Renu Gautam vs Rajeev Mandarwal

Ravindra Maithani, J

The instant appeal has been preferred against the order dated 24.10.2019, passed in Original Suit No.343 of 2019 Rajeev Mandrawal vs. Smt. Dr. Renu Gautam by the Principal Judge, Family Court, Dehradun (for short "the Case"). By the impugned order, an application 19-C filed by the appellant has been rejected by which it was requested that an issue with regard to jurisdiction of the court may be framed.

Learned counsel for the appellant would argue that in a petition seeking divorce filed under Section 13 of the Hindu Marriage Act, 1955 (for short the "Act") by respondent, the appellant took specific plea in paragraph 40 of the written statement that the parties never resided in Dehradun; they did not marry in Dehradun, therefore, the Court at Dehradun has no jurisdiction to hear and try the petition. It is argued that in order to frame an issue with regard to jurisdiction of the Court, an application 19-C was moved by the applicant. On the basis of the pleadings an issue with regard to the jurisdiction ought to have been framed but the application has wrongly been rejected, therefore, it is argued that the impugned order may be set aside and the appeal be allowed.

This appeal is being heard and disposed of at the admission stage itself. It has been brought to the notice by the learned counsel for the appellant that issues have already been framed in the case, but the issue relating to jurisdiction, as pleaded in paragraph 40 of the written statement by the appellant has not been framed.

Perusal of the impugned order reveals that the appellant had earlier filed a Civil Transfer Application No. 23 of 2019 Smt. Dr. Renu Gautam vs. Rajeev Mandrawal in this Court (for short "the transfer application") which was dismissed on 06.08.2019. The transfer application was moved for transferring the case from the Court of Dehradun to the Court at Pauri Garhwal. While observing that since the transfer application of the appellant had already been dismissed by the Hon'ble High Court, the learned court below rejected the application 19-C by the impugned order.

The history of this litigation goes little beyond the transfer application, in fact, initially a petition under Section 13-B of the Act was moved by the parties seeking dissolution of marriage. It was registered as Original Suit no. 836 of 2016 Smt. Dr. Renu Mandarwal vs. Rajeev Mandrawal (for short the "former suit"). The former suit was filed on 24.09.2016 copy of this petition has been enclosed as Annexure no. 1 to the appeal. In paragraph 14 of this petition, the appellant as well as the respondent both had jointly stated that the respondent is a resident of Dehradun who had been residing in Dehradun at the relevant period; both the parties had lastly resided in Dehradun, therefore, the Court at Dehradun had jurisdiction to hear the case.

It is argued on behalf of the appellant that the former suit stood dismissed on 08.04.2019, because the appellant did not consent for dissolution of marriage subsequent to filing of the former suit as also the respondent did not consent. Copy of the order on 08.04.2019, passed in the former suit, has been placed before the Court, which reveals that in the former suit the appellant did not appear and subsequently the respondent also withdrew his consent and the petition for divorce on the basis of mutual consent was dismissed on that date.

There was another litigation in between the parties initiated by the respondent before this Court seeking direction that the former suit may be decided. It was the Writ Petition (M/S) 3448 of 2018 Rajeev Mandrawal vs. Smt. Dr. Renu Mandrawal (for short the "Writ Petition"). In the Writ Petition respondent had sought direction that Principal Judge Family Court, Dehradun be directed to grant a decree of divorce on the basis of mutual consent. The Court by an order dated 10.05.2019 declined to do so and observed that "it is not known whether the Original Suit No. 836 of 2016 is still pending consideration or not as 31.10.2018 was fixed by the Court for disposal". In fact, the doubt of the Court raised in its order dated 10.05.2019, passed in the writ petition, was proved to be right because the former suit (that is Original Suit No. 836 of 2016) had already been decided by the Principal Judge Family Court, Dehradun on 08.04.2019.

After filing of the petition for divorce by the respondent which is basis of the case the appellant also approached this Court seeking transfer of the case to some other Court either in District Pauri Garhwal or in District Rudraprayag. It was the basis of the Civil Transfer Application No. 23 of 2019. Having considered the submissions made on behalf of both the parties the court observed that the appellant failed to make out the case for transfer of the case and accordingly the transfer application was dismissed.

Learned counsel for the appellant would submit that in the transfer application the appellant had not taken the plea that the Court at Dehradun had no jurisdiction to hear and try the application under Section 13 of the Act. It is submitted that the transfer application was filed on the ground of comparative hardship.

The jurisdiction of the Court, in which petition shall be presented, has been delineated in Section 19 of the Act which reads as hereunder:-

Court to which petition shall be presented.-(1) 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.

The bare perusal of the provision would reveal that according to Section 19 (iii) petition for dissolution of the marriage may be presented to the Court within whose jurisdiction the parties to the marriage lastly resided together.

Undoubtedly, an issue arises when the material preposition of fact or law is affirmed by the one party and denied by the other. One of the purposes of framing of the issues is that the party should know well in advance as to what is the issue involved and what is the evidence required to be adduced. It also serves a purpose to decide as to which party has burden to prove a fact.

Undoubtedly, in the instant case in its petition for divorce in paragraph 40 the respondent has categorically stated a factum enabling the Court at Dehradun to try and hear the matter, according to it, after marriage parties stayed at Dehradun and till last they were residing in Dehradun together. This is controverted in paragraph 40 of the written statement. But, the fact remains that in the earlier petition, which was the basis of the former suit, both the parties, in paragraph 14, had revealed that the appellant at the relevant time was residing in Dehradun and both the parties to the marriage last resided together in Dehradun.

What is interesting to note in that when respondent moved petition under Section 13 of the Act for dissolution of the marriage, the appellant did not file written statement but before that the appellant moved the transfer application before this Court seeking transfer of the case from the Court at Dehradun to some Court in District Pauri Garhwal or in District Rudraprayag. In the transfer application the plea that parties to the marriage never resided together at Dehradun has not been taken by the appellant. The transfer application was moved on the ground of comparative hardship. What is important to notice is that the transfer application of the appellant was dismissed by this Court on 06.08.2019, thereafter, on 10.09.2019, written statement was filed by the appellant. In the case a copy of the written statement was also enclosed in the instant appeal and then plea at paragraph 40 has been taken denying that the parties to the marriage ever resided together at Dehradun.

There are few things which are admitted, they are as hereunder:-

(i) In the Former suit which was based on a petition under Section 13-B, seeking dissolution of marriage, jointly filed by the parties, it has categorically been stated that the parties stayed together at Dehradun therefore the Court at Dehradun has been jurisdiction. It is an admission of fact and consequent to it, a statement regarding jurisdiction of the Court.

(ii) When the instant petition was filed by the respondent seeking divorce, the appellant moved this Court seeking transfer of the case but she did not raise any objection regarding jurisdiction of the Dehradun Court. It was not stated in the transfer application that parties never resided together at Dehradun.

(iii) The transfer application was moved before this Court for transferring the case by the appellant on the ground of comparative hardship and not on the ground of the jurisdiction of the Court. This transfer application was rejected on 06.08.2019 and for the first time in her written statement prepared on 10.09.2019 the appellant raised the issue of jurisdiction and denied having together stayed at Dehradun at any point of time.

Since, appellant herself had admitted that she and respondent lastly resided together in Dehradun and the Court at Dehradun had jurisdiction. There appears to be no need to frame an issue on the subject. Learned court below on different premise rejected the application of the applicant but has not committed any illegality or error which may warrant interference of this Court. Hence, this Court is of the view that this appeal deserves to be dismissed at the admission stage and is dismissed accordingly.