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2016 DIGILAW 39 (GAU)

Seema Mall v. Arun Mall

2016-01-21

SUMAN SHYAM

body2016
JUDGMENT AND ORDER Suman Shyam, J. Heard Mr. D.K. Deori, learned counsel for the appellant. 2. None appears for the sole respondent, despite the name of the learned counsel having being duly reflected in the cause list. 3. This appeal has been preferred against the judgment and order dated 12.05.2015 passed by the Court of learned District Judge, East Sessions Division, Tezu, Arunachal Pradesh in connection with marriage Title Matrimonial Suit No. 09(L) 2011, granting a decree of divorce under Section 13(i-a) (i-b) of the Hindu Marriage Act, 1955 in favour of the respondent/petitioner (Husband). 4. The brief facts of the case is that the respondent got married to the appellant on 24.05.1996, as per Hindu custom and religion in presence of their relatives. The appellant is a resident of village Lalanpur Police Station Madhubani, District-Mau, Uttar Pradesh. After the marriage they resided together as husband and wife in the district Gorakhpur in the State of Uttar Pradesh. Out of the wed lock a male child was born to them on 07.12.1998. However, soon thereafter problems started cropping up in their matrimonial life, in as much as the appellant started misbehaving with the patents of the respondents, taking advantage of the absence of the respondent who had to continue to reside in Sunpura, P.O./P.S. Sunpura, Lohit District, Arunachal Pradesh in connection with his job. 5. It is the case of the respondent/petitioner that whenever he went back on leave, the respondent used to misbehave with him. It is also alleged that the appellant had left the matrimonial house in the month of November 2008 and since then she has been residing at her parents house till date. All efforts on the part of the respondent to bring her back along with their son ended in failure. The respondent has further alleged that the appellant had once burnt down his documents including bank pass book and cheque book and has also attacked his family members as a result of which an FIR had to be lodged at the Madhuban Police Station. On the basis of such allegations the respondent/petitioner had presented the petition seeking a decree of divorce against the appellant (wife) the ground of cruelty and desertion. 6. The appellant (wife) had contested the divorce proceeding by filing written statement inter alia questioning the maintainability of the proceeding for want of cause of action. On the basis of such allegations the respondent/petitioner had presented the petition seeking a decree of divorce against the appellant (wife) the ground of cruelty and desertion. 6. The appellant (wife) had contested the divorce proceeding by filing written statement inter alia questioning the maintainability of the proceeding for want of cause of action. The appellant had also denied the allegation made in the petition and prayed for dismissal of the divorce petition. 7. On the basis of the pleadings the learned trial Court had framed the following issues: I. Whether suit is maintainable under the law and fact? II. Whether the respondent has deserted the petitioner for two years before filing of the instant suit? III. Whether the respondent had Heated die plaintiff with cruelty? IV. Whether the plaintiff is entitled for decree of divorce? V. Whether this Court can give any other relief? 8. After hearing the learned counsel for the parties the learned Court below had decreed the suit filed by the respondent (husband). 9. By drawing the attention of this Court to the findings and conclusions recorded by the Court below, Mr. Deori submits that the appellant (wife), who was the respondent in the divorce proceeding, admittedly was a resident of the State of Uttar Pradesh who had never resided together as husband & wife with the present respondent within the State of Arunachal Pradesh at any point of time. The suit filed by the respondent as petitioner was not maintainable since the learned District Judge, Tezu, Arunachal Pradesh did not have the territorial jurisdiction to entertain the aforementioned suit. 10. By referring to the Provisions of Section 19 of the Hindu Marriage Act, 1955, Mr. Deori submits that the learned Court below had committed manifest legality in holding the suit to be maintainable by rejecting the plea of the appellant as regards the lack of territorial jurisdiction on the part of the Court below to entertain the suit. 11. The learned counsel has also advanced arguments assailing the findings and conclusions recorded by the Court below as regard the other issue, deciding the same on merit in favour of the respondent/petitioner. 12. 11. The learned counsel has also advanced arguments assailing the findings and conclusions recorded by the Court below as regard the other issue, deciding the same on merit in favour of the respondent/petitioner. 12. Coming to the question of territorial jurisdiction of the Court below to entertain the divorce proceeding within the meaning of Section 13 of the Act, 1955 it would be appropriate to reproduce the provisions contained in Section 19 of the said Act which deals with jurisdiction and procedure of the Court. 13. Section 19 of the Hindu Marriage Act of 1955 as follows: '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. 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 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." 14. It is not in dispute that the appellant (wife), who was the respondent in the divorce proceeding, had never resided within the State of Arunachal Pradesh at any point of time. As has been recorded by the Court below, she is a resident of district Gorakhpur, Uttar Pradesh. However, the divorce proceeding has apparently been presented before the Court of District Judge, East Session Division, Tezu, Arunachal Pradesh merely on the account of the fact that the respondent (petitioner) was residing at Sunpura. Lohit District of Arunachal Pradesh in connection with his employment as Constable under the Arunachal Pradesh Police department. 15. A careful examination of the Provisions contained in Section 19 of the Act of 1955 goes to show that subject to the conditions mentioned therein no Court shall have jurisdiction to entertain the divorce petition filed under the Provision of Act of 1955. 15. A careful examination of the Provisions contained in Section 19 of the Act of 1955 goes to show that subject to the conditions mentioned therein no Court shall have jurisdiction to entertain the divorce petition filed under the Provision of Act of 1955. In the facts and circumstances of the case, it is evident that the divorce petition ought to have been presented in the Court within the local limits of whose original civil jurisdiction the marriage was solemnized or the respondent at the time of presentation of the petition resides or the parties were last residing together. Clause III (A) of Section 19 permits the wife to present the divorce petition in the Court in whose ordinary original Civil jurisdiction she is residing on the date of presentation of the petition. But such a privilege is not available to the husband under Section 19 of the Act of 1955. 16. In the instant case none of the conditions mentioned in Section 19 are fulfilled so as to permit the respondent/petitioner (husband) to present the divorce petition in the Court at Tezu, Arunachal Pradesh. However, notwithstanding the same, it appears that on a complete misconstruction of Clause (iv) of Section 19 of the Act of 1955, the learned trial Court had decided the question of jurisdiction in favour of the respondent/petitioner although the said clause does not have any application in the facts and circumstances of the case so as to clothe the Court at Tezu with jurisdiction to entertain the divorce petition. 17. In view of the above, I am of the considered opinion that the learned District and Session Judge, East Session Division Tezu, Arunachal Pradesh did not have the territorial jurisdiction to entertain the divorce petition and as such the judgment and order dated 12.05.2015 granting the decree of divorce is a nullity in the eye of law and is hereby declared so. 18. In view of what has been held herein above, this Court does not deem it necessary to embark on a discussion on the merit of the findings recorded by the learned Court below on the remaining issues. 19. Accordingly, this appeal stands allowed. 20. No order as to costs. 21. Office to send back the LCR.