Dexter S. Anthony vs June P. Anthony And Anr. on 21 November, 1984

    Dexter S. Anthony vs June P. Anthony And Anr. on 21/11/1984

ORDER

   R. Sengottuvelan, J.

   1. The reference in the above Diary No. 388 of 1984 raises an interesting
question relating to the matrimonial jurisdiction of this Court. The petitioner
presented an application under Section 10 of the Indian Divorce Act for the
relief of divorce of the marriage of the petitioner with the respondent. In
paragraph 6 of the application it is stated as follows:

     After the marriage the petitioner and the respondent lived and cohabitated
as husband and wife first at Little Mount, Saidapet, Madras, for five years, and
then at Gunidy, Madras, for three years and lastly at Kennedy Valley,
Moosaranpet, Madras-600 091, until February, 1983, when the respondent left the
petitioner in the following circumstances.

   2. Moosaranpet is within the jurisdiction of the District Court of
Chengalpattu. According to the office note the petition for divorce has to be
filed in the District Court within whose jurisdiction both the parties last
resided. The office also points out two conflicting judgments of this Court
relating to jurisdiction and seeks clarification in the matter.
Balasubrahmanyan, J. in Diary No. 6509 of 1975, held that in respect of petition
under Sections 8, 10 and 23 of the Indian Divorce Act, the High Court and the
District Court within whose jurisdiction the petitioner and the respondent last
resided has got concurrent jurisdiction, disagreeing with the earlier views
expressed by Sadasivam, J. and Sethuraman, J. The office also points out another
judgment of Fakkir Mohammed, J. in O.M.S.No. 1 of 1978, holding that in such
cases only the District Court has got jurisdiction. In view of the divergence of
the views expressed we have to consider the matter in detail and come to a
conclusion regarding the question of jurisdiction.

   3. Before proceeding to discuss the question of jurisdiction it will be
useful to state the relevant provisions of law regarding jurisdiction in respect
of the cases arising under the Indian Divorce Act, 1869, hereinafter referred to
as the Act.

   4. The preamble to the Indian Divorce Act 4 of 1969 is as follows:

     Whereas it is expedient to amend the law relating to the divorce of persons
professing the Christian religion, and to confer upon certain Courts
jurisdiction in matters matrimonial; it is hereby enacted as follows:

   Section 2 of the Act lays down that the Act extends to the whole of India
except the State of Jammu and Kashmir. Section 3 of the Act relates to the
interpretation of clauses with reference to several terms appearing in the Act.
According to Section 3(1) "High Court" means, with reference to any area in a
State, the High Court for that State and in the case of any petition under the
Act, "High Court" means the High Court for the area where the husband and wife
reside or last resided together. According to Section 3(2) "District Judge"
means a Judge of a Principal Civil Court of original jurisdiction however
designated. Section 3(3) of the Act defined the "District Court" 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 husband and wife
reside or last resided together:

   According to Section 3(4) "Court" means the High Court or the District Court,
as the case may be. Section 4 of the Act deals with the manner of exercise of
jurisdiction by the High Court in matrimonial cases and is as follows:

     The jurisdiction now exercised by the High Courts in respect of divorce a
mensa et toro and in all other causes, suits and matters matrimonial, shall be
exercised by such Courts and by the District Courts subject to the provisions in
this Act contained, and not otherwise; except so far as relates to the granting
of marriage-licenses, which may be granted as if this Act had not been passed.

   5. Sections 10, 18 and 23 enable an individual to whom Indian Divorce Act
applies to present a petition for dissolution of the marriage, declaration of
nullity of marriage and for judicial separation, respectively, to the High Court
or the District Court.

   6. The contention of the petitioner is that the abovesaid sections conferring
jurisdiction taken together will mean that in respect of cases arising under
Sections 10, 18 and 23, the High Court of Madras will have concurrent
jurisdiction along with the District Court throughout the State of Tamil Nadu.
The points urged in support of this contention are as follows:

     1. In Sections 10, 18 and 23 it is stated that a petition for the
appropriate relief can be made to the District Court or to the High Court:

     2. As per Section 3(1) of the Act High Court means, with reference to any
area in a State, the High Court for that State and in the case of any petition
under the Act, it means the High Court for the area where the husband and wife
reside or last resided together. According to Section 3(3) of the Act the
District Court means in the case of any petition under the Act the court of the
District Judge within the local limits of whose ordinary jurisdiction, or within
whose jurisdiction under the Act, the husband and wife reside or last resided
together. The wording of Sections 10, 18 and 23 taken along with the above
definition will indicate that both the Courts will have concurrent jurisdiction.

     3. According to Clause 35 of the Letters Patent the High Court is vested
with matrimonial jurisdiction throughout the state.

   7. In support of the petitioner's contention reliance is placed upon the
decision of Balasubrahmanyan, J. in Diary Net 6509 of 1975 (O.M.S.No. 21 of
1975), where it was held that this Court has got jurisdiction to entertain
applications under Sections 10, 18 and 23 even in cases of spouses who have last
resided outside the jurisdiction of this Court on the basis that in such cases
the District Court and the High Court have concurrent jurisdiction.

