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Madhya Pradesh High Court · body

2004 DIGILAW 902 (MP)

Uma Tiwari v. Vikrant Tiwari

2004-11-05

S.S.JHA, SHEELA KHANNA

body2004
Judgment ( 1. ) THIS unfortunate case relates to a young couple, who wants divorce by consent. Both the parties had reached a decision that they can not live together and filed a petition under Section 13-B of Hindu Marriage Act before Family Court, Gwalior, praying therein that decree for divorce by mutual consent be granted. Petition was filed on 15th January, 2004. Court after receiving the application fixed the case six months after filing of the application and recorded the evidence of wife and husband on 23-7-2004. After recording the evidence, Family Court has held that it has no jurisdiction to entertain the dispute. Family Court held that parties were married at Bhind and parties lived together as husband and wife at Bhopal therefore, husbands application before the Family Court at Gwalior is not maintainable. Section 19 of the Hindu Marriage Act is amended by Marriage Laws (Amendment) Act, 2003 on 23-12-2003. As per amendment cause of action to file petition shall be at place where wife is the petitioner and she is residing on the date of presentation of petition, will have jurisdiction to entertain the dispute. Family Court has held that this is a joint application and application is not filed by the wife alone, therefore, Family Court at Gwalior has no jurisdiction to entertain the dispute and ordered for return of petition to the parties for its presentation before the Court of competent jurisdiction. ( 2. ) SHORT question involved in the case is whether Family Court has jurisdiction to entertain the dispute. ( 3. ) IT is not in dispute that wife is residing at Gwalior and husband is not residing at Gwalior. Question involved in the case is whether joint petition by the husband and wife will be maintainable before the Family Court at Gwalior where one of the parties is not residing within the jurisdiction of the Family Court, Gwalior or the cause of action, i. e. , marriage of parties and parties last resided together is not at Gwalior. ( 4. ) IN our opinion Family Court has taken too technical view of the matter. It has not considered the scope of amendment and intention of legislature for permitting filing of petition at a place where wife resides. ( 4. ) IN our opinion Family Court has taken too technical view of the matter. It has not considered the scope of amendment and intention of legislature for permitting filing of petition at a place where wife resides. The Statement of Objects and Reasons are reproduced below: "statement of Objects and Reasons.- The Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 provide that a petition for relief under the provisions of these Acts shall be presented to the District Court within the limits of whose original jurisdiction the marriage was solemnized or the respondent, at the time of the presentation of the petition, resided or the parties to the marriage last resided together or the petitioner was residing at the time of the presentation of the petition, in a case where the respondent was at the time residing outside the territories to which these Acts extended or had not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he were alive. However, these provisions are not considered adequate or fair as far as the women arc concerned. Under the existing provisions, a petition can not be filed by the aggrieved wife to the District Court within the local limits of whose ordinary jurisdiction she may be residing. In view thereof, the Government has decided to amend the provisions of these Acts so that the wife can also file petition in the District Court within the local limits of whose jurisdiction she may be residing. The proposed amendment to Sections 31 and 19 of the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 respectively are based on the recommendations of the Law Commission of India and the National Commission for Women. (2) The Government has also decided to amend Section 39 of the Special Marriage Act, 1954 and Section 28 of the Hindu Marriage Act, 1955 to provide respectively that the parties to a matrimonial suit could prefer appeal within a period of ninety days instead of thirty days. This amendment is based on the observations made by the Supreme Court in a judgment delivered recently. The amendment to these provisions is proposed so that unscrupulous litigant spouses are not facilitated to frustrate the marriage, taking advantage of the inadequate period provided in law. (3) The Bill seeks to achieve the above objects. This amendment is based on the observations made by the Supreme Court in a judgment delivered recently. The amendment to these provisions is proposed so that unscrupulous litigant spouses are not facilitated to frustrate the marriage, taking advantage of the inadequate period provided in law. (3) The Bill seeks to achieve the above objects. " ( 5. ) INTENTION of the Legislature is clear and explicit. Intention of Legislature is that wife can also file a petition in the District Court within the local limits of whose jurisdiction she may be residing. Thus, a petition for divorce under Section 13 or a petition for restitution of conjugal rights under Section 9 will be maintainable at a place where wife is residing. Adverting to Section 19 of the Hindu Marriage Act, after the amendment in Section 19 of the Hindu Marriage Act, where the wife is residing, petition can be presented. ( 6. ) FROM bare reading of Section 13-B of Hindu Marriage Act it is clear that petition for divorce by mutual consent must be presented to the Court jointly by both the parties and not by one party. ( 7. ) JURISDICTION of Family Courts is provided in Chapter 3 of Section 7 of the Family Courts Act, 1984 (hereinafter referred to as act of 1984 ). Section 7 is reproduced below: "7. Jurisdiction.