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2015 DIGILAW 611 (GUJ)

DEEPA JITENDRA JOSHI W/O APURVA VASHISHTH THAKAR v. APURVA VASHISHTH THAKAR

2015-06-16

N.V.ANJARIA

body2015
JUDGMENT : Whether the Family Court, Junagadh could have rejected the application of the applicant-wife under Section 125 of the Code of Criminal Procedure, 1973, on the ground that it had no jurisdiction to try the same, is the question for consideration. 2. The challenge in this Revision Application by the applicant-wife is directed against judgment and order dated 17.01.2014 passed by learned Judge, Family Court, Junagadh, rejecting Criminal Misc. Application No. 9 of 2012 filed by the applicant claiming maintenance, holding that the Court had no territorial jurisdiction to try and decide the same. 3. It is necessary to mention the facts of the case. The applicant had married with respondent No.1 on 06.03.2007 at Gandhinagar as per Hindu rites. The marriage was registered before the Registrar of Marriages. The applicant started living at the matrimonial home at Matunga at Mumbai in the joint family. Her husband was not keeping any marital relationship with her and in his conduct and activities, he was wedded to Harikrishna sect. He was only engrossed at all times in religious activities of the sect and was not interested in the applicant. It was the case of the applicant further that initially, she persuaded herself, but the things did not improve and on the contrary, her husband used to ask her to join the religious activity. She stated that she could never consummate her marriage. The husband and in-laws harassed her; when she used to complaint about the conduct of her husband, they used to quarrel. It was the case of the applicant that ultimately, she was deserted and driven out of her matrimonial home. 3.1 The applicant filed her application under Section 125, Cr.PC, on 03.12.2011. She claimed maintenancefrom the husband at Rs.20,000/- per month. It was her case that she had been leading a dependent life after she was deserted for no good reason and that she had no income to maintain herself. It was the case that her husband as well as father-in-law owned hotels and other properties in posh area of Mumbai and that their income was Rs.70000/- to 80000/- per month. It was averred by the applicant-wife that she wanted to study M.B.A. so that she could live independent life. It was averred that she was staying at Junagadh in a rented house. It was averred by the applicant-wife that she wanted to study M.B.A. so that she could live independent life. It was averred that she was staying at Junagadh in a rented house. She produced a letter from her landlord that she was staying as tenant and that house was rented to her. In the application, the applicant-wife averred that she was staying at Junagadh at the address mentioned for the purpose of studies. The said application was filed on 14.02.2012. The applicant had also filed divorce proceedings under the Hindu Marriage Act on 07.07.2011 in which also the very address of Junagadh was mentioned. Yet another proceeding under the Protection of Women from Domestic Violence Act, 2005 was filed on 26.04.2012 and the same address was shown. It was stated that the Family Court, Junagadh had jurisdiction to try and decide the application. 3.2 The recording of evidence started in the proceedings. The applicant-wife tendered affidavit dated 14.02.2012 towards her examination-in-chief. It appears that in course of the proceedings before the Court, on 25.04.2012, the respondent submitted a Purshis (Exh.23) submitting that the applicant had been staying at village Lushala of Vanthali Taluka and was not staying at Junagadh, therefore applicant’s application before the Family Court at Junagadh was not triable as the Court at Junagadh did not have jurisdiction. Subsequently, the said Purshis came to be not pressed by making an endorsement thereon that liberty to file it again was being reserved. Thereafter, the evidence of the parties proceeded further. The Objection Purshis (Exh.23) was not raised again and such Purshis was subsequently filed. The evidence of the husband was recorded on 15.06.2013. 3.3 The respondent filed reply in this Revision Application stating inter alia that the applicant-wife had filed proceedings under the Protection of Women from Domestic Violence Act, 2005 and had also filed complaint under Section 498(A) of the Indian Penal Code, 1860. She had filed H.M.P. Petition No. 42 of 2011 before the Court of Principal Family Judge, Junagadh. It was submitted that the wife had mentioned her address to be of Village Lushala Vanthali Taluka, District Junagadh. She had filed H.M.P. Petition No. 42 of 2011 before the Court of Principal Family Judge, Junagadh. It was submitted that the wife had mentioned her address to be of Village Lushala Vanthali Taluka, District Junagadh. 3.4 It appears that thereafter in course of the arguments, advocate for the opponent raised objection that the Court at Junagadh could not entertain the proceedings and could not decide the application as it had no jurisdiction; the applicant was not staying at Junagadh, but was staying at Lushala Village. Though it was stated in the pleadings that she was staying in a rented house and was paying rent, the landlord was not examined; that in her cross-examination, she stated that she never resided at Junagadh and that respondent-husband was staying at Bombay. 