   8. On an analysis of the provisions of Act conferring jurisdiction on the
High Court and the District Court and the Clause 35 of Letters Patent I am not
able to persuade myself to accept the proposition that the High Court and the
District Court can exercise concurrent jurisdiction in matters arising under
Sections 10, 18 and 23 of the Act, for the following reasons:

     1. According to the preamble to the Act the Courts will have to exercise
such jurisdiction as is conferred under the Act in matters matrimonial;

     2. As per Section 3(4) of the Act "Court" means the High Court or the
District Court, as the case may be. If it was the intention of the framers of,
the Act that the High Court should exercise concurrent jurisdiction along with
the District Court then the phrase "as the case may be" occurring in Section
3(4) of the Act will have no meaning;

     3. The provision that an application is to be made to the High Court or the
District Court in Sections 10, 18 and 23 will have to be taken along with the
definition of "Court" occurring in Section 3(4) of the Act; and it must be
construed only to mean the High Court in respect of areas comprised in the
original jurisdiction of the High Court and the District Court for which the
District Judge is deemed to be the Judge exercising principal civil Court's
original jurisdiction.

     4. Coming to a conclusion that the High Court will have the concurrent
jurisdiction along with the District Court in matrimonial matters on account of
the use of the words High Court or the District Court will not go in conformity
with the provision in Section 3(4) of the Act;

     5. Even in Clause 35 of the Letters Patent there is a provision by which
the jurisdiction of the Courts not established by the Royal Charter are
preserved. Clause 35 is as follows:

     Matrimonial jurisdiction: And we do further ordain that the said High Court
of Madras shall have jurisdiction, within the Presidency of Madras in matters
matrimonial between our subjects professing the Christian religion; Provided
always that nothing herein contained shall be held to interfere with the
exercise of any jurisdiction in matters matrimonial by any Court not established
by the Royal Charter within the said Presidency lawfully possessed thereof.

     As per the proviso to Clause 35 the said jurisdiction vested with the
District Court cannot be interfered with. If a concurrent jurisdiction is meant,
there is no need for the proviso to Clause 35 of the Letters Patent. In the case
reported in Mrs. Kamala Nair v. N.P. Kumaran Nair Chagle, Chief Justice, in

     interpreting Clause 35 of the Letters Patent (Bombay) has held that the
matrimonial Jurisdiction of the High Court provided in Clause 35 cannot be
exercised in cases where a specific provision is made in a specific enactment.

     6. Sections 16 and 20 of the Act provide for confirmation of the decree of
the District Court in respect of divorce and declaration regarding nullity by
the High Court. These provisions will also indicate that there cannot be a
concurrent jurisdiction exercisable by the High Court as well as the District
Court.

     7. According to Section 6 of the Act suits pending at the time of the
commencement of the Act at any High Court shall be decided by such Court. This
enabling provision indicates that the High Court has no jurisdiction in cases
that arise after the Act where the spouses last resided outside the original
jurisdiction of this Court.

     8. The speech of Honourable Mr. Maine in the Legislative Council on 26th
March, 1869, Fort St., George Gazette, March 31st, 1869, P-6, indicate that the
Legislature never intended to confer a concurrent jurisdiction on both the High
Court and the District Court. The relevant portion of the speech quoted at pages
74 and 75 of the law of Divorce by the Hon'ble Sir Henry Rattigan, Kt, second
edition, is extracted below:

     On the question whether the District Courts should be allowed a
jurisdiction in divorce cases, there was a difference of opinion. The main
reason why the Select Committee had given this jurisdiction was that the refusal
of it would amount to a denial of relief to large classes of persons affected by
the Bill. It would be a mere mockery of Europeans and East Indians in distant
cities, and Native Christians in mofussil villages, to tell them to come to the
High Courts in the Presidency towns for judgments of divorce. It is however said
that the District Courts are not equal to those duties. That argument is one
which should be looked upon with great distrust. If it be established that
certain new legal rights and remedies should be created for the benefit of any
class of Her Majesty's subjects, and the Indian Courts are incompetent to
administer them, the proper inference should be that the Courts should be
reformed, not that the rights and remedies should be refused. But the charge is,
in truth, often hastily made, and, moreover, there is nothing specially
difficult in questions of divorce. They are important on account of their social
importance, but for the most part, involve very simple questions of fact ....
If, however, it be once granted that the District Courts must have jurisdiction,
their exercise of it is, by this Act fenced round with many safeguards. The High
Court can call up at any time any case that presents special difficulty.... The
Act applies to the decrees of District Courts the same principle which is
applied in India to capital sentences, and requires that they be confirmed by
the High Court. And the High Court has full powers of calling for fresh
evidence.

   9. Section 8 of the Act deals with the extraordinary jurisdiction of the High
Court to withdraw any case pending before the Court of any District Judge for
the purpose of trying it as a Court of original jurisdiction. The very use of
the expression "extraordinary jurisdiction" indicates that the High Court has no
ordinary jurisdiction in the areas outside its original jurisdiction in respect
of cases arising under the Act.

   10. For the above reasons I am not inclined to agree with Balasubrahmanyan,
J. in his conclusion that in cases of applications under Sections 10, 18 and 23
both the High Court and the District Court concerned are vested with the
concurrent jurisdiction. The contention that this Court has got concurrent
jurisdiction had been negatived by Sadasivam, J. in O.M.S.No. 13 of 1963,
Sethuraman, J. in Diary No. 1680 of 1974 and Fakir Mohammed, J. in O.M.S.No. l
of 1978. The learned Judges in the abovesaid three cases have taken into
consideration the proviso to Clause 35 of the Letters Patent and the definition
of 'Court' occurring in Section 3(4) of the Act and negatived the plea that this
Court is to exercise concurrent jurisdiction along with the District Court
concerned in matters arising under Sections 10,18 and

   23. I am inclined to agree with the preponderence of Judicial opinion in this
regard and hold that in view of the fact that the petitioner and the respondent
have last resided within the jurisdiction of the District Court of Chengalpattu,
this Court will have no jurisdiction to (entertain the above suit. I answer the
reference on the above lines.