[S.24 CPC] Territorial Jurisdiction Is Not A Criteria While Transferring Divorce Petition To Competent Court: Kerala High Court

The High Court has power under Section 24 of the Code of Civil Procedure to transfer a proceeding to any Court subordinate to it and competent to try or dispose the suit. The Court held that competence is not with reference to territorial jurisdiction.

The Bench of Justice Anil K. Narendran and Justice Harisankar V. Menon held:

“Thus when a suit is transferred from one court to another, this Court only needs to make sure that the court to which the suit is transferred is 'competent to try' the same. Here, the term competence under Section 24 of the Code is with reference to the status of the court and not with reference to the territorial jurisdiction.”

The Appellant and respondent are husband and wife respectively. The husband had filed a divorce petition before the Family Court, Muvattupuzha. The wife filed a divorce petition before the Family Court, Thalassery. The High Court in a petition filed by the wife allowed to transfer the divorce petition filed by husband to Family Court, Thalasserry.

The petitioner argued that Thalassery Family Court has no jurisdiction to try the petition. As per Section 3(3) of the Divorce Act, the petition can be only before the Court within whose jurisdiction the marriage was solemnized or where the husband and wife reside or resided together. The marriage occurred within the jurisdiction of Muvattupuzha Family Court. They have also not lived together in the jurisdiction of Thalassery Family Court.

The Court held that this is only for the institution of suit. The suit can be instituted only where the parties married or resided together.

The Court observed that the Single Bench had observed that the balance of convenience is in favour of wife. She is abroad and her parents are taking care of their minor daughter. Further, the wife had filed petitions for maintenance and return of gold before the Thalassery Family Court. This all needed to be tried together.

Hence, the Court dismissed the Appeal

Counsel for Appellant: Advocate Akhil Alphonse G.

Counsel for Respondent: Advocates P. Jeril Babu, Srinath Girish

Case No: Tr. Appeal (C) 4 & 5/ 2024

Case Title: Eldho Varghese v Liya Jose

Citation: 2024 LiveLaw (Ker) 412