Jurisdiction for divorce petitions under the Divorce Act, 1869, is based on the location of marriage or residence, requiring petitions to be filed in proper courts, not just any Family Court.

Anil K. Narendran, J.

The appellant filed O.P.(Div.)No.440 of 2020 before the Family Court, Pathanamthitta under Sections 10 (ix) and (x) of the Divorce Act , 1869, against the respondent herein-husband seeking a decree of divorce to dissolve the marriage solemnised between them on 12.07.2012, at New Delhi, as per the custom prevailing in their community. On the ground that the Family Court, Pathanamthitta is not having any territorial jurisdiction to proceed with that original petition, the same was returned by the order dated 15.09.2021, to present before the proper court. Feeling aggrieved, the appellant is before this Court in this appeal, invoking the provisions under Section 19(1) of the Family Courts Act , 1984.

2. On 20.10.2021, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondent by speed post.

3. By the order dated 01.12.2022 in I.A.No.1 of 2022, the appellant was permitted to take out notice to the respondent by paper publication, in Times of India daily having circulation in Jammu. In terms of the said order, service of notice on the respondent is effected through paper publication, which is placed on record along with a memo dated 14.01.2023 of the learned counsel for the appellant.

4. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the order dated 15.09.2021 of the Family Court in O.P.(Div.)No.440 of 2020, whereby that original petition is returned for presenting before the proper court. Though captioned as judgment, it is an order issued by the Family Court under Order VII Rule 10 of the Code of Civil Procedure , 1908.

5. Clause (3) of Section 3 of the Divorce Act , 1869 defines the term ‘District Court’ to mean, in the case of any petition under the said 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. As per Section 10 of the Act, any marriage solemnised, 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 grounds enumerated under clauses (i) to (x) of sub- section (1).

6. In view of the provisions under clause (iiia) of sub- section (1) of Section 19 of the Hindu Marriage Act, 1955 and clause (iiia) of sub-section (1) of Section 31 of the Special Marriage Act, 1954, inserted by the Marriage Laws (Amendment) Act, 2003 (Act 50 of 2003), with effect from 23.12.2003, a petition for divorce under the provisions of the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954 shall be presented, in case the wife is the petitioner, to the District Court within the local limits of whose ordinary original civil jurisdiction where she is residing on the date of presentation of the petition. In the absence of a similar provision in the Divorce Act , 1869 a petition for divorce under the said Act shall be presented only to the court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under the said Act the marriage was solemnised or the husband and wife reside or last resided together.

7. The learned counsel for the petitioner would place reliance on the provisions under Section 7 of the Family Courts Act , 1984, which deals with the jurisdiction of the Family Court, and also the decision of this Court inDenny Antony v. Marykutty Abraham [ 2007 (1) KLT 776 ].

8. In view of the provisions under clause (a) of sub- section (1) of Section 7 , read with clause (a) to the Explanation, subject to the other provisions of the Act, a Family Court shall have and exercise all the jurisdiction exercisable by any District Court or any subordinate civil court under any law for the time being in force in respect of a suit or proceeding between the parties to a