Oral Judgment:
1. Heard Mr. Rao, learned counsel for the appellant. None present for the respondent though duly served.
2. Admit. Heard finally in view of the notice issued by this Court for final disposal at the stage of admission, vide order dated 25.7.2013.
3. This appeal raises a short question which is as follows:-
Whether the District Court has jurisdiction to entertain a civil suit instituted under Section 18 of the Foreign Marriage Act, 1969 (œthe FMA, 1969? for short) read with Section 38 of the Special Marriage Act, 1954( œthe SMA, 1954? for short) in view of the judgment rendered by the High Court of Bombay at Goa in Letters Patent Appeal No. 31 of 1998 on 19.6.2000 in the case of Monica Variato Vs. Thomas Variato, 2000(2) Goa L.T. 149?
The appellant herein has contended that his marriage with respondent was solemnized under the provisions of the FMA, 1969. It appears that some matrimonial dispute arose between the appellant and the respondent as a result of which the appellant filed a suit for custody of minor children under Section 18 of the FMA, 1969 before the Court of District Judge, North Court , Panaji Goa.
4. Learned District Judge issued notice to the appellant on 25.3.2013 seeking clarification on the point mentioned in the notice. The point on which clarification was sought is as under:-
œIn view of the Judgment passed by the Hon'ble High Court of Bombay at Goa in letter pattern Appeal No. 31/1998 it appears that this Court has no jurisdiction to entertain the C.S. U/s 38 of the Special Marriage Act, 1954 and the same lies within the jurisdiction of Civil Court?
5. The appellant filed reply/clarification on the point raised in the notice stating that Court of District Judge had the jurisdiction to try the said civil suit.
6. Learned District Judge after considering the reply and hearing the appellant found that in view of the law laid down in the said case of Monica(supra), District Court did not have any jurisdiction and directed that petition be filed before Civil Court by an order passed on 6.4.2013.
7. Not satisfied with the same, the appellant is before this Court by preferring the present appeal. Learned counsel for the appellant has submitted that marriage of the appellant and the respondent was solemnized under the provisions of the FMA, 1969 and since this is a post liberation enactment, District Court would have jurisdiction to try the suit filed by the petitioner. He submits that in the case of Monica (supra), parties had been married under the provisions of the SMA, 1954 and the facts of that case showed that parties therein were domiciled in Goa and where as in the instant case none of the parties is a domicile of Goa. He submits that this distinguishing feature of the case of Monica (supra) has been lost sight of by learned District Judge and result is erroneous and illegal order in the nature of return of the plaint to the appellant.
8. Upon going through the provisions of the Section 18 of the FMA, 1969, the provisions of the SMA, 1954 and also the judgment rendered in the said case of Monica(supra), I find that learned counsel for the appellant is right when he submits that learned District Judge has erroneously applied the ratio of the said case to the instant case.
9. Section 18 of FMA, 1969 lays down that provisions of Chapter 4, 5, 6 and 7 of SMA, 1954 shall apply in relation to marriage solemnized under this Act and to any other marriage solemnized in a foreign country between parties of whom one atleast is a citizen of India, as they apply in relation of marriages solemnized under that Act. From the language of Section 18 of FMA, 1969, it is clear that Parliament has added provisions of Chapter 4, 5, 6 and 7 of SMA, 1954 to FMA, 1969 through a process of incorporation by reference and therefore, all the provisions contained in the said chapters of SMA, 1954 would have to be considered as the provisions enacted in the Act itself. This Act, FMA, 1969, is a post liberation statute having been enacted on 31.8.1969. It's object is to make provision relating to marriages of citizens of India outside India. Incidence of marriages gives rise to certain rights and obligations of parties to marriage. But, they cannot be enforced unless recognition is given to them and machinery for their enforcement is created by law. Chapters 4 to 7 of SMA, 1954 provide for certain rights and obligations in respect of marriages and also confer jurisdiction upon competent Courts to try the disputes thereunder in accordance with procedure prescribed therein. By referring to all these provisions, Section 18, FMA, 1969 has incorporated them in the Act and by such incorporation, they now form an integral part of FMA, 1969, as if they have been enacted originally. Therefore, when explanation to sub-section (2), Section 18, FMA, 1969 says that œdistrict court? has the same meaning as in SMA, 1954, it would mean as if the expression œdistrict court? is defined under FMA, 1969 itself and it would have no connection whatsoever with whether SMA, 1954 is made applicable to State of Goa or not. For ascertaining the meaning of œdistrict court? one does not have to look into the aspect of applicability of the Act in which it is defined to State of Goa, when the definition itself is imported through devise of reference and made an integral part of the Act incorporating it. By incorporation, the provision gets separated from the parent Act and assumes independence and becomes part and parcel of the incorporating Act. In such a case, the provision has to be interpreted by reference to and in the context of incorporating Act only and would not be affected by the issue of applicability of it's parent Act.
10. Viewed in this way, I am of the opinion that District Court, Panaji, falling within the definition as given under Section 2(e) of SMA, 1954, does have the jurisdiction over the matter and therefore the petition should not have been returned. The learned District Judge has committed serious error of law in returning the plaint to be filed before the Civil Court.
11. So far as ratio of the case of Monica (supra) is concerned, I find that there are several features which distinguish case in hand from the facts of the case of Monica (supra). Parties in that case were married under the provisions of SMA, 1954 and that they were also domiciled in the State of Goa. In the instant case, marriage has been solemnized under the provisions of FMA, 1969 and either of the parties is not a domicile of State of Goa. Therefore, for seeking matrimonial reliefs including relief in the nature of seeking custody of minor children born out of a valid wedlock, it would be the District Court as defined under Section 2(e) SMA, 1954 which will have jurisdiction. Therefore, in my humble opinion, the ratio of the case Monica (supra) could not have been resorted to by the learned District Judge in passing the impugned order.
12. In the result, the appeal succeeds. The point is answered in terms that District Court has jurisdiction to try and dispose of the petition filed under Section 18 of FMA 1969 read with Section 38 of SMA, 1954 and the ratio of the said case of Monica (supra), in the facts and circumstances of the case, is not applicable to the instant case. Accordingly, the appeal deserves to be allowed.
13. The appeal is allowed. The impugned order is quashed and set aside. Civil Suit stands restored to the file of District Court and it is directed that District Court shall try and dispose of the suit in accordance with law. Parties to bear their own costs.