A.V. Arockiam And Etc. vs Arul Mary Alias Latchumi Devi And ... on 5 March, 2002

    A.V. Arockiam And Etc. vs Arul Mary Alias Latchumi Devi And Anr. on 5/3/2002

ORDER

   K.S. Sampath, J.

   1. The question for consideration in both these matters is whether the High
Court will have jurisdiction to entertain matrimonial matters irrespective of
whether the husband and wife reside at Madras or last resided together at Madras
or not?

   2. As pointed out in Thelma Agnes Kershaw v. Archibald Cyril Kershaw, AIR
1930 Lahore 916, in cases under the Divorce Act, the question of jurisdiction is
of paramount importance and does not fall to be determined purely on allocation
of the onus of proof. In these cases, it is the duty of the Court, apart from
any objection that might have been taken by one or other of the parties, to
enquire into and set out in the judgment, facts which show clearly that it
possesses jurisdiction to pronounce a decree' for dissolution of marriage.

   3. Apart from the preamble, the sections relevant in the Indian Divorce Act,
1869 (now the Divorce Act) are Sections 3(1), 3(3), 3(4), 4. 6, 8, 10, 11, 16,
18, 20, 22, 23 and 45. We have also to advert to Clause 35 of the Amended
Letters Patent and Sections 15 and 24 of the Code of Civil Procedure. We may
have occasion to refer to Section 482 of the Code of Criminal Procedure.

   4. Sengottuvelan, J. in Dexter S. Anthony v. June P. Anthony (1985) 2 Mad LJ
200 has made a thorough study of the position relating to jurisdiction. It is
worthwhile to advert to the various portions of the judgment of the learned
Judge,

   5. The learned Judge has referred to the speech in the Legislative council on
26th March, 1869 by the Hon'ble Mr. Maine in paragraph 8 of his judgment. The
speech would indicate that the Legislature never intended to confer a concurrent
jurisdiction on both the High Court and the District Court. The learned Judge
has extracted 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, which
is as follows :

     "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 required that
they be confirmed by the High Court. And the High Court has full powers of
calling for fresh evidence."

   6. The preamble to the Indian Divorce Act runs as follows :

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

   Section 3(1) states that "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.

   As per Section 3(2) "District Judge" means a Judge of a Principal Civil Court
of original jurisdiction however designated.

   Section 3(3) defines 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.

   Under Section 3(4) "Court" means the High Court or the District Court, as the
case may be.

   Section 4 deals with the manner of exercise of jurisdiction by the High Court
in matrimonial cases and it runs 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 it relates to the
granting of marriage licences, which may be granted as if this Act had not been
passed." Section 6 runs as follows :

     "All suits and proceedings in cause and matters matrimonial, which when
this Act comes into operation, are pending in any High Court, shall be dealt
with and decided by such court, so far as may be, as if they had been originally
instituted therein under this Act."

   7. Section 8 provides that 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. 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.

   8. Section 10 provides for grounds for dissolution of marriage. The section
as it originally stood provided for either of the spouses to present a petition
to the District Court or to the High Court. The section as amended by Act 51 of
2001 provides that the petition may be presented to the District Court. Words
"High Court" are omitted.

   9. Section 11 as it originally stood provided that the husband should make
the alleged adulterer a co-respondent to the petition. The new section provides
for the adulterer or adulteress to be the co-respondent.

   10. Section 16 originally provided that the decrees for dissolution of
marriage, be a decree NISI, stated that every decree for a dissolution of
marriage made by a High Court not being a confirmation of a decree of a District
Court, was in the first instance, be a decree NISI, not to be made absolute till
after the expiration of such time, not less than six months from the pronouncing
thereof, as the High Court by general or special order from time to time,
directs.

   11. In the amended Section 16, the words, "not being a confirmation of a
decree of a District Court" have been omitted."

   12. Section 18 as it originally stood provided that any husband or wife may
present a petition either to the District court or to the High Court praying
that his or her marriage may be declared null and void. This cannot be taken to
mean that the jurisdiction is concurrent. The spouses residing within the City
of Madras cannot present such an application in the District Court of Tanjore or
Coimbatore by applying the interpretation sought to be adopted. The provisions
of the Divorce Act cannot be read in isolation. As per Section 3 and Sub-
sections (2) and (3) 'residence' within the area of the High Court or the
District Court, as the case may be, confers jurisdiction. And it is not any
extraordinary original jurisdiction that is conferred on this Court under
Section 3(3) of the Indian Divorce Act. The amendment to Section 18 omits the
words "or to the High Court".

