Kerala High Court
Francis Joseph Vattamattathil vs Thressiamma Joseph Alias Felessa
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937
OP (FC).No. 528 of 2015 (R)
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(AGAINST THE ORDER DATED 30-10-2015 IN IA No.255/2014 IN OP 464/2013
OF FAMILY COURT, PALA)
PETITIONER:
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FRANCIS JOSEPH VATTAMATTATHIL
AGED 49 YEARS, S/O.LATE JOSEPH VATTAMATTATHIL,
KAKKANAD P.O., ERNAKULAM
NOW RESIDING AT 15 ROCK MILLS, STRAND ROAD
LANDONDERRY B.T 48.7 AD UNITED KINGDOM
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER JUSTIN E.J.
AGED 55 YEARS, S/O.JACOB, ELANJIKKAL HOUSE
KOONAMMAVU P.O, KOTTUVALLYVILLAGE
NORTH PARAVOOR TALUK, ERNAKULAM DISTRICT.
BY ADV. SRI.R.DIVAKARAN
RESPONDENT:
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THRESSIAMMA JOSEPH ALIAS FELESSA
D/O. JOSEPH, AGED 50 YEARS, NIRAPPEL HOUSE
KURINAD P.O., MONIPPALLY,KOTTAYAM DISTRICT.
BY ADV. SRI.RAJEEV V.KURUP
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION ON 13-01-
2016, ALONG WITH OPFC. 530/2015, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
AMG
OP (FC).No. 528 of 2015 (R)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 - COPY OF POWER OF ATTORNEY DATED 19.11.2012.
P2 - A COPY OF THE PETITION IN I.A.NO.255/2014 IN OP NO.464/2013 ON THE FILE
OF FAMILY COURT, PALA DATED 18.2.2015.
P3 - A COPY OF COMMON ORDER IN I.A.255/2014 IN OP 464/2013 AND IA 363/2015
IN OP 801/2013 ON THE FILE OF FAMILY COURT, PALA DATED 30.10.2015
RESPONDENT'S EXHIBITS
NIL
True copy
P.A. To Judge
AMG
C.K. ABDUL REHIM, J.
&
SHAJI P. CHALY, J.
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O.P (FC) Nos. 528 & 530 OF 2015
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DATED THIS THE 13th DAY OF JANUARY, 2016
J U D G M E N T
C.K. Abdul Rehim, J:
A common order passed by the Family Court, Pala in IA No.255/2014 in OP No.464/2013 and in IA No.363/2014 in OP No.801/2013, is under challenge in both these original petitions instituted under Article 227 of the Constitution of India. Since the issue involved in both these cases as wll as the parties are common, these original petitions are disposed of through this common judgment.
2. The petitioner herein is the respondent before the Family Court in OP Nos.464/2013 and 801/2013 filed by the respondent herein, seeking dissolution of the marriage and seeking return of gold and money, respectively. In both the cases the petitioner herein had filed interim applications seeking dismissal of the cases challenging its maintainability before the Family Court, on the ground that the Family Court has no jurisdiction to entertain the original OP (FC) No. 528 & 530/2015 -2- petitions. Crux of the contentions raised before the Family Court is that, both the parties are not citizens of India, since they are holding British citizenship. They have surrendered their Indian Passports and as such the original petitions cannot be maintained in any courts in India. It was contended that, as per Section 2 of the Divorce Act, 1869, in order to seek a decree of the dissolution of the marriage the parties must be domiciled in India at the time of presentation of the petition. Since the petitioners are not domiciled in India, the court has no jurisdiction to entertain the application for dissolution, is the contention raised.
3. The respondent herein objected the interim applications before the court below contending that, the marriage took place in a church situated within the jurisdiction of the Family Court and hence the petitions are maintainable before that court. It was also contended that the petitioner is holding status of 'Overseas Citizens of India (OCI)' and as such he has got every right to reside in India. Therefore the Family Court has got jurisdiction to entertain the above original petitions, since he is domiciled in India. OP (FC) No. 528 & 530/2015 -3-
4. The court below while considering the interim applications noticed that, there is no dispute with respect to the marriage solemnized in a church stipulated within the jurisdiction of the Family Court. Further there is no dispute with respect to the fact that the parties were born in India and they were originally Indian citizens. It is found that the respondent is having status of 'OCI' under Section 7A of the Citizenship Act, 1955. The court below also considered material in proof of residence produced, such as the Driving Licence and Voter's Identity Card of the respondent herein. It is found that the question of domicile is a mixed question of law and the fact and the burden of proving that the respondent had abandoned her Indian citizenship, lies with the petitioner. Answer to such questions can be arrived at only after conducting trial of the cases. Therefore it is found that, prima facie the original petitions are maintainable before the Family Court. Hence the interim applications were dismissed. It is aggrieved by the said common order, the petitioner is approaching this court.
