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2011 DIGILAW 391 (UTT)

Naresh Chandra Sati v. Tina Sati

2011-06-30

PRAFULLA C.PANT, SUDHANSHU DHULIA

body2011
Oral: Hon'ble Prafulla C. Pant,J. This appeal, preferred under section 19 of Family Courts Act, 1984, is directed against judgment and order dated 27.09.2010, passed by Principal Judge, Family Court, Dehradun, in suit no. 315 of 2005, whereby said court has dismissed the petition for divorce filed by the appellant on the ground that it had no territorial Jurisdiction. 2. Heard, and perused the record. 3. Brief facts, of the case are that the appellant Naresh Chandra Sati got married to Tina (respondent) on 21.01.2001, in Mumbai. Thereafter they lived in United States of America where on 16.10.2001, a son was born out of the wed-lock in New Jersy. It appears that the couple came back to India, and their relations got soured. The appellant filed a petition under section 13 of Hindu Marriage Act, 1955, before Family Court, Dehradun, in the year 2005. On 15.04.2006, an ex-parte decree of divorce passed by the Principal Judge, Family Court, Dehradun, observing that even after sufficient service on the respondent she did not turn up to contest the suit. However, thereafter respondent (wife) appears to have moved an application on the order IX Rule 13 of Code of Civil Procedure 1908 (for short C.P.C.) on 7 January, 2007, which was allowed by trial court on 02.07.2007, and petition for divorce was restored. 4. A written statement was filed by the respondent in which one of the plea was that couple did not reside last in Dehradun. Applications 31C and 35C were moved on behalf of the respondent challenging the territorial jurisdiction of the court at Dehradun. On said applications the impugned order was passed by the trial court holding that it has no territorial jurisdiction to try the suit. 5. Applications 31C and 35C were moved on behalf of the respondent challenging the territorial jurisdiction of the court at Dehradun. On said applications the impugned order was passed by the trial court holding that it has no territorial jurisdiction to try the suit. 5. Section 19 of Hindu Marriage Act, 1955, reads as under:- “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 [(iiia)] in case the wife is the petitioner, where she is residing on the date of the 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.” 6. Clause (iii) of section 19 allows parties to present a petition in the court having local jurisdiction over the place where the parties to matrimony last resided together. Para 7 read with para 15 of the petition filed by the husband (appellant) clearly shows that he has specifically pleaded that the parties to matrimony last resided at Dehradun. In para 7 read with para 15 of the written statement respondent has, though admitted that she lived in Dehradun, but she denied that it was the place where the couple resided last together. As such, whether the couple last resided in Dehradun or not is a mixed question of fact and law, which has arisen out of the pleadings of the parties. In the circumstances, in our opinion, the trial court has erred in law in holding that it has no territorial jurisdiction, without framing the issue on the point, and without giving opportunity to the parties to adduce evidence on it. 7. Therefore, this appeal deserves to be allowed. Accordingly, the appeal is allowed. Impugned order dated 27.09.2010, passed by the Principal Judge, Family Court, Dehradun, is hereby set aside. 7. Therefore, this appeal deserves to be allowed. Accordingly, the appeal is allowed. Impugned order dated 27.09.2010, passed by the Principal Judge, Family Court, Dehradun, is hereby set aside. The case is remanded back to the trial court to frame all the issues on the basis of the pleadings of the parties, and to give them opportunity to lead evidence in the case. It shall be discretion of the trial court to decide any issue as preliminary one or to decide all the issues together. With this observation this appeal is disposed of. No order as to costs.