   13. Section 20 which originally required "confirmation of District Judge's
decree by the High Court" has been omitted under the Amendment Act.

   14. Section 22 originally provided for judicial separation as follows :

     "No decree shall hereafter be made for a divorce a mensa et toro. but the
husband or wife may obtain a decree of judicial separation on the ground of
adultery or cruelty or desertion without reasonable excuse for two years or
upwards and such decree shall have the effect of a divorce a mensa et toro under
the existing law and such other legal effect as hereinafter mentioned."

   In the amended section, the words "without reasonable excuse" have been
omitted.

   15. Section 23 as it stood prior to the amendment provided for application
for separation to be made by petition to the District Court or the High Court.
The amendment deletes the words "or the High Court".

   16. As per Section 45, subject to the provisions of the Act all proceedings
under the Act between party and parry shall be regulated by the Civil Procedure
Code. In Sabitri Thakurain v. Savi, AIR 1921 PC 80 : ILR 48 Cal 481, the Privy
Council has decided that the Code of Civil Procedure of 1908 and the rules
contained in the orders apply to proceedings in the High Court whether original
or appellate except so far as the Code expressly provided to the contrary. Under
Section 120 of the Code of Civil Procedure, only Sections 16, 17 and 20 of the
Code are excluded in their application to the High Court in the exercise of its
Original Civil Jurisdiction. Section 15 which provides that every suit shall be
instituted in the Court of the lowest grade competent to try it, is not
excluded, obviously because there is no other provision inconsistent with it.

   17. As rightly pointed out by Sengottu-velan, J. 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 Sections 3(3) and 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. To
hold that the High Court will have 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 Section 3(4) of the
Act. The words "as the case may be" are of particular significance.

   18. Not only Section 18. but also Sections 23, 27 and 34 say that "any spouse
may present the application for judicial separation, protection of properly,
restitution of conjugal rights and damages in the District Court or in the High
Court". Therefore, for the purpose of institution of petitions Under Sections
10, 18, 23, 27 and 34, reading them along with Section 3(1), 3(3) and 3(4) they
should be presented in the Court which has territorial jurisdiction. The High
Court may in special cases, under Section 8 if it thinks fit, remove and try and
determine as a Court of original jurisdiction any suit or proceeding instituted
under the Indian Divorce Act in the Court of any District Judge within the
limits of its jurisdiction under this Act. The High Court may also withdraw any
such suit or proceedings and transfer it for trial or disposal to the Court of
any other such District Judge. The proper forum in all cases is the District
court, the Family Court or the High Court (now the Family Court) as the case may
be.

   19. Clause 35 of Letters Patent dealing with matrimonial jurisdiction runs as
follows :

     "And we further ordain that the said High Court of Judicature at 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."

   The latter part of clause 35 clearly preserves the jurisdiction of Courts not
established by the Royal Charter. The jurisdiction vested with the District
court cannot be interfered with and the High Court does not have concurrent
jurisdiction with the District Court.

   20. In three cases-two of them unre-ported, one by R. Sadasivam, J. In O.M.S.
No. 13/63 dated 10-2-1964 and the other by Fakkir Mohammed. J. in O.M.S. No. 1/
78 dated 22-7-1982 and Y. Jeremiah Yesupatham v. Mrs. Deenamma Yesupatham (1975)
88 Mad LW 677, view was taken that in cases where there is concurrent
jurisdiction conferred on the High Court and the District Court, the petitioning
spouse is not entitled to have the matter decided by the High Court.

