The term “jurisdiction” is derived from two Latin words “ juris” and “ dicto” which means “I speak by the law”. The Black‘s Law Dictionary defines jurisdiction as: “a Court‘s power to decide a case or issue a decree.” Jurisdiction means and includes any authority conferred by the law upon the court, tribunal or judge to decide or adjudicate any dispute between the parties or pass judgment or order. Whenever the suit is made before the court the initial issue is to decide whether the court has jurisdiction to deal with the matter. If the court has all the three territorial, pecuniary or subject matter jurisdiction then simply the court has the power to deal with any of the cases. If any order passed without jurisdiction, it becomes nullity and not enforceable by law. In this article, we shall discuss jurisdiction under Divorce Act, 1869.
In Hirday Nath Roy v. Ram Chandra Barna Sharma, 1920 SCC On Line Cal 85 case, the Calcutta High Court in a full bench judgment explained the term jurisdiction. It stated “… jurisdiction may be defined to be the power of Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it; in other words, by jurisdiction is meant the authority which a Court has to decide matters presented in a formal way for its decision.”
In Official Trustee, West Bengal v. Sachindra Nath Chatterjee, AIR 1969 SC 823 case, the Apex Court observed “if a Court has jurisdiction to try a suit and has authority to pass orders of a particular kind, the (act that it has passed an order which it should not have made in the circumstances of the litigation, does not indicate total want or loss of jurisdiction so as to render the order a nullity” (emphasis supplied).
From the above discussion it is clear that before a Court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass, the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties.
Jurisdiction Under Divorce Act:
Preamble of the Act, Section 2 and Sections 4 to 9 gives provisions for jurisdiction under Divorce Act, 1869.
A person professing Christianity can file petition under this Act:
According to the first object of the Indian Divorce Act, 1869, the Act placed the High Courts in the same footing with the Court for Divorce and Matrimonial Causes in England in administering matrimonial law in India. The second object of the Act was to give matrimonial reliefs to Christians. Thus, the Act applies if if the one of the parties to the proceedings is a Christian.
Thus, the provisions of the Divorce Act apply to the persons who profess Christianity at the time of petition, but not at the time of marriage. For example, the wife and the husband were Hindus at the time of marriage, and subsequently they converted into Christianity. Thereafter a dispute arose between the twos. Husband converted to Hindu again and the wife remained Christian. The wife is entitled to get relief under the Divorce Act, but not under the Hindu Marriage Act, 1955.
If a person professing the Christianity is expelled by a Church for any reason, such person is deemed to be Christian.
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In David v. Nilamuni Devi (AIR 1953 Ori 10) case, the Court held that persons who are followers of the Christian religion are “Christians” and that baptism is not a condition precedent for professing the Christian religion. Hence a person who is not baptized can be a Christian with reference to the Indian Christian Marriage Act, 1872.
In Maha Ram v. Emperor (AIR 1918 All 168) case, the appellant Maha Ram was a Christian and baptized when a child. But he never professed Christianity. The Court held that if a person does not profess the Christian faith although he might have been baptized as a child, he cannot be regarded as Christian. Thus, only a person who professes the Christian religion is a Christian. Mere facts like dressing up as a Christian or attending a Christian school or being baptized as a child are not sufficient to treat that person as a Christian.
In Sujatha v. Jose Augustine (II (1994) DMC 442) case, the petitioner Sujatha was born as a Hindu belonging to Nair community and the first respondent belonged to Latin Catholic Community. Sujatha married with Jose and after marriage, Sujatha was baptized without her knowledge. Sujatha pleaded that both the baptism and the marriage have been conducted without her free will and are also not in accordance with the Canon law governing baptism and marriage. The Court held that if the baptism ceremony is conducted as an empty formality preceding the marriage ceremony and if the person has no faith in Christianity and a Christian way of life, he cannot be regarded as a Christian.
Thus, the question of professing Christianity is a question of action of a person and not the action of his Church.
Parties domiciled in India can file petition under the Act:
Under Section 2 of the Act, a decree of dissolution of marriage cannot be passed unless the parties are domiciled in India at the time of the petition. Domicile of parties’ mean parties are residing in India with an intention of permanent or indefinite residence. A change in the domicile by respondent after the institution of proceedings does not affect the jurisdiction of the Court.
Jurisdiction Under Divorce Act of the Court:
Sections 4 to 9 of the Act, deal with the jurisdiction of High Courts.
According to Section 4 of the Act, the jurisdiction now exercised by the High Courts in respect of divorce a mensa et toro, and in all other causes, suits and matters matrimonial, shall be exercised by such courts and by the District Courts subject to the provisions in this Act contained, and not otherwise; except so far as relates to the granting of marriage-licenses, which may be granted as if this Act had not been passed.
mensa et toro is a Latin term which translates as “from bed and board.”The meaning ofmensa et toro isrelating to a separation in which the parties remain husband and wife but without cohabitation.
According to Section 5 of the Act, any decree or order of the late Supreme Court of Judicature at Calcutta, Madras or Bombay sitting on the ecclesiastical side, or of any of the said High Courts sitting in the exercise of their matrimonial jurisdiction, respectively, in any cause or matter matrimonial, may be enforced and dealt with by the said High Courts, respectively, as hereinafter mentioned, in like manner as if such decree or order had been originally made under this Act by the Court so enforcing or dealing with the same.
According to Section 6 of the Act, all suits and proceedings in causes and matters matrimonial, which when this Act comes into operation are pending in any High Court, shall be dealt with and decided by such court, so far as may be, as if they had been originally instituted therein under this Act.
According to Section 8 of the Act, the High Court may, whenever it thinks fit, remove and try and determine as a Court of original jurisdiction any suit or proceeding instituted under this Act in the Court of any District Judge within the limits of its jurisdiction under this Act. The High Court may also withdraw any such suit or proceeding, and transfer it for trial or disposal to the Court of any other such District Judge.
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By the amendment Act, 2001, the High Court lost its original jurisdiction to try the matrimonial reliefs of the Christians. However, the Section 8 empowers the High Court to invoke its jurisdiction only during pendency of the petition and not after its dismissal.
In Osborne Lewis Jordan v. Phylis Silvia Jordan, AIR 1986 Del 72 case, the Court held that once the dissolution of marriage is dismissed, the Petitioner’s remedy is an appeal therefrom under Section 55.
According to Section 9 of the Act, when any question of law or usage having the force of law arises at any point in the proceedings previous to the hearing of any suit under this Act by a District Court or at any subsequent stage of such suit, or in the execution of the decree therein or order thereon, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the case and refer it, with the Courts own opinion thereon, to the decision of the High Court.
If the question has arisen previous to or in the hearing, the District Court may either stay such proceedings, or proceed in the case pending such reference, and pass a decree contingent upon the opinion of the High Court upon it.
If a decree or order has been made, its execution shall be stayed until the receipt of the order of the High Court upon such reference.
Conclusion:
Jurisdiction means and includes any authority conferred by the law upon the court, tribunal or judge to decide or adjudicate any dispute between the parties or pass judgment or order. A Court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass, the orders sought for. The provisions of the Divorce Act apply to the persons who profess Christianity at the time of petition, but not at the time of marriage. The question of professing Christianity is a question of action of a person and not the action of his Church. By the amendment Act, 2001, the High Court lost its original jurisdiction to try the matrimonial reliefs of the Christians. Now these matters are dealt by the District Courts. Section 2, 4 to 9 deal with jurisdiction under Divorce Act, 1869.