- (1) Subject to the other provisions of this Act, a Family Court shall (a) have and exercise all the jurisdiction exercisable by any District Court or any Subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a District Court or, as the case may be, such Subordinate Civil Court for the area to which the jurisdiction of the Family Court extends. Explanation :- The suits and proceedings referred to in this Sub-section are suits and proceedings of the following nature, namely: (a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; (b) a suit or proceeding for a declaration as to the validity of marriage or as to the matrimonial status of any person; (c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; (d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; (e) a suit or proceeding for a declaration as to the legitimacy of any person; (f) a suit or proceeding for maintenance; (g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise (a) the jurisdiction exercised by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment. " Under the Explanation the power has been conferred upon Family Courts to grant decree for dissolution of marriage among other decrees. Section 13-B of the Hindu Marriage Act is an application for dissolution of marriage by mutual consent of the parties. Therefore, Family Court has power to grant decree for divorce under Section 13-B of Hindu Marriage Act. ( 8. ) NOW the next question involved in the case is that which Court will have jurisdiction to entertain the petition for divorce by mutual consent by the parties. ( 9. Therefore, Family Court has power to grant decree for divorce under Section 13-B of Hindu Marriage Act. ( 8. ) NOW the next question involved in the case is that which Court will have jurisdiction to entertain the petition for divorce by mutual consent by the parties. ( 9. ) SECTION 13-B is reproduced below : "13-B. Divorce by mutual consent.- (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have not been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in Sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. " ( 10. ) THE object of Section 13-B (2) is to allow time to the spouses to reconsider their decision and finally make up their mind but the use of word shall is not considered to be only directory, not mandatory. As regards jurisdiction and procedure, Section 19 of the Act provides for the jurisdiction and the procedure for filing the petition under Section 19 of the Act. Section 19 does not lay down any criteria that in the case of petition under Section 13-B the petition must be filed at a place where the cause of action has accrued to both the parties. Section 19 of the Hindu Marriage Act is reproduced below: "19. Section 19 does not lay down any criteria that in the case of petition under Section 13-B the petition must be filed at a place where the cause of action has accrued to both the parties. Section 19 of the Hindu Marriage Act is reproduced below: "19. Court to which petition shall be presented.- Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction (i) the marriage was solemnized; or (ii) the respondent, at the time of the presentation of the petition, resides; or (iii) the parties to the marriage last resided together; or [ (iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or] (iv) the petitioner is residing at the time of the presentation of the petition, in a case 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. " ( 11. ) THUS, Legislature has provided a place where petition can be filed. Thus, by virtue of amendment in Section 19 of the Hindu Marriage Act, the petition can be filed in the case where wife is the petitioner, where she is residing on the date of presentation of petition. The word "wife is the petitioner" is to be construed in a broader sense. The petition under Section 13-B is a joint petition by husband and wife. Therefore, wife is a petitioner in the said petition and in the circumstances the Court where she resides will have the jurisdiction to entertain the joint petition by the husband and wife. Section 19 does not lay down that the petition, where wife is the joint petitioner, can not be filed at a place where wife resides. ( 12. ) IN the circumstances we hold that Family Court has committed an error in returning the petition for presentation before proper Court. Order passed by the Family Court is set aside and Family Court is directed to decide the application in accordance with law. ( 12. ) IN the circumstances we hold that Family Court has committed an error in returning the petition for presentation before proper Court. Order passed by the Family Court is set aside and Family Court is directed to decide the application in accordance with law. It is further observed that as and when petition is filed and is within jurisdiction under Section 19 of the Act the petition will be maintainable before the Court where it is presented in accordance with Section 19 of the Act. ( 13. ) THE order returning the petition by Family Court is set aside. Appeal succeeds and is allowed without any order as to cost.