Amendments affecting jurisdiction are procedural and can retroactively validate divorce petitions filed before their enactment.

1 A petition for divorce was filed by the 2nd respondent herein before the Family Court, Thiruvananthapuram. The allegations in the petition was that the husband and wife last resided together in Thiruvananthapuram and therefore that court has jurisdiction to hear the case. Before the written statement was filed in the main Original Petition, the Indian Divorce Act was amended and S.3(3) provided that the District Court within whose jurisdiction the marriage was solemnised was also competent to decide the cases. The question of jurisdiction was directed to be considered as per orders passed by this Court in O.P. No. 11602 of 2002. It was thereafter that the Indian Divorce Act was amended with effect from 3.10.2001. The Family Court held that though it is not proved that the parties last resided together within Thiruvananthapuram District, by virtue of the amendment, that Court has got jurisdiction and that the case could be continued.

2 The short question therefore is whether when on the date of the filing of the petition for divorce, it is found that the petition was not maintainable before that particular court whether the amendment of the Act which came into force before the case was disposed of could confer jurisdiction.

3 Before me, it was agreed by both sides that all amendments affecting substantive rights of parties can be only prospective unless it is made retrospective by the Amending Act itself. It is also agreed that amendments which are affecting procedural rights of parties are deemed to be retrospective in nature. Therefore, the question to be decided in this case whether the amendment to S.3(3) of the Divorce Act conferring the jurisdiction to District Court within whose jurisdiction the marriage was solemnised will validate the petitions already filed which on the finding of facts could not be filed before that court but for the amendment.

4 The learned counsel for the 2nd respondent stated that there is nothing standing in the way of withdrawing of the present petition and filing a fresh petition as per the amended Act which will be maintainable before the same court even according to the petitioner in the O.P. Therefore no prejudice will be caused to the petitioner if the same petition is continued by the Family Court. The learned counsel for the petitioner was asked as to how his client is prejudiced by continuing the same O.P. and he stated that since the filing of the petition was before a court without jurisdiction he is entitled to get it dismissed.

5 Therefore, the question to be decided is whether the amendment of the Act by including within the territorial jurisdiction of the District Court, the place of marriage also will affect the substantive right of parties or it affects only the procedural rights. Both sides relied on various decisions and I will refer to some of them which are applicable in this case.

6 In New India Assurance Co. Ltd. v. P. Chandran (1999 (2) KLJ 574), a Full Bench of this Court has held that the amendment of the Workmens Compensation Act enhancing the compensation to the injured workmen operates only prospectively and has no retrospective effect. The Full Bench held that merely because the claim was pending before the Commissioner for workmens compensation at the time when the amendment came into force it will not enable the claimant to get compensation as per the amended Act.

7 The learned counsel for the petitioner referred me to the decision of the Mysore High Court in Yankapa v. Shavakka (AIR 1960 Mysore 265). That was a case where the suit filed for restitution of conjugal right before the coming into force of the Hindu Marriage Act was sought to be defeated on the ground that after the commencement of the Act only the District Court has got jurisdiction to hear such cases. It was found that when the suit was filed the joint civil Judges had jurisdiction and there is nothing in the Act which takes away such jurisdiction in the new Act. It was observed as follows:
It is now well