Research › Search › Judgment

Karnataka High Court · body

2003 DIGILAW 537 (KAR)

S. RAJESHWAR v. R. KARTHIYEGAN

2003-07-11

body2003
( 1 ) RESPONDENT wife in matrimonial case No. 134/2002 on the file of the First Addl. Family Judge, Bangalore is the petitioner in this writ petition being aggrieved by the order passed by the First Addl. Family Judge, Bangalore holding that the said Court has jurisdiction to entertain the matrimonial petition that had been presented by the petitioner husband before that Court seeking for dissolution of the marriage between the parties and for a decree of divorce. ( 2 ) THE respondent wife in the matrimonial case had filed an application IA IV praying for dismissal of the petition as not maintainable. The case as set up in the application is that the Family Court at Bangalore does not have jurisdiction to entertain the matrimonial petition filed by the husband, that the marriage of the parties had been solemnized at Chennai, that couple last lived together at Milpitas, California in United States of America, that after separation, the wife against whom the petition had been filed is now living in Chennai and as such the Court at Bangalore has no jurisdiction to entertain the petition. ( 3 ) THE application was opposed by the petitioner before the Court below. It was inter alia asserted that immediately after the marriage at Madras the parties came to Bangalore and resided together for a while and as such the petition presented under Section 13 of the Hindu Marriage Act is tenable. The learned Judge of the Family Court having heard the arguments of the learned counsel for the parties was of the view that the circumstances indicated that the parties had briefly stayed at Bangalore and the Court at Bangalore had jurisdiction as indicated in Section 19 of the Hindu Marriage Act and as such dismissed the application filed by the wife. It is aggrieved by this order the present writ petition has been filed in the absence of any other remedy. ( 4 ) I have heard the submissions of learned counsel for the parties. ( 5 ) THE brief facts are that the parties got married at Chennai on 10. 9. 2000, that they came to Bangalore on 16. 9. It is aggrieved by this order the present writ petition has been filed in the absence of any other remedy. ( 4 ) I have heard the submissions of learned counsel for the parties. ( 5 ) THE brief facts are that the parties got married at Chennai on 10. 9. 2000, that they came to Bangalore on 16. 9. 2000 were at Bangalore for a week and the couple left for United States via Chennai and Singapore, that the couple lived together as husband and wife by taking a house at Milpitas in the State of California in United States of America. Thereafter differences had cropped up between them that on 16. 11. 2001 the couple returned to Chennai and the wife wanted to return to her parents home etc. , and the husband came to Bangalore for a brief while and returned to California on 26. 11. 2001. The husband again returned to India and Bangalore on 19. 1. 2002 and presented the matrimonial petition before the Family Court at Bangalore as on 25. 1. 2002. It is not in dispute that as of now the matrimonial case is prosecuted by the husband through his power of attorney holder his father. ( 6 ) SRI Chandan S. Rao, learned counsel for the petitioner submits that the order passed by the court below is erroneous, that the learned judge has committed a grave error in assuming jurisdiction where there is none, that the Family Court should not entertain the matrimonial petition for want of jurisdiction, that the learned judge has obviously overlooked the fact that the couple having last resided together in California for a period from 23. 9. 200 to 15. 11. 2001, that the parties had taken home with an intention to live at California where the husband was working and earning and as such the petition ought to have been dismissed. 9. 200 to 15. 11. 2001, that the parties had taken home with an intention to live at California where the husband was working and earning and as such the petition ought to have been dismissed. Learned Counsel also invites the attention of this Court to the provisions of Section 19 (iii) of the Hindu Marriage Act which reads as under: the parties to the marriage last resided together, or submits that if at all jurisdiction in favour of the Family Court at Bangalore is claimed under Section 19 (3) of the Act that the couple last resided together was only at a place in California and not at Bangalore, that the so called stay at Bangalore earlier, immediately after the marriage was only for the purpose of reception and not with an intention of residing at Bangalore. The factual last place of residence together was not Bangalore but was at No. 47, Dutton Wood Lane, Milpitas, CA 95035 U. S. A. Even the earlier stay at Bangalore cannot be characterized as residing together for the purpose of Section 19 (3) of the Act and as such the application filed by the wife is to be allowed. In this behalf learned counsel has placed reliance on the decision of the Supreme Court in the case of Smt. Jeewanti Pande vs Sri Kishan Chandra Pandey reported in AIR 1982 SC page 3 wherein the Supreme Court had occasion to deal with the provisions of Section 19 (2) of the Act and expressed the view that the word residence does not connote merely the place of stay but something more than a place to stay that it must be a place where the parties set up their home and have a permanent place of