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Rajasthan High Court · body

2008 DIGILAW 2064 (RAJ)

Smita v. Baljindar Singh

2008-09-03

C.M.TOTLA, PRAKASH TATIA

body2008
JUDGMENT 1. - The appellant has preferred this appeal against the judgment dated 17.3.2008 passed by the learned Judge, Family Court in Matrimonial Case No.246/2002, by which the learned Judge, Family Court, Udaipur rejected the petitioner's divorce petition on the ground of lack of jurisdiction, i.e., territorial jurisdiction. It appears from the facts of the case that the petitioner submitted divorce petition under Section 13 of the Hindu Marriage Act before the Family Court, Udaipur on 13.9.2002. The notices were issued to the respondent-husband and he submitted written statement to contest the divorce petition on merit. On 18.9.2002, the only issue framed was on the basis of the plea taken by the appellant and that was of committing cruelty by the respondent. Both the parties led evidence and thereafter the case was fixed for final arguments. During final arguments stage, an objection was raised about territorial jurisdiction of the trial court because of which the trial court framed issue on 27.8.2007 about the jurisdiction of the court. The defendant-respondent's contention was that the marriage of appellant and the respondent was solemnized in the State of Punjab and they lastly lived together in the State of Punjab only and they never lived at Udaipur, therefore, the court at Udaipur had no jurisdiction to entertain the divorce petition filed by the appellant. 2. It will be worthwhile to mention here that Section 19 of the Hindu Marriage Act, 1955 is the provision giving jurisdiction to the courts for entertaining and deciding the divorce petition. As per Section 19 of the Hindu Marriage Act, 1955, as it was before 23.12.2003, the divorce petition could be presented in the court situation in the district court within the local limits of whose ordinary original jurisdiction- (i) the marriage was solemnised; 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 (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 the Act extends or he/she was not seen for more than seven years. 3. 3. Section 19 was amended vide Notification dated 23.12.2003 and sub-clause (iiia) was introduced under Section 19, which is as under:- " (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or" 4. The trial court was of the opinion that since amendment came subsequent to the filing of the divorce petition by the appellant and, therefore, it cannot be applied to the appellant-applicant's divorce petition. On facts, the trial court reached to the conclusion that the appellant failed to prove that they lastly resided at Udaipur. In view of the above finding of fact, the trial court rejected the appellant's application for divorce. Hence this appeal has been preferred by the appellant. 5. Without re-examining the finding recorded by the trial court, if we look into the entire aspect of the matter then it is clear that the divorce petition was submitted in the trial court on 13.9.2002. The respondent may have raised objection about the territorial jurisdiction of the trial court in his reply to the divorce petition but he did not press for framing of issue on his this plea and the trial court proceeded to try the divorce petition and recorded the statements of both the parties. It appears that during final arguments, objection was raised about the territorial jurisdiction of the trial court, upon which in the divorce petition which was filed on 13.9.2002, an issue about territorial jurisdiction was framed by the court on 27.8.2007. Admittedly, the case was heard by the trial court on merit and thereafter issue was framed by the trial court. It is not the case of lack of inherent jurisdiction and, therefore, the proceedings after 23.12.2003 to the time when the divorce petition was decided, the trial court had jurisdiction to hear and decide the divorce petition submitted by the petitioner in the court at Udaipur. At this place, it will be relevant to mention here that as per subsection (1) of Section 20,Civil Procedure Code., the appellate court or revisional court cannot entertain the objection about the territorial jurisdiction unless it has been raised in the court of first instance and that too at the earliest possible opportunity and before settlement of issue. At this place, it will be relevant to mention here that as per subsection (1) of Section 20,Civil Procedure Code., the appellate court or revisional court cannot entertain the objection about the territorial jurisdiction unless it has been raised in the court of first instance and that too at the earliest possible opportunity and before settlement of issue. Not only this but before the appellate court, the aggrieved party is required to satisfy that because of decree passed by the court having no territorial jurisdiction, there is failure of justice. The underlying principle for making such provision of allowing objection at the earliest only is that, that after trial, the decision may not be set aside only on the technical ground of territorial jurisdiction. In this case, the parties led evidence on merit and before the issue was framed by the trial court, the amendment was made under Section 19 and sub-clause (iiia) under Section 19 of the Hindu Marriage Act, 1955 has been added. In view of the above reason, the trial court committed serious error of law in dismissing the divorce petition of the appellant on the ground of lack of territorial jurisdiction. 6. The judgment of the trial court is otherwise also wrong because of the reason that if the trial court was of the view that the trial court had no territorial jurisdiction thekjn it should have ordered for return of the plaint for presentation in proper court. If it would have been done on 17.3.2008 then the appellant could have presented the same petition before the same court, that is the court at Udaipur in view of sub-clause (iiia) of Section 19 of the Acts of 1955. In view of that, the petition could have been represented in the trial court itself on the date when the divorce petition was dismissed by the trial court, then there was no reason for the trial court to reject the divorce petition in a situation when the entire evidence has already been led by the parties and the case was fixed for final arguments and as per the learned counsel for the parties, the case was heard on merit. 7. In view of the above, this appeal deserves to be allowed and hence allowed and the judgment of the trial court on issue no. 7. In view of the above, this appeal deserves to be allowed and hence allowed and the judgment of the trial court on issue no. 1(a) is set aside and it is held that the trial court had jurisdiction to decide the divorce petition filed by the appellant. 8. The matter is remanded back to the trial court for deciding the divorce petition on merit in accordance with law. Both the parties are directed to appear before the trial court on 23.9.2008. The trial court is expected to decide the divorce petition expeditiously. *******