3.5 The Family Court relied on notification dated 15.05.2010 of the Legal Department, Government of Gujarat which mentioned about establishment of Junagadh Family Court for the area of local limits of the Municipal Corporation for the city of Junagadh constituted under the Bombay Provincial Municipal Corporation Act, 1949, and that the local limits of Junagadh Taluka and Mendarda Taluka of Revenue District Junagadh were not falling within the territorial jurisdiction of Family Court, Junagadh. Holding that therefore, it had no territorial jurisdiction, it rejected the application. 3.6 Section 126 of Code of Criminal Procedure, 1973 provides for the procedure for taking out proceedings under Section 125, Cr.PC. against any person in any District. The Section provides that such proceedings may be taken at a place (a) where he is or (b) where he or his wife resides or (c) where he last resided with his wife. The Section says that the proceedings can be taken out at the place where wife resides. It is in present tense, implying that the place of suing could be one where wife at the time of initiation of proceedings resides. The Court below observed while holding on jurisdiction that the applicant-wife stated in her examination that during the span of her marriage life with the respondent, she had not resided at Junagadh. 4. Learned advocate Ms. Sejal Mandavia for the applicant submitted that at one stage of the proceedings, the respondent had taken objection to the jurisdiction of the Court by filing a Purshis, but the same was not pressed. 4. Learned advocate Ms. Sejal Mandavia for the applicant submitted that at one stage of the proceedings, the respondent had taken objection to the jurisdiction of the Court by filing a Purshis, but the same was not pressed. She submitted that the liberty was reserved to raise the objection again, but the respondent never objected to the jurisdiction of the Court. It was submitted that the evidence had started by that time and after withdrawal of the Purshis, the evidence was recorded. It was submitted by learned advocate for the applicant that as the respondent himself having led the evidence before the Court, he could not subsequently contend that the Court had no jurisdiction. She submitted that the Family Court, Junagadh was competent to try the maintenance application under Section 125, Cr.PC. 4.1 She further submitted that the applicant was staying at Junagadh when she filed the application. She was staying in a rented house and the said fact is fortified by certificate given by the landlord, which certificate was produced at page-28 in the petition. She submitted that in the facts and circumstances of the case, the Court ought not to have rejected the applicant’s application that too at a later stage in the proceedings on the ground that it could not try it and decide it for want of territorial jurisdiction. 4.2 Learned advocate for the applicant relied on decision of the Supreme Court in H. V. Nirmala vs. Karnataka State Financial Corporation [ 2008(7) SCC 639 ]. It was submitted that in that case, the appellant had participated in the inquiry proceedings and during the proceedings, any objection to the appointment of the inquiry officer was not raised, but such objection was raised in the High Court. The Supreme Court held that the appellant could not show that any prejudice was caused to her and that the objection could not have been raised at a later stage. It was submitted that similar principle would apply in the facts of the present case. 4.3 Learned advocate Mrs. Nidhi Barot for the respondent submitted that the applicant-wife was not residing at Junagadh, therefore the proceedings under Section 125, Cr.PC, before the Family Court at Junagadh, initiated by her were not competent. She submitted that from her own evidence, it was clear that she had not stayed during the marriage span, nor was thereafter staying at Junagadh. Nidhi Barot for the respondent submitted that the applicant-wife was not residing at Junagadh, therefore the proceedings under Section 125, Cr.PC, before the Family Court at Junagadh, initiated by her were not competent. She submitted that from her own evidence, it was clear that she had not stayed during the marriage span, nor was thereafter staying at Junagadh. Learned advocate further submitted that since the applicant was residing at village Lushala, in view of Section 126, Cr.PC, she was required to file her application before the competent court having territorial jurisdiction. Learned advocate further submitted that there was also a notification issued by the Legal Department of the Government specifying the territorial limits of Junagadh District and the Lushala village was not falling within the territorial area so declared, but was in the Mendarda Taluka. 4.4 Learned advocate for the respondent relied on decision of Supreme Court in Kumutham and another vs. Kannappan [1998 (2) GLH 472 SC] to submit the principle laid down therein that a Magistrate can entertain the application under Section 125, Cr.PC. against any person where he is or where he or his wife resides or where he last resided. Learned advocate next relied on another decision of the Supreme Court in Smt. Isabella Johnson vs. M.A. Susai (dead) by Lrs. [ AIR 1991 SC 993 ]. She contended that the Court which has no jurisdiction in law cannot be conferred with the jurisdiction and that plea of estopple is not allowed on the question of jurisdiction which is a question of law. 5. Having noted the facts in the controversy, the controversy itself and having considered the submissions of both the learned advocates, it would be useful to first recall the principles regarding the jurisdiction of the Court, exercisability and lack of it, by adverting to judicial decisions in that regard. 