address, that a casual stay or visit does not mean that the parties have set up residence at that place and if such reasoning is applied the so-called stay of the parties at Bangalore for a short period in the month of September, 2000 cannot be termed as the place of residence where the parties last resided together. ( 7 ) SRI Wajid learned counsel for the respondent husband on the other had submits that it is a fact that the parties lived together for a brief period at Bangalore immediately after the marriage, that the husbands permanent place of residence is at Bangalore and in so far as the place of residence within India is concerned the last place the couple resided together is only at Bangalore, that their stay together at Milpits to California cannot be taken for the purpose of deciding the jurisdiction within the meaning of Section 19 (3) of the Act, as such stay outside India has to be ignored and as such the Family Court at Bangalore has rightly entertained the petition. Learned Counsel submits that the Family Court at Bangalore has jurisdiction. Elaborating his submission Mr. Wajid submits that the meaning of the word last residing together has come in for judicial interpretation, that last residing together is not necessarily a place where the parties reside permanently, that if the parties had resided together as husband and wife in view of the matrimonial relationship at a place even for a short or a brief period it is sufficient to confer jurisdiction on the Court. In this regard learned counsel has placed reliance on the following decisions:1. AIR 1996 Mys. 178 Lalithamma vs R. Kannan2. AIR 1965 Mys. S. Saroja v. P. G. Emmanual3. AIR 1977 All. 97 Santhosh Kumari v. Om Prakash4. AIR 1998 MP 154 ( 8 ) LEARNED Counsel has also placed reliance on the decision of the Supreme Court in Jagirkaur vs V. Jaswant Singh reported in AIR 1963 SC 1521 and that the ratio laid down in this decision has been followed by our High Court and the High Courts of Allahabad and Madhya Pradesh and strongly urged that applying the principle laid down by the Supreme Court to the present case the writ petition should be dismissed upholding the order impugned herein. ( 9 ) THE fact that the couple stayed at Bangalore between 16. 9. 2000 and 23. 9. 2000 is not disputed by the parties. ( 9 ) THE fact that the couple stayed at Bangalore between 16. 9. 2000 and 23. 9. 2000 is not disputed by the parties. While the case of the petitioner wife is that it was not for the purpose of setting up a home or for living together as husband and wife and it was only for the purpose of attending reception at Bangalore, the contention of the respondent is that the husband is permanently residing at Bangalore and at Bangalore is situated the ancestral home of the husband and therefore stay at Bangalore should be constructed as a stay of the couple together for the purpose of Section 19 (3) of the Act. The stay of the parties together at Milpitas, California between 23. 9. 2000 to 16. 11. 2003 is also not in dispute which is characterized as permanent place of stay of the respondent. Viewed from any angle, if such stay is to be taken in to consideration undoubtedly the last place of residence together of the couple is not Bangalore Court would not have jurisdiction under Section 19 (3) of the Act. It is precisely for this reason learned counsel for the husband submits that the couples stay in the foreign country is to be ignored for the purpose of entertaining writ petition under the provisions of the Hindu Marriage Act and for the purpose determining the jurisdiction under Section 19 (3) of the Act as such a petition cannot be presented before the Court at Milpitas, California State of United States of America for the relief sought for in the present matrimonial case, that accepting the version on behalf of the wife that they last resided together at Milpitas amounts to conferring jurisdiction on a foreign Court, which is not possible as pointed out by the Supreme Court, the interpretation leading to conferring jurisdiction on a foreign court should be avoided. ( 10 ) BUT the question is not one as to whether jurisdiction will be conferred on a foreign Court by mere fact that the couple lived together as their last place of residence. To accept the fact that the couple lived together at Milpitas, California does not necessarily mean that jurisdiction is conferred as having jurisdiction, which is in a foreign country. To accept the fact that the couple lived together at Milpitas, California does not necessarily mean that jurisdiction is conferred as having jurisdiction, which is in a foreign country. In Jagir Kaurs case the Supreme Court had examined the claim of a deserted husband with whom the wife claimed that she had last lived together in the foreign country. The Court held that the interpretation to be placed on the provision conferring jurisdiction should be in a manner to advance the purpose for which the provisions of maintenance is made and not to deprive or deny the very relief to the claimant by placing an interpretation on the question of jurisdiction in a manner that the jurisdiction of the Court is ousted. The Supreme Court held that to effectuate the provisions of the Criminal Procedure Code for award of maintenance the interpretation should be such as to confer jurisdiction on Court in India and not outside. ( 11 ) IF the ratio of this decision is to be followed, the interpretation to be placed on the provisions of Section 19 of the