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2025 DIGILAW 1538 (RAJ)

Anupama Modi W/o Shri Subodh Modi v. Subodh Modi S/o Shri Ramesh Kumar Modi

2025-09-08

BIPIN GUPTA, MUNNURI LAXMAN

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JUDGMENT : 1. Heard learned counsel for the parties. 2. The present appeal has been filed challenging the order dated 18.09.2024 passed by the learned Family Court, Jalore in Civil Misc. Case No.80/2023 (CIS No.80/2023), wherein and whereby, the application filed by the respondent under Order VII Rule 11 CPC has been allowed. 3. Learned counsel appearing for the appellant submits that the pleadings of the appeal clearly show that the appellant has been residing at Jalore after she was driven out from her matrimonial home and at the time of presentation of the petition under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘Act 1955’) she had been staying at Jalore with her parents. Thus, the application for divorce had been filed before the learned Family Court, Jalore. The learned counsel further submits that the admissions in pleadings of the reply, particularly, pleadings related to her present temporary status of residence at Ahemdabad was taken as an admission of permanent residence of the appellant at the time of presentation of petition and on the above assumption, the Court came to a wrong conclusion that the appellant was not residing at Jalore when the petition for divorce had been presented. 4. Learned counsel appearing for the respondent submits that if the arguments and reply are read together, it has been clearly established that she had been staying at Ahemdabad since 29.08.2022 and the reply also shows that presently, she is staying at Ahemdabad; as such, the learned Trial Court has rightly considered that at the time of presentation of the petition under Section 13 of the Act of 1955, the appellant was not residing at Jalore, so as to confer the jurisdiction on the Family Court, Jalore. It is also submitted that the learned Judge after considering the pleadings in the reply has rightly determined the jurisdiction and the same requires no interference. 5. Learned counsel for the appellant contending that a temporary residence cannot be said to be a residence as required under Section 19 of the Act of 1955 and a permanent residence is a requisite under the said Section, has relied upon the following judgments: (i) Aditi Sharad Elhance Vs. .... ; First Appeal No.796/2017 (Decided on 28.02.2017) (Division Bench of Gujarat High Court). (ii) Abhijna U.G. Vs. Vijay Mahadevan ; Tr. .... ; First Appeal No.796/2017 (Decided on 28.02.2017) (Division Bench of Gujarat High Court). (ii) Abhijna U.G. Vs. Vijay Mahadevan ; Tr. P. (C) No.546/2021 (Decided on 09.06.2022) (Hon’ble High Court of Kerala at Ernakulam). (iii) Meria Joseph Vs. Anoop S. Ponnattu & Ors.; Tr. P. (C) 504/2021 (Decided on 03.01.2022) (Hon’ble High Court of Kerala at Ernakulam). 6. Learned counsel for the respondent to support his case with regard to the assumption of jurisdiction under Section 19 of the Act of 1955 where actual residence of the applicant is required and not the temporary residence, has relied upon the following judgments: (i) X. Vs. Y. ; FAO- 486/2025 (Decided on 01.05.2025) (Division Bench of Punjab & Haryana High Court). (ii) Subhash Vs. Sona ; W.P. No.2266/2016 (Decided on 15.02.2017) (Hon’ble Madhya Pradesh High Court). (iii) Narayana Bala Bharathi Vs. Vishal Gagan (Delhi); 2013(29) RCR(Civil) 548 (Division Bench of the Hon’ble Delhi High Court). 7. We have gone through the impugned order passed by the learned Trial Judge. 8. There is no dispute with regard to the averments made in the petition under Section 13 of the Hindu Marriage Act, 1955 seeking divorce. There is a specific recital to the effect that after the appellant was driven out from her matrimonial home, she took shelter with her parents and she had been staying at Jalore on the date of filing of the present divorce petition. 9. However, in the reply filed by the appellant to the application for rejection of petition, a categorical statement has been made that she was driven out from her matrimonial home on 08.11.2016 and thereafter, she took shelter with her parents and at present, she was staying at Ahmedabad. The reply has been filed on 26.02.2024 and the divorce petition was filed on 29.05.2023. 