   21. In O.M.S. No. 13/63 decided by R. Sadasivam, J. it was a petition under
Sections 22 and 23 of the Indian Divorce Act 4 of 1869 for a decree of Judicial
separation. The petitioner in that case was married to the respondent on
24-4-1950 at Thanjavur. The respondent continued to live at Thanjavur. The
ground for judicial separation was that the respondent was suffering from an
infectious type of leprosy and was compelling the petitioner to have
cohabitation with him. Though the respondent was not represented by an Advocate,
the petitioner was not cross-examined and according to the learned Judge, the
petitioner would have been normally entitled to the judicial separation prayed
for by her. But then the learned Judge himself elicited from the petitioner that
she and her husband last resided in Thanjavur and that her husband was residing
in Thanjavur. After referring to Sections 3(3) and 3(4), the learned Judge held
that the petition should have been filed in the District Court at Thanjavur. The
learned counsel for the petitioner referred to Section 23 of the Act as also
clause 35 of the Letters Patent stating that the High Court at Madras would have
jurisdiction within the State of Madras in matters matrimonial between subjects
professing Christian religion. But the learned Judge took note of the proviso to
the section to the effect that nothing contained in the clause 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 State lawfully possessed
thereof. In the view of the learned Judge, the District Court, Thanjavur, had
actual jurisdiction to entertain the petition. Might be under Section 8 of the
Act, the High Court whenever it thought fit. could remove and try and determine
as a Court of original jurisdiction any suit or proceeding instituted under the
Act in the Court of any District Judge within the limits of its jurisdiction
under the Act; but then according to the learned Judge having regard to Sections
3(3), 3(4) and Section 8 of the Divorce Act, the parties should normally file
the petition for judicial separation only in the place where they actually
resided or last resided together. In the course of his judgment, the learned
Judge distinguished the following two judgments :

     (1) Kelly v. Kelly and Saunders (1869) 3 Beng. LR 675 and

     (2) Ritchson v. Ritchson. AIR 1934 Cal 570

   22. So far as the first case was concerned, the learned Judge observed that
the judgment did not show that the objection of the jurisdiction was taken by
the respondent and that there was actually no discussion about it in the
judgment.

   23. As for the second case, the learned Judge, on the facts of that case,
found that the husband was a railway employee and he had no permanent place of
residence, but shortly before the petition, he went to Calcutta and lived with
his wife and parents and then separated and that in those circumstances, it was
held that the High Court had jurisdiction to entertain the petition for judicial
separation.

   24. In Jeremiah Yesupatham v. Mrs. Deenamma Yesupatham (1975) 88 Mad LW 677
the decision of Sadasivam, J. in O.M.S. No. 13/63 was followed and the parties
were directed to approach the District Court. In that case, the contention
raised on behalf of the petitioner against taking the view the Court did, was
that the Letters Patent conferred jurisdiction on this Court to try all
matrimonial cases and the proviso to clause 35 should be understood as merely
preserving power of other subordinate Courts to try the matrimonial matters. The
learned Judge, though accepted the contention on behalf of the petitioner that
there could be no dispute that his court had concurrent jurisdiction in respect
of matrimonial matters, still held that the petitioner had to move the District
Court. The learned Judge reasoned as follows :

     "With reference to this matter, there is nothing in the Indian Divorce Act,
which provides anything contrary to Section 15 of the Code of Civil Procedure.
Hence, the Code of Civil Procedure would apply by virtue of Section 45 of the
Indian Divorce Act. In the absence of any inconsistency between the Indian
Divorce Act and the Code of Civil Procedure, the provisions of the Code are
directly attracted under Section 45 of the Indian Divorce Act. Section 15 of the
Code of Civil Procedure would thus have application so as to require the matter
being presented before the Court of the lowest grade competent to try".

   The learned Judge further rejected the submission on behalf of the petitioner
that similar petitions had been entertained by this Court without any objection,
observing that any failure to notice the defect on the earlier occasions could
not convert it into a practice by which this court should be governed. The
learned Judge fully endorsed the view taken by Sadasivam, J. In O.M.S. No.
13/63.

   25. The decision Sengottuvelan, J. which has already been referred to, in my
view, projects the correct position with regard to matrimonial matters.

   26. In another case, the question arose as to whether after the coming into
force of the Family Courts Act (16 of 1984), the jurisdiction of the High Court
in respect of applications for appointment as guardian by Foreign Nationals as
petitioners of Indian minor children under special enactment like the Letters
Patent, Madras, was taken away from the High Court and entrusted to the Family
Court. The further question also, as to the maintainability of applications for
divorce by Christian subjects before the High Court under the Indian Divorce Act
after the introduction of the Family Courts Act, arose.

   27. It was held in Mr. Patrick Martin Etc. by a

   Division Bench of this Court that after the coming into force of the Family
Courts Act, the High Court lost its jurisdiction in such matters. In paragraph
17 of the said judgment, it is further stated as follows :

     "Even assuming that the jurisdiction of the High Court under Clause 17
still existed, it would be as per the appellants, a jurisdiction of general
nature applicable to all, then Section 15 of the Code of Civil Procedure will
come into play, and the appellants should approach the lowest grade Court
competent, viz, the Family Court. The proper forum for the parties in the matter
is the Family Court wherever and whenever it is established and till then the
respective District Courts, with of course the right of appeal before this
Court."