Act should be such that, the jurisdiction of Courts in India to entertain a petition under the Act is retained. As per Section 1 of the Act the Act applies to the whole of India except the State of Jammu and Kashmir and applies also to Hindus domiciled in India but who are in India. That means it is only the Courts in India who have jurisdiction to deal with a petition and even those person who are domiciled in India but who have gone abroad can also seek relief from Courts in India so long as the provisions of the Act are applicable to them. The Act is neither enforced in a foreign country, nor any court in a foreign country gets or has jurisdiction to entertain and decide a petition presented as per the provisions of the Act. Therefore acceptance of a particular fact situation cannot lead to the position of conferring jurisdiction on a foreign court as understood by the learned Judge of the Family Court. Therefore acceptance of a particular fact situation cannot lead to the position of conferring jurisdiction on a foreign court as understood by the learned Judge of the Family Court. ( 12 ) SECTION 19 of the Hindu Marriage Act is a provision which confers jurisdiction in the context of a petition to be presented before the Court for the purpose of express relief mentioned in Sections 11, 12 and 13 of the Act and that has to be presented to the District Court within the local limits of whose ordinary original civil jurisdiction, one of the four situations has occurred or arises namely (i) the marriage was solemnized, (ii) or the respondent, at the time or the presentation of the petition resides, (iii) or the parties to the marriage last resided together, (iv) or the petitioner is residing at the time of the presentation of the petition, in a situation where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive. ( 13 ) THE Act clearly indicates that the jurisdiction is confined to Indian Courts and that too to the District Court and a District Court is also defined under Section 3 (b) of the Act as a city civil court, a civil Court established in a particular area or particular civil Court of original jurisdiction of that area including any other civil court which may be specified by the State Government by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act. Therefore the jurisdiction is expressly conferred on the District Court or other Court which comes within the meaning of Section 3 of the Act. There is no danger of jurisdiction being conferred on a foreign Court if the fact of the couple living together in a foreign country is taken note of and if that is so, the Court in India where the petition presented on the premise that the parties to the marriage last resided together, not having jurisdiction under Section 19 (3) of the Act. It is a matter to be noticed that under the scheme of the Act the Court having jurisdiction is the place where marriage was solemnized or respondent at the time of presentation of the petition resides or where the couple last lived together. In fact petitioners place of residence is also treated as a place conferring jurisdiction on the Court at that place, but only in a situation where it is by the person whose spouse is living outside the territory to which the Act extents or whose whereabouts are not heard of for a period 7 years or more, by those persons who would naturally have heard of him if he were alive. The intention of these provisions is that the respondent should not be put to inconvenience. In the instant case petitioner is admittedly residing permanently at Milpitas, California and it is not in dispute that the marriage took place at Chennai and as of now the respondent resides at Chennai and the parties last lived together at a place outside Bangalore and also outside India. In the circumstances it is not possible to accept the proposition that the Court at Bangalore should be conferred jurisdiction on the premise that this was the last place of residence together of the parties in India, even when this aspect is virtually disputed I am not inclined to accept this argument for the purpose of conferring jurisdiction on a Court at a place where the provisions of the Statute did not expressly provide for. On the other hand what is expressly provided for is a Court within the local limits of whose original civil jurisdiction the parties to the marriage last resided together. In the present case as a matter of fact the parties had not last resided together at Bangalore. It is not as though but for this cause, a petition for the relief sought for by the husband cannot be presented in a Court in India at all. A petition can be presented before the Court that has jurisdiction as indicated in Section 19 of the Act. In the circumstances the order dated 19. 9. 2002 passed on IA No. IV in MC NO. 134/2002 is quashed by issuing a writ of certiorari. A petition can be presented before the Court that has jurisdiction as indicated in Section 19 of the Act. In the circumstances the order dated 19. 9. 2002 passed on IA No. IV in MC NO. 134/2002 is quashed by issuing a writ of certiorari. Consequentially the Judge, Family Court, Bangalore is restrained form proceeding further in the matter of matrimonial case for the reason that the Court has no jurisdiction to entertain a petition of this nature. Liberty reserved to the respondent husband to take back the papers and present it before the jurisdictional Court. Rule issued and made absolute. Writ petition allowed. --- *** --- .