IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 Mat.Appeal.No. 509 of 2010() ---------------------------- OP.837/2009 of FAMILY COURT, ERNAKULAM .................... APPELLANT/RESPONDENT ----------------------------------- V.SIVASANKARAN NAIR, S/O.VELAYUDHAN PILLAI, OUSHADI, NEDUMANGAD P.O., THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENT/PETITIONER: --------------------------------------- P.N. SULOCHANA, W/O.V.SIVASANKARAN NAIR, LEFT.COLONAL, NURSING OFFICER, I.N.H.S.SANJIVANI, NAVAL BASE, COCHIN, RESIDING AT ROOM NO.8, NURSING OFFICER'S QUARTERS, NAVAL BASE, COCHIN, (NOW WORKING AS LT.COLONEL NURSING OFFICER, MILITARY HOSPITAL,AGRA AND R/AT 3/1 PR ROAD,AGRA CANTONMENT BY ADV. SRI.RAJESH VIJAYAN SRI.K.N.ANIL KUMAR THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - Mat A.No. 509 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of September, 2010 JUDGMENT Basant, J. Virtually there is no worthwhile dispute between the parties. The respondent/wife had initiated proceedings before the Family Court at Ernakulam for dissolution of the marriage under Section 13 of the Hindu Marriage Act. The respondent/wife got a transfer to Agra and she could not prosecute the petition before the Family Court, Ernakulam. In these circumstances she prayed that without prejudice to her contentions, she may be permitted to withdraw the petition filed before the Family Court, Ernakulam with leave to file a fresh petition later. The court below, by the impugned order, allowed the said request. We extract below the operative portion: Mat A.No. 509 of 2010 2 “I.A.1868/10 allowed. Petitioner is permitted to withdraw this OP with liberty to file afresh. No costs.” 2. The appellant claims to be aggrieved by the impugned order. What is his grievance? He has no grievance against the respondent/wife filing a petition afresh before the Family Court, Ernakulam or before the Family Court, Idukki, within the jurisdiction of which the marriage had taken place. But the appellant apprehends that the respondent may initiate proceedings before the Family Court at Agra, where the respondent/wife is presently employed. In fact there is a submission that such a petition has already been filed. 3. The learned counsel for the appellant contends that he wants to raise a contention before the Family Court, Agra that the said Court has no territorial jurisdiction to entertain the fresh application of the respondent/wife for divorce. The Court at Agra has no territorial jurisdiction, it is urged. The appellant apprehends that considering the Mat A.No. 509 of 2010 3 nature of the prayer in I.A.No. 1868 of 2010 it may be construed that the Court below has permitted the respondent/wife to file a petition for divorce before the Family Court at Agra. 4. We find absolutely no merit in this appeal. The operative portion, which we have extracted above, only shows that the wife was permitted to withdraw the Original Petition for divorce with liberty to file a fresh petition. As to where that petition can be filed, there is absolutely no direction in the impugned order. If the petition is not maintainable before the Family Court at Agra on the ground that the said Court has no territorial jurisdiction, the impugned order will not clothe the Court at Agra with any such jurisdiction. 5. The learned counsel for the respondent, however, submits that in the light of Section 19(iiia) of the Hindu Marriage Act the Court at Agra does have jurisdiction to entertain a fresh petition for divorce and the territorial jurisdiction of the Court at Agra cannot possibly be disputed. Mat A.No. 509 of 2010 4 6. We do not think it necessary to embark on those contentions. By the impugned order the court below had permitted the respondent to withdraw the petition filed by her with liberty to file a fresh petition. Wherever such petition shall be maintainable in accordance with law, the respondent shall be at liberty to file such petition. The right of the appellant to contend that such court does not have territorial jurisdiction in accordance with law to deal with such application will not in any way be taken away by the impugned order. 7. With the above observations, as agreed, this appeal is dismissed. (R.BASANT) Judge (M.L. JOSEPH FRANCIS) Judge tm