   28. The order of Abdul Hadi, J. In the matter of Guardians and Wards Act. In
the matter of Minor Rekha. In the matter of Indian Divorce Act and In the matter
of R. Manivannanapd Agnes Mythili Manivannan holding that the original
jurisdiction which vested in the High Court in respect of minors had come to an
end after the Family Courts Act, 1984 came into effect in the City of Madras and
the equally the arguments built upon the superior powers of the High Court under
some of the provisions of the Indian Divorce Act, are of no avail in view of the
clear provisions under Sections 7 and 8 of the Family Courts Act read with
Section 2(e) thereof, was affirmed on appeal.

   29. However, this Bench decision was overruled by a Full Bench of this Court
in Mary Thomas v. Dr. K. E. Thomas (1989) 104 Mad LW 344. The Full Bench held
that the jurisdiction of the High Court on its original side is not ousted by
any of the provisions contained in the Family Courts Act and the High Court
shall continue to exercise the jurisdiction vested in it under the Letters
Patent and all other laws, notwithstanding the provisions of Section 7 and
Section 8 of the Family Courts Act.

   30. Reference to Full Bench arose under the following circumstances :

   On the basis of the ruling of Abdul Hadi, J. In the matter of Guardians and
Wards Act; In the matter of Minor Rekha, etc. , applications for transfer of
certain O.M.Ss were filed before this Court and they came up before Srinivasan,
J. (as the learned Judge then was). The learned Judge did not agree with the
view expressed by Hadi, J. that this Court would have no jurisdiction to deal
with the matters under the Indian Divorce act after the constitution of the
Family Court under the Family Courts Act and expressed his opinion in the
following manner :

     "ABDUL HADI, J. has held that this Court exercising jurisdiction on the
original side is a "District Court" as defined by the Family Courts Act. Under
the Letters Patent, the jurisdiction of this Court has been classified under
different headings. Clauses 11 to 18 deal with Civil Jurisdiction of the High
Court. Clauses 19 to 21 deal with the 'Law to be administered by the High
Court'. Clauses 22 to 29 deal with "Criminal Jurisdiction". Clause 30 refers to
'Criminal Law' while Clause 31 deals with the exercise of jurisdiction elsewhere
than at the ordinary place of sitting of the High Court. Clauses 32 and 33
provide for 'Admiralty Jurisdiction'. Clause 34 relates to Testamentary and
Intestate Jurisdiction'. Clause 35 falls under the heading 'Matrimonial
Jurisdiction'. Hence the jurisdiction exercised under Clause 35 of the Letters
Patent is not one which the High Court exercises under its ordinary original
jurisdiction. If at all, the High Court can be said to be covered by the
expression "District Court" only when it functions as Principal Civil Court of
Ordinary Original jurisdiction. In so far as matrimonial jurisdiction is a
special jurisdiction exercised by the High Court under Clause 35 of the Letters
Patent, it cannot be said that the High Court is functioning as Principal Civil
Court of Ordinary original jurisdiction. Moreover under the provisions of Indian
Divorce Act, the High Court has jurisdiction even if the parties do not reside
within the limits of the local jurisdiction of this Court. Hence, this Court
functioning under Clause 35, Letters Patent, cannot be said to be a "District
Court" as defined by the Family Courts Act."

   The matter was directed to be posted before a Division Bench.

   31. Again there was another application filed for transfer of a petition
under the Guardians and Wards Act to the Family Court. This was again on the
basis of the judgment of Abdul Hadi, J. In the Matter of Guardians and Wards
Act, etc. confirmed by the Division Bench in Mr. Patrick Martin Etc. . In the
opinion of Srinivasan, J. the decision of the Division Bench required to be
reconsidered inasmuch as it was in conflict with the earlier Bench judgment of
this Court in Raja of Vizianagaram v. Secretary to State, AIR 1937 Madras 51.

