found as under:

"15. The provisions under S.20 of the Code of Civil Procedure, 1908 governs the place of institution of such a suit or proceedings for recovery of money, which has to be instituted by the wife within the territorial limits of the

Tr.Appeal(C) Nos.4 and 5 of 2024

Family Court where her husband at the time of commencement of the suit or proceedings actually and voluntarily resides or the cause of action, wholly or in part, arises. Therefore, the proposition of law by the learned Single Judge in Denny Antony, 2007 (1) KLT 776 that, the wife can maintain a suit or proceedings for return of money paid to her husband at the time of marriage, before the Family Court within the territorial limits of which she is residing at the time of initiation of such suit or proceedings, is not the correct position of law, and the same is hereby overruled. Since S.20 of the Code of Civil Procedure governs the place of institution of such a suit or proceedings, it has to be instituted within the territorial limits of the Family Court where her husband at the time of commencement of the suit or proceedings actually and voluntarily resides or cause of action, wholly or in part, arises."

Thus, the judgment in Denny Antony [2007 (1) KLT 776] only

with reference to the "institution" of the suit by the wife is

overruled, holding that it should be with reference to the

territorial limits as prescribed.

17. However, in the present case as already found, the

petition filed by the husband at Family Court, Muvattupuzha was

one validly instituted. Such a petition, if found necessary can be

transferred to another court, having competency to try the same.

Tr.Appeal(C) Nos.4 and 5 of 2024

18. We also notice Section 8 of the Divorce Act, which reads

as under:

"8. Extraordinary jurisdiction of High Court. The High Court may, whenever it thinks fit, remove and try and determine as a court of original jurisdiction any suit or proceeding instituted under this Act in the court of any District Judge within the limits of its jurisdiction under this Act. Power to transfer suits:- The High Court may also withdraw any such suit or proceeding, and transfer it for trial or disposal to the court of any other such District Judge."

Thus, this Court is conferred with extraordinary jurisdiction to

withdraw any suit or proceeding pending before one court and

transfer the same for trial or disposal to another court.

19. Here, the learned Single Judge has noticed that the

balance of convenience is in favour of the wife insofar as it is the

admitted case that the wife is abroad and her parents are taking

care of the minor daughter. We find no reason to interfere with

the above findings rendered by the learned Single Judge.

Therefore, Tr. Appeal (C) No.5 of 2024 is only to be dismissed.

20. Coming to Tr. Appeal(C) No.4 of 2024 filed by the

husband against the judgment in Tr. Petition(C) No.132 of 2022,

we notice that the prayer of the husband for transferring