Kerala High Court: In an appeal filed by the husband assailing the order of a Single Judge allowing the wife’s transfer petition under Section of the (‘CPC’) in relation to divorce proceedings under the (‘Divorce Act’), the Division Bench of Anil K. Narendran and Harisankar V. Menon*, JJ., while dismissing the appeal, held that, under Section of the , the term ‘competence’ was with reference to the status of the Court before which the suit or appeal was being transferred to, and not with reference to the territorial jurisdiction of the said Court.
Background
The husband and wife had both filed divorce petitions before the Family Court, Muvattupuzh and Family Court, Thalassery, respectively. The wife had also filed petitions for maintenance and return of gold before the Family Court, Thalassery.
Subsequently the wife filed transfer petition before this Court to transfer the petition filed by the husband before the Family Court at Muvattupuzh to the Family Court at Thalassery. Meanwhile, the husband also filed a transfer petition for transfer of the petition filed by the wife before the Family Court at Thalassery to the Family Court at Muvattupuzh.
The Single Judge of this Court, by a common judgment dated 01-04-2024 dismissed the transfer petition filed by the husband, and allowing the wife’s petition, transferred the case before the Family Court at Thalassery, owing to the convenience of the wife.
Aggrieved by such dismissal, the husband filed the present appeal against the impugned order of the Single Judge dated 01-04-2024.
The husband contended that the Single Judge had failed to appreciate the fact that the Family Court, Thalassery did not have jurisdiction in the matter as the parties were not married within the local jurisdiction of the Court. He submitted only a court within whose local limits marriage between parties was solemnised or where the husband and wife resided together, had the jurisdiction to consider a petition under the Divorce Act.
Decision and Analysis
Upon hearing the parties, the Court referred to Section 24 of the CPC as well as Section of the and observed that the Court was empowered to withdraw any suit, appeal or proceeding pending before it and transfer it for trial or disposal to any Court subordinate to it that was ‘competent’ to try or dispose of the same. The Court noted that the term ‘competence’ under Section of the was with reference to the status of the Court and not with reference to the territorial jurisdiction.
The Court said that the divorce petition filed by the husband, although validly instituted, can be transferred to another Court having competency to try the same.
The Court noted that the Single Judge had passed the order keeping in mind that the balance of convenience was in favour of the wife as she was living abroad, and her parents were taking care of the minor daughter. The Court said that the wife filed three petitions before the Family Court, Thalassery, and noted that all three petitions were required to be tried together in respect of the averments contained in each of them.
The Court, therefore, dismissed the appeal and refused to interfere with the order of the Single Judge.
[Eldho Varghese v. Liya Jose, TR. Appeal(C) No. 5 of 2024, decided on 06-06-2024]
*Judgment authored by Justice Harisankar V. Menon
Advocates who appeared in this case:
Advocate for the Appellant: Akhil Alphonse G., Advocate
Advocates for the Respondent: Jeril Babu, Srinath Girish, Advocates
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