Tuesday, 21 July 2015

Bom HC;Issue of jurisdiction of court should be decided 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 w/o Gorakhnath Dhone,

VERSUS
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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