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2012 DIGILAW 178 (MP)

Nitu Agrawal v. Shireesh Agrawal

2012-02-08

ALOK ARADHE

body2012
ORDER 1. In this writ petition under Article 227 of the Constitution of India the petitioner has challenged the validity of the order dated 22-2-2011 passed by the Trial Court by which the application preferred by the petitioner under Order 7 Rule 10 of the Code of Civil Procedure (for short ‘the Code’) has been rejected. In order to appreciate the petitioner’s challenge to the impugned order, few facts need mention which are stated infra. 2. The marriage of the petitioner and respondent was solemnized at New Delhi on 27-11-2002 as per the Hindu rites. After the marriage, as per the averments made in the petition under section 13 of the Hindu Marriage Act (hereinafter referred to as ‘the Act’), parties came to Bhopal for wedding reception and stayed in Bhopal for about a week. It is averred in Paragraph 7 of the petition under section 13 of the Act that thereafter the respondent and petitioner went to United States of America on 14-12-2002 and stayed there except for few vacation trips to India. It is further averred in Paragraph 7 of the petition that during their stay in United States of America the petitioner gave birth to a daughter on 6-2-2005 out of the wedlock. 3. The respondent has filed a petition under section 13 of the Act seeking dissolution of marriage on 28-4-2010 before the Family Court at Bhopal. On receipt of summons of the suit the petitioner entered appearance and filed an application under Order 7 Rule l0 of the Code of return of the plaint on the ground that Family Court at Bhopal has no territorial jurisdiction to try the proceedings under section l3 of the Act. The Trial Court vide order dated 12-1-2011 held that the question whether it has territorial jurisdiction to try the petition or not, can only be decided after recording of evidence. Accordingly, the application preferred by the petitioner was rejected. 4. The petitioner challenged the validity of the order of Trial Court dated 12-1-2011 before this Court in a civil revision, namely, Civil Revision No. 29/2011. Accordingly, the application preferred by the petitioner was rejected. 4. The petitioner challenged the validity of the order of Trial Court dated 12-1-2011 before this Court in a civil revision, namely, Civil Revision No. 29/2011. This Court vide order dated 19-1-2011 directed that if fresh application under Order 7 Rule l0 of the Code or an application seeking review of the order dated 12-l-2011 is filed by the petitioner before the Trial Court, the Trial Court by taking into account the averments made in the plaint and without being influenced by the observations contained in order dated 12-l-2011 shall decide the same. 5. In pursuance of the order of this Court, the petitioner filed an application for review of the order dated l2-l-2011. Thereupon, the Trial Court asked the petitioner to clarify its stand whether the application which has filed by the petitioner should be treated as an application for review or a fresh application under Order 7 Rule l0 of the Code. Learned Counsel or the petitioner submitted before the Trial Court on 2l -2-2011 that the application filed by the petitioner should be treated as fresh application under Order 7 Rule l0 of the Code. Thereafter, the Trial Court vide order dated 22-2-2011 rejected the application preferred by the petitioner. The Trial Court, inter alia, held that the petitioner till date has not filed written statement and has not stated as to at which place the petitioner and respondent last resided together in India before leaving for United States of America. It was further held that the petitioner in her application has not directly or indirectly denied the fact that after wedding reception took place at Bhopal and before leaving for United States of America, the parties resided in Bhopal as husband and wife. It was further held that in the marriage registration certificate produced by the respondent, the permanent address of the respondent is shown at Bhopal. It was further held that from the averments made in the plaint it is apparent that the respondent was working in United States of America before marriage. Accordingly, it was held that the Court at Bhopal has the jurisdiction to hear and decide the proceedings and the application was rejected. 6. Learned Counsel for the petitioner submitted that the order passed by the Trial Court is patently illegal and erroneous. Accordingly, it was held that the Court at Bhopal has the jurisdiction to hear and decide the proceedings and the application was rejected. 6. Learned Counsel for the petitioner submitted that the order passed by the Trial Court is patently illegal and erroneous. From the averments made in the petition under section 13 of the Act it is apparent that the parties never had the intention to reside at Bhopal when they had visited at Bhopal for the purpose of wedding reception. It was further submitted that mere causal or flying visit to a place would not confer the jurisdiction on the Court. It was also submitted that from perusal of the averments made in the plaint that it is apparent that Family Court at Bhopal has no jurisdiction. It is also submitted that the petitioner has not complied with Rule 4 (2) of Hindu Marriage (Madhya P radesh) Rules, 1975. ln support of his submission learned Counsel has placed reliance on the decisions reported in Smt. Jeewanti Pandey, AIR 1982 SC 3 , AIR 1992 MP 260 , AIR 2005 Madras 12, AIR 1967 Kerala 1, AIR 1963 SC l52l and also on the decision rendered by High Court of Bombay in Ms. Kashmira Kale Vs. Mr. Kishorekumar Mohan Kale, W.P. No. 1242/2010, decided on 4-3-2010. 