5.1 In Subhash Mahadevasa Habib vs Nemasa Ambasa Dharmdas (Dead) by legal heirs [ (2007) 13 SCC 650 ] the Supreme Court highlighted distinction between lack of inherent jurisdiction and lack of territorial or pecuniary jurisdiction. Pointing out their effect, it was stated that lack of inherent jurisdiction would render the decree void, but lack of territorial or pecuniary jurisdiction would not. The lack of territorial or pecuniary jurisdiction may at the best render the decree voidable. Pointing out their effect, it was stated that lack of inherent jurisdiction would render the decree void, but lack of territorial or pecuniary jurisdiction would not. The lack of territorial or pecuniary jurisdiction may at the best render the decree voidable. It further held in the context of the issue of pecuniary jurisdiction involved in that case, that the objection with regard thereto should be taken at the earliest opportunity and at a later stage, such objection cannot be raised. 5.2 In Hira Lal Patni vs Kali Nath [AIR 1963 SC 199], the appellant-judgment debtor put-forth an objection under Sections 47 and 151 of the Code of Civil Procedure, 1908 against execution of decree on the ground, one of which was about the jurisdiction of the High Court to entertain the suit and pass decree, by contending that no part of cause of action ever arose within the territorial jurisdiction of that Court, hence, all the proceedings were without jurisdiction. The Execution Judge dismissed the Objection Petition and the Appeal before the High Court against the same was also dismissed by the Division Bench. The judgment debtor approached the Apex Court. 5.3 The Apex Court in Hira Lal Patni (Supra) dealt with the contention about the Bombay High Court on its original side not having territorial jurisdiction and stated, “In our opinion, there is no substance in this contention. There was no inherent lack of jurisdiction in the Bombay High Court where the suit was instituted by the plaintiff-decree holder. The plaint had been filed after obtaining the necessary leave of the High Court under Clause 12 of the Letters Patent. Whether the leave obtained had been rightly obtained or wrongly obtained is not a matter which can be agitated at the executing stage. The validity of a decree can be challenged in execution proceedings only on the ground that court which passed decree was lacking inherent jurisdiction in the sense that it could not have seisin of the case. Even the subject matter was wholly foreign to its jurisdiction or that the defendant was dealt at the time of suit had been instituted for decree passed, or some such other ground which could have the effect of rendering the court entirely lacking injurisdiction in respect of subject matter of the suit or over the parties to it. Even the subject matter was wholly foreign to its jurisdiction or that the defendant was dealt at the time of suit had been instituted for decree passed, or some such other ground which could have the effect of rendering the court entirely lacking injurisdiction in respect of subject matter of the suit or over the parties to it. But in the instant case there was no such inherent lack of jurisdiction.” 5.4 The principle was stated thus, “It is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure.” 5.5 The Supreme Court relied on a decision of the Privi Council in case of Ledgard s Bull [(1886) 13 Ind App 134] which laid down the proposition that the consent of waiver can cure defect of jurisdiction, but cannot cure inherent lack of jurisdiction. In that case, the suit was instituted before the court of subordinate Judge who was incompetent to try it; the case was transferred by consent of the parties to the District Court for convenience of trial. The Privi Council held that since the Court in which the suit was originally instituted, was entirely lacking in jurisdiction in the sense that it was incompetent to try it, whatever happens subsequently was null and void and consent of parties would not confer the jurisdiction on a court which was incompetent to try the suit. 5.6 H. V. Nirmala (Supra) also, the Apex Court brought out the difference between inherent lack of jurisdiction and a jurisdictional error, stating further that only in the case of inherent lack of jurisdiction, the proceedings and the order which may be passed by the Court are a nullity. It was also held that the jurisdictional issue must be raised at the earliest available opportunity. 6. It was also held that the jurisdictional issue must be raised at the earliest available opportunity. 6. From the above discussion, it could be gathered that the jurisdiction of court exercising to try the case is divided into different kinds-the jurisdiction over subject matter, jurisdiction with regard to the territory which is called territorial jurisdiction and pecuniary jurisdiction. When a court entertains and tries a subject matter which is not under its jurisdiction, namely the subject matter falls outside the subject of its jurisdictional domain, it is a case of inherent lack of jurisdiction. A subject matter tried or decree passed by the court where it does not have the jurisdiction over that subject matter, renders the proceedings as well as the order passed to be void. This lack of jurisdiction is incurable. The proceedings taken up by the Court in respect of which it inherently lacks jurisdiction are a nullity from the beginning. But the Court lacking territorial or pecuniary jurisdiction trying a subject matter, for which it has otherwise a valid jurisdiction conferred, stands on different footing. Fundamental defect of jurisdiction does not arise here. In other words, the proceedings or decree would not be suffering from voidness. 