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2017 DIGILAW 955 (JHR)

Rakesh Kumar Agarwal v. Sunita Agarwal

2017-06-19

H.C.MISHRA, RATNAKER BHENGRA

body2017
JUDGMENT : 1. Heard learned counsel for the appellant as also the learned counsel for the respondent. 2. Learned counsel for the respondent has submitted that the respondent has filed an Interlocutory Application being I.A. No.4743 of 2017, for enhancement of maintenance amount and he wants to press the said application. 3. This appeal is directed against the Judgment and Decree dated 27.02.2015, passed by the learned Principal Judge, Family Court, East Singhbhum, Jamshedpur, in Matrimonial Suit No. 02 of 2014, whereby, the suit filed by the appellant husband for dissolution of marriage between the parties by a decree of divorce has been dismissed by an ex-parte Judgment, as the respondent wife did not appear in the Court below. 4. The impugned Judgment shows that the marriage between the parties was solemnized on 29.11.2008 at Jhadeswar Mandir Vikas Prasad, as per the Hindu rites and customs, and subsequently, marriage was registered under the Special Marriage Act before the Marriage Officer, Jharsuguda, on 01.01.2009. Admittedly, both the aforesaid places, i.e., the Temple, where the marriage was solemnized and the office where the marriage was registered,, are situated in the State of Odisha. Though it is stated in the petition that after the marriage, both the parties were living at Jamshedpur and leading a conjugal life at Jamshedpur, and it is also stated that they lastly resided together at Jamshedpur, but it is further stated in the petition that in December, 2009, on the invitation of the in-laws, the petitioner husband took the respondent wife to his in-laws house to attend the marriage ceremony of his sister-in-law at Jharsuguda, in the State of Odisha. After the said ceremony, respondent and her parents requested the petitioner to allow the respondent to stay at Jharsuguda for a few days, to which, the petitioner agreed and came back with his son. Respondent did not return back thereafter. It is the specific case of the petitioner husband that thereafter his wife never returned back to Jamshedpur and the suit was filed by the husband for dissolution of the marriage by a decree of divorce, on the grounds of cruelty and desertion by the wife. 5. The suit was entertained by the Court below, but, in our considered view, the Court below had no jurisdiction at all to entertain the said suit. 5. The suit was entertained by the Court below, but, in our considered view, the Court below had no jurisdiction at all to entertain the said suit. Admittedly, the marriage had taken place in the State of Odisha and was also registered in the State of Odisha, and by the statement made in the petition, that in December, 2009, on the invitation of the in-laws, petitioner took the respondent to his in-laws house to attend the marriage ceremony of his sister-in-law at Jharsuguda in the State of Odisha, and thereafter, respondent-wife never came back to her matrimonial home, it is apparent that they last resided together at Jharsuguda, in the State of Odisha. Even in his evidence in the Court below, the petitioner husband stated the same facts, as stated in his petition. 6. Section 19 of the Hindu Marriage Act, 1955 reads as under:- “19. Court to which petition shall be presented.- (1) 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 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.” 7. The present suit is fully covered by Section 19(1)(i) and (iii) of the Hindu Marriage Act. Since, neither the marriage was solemnized, nor the parties last resided together within the territorial jurisdiction of the Family Court, Jamshedpur, the suit was not at all maintainable under Section 19 of the Hindu Marriage Act, in the Family Court at Jamshedpur, which was wrongly entertained by the Family Court at Jamshedpur. 8. The fact however, remains that the suit has been dismissed, though on merits. 8. The fact however, remains that the suit has been dismissed, though on merits. Since the suit itself was not maintainable, we convert the impugned Judgment and Decree dated 27.02.2015, passed by the learned Principal Judge, Family Court, East Singhbhum, Jamshedpur, in Matrimonial Suit No. 02 of 2014, as dismissing the suit, due to lack of jurisdiction. 9. This appeal accordingly, stands disposed of, with the modification in the Decree as above. 10. Consequently, I.A. No.1885 of 2016 filed by the appellant for adducing additional evidence, and I.A. No.4743 of 2017 filed by the respondent for enhancement of the amount of maintenance, also stand dismissed.