Divorce Act| HCs Have Extraordinary Jurisdiction To Withdraw Suits Or Proceedings From One Court And Transfer Them To Another: Kerala HC
The Kerala High Court held that the High Court was conferred with extraordinary jurisdiction to withdraw any suit or proceeding pending before one court and transfer the same for trial or disposal to another court under Section 8 of the Divorce Act, 1869.
The Court explained that the term ‘competence’ under Section 24 of the CPC was with reference to the status of a court and not with reference to its territorial jurisdiction.
A Division Bench of Justice Anil K. Narendran and Justice Harisankar V. Menon observed, “This Court is conferred with extraordinary jurisdiction to withdraw any suit or proceeding pending before one court and transfer the same for trial or disposal to another court.”
Advocate Akhil Alphonse G. represented the appellant, while Advocate P. Jeril Babu appeared for the respondent.
The Single Judge of the High Court disposed of both transfer petitions filed by the husband and wife by a common judgment. The Single Judge had noticed that the balance of convenience was in favour of the wife as she was abroad and her parents were taking care of the minor daughter.
The husband argued that the Single Judge erred in ordering the transfer, as the Family Court in Thalassery did not have jurisdiction under the Divorce Act, 1869 (the Act). Relying on the Kerala High Court judgment in Renny Elizabeth Umman v. Amrutha Raj Baby (2023), the husband contended that the court within the local limits where the marriage was solemnized or where the couple last resided together holds jurisdiction. On the other hand, the wife defended the transfer based on the provisions of Section 24 of the CPC.
Referring to Section 8 of the Divorce Act, the Bench explained that the High Court was conferred with extraordinary jurisdiction to withdraw any suit or proceeding pending before one court and transfer the same for trial or disposal to another court.
“Under Section 24 (1) of the Code, the High Court or District Court may at any stage withdraw any suit, appeal or other proceeding pending in any court subordinate to it; and transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same. 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,” the Court remarked.
Consequently, the Court held that “the prayer of the husband to transfer one out of the above three petitions to the Family Court, Muvattupuzha, cannot be accepted…the judgment of the learned Single Judge dismissing Tr. Petition(C) No.132 of 2024 is perfectly correct.”
Accordingly, the High Court dismissed the appeal.
Cause Title: X v. Y (Neutral Citation: 2024:KER:45949)
Appearance:
Appellant: Advocate Akhil Alphonse G.
Respondent: Advocates P. Jeril Babu and Srinath Girish