Chatur Singh Negi vs Rajni Devi

Prafulla C. Pant, J.—Sri L.K. Tiwari, Advocate present for the appellant.

None present for the respondent even after service of notice.

This appeal, preferred u/s 19 of the Family Courts Act, 1984, is directed against the judgment and decree dated 31.03.2010 passed by Judge, Family Court, Nainital, in suit No. 52 of 2009 whereby the said court has dismissed the petition moved u/s 13 of the Hindu Marriage Act, 1955, on the ground of lack of territorial jurisdiction.

Heard learned Counsel for the appellant and perused the lower court record.

Brief facts of the case are that appellant Chatur Singh Negi got married to respondent Rajni Devi on 30.04.1998 at Raiwala, District Dehradun. It is pleaded by the petitioner/appellant in his petition filed u/s 13 of the Hindu Marriage Act, 1955, that after the marriage relations between the parties to matrimony get soured. It is alleged by the petitioner that respondent did not care even for the daughter born out of the wedlock. It is further pleaded that respondent treated the petitioner with cruelty, as she used to threaten him that by committing suicide, she would get the petitioner sent to jail. She used to oust the guests from the house without any reason. Once, she left the house without information to the petitioner and petitioner had to report the matter to the police. With the above averments, petition for divorce was filed before Judge, Family Court, Nainital, with further pleading that the petitioner and the respondent last resided in Bharatpuri, Ramnagar, District Nainital.

Respondent Rajni Devi did not contest the petition before trial court and the suit proceeded ex parte.

The trial court dismissed the suit on the ground that marriage between the parties was solemnized in Dehradun and as such, the court at Nainital, has no jurisdiction.

Learned Counsel for the appellant drew attention of this Court to Section 19 of the Hindu Marriage Act, 1955, which reads as under:

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

(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 outside 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.

Clause (iii) of Section 19 of the Hindu Marriage Act, 1955, clearly provides that petition under the Act can be presented before the Court having local jurisdiction where the parties to the marriage last resided together. Paragraph 16 of the affidavit filed by the appellant (paper No. 4Ka/1 to 4Ka/4) in this regard before the trial court clearly shows that petitioner and respondent last resided together at Bharatpuri, Ramnagar, District Nainital. The said affidavit is not controverted on record.

In the above circumstances, in our opinion, the trial court committed grave error of law by dismissing the petition filed u/s 13 of the Hindu Marriage Act, 1955, on the ground that it has no territorial jurisdiction in the matter. Section 19 of the Act, quoted above, clearly shows that not only the court where the marriage was solemnized has jurisdiction to try the petition filed under the Act but also the court where the respondent resided or where the parties to matrimony last resided. It was the sweet will of the petitioner to file petition under any of the three clauses mentioned in Section 19 of the Hindu Marriage Act, 1955.

Therefore, judgment and decree passed by the trial court dismissing the petition is liable to be set aside. Accordingly, the appeal is allowed. The impugned judgment and decree dated 31.03.2010 passed by the Judge, Family Court in suit No. 52 of 2009 is set aside. Lower court record be sent back and the trial court is directed to decide the petition u/s 13 of the Hindu Marriage Act, 1955 on merits, preferably within a period of three months, from the date of receipt of lower court record by the said court.