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2011 DIGILAW 277 (UTT)

Hari Priya v. Mohan Singh Mawri

2011-05-02

TARUN AGARWALA

body2011
Hon'ble Tarun Agarwala, J.:- Heard Mr. Kurban Ali, the learned counsel for the petitioner and Mr. Sarvesh Agarwal, the learned counsel for the opposite party. A transfer application has been filed for the transfer of the suit filed by the husband opposite party from the court of Civil Judge (Senior Division), Almora to the Family Court of Nainital. The facts in short is, that the marriage was solemnized between the applicant and respondent (husband) in the year 1990 at Nainital. The husband opposite party was also working at Nainital at that stage and is still working at Nainital. The applicant's parental house is at Nainital from where the marriage took place and after separation from her husband on 17.04.1991, the applicant is residing in her parental home at Nainital. The opposite party filed a suit for divorce under Section 13 of the Hindu Marriage Act before the Civil Judge (S.D.), Almora. The applicant, being aggrieved by the institution of the said suit at Almora, has filed the present transfer application. The jurisdiction of the court to hear such matters is governed under Section 19 of the Hindu Marriage Act. For facility, the provision of Section 19 of the Hindu Marriage Act is extracted hereunder:- “19. Court to which petition shall be presented. The jurisdiction of the court to hear such matters is governed under Section 19 of the Hindu Marriage Act. For facility, the provision of Section 19 of the Hindu Marriage Act is extracted hereunder:- “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 respondents 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.” A perusal of the aforesaid provision indicates that an application under the Hindu Marriage Act could be presented to the District Court in whose ordinary jurisdiction the marriage was solemnized, or where the opposite party at the time of the presentation of the suit resides or the parties to the marriage last resided together and in case where the applicant is the wife, then the petition would be filed where she is residing on the date of the presentation of the suit. From a bare perusal of the plaint filed by the opposite party, it is clear that the marriage was performed at Nainital and that the applicant is living in her parental home at Nainital. The opposite party is also working at Nainital. There is nothing to indicate that the parties to the marriage last resided together at Almora and, consequently, this court is of the opinion that the opposite party wrongly filed the suit before the Civil Judge (S.D.), Almora. In the light of the aforesaid, the transfer application is allowed. It is directed that petition No.70/2009 titled as “Mohan Singh Mawri Vs. Smt. Hari Priya” pending before the Civil Judge (S.D.), Almora is transferred to the Family Court, Nainital.