10. The impugned order shows that the learned Trial Judge held that after the solemnization of marriage, the appellant and respondent never stayed together within the jurisdiction of Jalore and she was working as an Assistant Professor and was staying at Ahemdabad. Thus, the requirement to assume the jurisdiction at learned Family Court, Jalore has not been complied with as per Section 19 of the Act of 1955. 11. The established law is that in dealing with the application for rejection of plaint or petition, the primary requirement is that the Court is required to see the pleadings of the plaint/petition. Thus, the requirement to assume the jurisdiction at learned Family Court, Jalore has not been complied with as per Section 19 of the Act of 1955. 11. The established law is that in dealing with the application for rejection of plaint or petition, the primary requirement is that the Court is required to see the pleadings of the plaint/petition. External evidence or pleadings in the reply or written statement shall not be a ground for rejection of plaint/petition. A clear reading of the averments in the petition clearly make out a case that after she was driven out from the matrimonial home, she had been staying with her child at her parent’s home in Jalore. 12. In the reply filed by the appellant to the rejection application, it has been averred that she has been temporarily staying at Ahemdabad on account of her temporary nature of employment. It is also mentioned in the reply that at present, she is residing at Ahemdabad. However, the appellant is permanently residing at Jalore. The pleadings also refer that on account of her employment, she was staying at Ahemdabad temporarily. The pleadings in the reply also do not make out any clear admission to the effect that on the date of presentation of the petition, the appellant was not staying at Jalore. However, there could be some inference to the effect that she had been staying at Ahemdabad temporarily. 13. There is a clear and specific pleading in the petition to the effect that the appellant was taking shelter with her parents after she was driven out and on the date of presentation, she was staying within the jurisdiction of Jalore. The inferential admission which the learned counsel for the respondent has drawn are required to be explained when the witness is present in the witness box. The requirement of law is that the pleadings of the petitioner is always to be the basis for deciding whether the appellant was staying within the jurisdiction of the Jalore Court or not when the petition was presented. As per the pleadings, there is a categorical statement in the petition that after she was driven out, she took shelter at parents home. 14. As per the pleadings, there is a categorical statement in the petition that after she was driven out, she took shelter at parents home. 14. The judgments relied upon by the learned counsel for the appellant only show that the temporary nature of residence will not take away the right of the wife to present divorce petition based on the permanent residence. The judgments relied upon by the learned counsel for the respondent show that the actual residence of the party determines the jurisdiction and mere temporary residence will not confer any jurisdiction. 15. The pleadings of the petition categorically make out that the appellant was taking shelter with her parents which is within the jurisdiction of Jalore Family Court. The pleadings in reply, gives some ambiguity as to the residence contrary to specific and clear pleadings in the petition. Such a pleading requires to be explained at an appropriate stage. It requires evidence to the effect that whether she was actually residing at Jalore at the time of presentation of the petition, which can be done only during the trial process. Therefore, we are of the opinion that the learned Trial Judge ought not have rejected the petition on the ground of jurisdiction and the impugned order dated 18.09.2024 deserves to be set aside. 16. In the result, the appeal is allowed. The impugned order dated 18.09.2024 is set aside. However, it is made clear that there shall be an issue framed with regard to jurisdiction in the adjudication of the petition. The parties are at liberty to adduce their respective evidence in proof of the issue so framed. Consequently, the divorce petition dated 26.02.2024 filed under Section 19 of the Hindu Marriage Act, 1955 is restored. Both the parties are directed to appear before the learned Trial Court on 15.10.2025. 17. It is made clear that the parties shall not get any further notice from the learned Trial Court. This order itself notices for the appearance of the parties. 18. All pending applications, if any, also stand disposed of.