Section 19(iiia) of Hindu Marriage Act, 1955 – Jurisdiction – A close perusal of impugned order shows that despite there being a specific provision of Section 19(iiia) of Hindu Marriage Act, 1955, the Family Court has resorted to Section20 of CPC which provides that suit should be filed at a place where the defendant resides or carries on distance or the way, the cause of action has arisen partly or completely –  order set-aside.

1 FA. No.277/2019

HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE

DIVISION BENCH:

HON’BLE MR. JUSTICE   S.C. SHARMA

HON’BLE MR. JUSTICE SHAILENDRA SHUKLA

FIRST APPEAL NO.277 OF 2019

SMT. NEHA GARG

Versus

SURYADEEP GARG @ SURAJ GARG——————————————————————————————

Mr. Deepak Tiwari and Ms. Mini Ravindran, learned counsel for the appellant.

Mr. Amit Kumar Panchal, learned counsel for the respondent.————————————————————————————

O R D E R

(Passed on 17th day of March 2020)

Per Shailendra Shukla, J.

1. Appellant- Smt. Neha Garg has preferred this appeal against the judgment dated 08.02.2019 pronounced in HMA Case No.118-A/2014, whereby the Presiding Officer in response to issue no.5 pertaining to maintainability of the case on the ground of territorial jurisdiction has held that there is no jurisdiction of Family Court at Ratlam to hear the matter and ordered return of the plaint for being instituted before the competent Court.

2.The original case was filed by appellant-Smt. Neha Garg under-Section 13(1)(1A) of Hindu Marriage Act, 1955 seeking dissolution of marriage with respondent and for Rs.25.00 lac as permanent alimony.

3.The admitted facts are that appellant- Smt. Neha Garg and respondent- Mr. Surya deep Garg had got married on 02.12.2001 in New Delhi and from their union a son was born namely; “Arth” who is residing presently with his mother Smt. Neha Garg. The appellant- Smt.Neha Garg in her plaint had alleged that despite giving sufficient dowry by her father,the respondent and his family members were not satisfied,their behaviour with the appellant was not appropriate and the mother of appellant used to work in New Delhi and the respondents started making demands from her and due to such demands, the appellant also took up a job but her salary used to be usurped by the respondent, that her mother had given a flat to respondent to satisfy his greed, however, the aforesaid flat was given by her mother for the purpose of residing but the respondents wanted the same to be gifted to him and when the mother of appellant refused to do so, his acts of cruelty increased.

4.The complainant/appellant has further stated that she came to know about dubious past and antecedents pertaining to character of respondent and when she questioned him, he subjected physical cruelty to her. On03.09.2009, the respondent left to her parental house at Vasant Kunj, New Delhi, where she stayed for sometime but cruelty continued and she somehow saved her life and came back to her maternal parents house at Ratlam on19.07.2009. The appellant had stated that she also lodged a complaint against respondent under Section 498-A of IPC and has sought divorce on the ground of cruelty.

5.The respondent has submitted his reply in which he has denied the allegations of cruelty against him. He states that appellant- Smt. Neha Garg has made false allegations against him and he never compelled the appellant to do any act and he never treated her badly and it was the appellant who took no interest in the house hold chores, that a false report was lodged by the appellant against him in Ratlam on 30.04.2010 due to which the respondent was sent to Jail in Ratlam where he remained till 28.10.2010. The respondent has submitted that the appellant did not reside at Ratlam and therefore the Court at Ratlam has no jurisdiction in the matter.

6.On the basis of aforesaid statement in reply, an issue was framed by the Family Court as to “whether the Court at Ratlam had the jurisdiction to hear the matter or not ?”

7.The Family Court came to the opinion that in order to determine the actual residence of appellant, the Court has to determine the actual place where the appellant resided and temporary abode can not be called as residence and in view of the documents placed on record, the Court came to the conclusion that appellant was the resident of New Delhi and not the resident of Ratlam, therefore, the Court at Ratlam did not have any jurisdiction to hear the matter and it was directed that plaint be returned to the appellant for filing the same before the competent Court.

8.In the appeal preferred against the aforesaid order, it has been stated that conclusion drawn by the Presiding Officer is not correct that appellant was not residing at Ratlam since the year 2009 and this fact has also been mentioned in her FIR against the respondent which has been registered under Section 498-A of IPC and that even the respondent in his application under Section 9 of Hindu Marriage Act instituted in the Court at New Delhi has shown the residence of appellant to be House No.139, Shastri Nagar, Ratlam, that the appellant had filed an FIR against the respondent on 10.08.2011 at Vasant Kunj,New Delhi, which was registered under the provisions of Sections 341, 323, 427 and 506/34 of IPC and in this application also, the address of appellant was shown asC-139, Shastri Nagar, Ratlam, that the respondent had filed an application before the Supreme Court to transfer the case under Section 498-A IPC which was registered vide order dated 06.01.2012. It is also stated that there are many documents which would show that appellant is the resident of Ratlam and the documents are Voter-ID Card, Educational document of her son-‘Arth’ and, it is, therefore, prayed that the conclusion drawn in respect of issue no.5 pertaining to jurisdiction of Court be set-aside and compensation of Rs.10,000/- be awarded to the appellant.

