Whether it is necessary to decide issue of jurisdiction prior to grant of divorce?

A Bombay High Court Bench at Nagpur, comprising Justice Vasanti A. Naik and Justice Prasanna B. Varale recently mulled over the question whether a couple having their native place in particular city or state file for divorce in family court situated in another city or state. The Court ruled that when such a question is raised, the family court must first address the issue of jurisdiction, before proceeding with the case.

The Bench observed, “Firstly, it was necessary for the Family Court to frame the issue of jurisdiction and then permit the parties to tender evidence, both, oral and documentary, on the issue of jurisdiction. It is a well established position of law that the jurisdiction of the Court cannot be decided on the written statement or the documents tendered by the parties.”

The Court was hearing the case of a couple who had been divorced by judgment dated September 26, 2013. The Divorce petition was filed by the husband on grounds of cruelty and desertion.

The wife had challenged the Family Court verdict, seeking a remand of the matter to the Family Court, Nagpur, on the ground that the Family Court did not have jurisdiction to entertain the Hindu Marriage Petition filed by the husband.

According to the wife, since no cause of action arose at Nagpur, the Family Court, Nagpur did not have jurisdiction to entertain and decide the petition. The wife also denied the allegations made against her in respect of cruelty and desertion.

She submitted before the High Court that the marriage between the parties was solemnized in a Temple in Kolhapur district and the parties last resided together at Belgaum. It was further confirmed by the husband’s petition that the wife refused to join the Company of the husband at Nagpur.

The Court noted that despite the specific objection of the wife that the Petition should not be entertained by the Family Court, Nagpur, the Court did not frame the issue in regard to the jurisdiction of the Court. Without framing such an issue, the Family Court proceeded on the assumption that it held jurisdiction to entertain the petition.

Accepting the contentions put forward by the wife, the High Court observed, “It is rightly stated on behalf of the wife that it was necessary for the Family Court to have framed the issue of jurisdiction and if the same was answered in favor of the husband, then only the Family Court ought to have proceeded to decide the Hindu Marriage Petition, on merits.”

 The Court hence set aside the Family Court’s judgment and remanded the case back to the Family Court for framing and deciding the issue of jurisdiction and then proceeding to decide the Hindu Marriage  Petition if the issue is answered in favor of the husband.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

FAMILY COURT APPEAL No. 333/2014

Kalpana  Gorakhnath Dhone,Vs Shri Gorakhnath Govinda Dhone,

CORAM : SMT. VASANTI A. NAIK AND

   PRASANNA B. VARALE, JJ.

DATE :  JULY        8,     2015.

 The family Court appeal is ADMITTED and heard finally at

the stage of admission as the appellant­Wife has only sought a remand of

the matter to the Family Court, Nagpur on the ground that the Family

Court, Nagpur did not have jurisdiction to entertain the Hindu Marriage

Petition filed by the respondent­Husband for a decree of divorce on the

ground of cruelty and desertion.

2. The   marriage   between   the   appellant­Wife   and   the

respondent­Husband was solemnized on 12.07.1994 in Deulwadi Temple,

District Kolhapur.  The parties started residing in the matrimonial home

at Belgaum.  According to the husband, the wife was not ready to reside

in   the   joint   family   and,   therefore,   there   were   quarrels   between   the

parties.  According to the husband, the wife abused the husband in filthy

language, quarrelled with him and also assaulted him on some occasions.

According   to   the   husband,   the   husband   told   the   wife   to   change   her

behaviour but, she did not change her ways.   The husband sought a

transfer of his services from Belgaum to Nagpur and started residing in

Nagpur in early 1990s.  According to the husband, the wife never came to

Nagpur to join the company of the husband despite several requests.  The

husband   filed   Hindu   Marriage   Petition   No.A­192/2011   before   the

Principal   Judge,   Family   Court,   Nagpur   for   divorce   on   the   ground   of

cruelty and desertion.  

3. The wife filed the written statement and denied the claim of

the husband.   According to the wife, the Family Court did not have

jurisdiction to entertain the Hindu Marriage Petition.   According to the

wife, since no cause of action arose at Nagpur, the Family Court, Nagpur

did not have jurisdiction to entertain and decide the petition.  The wife

also denied the allegations made against her in respect of cruelty and

desertion.  

4. On the pleadings of the parties, the Family Court framed the

issues.     The   husband   examined   himself   and   since   he   was   not   crossexamined

and the wife had also not entered into the witness box, the

Family   Court   allowed   the   petition   filed   by   the   husband   for   grant   of

divorce on the ground of cruelty after holding that the husband had

succeeded in proving his case in that regard.  The judgment of the Family

Court is challenged by the wife in this family Court appeal.

