Grave dereliction of duty by the Lower Court in entertaining the original petition for divorce.

The civil revision petition arises against the order of the Presiding Officer, Family Court, Coimbatore on his having taken on file HMOP.NO.207 of 2002 on the application of the respondent herein and thereupon against the issuance of summons to the revision petitioner.

2. The marriage between the petitioner – Nirmala Balagopal and the respondent Venkatesaulu Balagopal had, admittedly, taken place at Coimbatore 30 years back, more particularly on 8.6.1972. Thereafter, they lived in United States of America as permanent residents thereof and also obtained green cards for their domicile there. Since there was some misunderstanding between them, the petitioner – wife filed proceedings for separation in the Court of State of Connecticut, United States of America and for reciprocal obligations, they entered into a post marital agreement on 21.1.2000 whereby the respondent – husband agreed that whether or not he resides in India, he will not file any legal action for divorce or legal separation against wife in India. This is found in Clause 11.2 in the above said agreement.

3. Subsequently, in the month of November 2000, both of them came to India and began to live in a rented flat in the Race Course Road, Coimbatore. Again, the relationship became strained and that is why the respondent – husband preferred a petition before the Presiding Officer, Family Court, Coimbatore for dissolution of marriage. In that petition, he contended that although he parted away with US$ 400000 to the petitioner – wife according to Clause 3.1 of the said agreement and although he declared the petitioner – wife as the sole beneficiary of his accounts IRA and 401K at United States of America, the details of which were given in Schedule III of the said agreement, the petitioner – wife continued to ill-treat him by showing scant respect to him and also abused him day in and day out in vulgar language. Despite the same, the respondent – husband was continuing to spend for family expenses including house rent and allied charges and for the comfortable living of the petitioner. He also met the expenses for the treatment of his wife.

4. It is in these circumstances, the respondent husband wanted to modify the said agreement dated 21.1.2000 as mentioned in paragraph 15 of his petition for dissolution of marriage stating that the petitioner – wife was not worthy of any benefits granted to her already. It was further stated that in spite of Clause 11.2 of the said agreement regarding jurisdiction, there is no impediment for entertaining the petition, as enforcement of statutory right of jurisdiction cannot be nullified by agreement including the one, which was made between the parties on 21.1.2000 in United States of America. By saying so, he wanted the Court below to take the petition on file in spite of the fact that there is a bar of jurisdiction in Clause 11.2 of the said agreement.

5. The whole grievance of the petitioner – wife is that now she is living in United States of America and she cannot be made to fly at frequent intervals to attend the proceedings before the Family Court regarding the petition made by the respondent for dissolution of marriage. It is a fraud on the part of her husband to have moved the Court below after giving a go-by to Clause 11.2 of the said agreement dated 21.1.2000.

6. Mr.Sriram Panchu, learned Senior Counsel for the petitioner - wife submitted that the Court below ought not to have taken on file the petition filed by the respondent – husband and that even after the mention made about the said agreement regarding bar of jurisdiction contained therein and even after including a copy of the agreement in the said petition, the Court below ought to have returned the same either for arguments regarding maintainability of the same in view of the bar of jurisdiction or for presentation before proper forum. Thus, it was argued that the Court below had exceeded its jurisdiction after assuming powers, which it did not have.

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