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HIGH COURT OF JUDICATURE AT MADRAS
Emmanuel Kannan – Appellant
Versus
Nil – Respondent
CRP/4314/2022
DIVORCE - JURISDICTION - MUTUAL CONSENT - [Section 10A of the Divorce Act, 1869] - [Section 45 of the Divorce Act, 1869] - [Section 20 of the Code of Civil Procedure] - Where the wife is residing within the territorial jurisdiction of the court, the court has jurisdiction to entertain a mutual divorce petition filed under Section 10A of the Divorce Act, 1869, even if the husband is residing outside the jurisdiction.
Fact of the Case:
The petitioners, husband and wife, filed a mutual divorce petition under Section 10A of the Divorce Act, 1869, in the Principal District Court, Chengalpattu. The court returned the petition on the ground that the husband was residing outside its jurisdiction. The petitioners filed a civil revision petition challenging the order.
Finding of the Court:
The High Court set aside the order of the lower court and directed it to number and dispose of the mutual divorce petition. The court held that under Section 45 of the Divorce Act, 1869, the Code of Civil Procedure applies to proceedings under the Divorce Act. Under Section 20 of the Code of Civil Procedure, a court has jurisdiction to entertain a suit if the cause of action arises within its jurisdiction. In this case, the wife was residing within the territorial jurisdiction of the Principal District Court, Chengalpattu, and therefore, the court had jurisdiction to entertain the mutual divorce petition.
Issues: Whether the Principal District Court, Chengalpattu, had jurisdiction to entertain the mutual divorce petition filed by the petitioners.
Ratio Decidendi: Under Section 45 of the Divorce Act, 1869, the Code of Civil Procedure applies to proceedings under the Divorce Act. Under Section 20 of the Code of Civil Procedure, a court has jurisdiction to entertain a suit if the cause of action arises within its jurisdiction. In this case, the wife was residing within the territorial jurisdiction of the Principal District Court, Chengalpattu, and therefore, the court had jurisdiction to entertain the mutual divorce petition.
Final Decision: The High Court set aside the order of the lower court and directed it to number and dispose of the mutual divorce petition.
C.R.P.No.4314 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.01.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.R.P.No.4314 of 2022
1.Emmanuel Kannan
2.Dr.Daisy Dhanaseeli
... Petitioners
Vs.
Respondent
... None
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India praying to set aside the docket order dated 21.09.2022 passed in
OP.Sr.No.6669/2022 by the Principal District and Session Court,
Chengalpattu and consequently direct the said Court to number the
OP.SR.No.6669 of 2022 and decide the mutual divorce petition filed under
Section 10A of the Divorce Act, 1869 and to pass any further order or orders
as this Hon'ble Court.
For Petitioners
: Mr.P.Ayyamperumal
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C.R.P.No.4314 of 2022
ORDER
The Civil Revision Petition has been filed, questioning the Docket
order dated 21.09.2022 passed in OP.Sr.No.6669/2022 on the file of the
Principal District and Sessions Court, Chengalpattu and consequently direct
the said Court to number the OP.SR.No.6669 of 2022 filed for mutual
divorce between the petitioners.
2. The petitioners are husband and wife, jointly presented a mutual
divorce petition under Section 10A of the Divorce Act, 1869. The Principal
District Court, Chengalpattu, returned the divorce petition on the ground
that the first petitioner/husband is residing at Secunderabad, Telangana and
therefore, the Principal District Court at Chengalpattu has no jurisdiction to
entertain the mutual divorce petition filed under Section 10A of the Divorce
Act, 1869.
3. Perusal of the mutual divorce petition filed by the petitioners reveal
that the marriage between them was solemnized on 11.10.2013 at All Saints
Church, Trimulgherry, Secunderabad as per the Christian Rites and
Customs. A male child born from and out of the wedlock on 07.07.2014 and
now with the custody of the second petitioner/mother. It is contended that
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C.R.P.No.4314 of 2022
both the petitioners are living separately for more than 2 years and they are
not interested in continuing the matrimonial relationship and had taken a
decision to apply mutual divorce petition under Section 10A of the Divorce
Act, 1869.
4. The Principal District Court, Chengalpattu, returned the papers
merely on the ground that the application is to be presented before the
competent Court at Secunderabad, Telangana.
5. The learned counsel for the petitioners mainly contended that under
Section 45 of the Divorce Act, 1869, Code of Civil Procedure is to be
applied, when there is a doubt regarding the jurisdiction of the Courts.
Section 45 of the Divorce Act enumerates that all proceedings under the
Divorce Act between the parties shall be regulated by the Code of Civil
Procedure, 1908. In the present case, there was no possibility for residing
jointly by the petitioners at Chennai and the second petitioner/wife is
residing at Pallavaram, Chennai, falling within the territorial jurisdiction of
the Principal District Court at Chengalpattu.
6. The learned counsel for the petitioners relied on the judgment of the
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C.R.P.No.4314 of 2022
High Court of Bombay in the case of Hariram Dhalumal Karamchandani
Vs. Jasoti, reported in AIR 1963 Bom 176, wherein the Bombay High
Court made the following observations:
“10. It may be noted that Section 45 of the Indian
Divorce Act is almost identical in terms with Section 21 of
the Hindu Marriage Act, which provided that “subject to
the provisions herein contained, all proceedings under this
Act between party and party shall be regulated by the Code
of Civil Procedure”.
Thus, in this case, where the provision as to
jurisdiction specifically contained in Section 19 of the
Hindu Marriage Act, viz., the place of solemnization of
marriage or place of residence of husband a
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