6.1 When there is no inherent lack of jurisdiction with the Court, and a party before such Court participates in the proceedings and submits to the jurisdiction of the Court, subsequently, the party is not to be permitted to contend that the proceedings are bad or void for want of jurisdiction. Absence of territorial jurisdiction, as already seen from the settled principles highlighted above, does not render the proceedings void or non est. The principle stems accordingly and stands to reason that if a party is to take objection with regard to territorial jurisdiction or pecuniary jurisdiction of the court, if he is required to take, at an earliest possible opportunity. 7. Now, in the present case, the applicant-wife instituted proceedings under Section 125, Cr.PC. before Family Court, Junagadh. The Family Court held that it had no jurisdiction to try the proceedings because the applicant had not been residing at Junagadh, but had been residing at Lushala, Taluka- Vanthali. 7. Now, in the present case, the applicant-wife instituted proceedings under Section 125, Cr.PC. before Family Court, Junagadh. The Family Court held that it had no jurisdiction to try the proceedings because the applicant had not been residing at Junagadh, but had been residing at Lushala, Taluka- Vanthali. The Court referred to the Notification dated 15.05.2010 of the Legal Department, Government of Gujarat stating that Junagadh Family Court was established for the area of local limits of the Municipal Corporation of the City of Junagadh under the Bombay Provincial Municipal Corporation Act, 1949, and not for local limits of Junagadh Taluka and Mendarda Taluka of the Revenue District, Junagadh. The Family Court recorded that since the wife was not staying within the Junagadh City limits and was at Lushala, the Family Court at Junagadh did not have jurisdiction to entertain the application. It was not the case, as is clear, of the Family Court, Junagadh not having a jurisdiction over the subject matter. The Court at Junagadh was not debilitated by inherent lack of jurisdiction. The Notification specifying the territorial limits for the Family Court defines only the territorial jurisdiction of the Court. The Family Court, Junagadh had seisin over the subject matter and was not deprived of inherent jurisdiction inasmuch as it was competent to try the subject matter. In other words, the Family Court, Junagadh, enjoyed the jurisdiction over the subject matter of controversy between the parties and was competent court for the subject matter. 7.1 While the above principles on jurisdiction operate, the facts of the case admit a situation where it was a clear instance of submitting to the jurisdiction of the Family Court at Junagadh by the respondent. The Purshis dated 24.04.2012 (Exh.23) questioning the territorial jurisdiction of the Family Court at Junagadh was not pressed and though, liberty was reserved in the endorsement made while not pressing, at a particular stage of the proceedings, subsequently no such plea was raised in course of the proceedings, except that in the arguments, the jurisdiction was questioned. The leading of evidence progressed. Applicant-wife gave her evidence. Also the respondent-husband gave evidence. The respondent having participated in the proceedings and also led the evidence, he submitted to the jurisdiction of the Court at Junagadh. The leading of evidence progressed. Applicant-wife gave her evidence. Also the respondent-husband gave evidence. The respondent having participated in the proceedings and also led the evidence, he submitted to the jurisdiction of the Court at Junagadh. Once the respondent allowed the proceedings to go on, participated therein and also allowed the evidence to be led, at a subsequent stage, at the fag end in this case, he is not permitted to question that the Court had no territorial jurisdiction, particularly when, the Family Court at Junagadh was not inherently lacking the jurisdiction. A party who participates in the proceedings and thereby, submits to the jurisdiction of the Court, is not allowed to turn around at a later stage that the Court did not have territorial jurisdiction. The Family Court at Junagadh was competent to exercise jurisdiction on the subject matter before it and had otherwise a seisin over the subject matter. 8. For the foregoing reasons and discussion, the impugned judgment and order of the Family Court, Junagadh, dismissing the application under Section 125, Cr.PC filed by the applicant-wife taking view that it did not have jurisdiction to try and resolve the dispute between the parties, could not to be sustained. As a result, impugned judgment and order dated 17.01.2014, rejecting Criminal Miscellaneous Application No. 9 of 2012 of the applicant herein is hereby set aside. The Family Court, Junagadh is directed to proceed further with the said application from the stage where the proceedings had already reached and decide the same in accordance with law and on its own merits. 9. Having regard that the maintenance proceedings were initiated in the year 2012, the Court concerned shall complete the same expeditiously and render its judgment and order preferably within four months from the date of receipt of this order. 10. This Revision Application is allowed as above.