7. On the other hand, learned Counsel for the respondent submitted that in the plaint permanent address of the respondent has been described as Bhopal. The petitioner and the respondent have last resided together at Bhopal and, the Matrimonial Court at Bhopal has the territorial jurisdiction to try the suit. It was further submitted that the order passed by the Trial Court is perfectly just and legal and does not call for any interference in exercise of powers under Article 227 of the Constitution of India. 8. I have considered the submissions made on both sides. It is relevant to mention here that under section 19(i) of the Hindu Marriage Act, the respondent had the choice to file the petition at the place where the marriage was solemnized. However, the respondent has filed the petition before the Family Court at Bhopal on the ground that parties had last resided together in the jurisdiction of the Family Court at Bhopal. However, the respondent has filed the petition before the Family Court at Bhopal on the ground that parties had last resided together in the jurisdiction of the Family Court at Bhopal. Section 19(iii) provides that every petition under the Act shall be presented to the District Court within the local limits of whose ordinarily original civil jurisdiction of the parties to the marriage last resided together. In the case of Smt. Jeewanti Pandey, AIR 1982 SC 3 , while dealing with the expression “residence” in the context of section 19 of the Act it has been held by the Supreme Court that word “resides” must mean the actual place and not a legal or constructive residence. It has further been held that in order to give jurisdiction on the ground of residence something more than a temporary stay is required. It must be more or less of a permanent character, and of such a nature that the Court in which the resident is sued, is his natural forum. The expression “resides” means to make an abode for a considerable time, to dwell permanently or for length of time to have a settled abode for a time. In Y. Narsasimha Rao and others Vs. Y. Venkata Lakshmi and another, (1991) 3 SCC 451 , the Supreme Court has held that residence does not mean a temporary residence for purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. The respondent has filed the petition seeking dissolution of marriage before the Family Court at Bhopal on the ground that petitioner as well as respondent have last resided together within the territorial jurisdiction of Family Court at Bhopal. 9. Thus, in the backdrop of aforesaid well settled position the averments made in the petition under section 13 of the Act may be seen. In Paragraph 3 of the petition the respondent has averred that marriage was solemnized at New Delhi on 27-11-2002. In Paragraph 6, it is averred that after marriage the respondents as well as petitioner came to Bhopal and attended the wedding reception and stayed for about a week. In Paragraph 7, it is averred that thereafter they went to United States of America on 14-12-2002 and stayed there only except few vacation trips to India. In Paragraph 6, it is averred that after marriage the respondents as well as petitioner came to Bhopal and attended the wedding reception and stayed for about a week. In Paragraph 7, it is averred that thereafter they went to United States of America on 14-12-2002 and stayed there only except few vacation trips to India. In Paragraph 7, it is also averred that during their stay in America the petitioner gave birth to a daughter on 6-12-2005. In Paragraph 37, it is averred that the respondent and petitioner last resided together within the jurisdiction of Family Court at Bhopal and, therefore, the Family Court has the jurisdiction to adjudicate the petition. It is pertinent to mention that in the reply to the application under Order 7 Rule 10 of the Code it is admitted that as on today neither the respondent nor the petitioner is residing in Bhopal and are presently living in United States of America. The facts which confer jurisdiction on the Court have to be pleaded clearly and specifically. If the averments made in the petition under section 13 of the Act are read carefully in its entirety it is apparent that respondent has failed to disclose the particulars as to where the respondent and the petitioner last resided together. In Paragraph 37 of the petition the respondent has merely stated that parties had last resided together within the territorial jurisdiction of the Court of at Bhopal. However, again no particulars with regard to period of stay have been given. From the averments of the petition it cannot be inferred that parties to the marriage had last resided together at Bhopal. The case relied upon by the Trial Court reported in Anjali Shukla (Smt.) Vs. Sunil Kumar Shukla, 2010 (ii) MPWN 69 = 2010(1) MPHT 429 , is of no assistance to the respondent as in that case the husband had taken an accommodation on rent and it was necessary to decide the question of intention to reside, therefore, it was held that question of territorial jurisdiction is a mixed question of law and fact and the same can be decided after recording evidence. 10. For the aforementioned reasons the Family Court at Bhopal has no territorial jurisdiction to try the suit. Accordingly, order dated 22-2-2011 is hereby quashed. The Trial Court is directed to return the petition to respondent for presentation before the Competent Court. 10. For the aforementioned reasons the Family Court at Bhopal has no territorial jurisdiction to try the suit. Accordingly, order dated 22-2-2011 is hereby quashed. The Trial Court is directed to return the petition to respondent for presentation before the Competent Court. In the result the writ petition is allowed.