Ravindra vs Pradnya

A.I.S. Cheema, J.—Admit. Matter heard finally with the consent of the parties.

Petitioner husband has filed this Revision Application against order dated 3rd September, 2013 passed in Special Civil Suit No.54 of 2009 by Joint Civil Judge, Senior Division, Nanded, below Exhibit 1 rejecting his request regarding jurisdiction and holding that the said Court had jurisdiction to try the matter.

The Respondent wife has filed maintenance suit u/s 25 of the Hindu Marriage Act, 1955 for grant of permanent alimony. Between the parties, the divorce has already taken place. The earlier litigation took place at Aurangabad. The Respondent filed the suit at Nanded, claiming to be residing at the place of her maternal uncle at Nanded. The present Petitioner filed Written Statement and application requesting the trial Court to frame preliminary issue of jurisdiction. The Respondent brought on record evidence of herself and her maternal uncle with whom she was staying at Nanded. The present Petitioner did not lead oral evidence but relied on a certificate of Tahsildar and voters list of Parbhani, to show that the Respondent was resident of Parbhani and not Nanded. The trial Court has, by reasoned order dated 3rd September 2013, rejected the claim of the Petitioner and held that the said Court has jurisdiction to try the suit.

Point for consideration is: -

(i) Whether orders passed by the trial Court show that it has acted in exercise of its jurisdiction illegally or with material irregularity?

I have heard learned counsel for both sides. Learned counsel for the Petitioner is pointing out certificate of Tahsildar dated 3rd May 2013, showing that it was issued on the request of the Respondent and that she was residing at Parbhani. He is also pointing out voters list of Legislative Assembly and Corporation of 2012 and 2013, to say that the Respondent was residing at Parbhani. Learned counsel for Petitioner pointed out certificate issued by Corporator relied on by Respondent to say that she is residing at Degaon Chawl, Nanded. According to him, the Corporator has no authority to issue any such certificate. The learned counsel relies on the matter of Jagir Kaur and Another Vs. Jaswant Singh, where the provision of Section 488(8) of the earlier Code of Criminal Procedure, 1898 was considered (which is now Section 125). The learned counsel says that in that matter the word "resides" was discussed by the Hon''ble Supreme Court and the word has to be construed as intention to reside at least for some period of time at a particular place and it has to be more than a flying visit. The counsel also places reliance on the case of Advocate Ramesh Bhutada and Sou., Shobha Bhutada Vs. State of Maharashtra, Sou. Arti Bhutada and Harshad Bhutada, to argue that word "reside" used in Section 27 in the Protection of Women from Domestic Violence Act (2005) has also been held as, not something which is in the nature of casual stay and it has to be complete intention to remain at a particular place and not a casual visit. Relying on these reported Judgments, the counsel is submitting that the Court at Nanded does not have jurisdiction and the suit should have been filed at Parbhani where parents of the Respondent are staying.

Learned counsel for Respondent, against this, submitted that the Respondent relies on Section 19(iii-a) of the Hindu Marriage Act, 1955. According to her, when the suit was filed, Respondent was residing at Nanded and so the suit is maintainable. According to her, the document pointed out as a certificate issued by Tahsildar was issued as Respondent has been preparing for M.P.S.C. and U.P.S.C. Examination Classes in Ambedkarwadi Mission, CIDCO, Nanded. As regards the voters list, it is submitted that as the name was earlier in the voters list at Parbhani, it has continued. Learned counsel for Respondent relied on the case of Shashi Leekha Vs. Sheila Shashi Leekha, to submit that the High Court has upheld the claim of the wife to file suit at Mumbai although the marriage had taken place at Jammu, relying on Section 19(iii-a) of the Hindu Marriage Act, as on the date of presentation of the Petition, she was residing at Mumbai.

As regards Section 27 of the Protection of Women from Domestic Violence Act, 2005, reference is made to the Judgment in the matter of Advocate Ramesh s/o Mohanlal Bhutada and another vs. State of Maharashtra and others, cited supra. Apart from difference in wordings of that Section, if Para 6 of the Judgment is perused, the dispute raised and arguments and findings in the matter of Mst. Jagir Kaur (supra) were discussed and then the Court observed that the parties to the matter had not been given fair and full opportunity to tender the evidence and the matter was sent back to the Judicial Magistrate First Class to give full opportunity to the parties.

The matter of Mst. Jagir Kaur and another vs. Jaswant Singh, cited supra, was arising under the Code of Criminal Procedure, 1898, and relevant sub Section was 8 of Section 488, which reads as under:

"(8) Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child."

Section 19 of the Hindu Marriage Act, is relevant for deciding the present matter. Section 19 reads as under:

"19. 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

(iii-a) in case the wife is the petitioner, where she is residing on 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 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."

- Emphasis supplied.

The wordings of Section 19(iii-a) of the Hindu Marriage Act, 1955 are quite clear and different than the wordings of the Section 488(8) of earlier Code of Criminal Procedure, referred to by the learned counsel for Petitioner. The wordings clearly show that the relevant factor to decide the jurisdiction in present matter will be, where the wife was residing on the date of presentation of the Petition.

Regarding this, the Respondent has led oral evidence and the evidence of her maternal uncle in the trial Court to claim that she was residing at Nanded with her maternal uncle at the time of presentation of the suit. Trial Court found that she is residing with her uncle at Nanded. Suit is of 2009 and pointing out documents of 2012 or 2013 will not help present Petitioner. In such circumstances and looking to the specific Section and wordings employed, I do not find any error of jurisdiction exercised by the trial Court, which has passed detailed order, mainly on the basis of evidence of Respondent. Present Petitioner did not lead oral evidence.

Present Petitioner resides at Aurangabad. Respondent has filed suit at Nanded. Petitioner claims, it should have been at Parbhani where parents of Respondent stay. Respondent has filed affidavit in this Petition claiming that being divorcee, her uncle is helping her for "prospective future". She is supporting orders of trial Court. I find, she would not gain by filing suit at Nanded instead of Parbhani. Aurangabad to Naded, or Aurangabad to Parbhani, travel part for Petitioner to defend the matter is not going to be too much. Thus, I do not find that evidence of Respondent, that she was staying with her uncle at Nanded and so filed suit at Nanded, needs to be discarded. There is no illegality in the way trial Court has weighed the material on record. There is no substance in the Revision Application.

Revision Application is rejected.