The court emphasized the necessity of allowing trial proceedings to determine maintainability issues regarding jurisdiction under the applicable statutes.

JUDGMENT Devan Ramachandran, J.

The petitioner challenges Ext.P14 order of the learned Family Court, Thiruvananthapuram, since it has found that the Original Petition in question, namely OP No.1682/2023, is not maintainable before it because the transactions alleged therein did not happen within its territorial limits.

2. Smt.Sandra Sunny Otta, representing Smt.V.S.Rakhee – learned counsel for the petitioner, argued that the learned Family Court prejudged the issue of maintainability without allowing the parties an opportunity of leading evidence because, the disputes are in the factual realm, including whether the cause of action has arisen within its territorial limits. She pointed out that, in fact, there is another Original Petition between the parties, seeking divorce - which has been filed before the same Court and was found maintainable by it, as evident from Ext.P14. She argued that, in such circumstances, the direction in the impugned order, that her client should present the Original Petition in question before another Court is unfortunate and untenable because, this will lead to multiple Courts deciding the same issue between the same parties.

3. Smt.Sandra Sunny Otta thereafter asserted that, even going by the provisions of Sections 19 (iii) and 27 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’) the Original Petition before the learned Family Court is maintainable. Her contention was that these provisions allow her client to institute the Original Petition at the place of her residence.

4. The afore submissions of the learned counsel for the petitioner were vehemently opposed by Smt.Hyma S. - learned counsel for the respondents, saying that when the pleadings in Ext.P5 – which is a copy of the Original Petition in question – clearly establish that every transaction between the parties happened at Alappuzha and not in Thiruvananthapuram; and when the sole reason stated by the petitioner for seeking the learned Family Court to exercise jurisdiction is that she is residing within its territory, it becomes untenable in law; and therefore, the view in Ext.P14 cannot be found to be in error. She then countered the submissions of the petitioner hinged on Sections 19 (iii) and 27 of the ‘Act’, saying that the Original Petition in question was not filed under the said ‘Act’ and for the second, the property in question is not one that is jointly owned.

5. We have examined Ext.P14 and, as rightly argued by Smt.Sandra Sunny Otta, the learned Family Court has found that OP No.1683/2023 between the parties is maintainable before it; but, when it comes to OP No.1682/2023, it has concluded that all transactions alleged arose within the jurisdiction of another Court. It is in such manner that the petitioner has been directed to present the Original Petition before the Court having jurisdiction.

6. We are afraid that we cannot find full favour with the view of the learned Family Court because: for one, OP No.1683/2023 continues to be within its jurisdiction; and, for the second, the question whether there is any cause of action in OP No.1682/2023 arising or subsisting within its territorial limit is itself a mixed question of fact and law, which will have to be decided only after trial.

7. That apart, since the disputes between the parties are virtually common in both the cases - the foundational facts and allegations being rather conjoint - we are of the view that the learned Family Court ought to have allowed the parties to trial, before it could have taken a final decision on the question of jurisdiction.

8. In other words, the learned Family Court will decide the question of jurisdiction also, after affording necessary opportunit