Madras High Court
A.V. Arockiam And Etc. vs Arul Mary Alias Latchumi Devi And Anr. on 5 March, 2002
Equivalent citations: AIR2002MAD435, (2002)2MLJ506
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.