   32. Thus pursuant to the order of reference by Srinivasan. J. the matter came
up before the Full Bench for a verdict on the scope and ambit of Sections 7 and
8 of the Family Courts Act and on the question whether the jurisdiction
exercised by the High Court under Letters Patent was in any manner affected by
reason of the above said provisions in the Act. As to what the Full Bench held
has already been noticed. The Full Bench approved the decision of N.S.
Ramaswami, J. in S.P.S. Jayam & Co. v. Gopi Chemical Industries India (1977)1
Mad LJ 286 stating that "the term "District Court" occurring in the Trade and
Merchandise Marks Act of 1958 would not include the High Court and the fact that
the local limits of the ordinary original jurisdiction of this Court is a
District would not mean that this Court becomes a District Court and that in
suits filed on the Original Side of this Court, it will be the Original Side
Rules and the provisions of the Letters Patent that will have application"

   33. It does not appear that either before Srinivasan, J. or before the Full
Bench, the unreported decisions of Sadasivam, R., J. and Fakkir Mohamed, J. and
the reported decisions of V. Sethuraman, J. and R. Sengottuvelan, J. were cited.
The speech by the Hon'ble Mr. Maine in the Legislative Council on 26th March.
1869 was also not referred to. Apparently, the various provisions of the Indian
Divorce Act. the proviso to Clause 35 of Letters Patent and Section 15 of the
Code of Civil Procedure were not brought to the notice of the Full Bench. The
Full Bench merely stopped saying that the Original Jurisdiction of the High
Court in respect of matters that might fall under the Explanation of Section 7
of the Family Courts Act was not ousted and the High Court continued to exercise
its jurisdiction notwithstanding the coming into force of the said Act.

   34. In Civil Reference No. 12/91. AIR 1993 Bombay 61 a Special Full Bench of
the Bombay High Court held that petitions for dissolution of marriage or nullity
of marriage on specific grounds stated in Section 19 of the Indian Divorce Act
could be entertained both by the District Court and the High Court and that both
the Courts had concurrent jurisdiction. The Full Bench drew analogy from the
provisions of Section 482 of the Code of Criminal Procedure where revisional
jurisdiction is vested concurrently in the High Court as well as the Sessions
Court. The analogy drawn by the Bombay High Court, in my respectful view, cannot
be stated to be apposite.

   35. There is a provision in the Code of Civil Procedure under Section 24
giving general power of transfer and withdrawal both on the District Court and
the High Court. But what makes all the difference between the Indian Divorce Act
on the one hand and the provisions of the Code of Civil Procedure and the Code
of Criminal Procedure on the other is the presence of the expression "as the
case may be" in Section 3(4) of the Indian Divorce Act. The said expression "as
the case may be" would only mean that if the parties last resided together at a
particular place, the District Court having jurisdiction over that place would
be alone competent to entertain a petition under the Indian Divorce Act. Proviso
to clause 35 of the Amended Letters Patent cannot also be ignored. If the
parties resided within the jurisdiction of the High Court, the High Court as
also the Family Court would have jurisdiction to entertain the petition. That
appears to be the only logical way of looking at this.

   36. Be that as it may, Section 15 of the Code of Civil Procedure, which is
not excluded by Section 45 of the Indian Divorce Act clearly enjoins the parties
to approach the lowest Court having jurisdiction, for relief, though in view of
the Full Bench decision, the High Court has concurrent jurisdiction even if the
husband and the wife do not reside or did not last reside together, within the
jurisdiction of the High Court. The High Court has also a discretion in such
matters. It does not have to entertain them merely because they are presented
before it. It is entitled to return them for presentation before proper court or
to transfer them to the District Courts or the Family Courts as the case may be.

   37. The question for consideration is therefore anwered in the following
manner:

     Though, in view of the judgment of the Full Bench in Mary Thomas v. Dr. K.
E. Thomas (1989) 104 Mad LW 344 the High Court may be said to have concurrent
jurisdiction, the petitions have to be filed only before the District Courts
concerned in view of Section 15 of the Code of Civil Procedure.

   38. In O.M.S. No. 24/96 the parties last resided together as husband and wife
at No. Panjampatty, Dindigul Taluk, Anna District. Only the petitioner is a
resident of Madras and the first respondent is a resident of Dindigul as also
the second respondent. In the circumstances, the proper Court to try the case is
the Principal District Court. Dindigul. O.M.S. No. 24/96 therefore will stand
transferred to the file of the Principal District Court, Dindigul, for disposal.
The parties to appear before that Court on the 10th of June, 2002.

   39. The parties in O.M.S. No. 7/2001 last resided together at Palayamkottai.
Both the petitioner and the respondent live in Palayamkottai as per the
petition. The proper Court Is the Principal District Court, Tirunelvelli. O.M.S.
No. 7/2001 will stand transferred to the file of the Principal District Court,
Tirunelvelli. for disposal. The parties to appear before the Principal District
Court, Tirunelvelli on 10-6-2002.

   40. Both O.M.S. No. 24/96 and O.M.S. No. 7/2001 are disposed of accordingly.