9.Along with this appeal, the appellant has also filed an application under Order 41 Rule 27 read with Section 151CPC, 1908, which is IA No.1131/2019 in which documents pertaining to education of her only son namely; ‘Arth’ have been sought to be produced which would conclusively show that the appellant is the resident of Ratlam and not New Delhi.

10.The respondent in his written reply has submitted that appellant has furnished only photocopy of the document along with this application which is not legible and all these documents could have been produced before the Family Court but no effort was made by her to furnish the same. The respondent has submitted his reply which contains response in respect of each of the allegations made by the appellant.

11.Submissions were considered.

12.The question is whether the impugned order by the Presiding Officer for returning the plaint to appellant because of there being no jurisdiction to hear the matter is appropriate or is liable to be set-aside ?

13.As far as the territorial jurisdiction of Family Court is concerned, Section 19 of the Hindu Marriage Act, 1955 is more important which is as under:-

Section 19 of Hindu Marriage Act, 1955

40 [Court to which petition shall be presented. 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

41

[(iiia) in case the wife is the petitioner, where she is residingon 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 out side 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.]Jurisdiction of the Court If a marriage is solemnized at a place within the municipal limit and the party reside there only, the family Court would have exclusive jurisdiction to deal with case. The case cannot be transferred to district court on aground that the husband resides outside the limits of municipal corporation; Arjun Singhal v. Pushpa Karwel, AIR 2003 MP189.

14.The relevance of Section 19(iiia) of Hindu Marriage Act is of specific relevance as per which the wife can file a petition at the place where she is residing on the date of presentation of petition. The aforesaid provision was incorporated under Major Laws (Amendment) Act, 2003, thus, if the petitioner could show that on the date of presentation of petition she was residing at Ratlam, then case could have been filed at Ratlam. A case under Section10 of Hindu Marriage Act was filed on 21.03.2011 and it was only required to be shown by complainant/appellant that she was residing at Ratlam on 21.03.2011. It can be seen that on19.07.2009, an FIR under Section 498-A IPC was lodged by the appellant in Ratlam. The appellant had lodged a report against the respondent in Police-Station at Vasant Kunj on10.08.2011 which is Ex.P/14 in which the appellant had shown her address as C-139, Shastri Nagar, Ratlam (MP).

15.Per contra, learned counsel for respondent has drawn Court’s attention towards the document of mutual agreement arrived at between both the parties in Mediation Centre at High Court of New Delhi, in which address of the appellant has been shown to be at Malviya Nagar, New Delhi.

16.A close perusal of impugned order shows that despite there being a specific provision of Section 19(iiia) of Hindu Marriage Act, 1955, the Family Court has resorted to Section20 of CPC which provides that suit should be filed at a place where the defendant resides or carries on distance or the way, the cause of action has arisen partly or completely. It can be seen that provisions of Section 20 CPC would not be applicable when there is a specific provision under the special statute. The Family Court was only required to makea conclusive finding as to whether the appellant was residing at Ratlam on 21.03.2011. If it is found that on 21.03.2011, the appellant was residing at Ratlam, then the jurisdiction of Ratlam Court to hear the matter would be affirmed.

17.The impugned order is vague regarding such conclusion. Moreover, the documents which have been sought to be filed under Order 41 Rule 27 CPC by the appellant are also important in determining the question as to the place of residence of appellant on 21.03.2011.

18.The impugned order dated 08.02.2019 is, thus, set-aside and the matter is remanded back to the Family Court to allow the appellant to adduce the evidence in respect of documents contained in application filed under Order 41Rule 27 CPC and return a finding as to the jurisdiction of Court at Ratlam keeping in mind the provision of Section19 (iiia) of Hindu Marriage Act, 1955.

19.Both the parties are directed to remain present before the Family Court, Ratlam on 21.04.2020. The Family Court shall give his conclusive opinion as to the jurisdictional issue as contained in issue no.5 within four weeks from the date of receipt of copy of this order. If the Family Court comes to the conclusion that Court at Ratlam has jurisdiction to hear the matter of appellant, the Presiding Officer shall go ahead and decide all the remaining issues and decide the main suit finally. On the contrary, if he finds that Court at Ratlam had no jurisdiction to hear the matter then only finding in respect of issue no.5 be given by the Presiding Officer.

20.In view of the aforesaid, this appeal stands disposed off in above terms. Let a copy of this order be sent to the Family Court, Ratlam for due compliance.

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