IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WP(C).No. 1913 of 2009(S) ------------------------- OP(DIV) 652/2007 of FAMILY COURT, THIRUVALLA .................... PETITIONER(S): --------------- SUSAN SAMUEL, D/O.MR. P.S. SAMUEL, AGED ABOUT 30 YEARS, RESIDING AT # 69, JANAPRIYA ABODES, KENCHENHALI, RAJARAJESWARI NAGAR, BANGLORE 560 098. BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR SMT.PREEJA. P.VIJAYAN RESPONDENT(S): --------------- OOMMEN MATHEW, S/O.MR. A.M. MATHEW AGED ABOUT 38 YEARS, PREMANENTLY RESIDING AT ALUMOOTTIL HOUSE, THEEPANI P.O., THIRUVALLA, PATHANAMTHITTA DISTICT, KERALA, NOW AT # JBK - BCC, P.O. BOX # 14039, DOHA, QATAR. ADV. SRI.S.SUBHASH CHAND FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.1913 OF 2009 EXT.P1 TRUE COPY OF THE MC.2687/2006 BEFORE THE PRINCIPAL FAMILY COURT AT BANGALORE. EXT.P2 TRUE COPY OF THE O.P. (DIV) NO.652 OF 2007 BEFORE THE HON'BLE FAMILY COURT AT THIRUVALLA. EXT.P3 TRUE COPY OF THE I.A.NO.2613/08 IN O.P.(DIV) NO.652/2007 BEFORE THE FAMILY COURT AT THIRUVALLA UNDER SECTION. 10 OF CPC. EXT.P4 TRUE COPY OF THE ORDER DATED 22.12.08 in I.A.NO.2613 OF 2008 IN O.P.(DIV) No.652 of 2007. RESPONDENT'S EXTS: EXT.R1(a) TRUE COPY OF THE OBJECTION SUBMITTED BY THE RESPONDENT/ HUSBAND IN G & WC NO.165/2006 BEFORE THE PRINCIPAL FAMILY COURT, BANGALORE. EXT.R2(b) TRUE COPY OF THE OBJECTION SUBMITTED BEFORE THE FAMILY COURT, BANGALORE IN MC.NO.2687 OF 2006. //TRUE COPY// P.A. TO JUDGE. P.R.RAMAN & P.S.GOPINATHAN, JJ. ------------------------------- W.P.(C) No.1913 of 2009 ------------------------------- Dated this the 26th February, 2009 J U D G M E N T Raman, J. Petitioner who is the wife has initiated proceedings for getting a decree of divorce under the Divorce Act before the Principal Family Court, Bangalore, as M.C.No.2687 of 2006, Ext.P1 produced in the case. At the same time, the respondent herein, also filed a petition for divorce, O.P.(Div) No.652 of 2007, before the Family Court, Thiruvalla, Ext.P2 in this case, though later in point of time. Hence, the petitioner moved the Family Court, Thiruvalla, under Section 10 of the Civil Procedure Code, where the latter proceedings was filed, for a stay of further proceedings, in view of the matter pending before the Family Court, Bangalore, as per Ext.P3. By the impugned order under challenge, Family Court, Thiruvalla, held that the Family Court at Bangalore has no jurisdiction to entertain the dispute in question and refused to stay the further proceedings pending before the W.P.(C) No.1913 of 2009 2 Family Court, Thiruvalla. The petitioner challenges the correctness of the order passed by the Family Court, Thiruvalla, in this writ petition. 2. Sri.V.V.Nandagopal Nambiar, the learned counsel appearing on behalf of the petitioner submits that as per Section 7 of the Family Court Act, Bangalore Court, where the proceedings have been initiated by his client is fully competent to entertain the same. According to him, the nature of the dispute will squarely come under Section 7 of the Family Courts Act (hereinafter referred to as 'the Act' for short). 3. It is true that the nature of the relief to be granted in the proceeding is a decree for divorce and necessarily, the Family Court is the competent forum for getting such a relief. Therefore, the question is not whether the Family Court has jurisdiction or not, but the question is which Family Court is having jurisdiction. As per Section 7, the jurisdiction of a District Court in respect of matters which could be filed before it is with reference to the various nature of the disputes mentioned W.P.(C) No.1913 of 2009 3 in the explanation to Section 7. If the Family Court was not constituted, it must be the District Court which has to entertain the dispute, and that will depend upon the provisions under which the reliefs are claimed. 4. Admittedly, the petitioner has filed the petition seeking divorce under Section 10 of the Divorce Act. As per Section 10 of the Divorce Act, any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court, either by the husband or the wife, be dissolved on the various grounds mentioned thereunder. The word 'District Court' defined under Section 3 of the Divorce Act, 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 solemnised or) the husband and wife reside or last resided together. Therefore, the competent District Court to entertain a dispute under Section 10 of the Divorce Act would be the District Court within whose area W.P.(C) No.1913 of 2009 4 of jurisdiction the marriage has taken place. Admittedly, in this case, the marriage was solemnised at Thiruvalla. The husband is now working abroad, though his permanent residence is at Thiruvalla, the wife is employed at Bangalore, and both of them are neither the residents of Bangalore nor resided together at Bangalore. Hence, the Family Court, Bangalore, has no jurisdiction in the matter. 5. In order to stay the latter proceedings under Section 10 of the Divorce Act, the earlier proceedings must be pending before a court having jurisdiction. Necessarily, when an application is made to the latter court, where the subsequent proceedings are filed, it will have to consider whether the earlier proceedings are under the court of competent jurisdiction. Therefore, there is nothing wrong in the order of the Family Court, Thiruvalla, dismissing the application for stay, having found that the Bangalore Court, where the earlier proceedings are initiated by the petitioner herein, has no jurisdiction. In such W.P.(C) No.1913 of 2009 5 circumstances, we find no merit in the writ petition. Accordingly, the writ petition is dismissed. P.R.RAMAN, JUDGE P.S.GOPINATHAN, JUDGE. nj.