5. Shri Bhangde, the learned counsel for the wife, submitted that

the Family Court did not have jurisdiction to entertain and decide the

Hindu Marriage Petition filed by the husband.   It is submitted that the

cause of action did not arise at Nagpur and the husband was not entitled

to file the petition in the Family Court at Nagpur.   It is stated that the

marriage between the parties was solemnized in a Temple in Kolhapur

district and the parties last resided together at Belgaum.  It is stated that

it is clearly mentioned by the husband in the Hindu mrriage Petition that

the wife refused to join the Company of the husband at Nagpur and had

never joined him at Nagpur after his transfer.  It is submitted that it was

necessary for the Family Court to have framed the issue of jurisdiction of

the Family Court.  It is stated that the Family Court has not decided the

issue of jurisdiction, therefore, it is necessary to remand the matter to the

Family Court for framing the issue of jurisdiction and deciding the same.

6. Shri Purohit, the learned counsel for the husband, submitted

that the wife failed to remain present before the Family Court at Nagpur

despite   opportunity   and,   therefore,  the   Family   Court   was   justified   in

granting a decree of divorce in favour of the husband, after considering

the   evidence   that   remained   unchallenged.     It   is   submitted   that   in

paragraph 6 of the judgment of the Family Court, some of the contents of

the legal notice dated 18.02.2011 are reproduced and the contents would

show that the wife had left the husband 1 ½ months before the issuance

of the legal notice.  It is stated that it is clear from the contents of the

notice that the wife had resided at Nagpur and had left the husband only

a   month   and   half   before   the   issuance   of   the   legal   notice   dated

18.02.2011.

7. On hearing the learned counsel for the parties, it appears

that the following points arise for determination in this family Court

appeal.­­­

I) Whether it was necessary for the Family Court to frame the

issue of jurisdiction when a plea of absence of jurisdiction was

specifically raised by the wife in her written statement?

II) Whether the judgment of the Family Court is just and proper?

III) What order?

8. To answer the aforesaid points for determination, it would be

necessary to consider the pleadings of the husband in the Hindu Marriage

Petition.   It is clearly pleaded by the husband in the Hindu Marriage

Petition that after the marriage, the parties started residing at Belgaum in

the matrimonial home.  It is further pleaded by the husband that after the

husband was transferred from Belgaum to Nagpur, the wife did not come

to Nagpur and refused to join his company at Nagpur.  Since the marriage

was not solemnized at Nagpur and since, according to the husband, the

wife refused to join the company of the husband at Nagpur, the wife

raised a plea of jurisdiction in the written statement.   According to the

wife since no part of cause of action for filing the Hindu Marriage Petition

arose at Nagpur, the Family Court at Nagpur did not have jurisdiction to

entertain and decide the Hindu Marriage Petition.  It appears that despite

the specific objection of the wife that the Hindu Marriage Petition could

not be entertained in the Family Court, Nagpur, the Family Court, Nagpur

did not frame the issue in regard to the jurisdiction of the Family Court,

Nagpur.   Without  framing  the issue  of jurisdiction, the  Family Court

proceeded to decide the petition on an assumption that it had jurisdiction

to decide the Hindu Marriage Petition filed by the husband.  It is rightly

stated on behalf of the wife that it was necessary for the Family Court to

have framed the issue of jurisdiction and if the same was answered in

favour   of   the   husband,   then   only   the   Family   Court   ought   to   have

proceeded to decide the Hindu Marriage Petition, on merits.  We find on

a perusal of the pleadings of the parties that it was necessary for the

Family Court to have framed the issue of jurisdiction.  The Family Court

committed   an   error   in   not   framing   the   issue   of   jurisdiction   and

proceeding   to   decide   the   Hindu   Marriage   Petition,   on   merits.     The

submission made on behalf of the husband that since the Family Court

referred to the legal notice in paragraph 6 of the judgment and the

contents of the notice depict that the wife was residing with the husband

at Nagpur and, hence, the Family Court was justified in entertaining and

deciding the Hindu Marriage Petition, is liable to be rejected.  Firstly, it

was necessary for the Family Court to frame the issue of jurisdiction and

then permit the parties to tender evidence, both, oral and documentary,

on the issue of jurisdiction.  It is a well settled position of law that the

jurisdiction of the Court cannot be decided on the written statement or

the documents tendered by the parties.  The jurisdiction of the Court has

to be necessarily decided on the basis of the pleadings of the plaintiff.  It

prima­facie appears on the basis of the pleadings in the Hindu Marriage

Petition   that   the   wife   never   joined   the   company   of   the   husband   at

Nagpur.  In the aforesaid circumstances, it was all the more necessary for

the Family Court to frame the issue of jurisdiction.   The first point for

determination is, therefore, answered in the affirmative and in favour of

the wife.   Since the issue of jurisdiction was not framed and since the

Family Court proceeded to decide the matter without deciding the issue

of jurisdiction, the judgment of the Family Court is liable to be quashed

and set aside.

9. Hence, for the reasons aforesaid, the family Court appeal is

partly allowed.  The judgment of the Family Court dated 26.09.2013 is

hereby set aside.  The matter is remanded to the Family Court for framing

and deciding the issue of jurisdiction and then proceeding to decide the

Hindu Marriage Petition only if the issue is answered in favour of the

husband.   The parties undertake to remain present before the Family

Court, Nagpur on 03.08.2015, either personally or through their counsel,

so that issuance of the notice to the parties by the Family Court could be

dispensed with.  In the circumstances of the case, there would be no order

as to costs.

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