OP (FC) No. 528 & 530/2015 -4-
5. Heard; counsel appearing on both side. Learned counsel for the petitioner raised a contention that by acquiring citizenship of the United Kingdom, the respondent had abandoned Indian citizenship. Therefore all the rights vested on her as a citizen of this country has got extinguished. So also it is contended that by acquiring citizenship of United Kingdom the respondent cannot be considered as person domiciled in India, at the time of presentation of the original petitions. Therefore the conclusions arrived by the Family Court are not legal and sustainable, is the contention.
6. Per contra, learned counsel for the respondent contended that the respondent is holding the status of 'OCI' and that she is entitled to enjoy all the rights vested on the citizens of this country, except those rights which are specifically prohibited under Section 7B of the Citizenship Act, 1955. It is further contended that the respondent is entitled to reside in India for any length of time on the basis of status of 'OCI' and therefore she cannot be construed as a person not domiciled in India.
OP (FC) No. 528 & 530/2015 -5-
7. On a quick scanning of relevant provisions of the law, it is evident that Section 2 of the Divorce Act, 1869 provides that nothing contained in the Act shall authorize any court to grant any relief under the Act, except where the petitioner or the respondent professes Christian religion. It further provides that, in order to make a decree of dissolution of the marriage the parties to the marriage should have been domiciled in India at the time when the petition is presented. Therefore it is evident that the application seeking dissolution of the marriage can be instituted only if the parties to the marriage are domiciling in India at the time when the petition is presented. Question arises as to whether the parties can be held as not domiciling in India by virtue of the fact that they are British citizens holding passport of the United Kingdom. It is not in dispute that both the parties are having the status of 'OCI' as contemplated under Section 7A of the Citizenship Act, 1955. It provides that such status can be conferred by the Central Government to persons who are citizens of another country, but was a citizen of India at the time of OP (FC) No. 528 & 530/2015 -6- commencement of the Constitution. Evidently, on the basis of the said provision, the Government have conferred status of 'OCI' on both the parties. Section 7B of the Act provides about conferment right on OCIs. It indicates that, the Central Government is empowered to specify the rights available to 'OCI' through Notification published in the Official Gazette, notwithstanding anything contained in any other law, except those rights which are specified in sub section (2) of Section 7B. Copy of a Notification issued by the Central Government in exercise of power conferred under Section 7B is produced for our perusal. It indicates that persons holding status of 'OCI' are entitled to have multiple entry lifelong Visa for visiting India for any purpose and they are exempted from the registration with the Foreign Regional Registration Officer or Foreigners Registration Officer for any length of stay in India. From the above said provision it is clear that the parties in these cases, who are holding the status of 'OCI', are entitled to have multiple entry to this country without there being any Visa issued and can have stay for any length of time in OP (FC) No. 528 & 530/2015 -7- India. In that respect, both of them are entitled to enjoy all the rights covered by the Notification, except those rights which are specifically prohibited under sub section (2) of Section 7B. That being so, only question to be considered with respect to application for dissolution of the marriage is as to whether the parties to the marriage have domiciled in India at the time of presentation of the said case. Question to be decided on the said aspect is a question of fact. Therefore it is not an issue which can be decided before settlement of other issues as an issue, of law alone, which is coming within the purview of Rule 2 (2) of Order XIV of Code of Civil Procedure. As rightly observed by the court below, it is a mixed question of law and fact, which need to be decided based on evidence to be adduced during trail of the cases. Hence we find no illegality or error with respect to the order impugned, to the extent it held that the original petitions are maintainable before that court.
8. Under the above mentioned circumstances the above original petitions deserves no merit and the same are liable to be dismissed. However, we make it clear that the OP (FC) No. 528 & 530/2015 -8- petitioner will be at liberty to adduce evidence before the court below based on the contention that the parties to the marriage have not domiciled in India at the time of presentation of the application for dissolution of marriage.
Sd/-
C.K. ABDUL REHIM, JUDGE.
Sd/-
SHAJI P. CHALY, JUDGE.
AMG True copy P.A. to Judge