Whether court should entertain issue of jurisdiction at any stage of proceeding?

In our considered opinion, one question, which goes to the root of the case affecting the very jurisdiction of the Court to try the suit, was not taken note and if taken note of, it was not decided in its proper perspective by any of the Courts below. May be due to the reason, instead of raising the objection, the Defendant appears to have conceded it.

18. Be that as it may, in our considered view, the issue of jurisdiction which goes to the root of the case, if found involved has to be tried at any stage of the proceedings once brought to the notice of the Court.
IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7068 of 2010

Decided On: 05.09.2017

 S.N.D.P. Sakhayogam Vs. Kerala Atmavidya Sangham

Hon'ble Judges/Coram:
R.K. Agrawal and Abhay Manohar Sapre, JJ.
Citation:(2017) 8 SCC 830

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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.

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