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2008 Supreme(Kar) 164
2008 (3) KLO 2554
IN THE HIGH COURT OF KARNATAKA
Anand Byrareddy, J.
Writ Petition No. 1877 of 2007
Saeesh Subhash Hegde S/o Late Subhash Rayu Hegde - Petitioner
Vs.
Darshana Saeesh Hegde - Respondent
Decided on 6-3-2008
Petitioner: Sri Vijaykumar A. Patil, Santosh S. Nagarale and Madhukar M. Deshpande, Advs.
Respondents: Sri N. Ravindranath Kamath, Adv.
Headnote:HINDU MARRIAGE ACT, 1955 - Section 24: [Anand Byrareddy, J] Application under Section 24 for Maintenance - Marriage performed as per the provisions of the Portuguese Civil Code - Application filed under Section 24 of the Hindu Marriage Act for maintenance by wife before the Family court at Belgaum - Objections by the Petitioner/Husband with regard to jurisdiction of the Family court at Belgaum to entertain the application - Rejection of objections - Challenge to - Question whether the Portuguese Family law or Hindu Law would be applicable to the parties and if the Portuguese Family Law is applicable, which is the Court having jurisdiction to decide the matter - Held, There is no dispute that the parties were married according to the Portuguese Family Law, that is applicable within the State of Goa, and had set up their matrimonial home at Fatorda, Margao. It is the Portuguese Family Law which would apply, in so far as their matrimonial relationship is concerned. The fact that the petitioner and the respondent underwent a Hindu marriage ceremony at a later point of time, would not have the effect of the parties becoming subject to the provisions of the Hindu Marriage Act. The Hindu Marriage Act not having been extended to the State of Goa as on the date of their marriage i.e., 26.12.2002 the said Act and the provisions thereunder would not apply. Further, A suit for divorce by parties governed by the Portuguese Family Law within the State of Goa, can file the same in the Court of domicile within Goa or in the Court having jurisdiction over the place where the plaintiff resides (also within the State of Goa). It cannot be construed that a plaintiff who is residing outside the State of Goa could also file a suit or petition for divorce outside the State of Goa, as in the present case, in a place where he or she is residing outside Goa. The Courts, in the rest of India, would have no jurisdiction to entertain suit (petition) under the Provisions of the Portuguese Family Law pertaining to divorce. The laws relating to succession and marriage might not be the same all over the country and different areas in the State might have different laws in respect of those matters. Though the respondent is now living at Belgaum, on the premise that if there was a possibility of reconciliation, her domicile would be that of the Petitioner at Goa, it can safely be said that a suit by the respondent would lie in the State of Goa in terms of Article 5 before the Court of domicile. In view of this, it can be said that the Portuguese Family Law would be the Court of domicile, within the State of Goa. Impugned order was quashed.
Anand Byrareddy, J.,
1. Heard the Counsel for the petitioner and the Counsel for the respondent.
2. The brief facts of the case are as follows:
The petitioner is a Goan, born of Goan parents, and had married the respondent on 26.12.2002 in accordance with the Portuguese Family Law, which is applicable to this day in the State of Goa, following the procedure under the provisions of the Portuguese Civil Code (hereinafter referred to as the ‘PC Code’). In proof of the same, the petitioner has produced a Marriage Certificate issued by the Office of Civil Registration Offices of Goa dated 13.7.2006.
3. The petitioner and respondent had met in Belgaum when they were students of Gogte Institute of Technology in the year 1998. They were classmates. It is contended that they had fallen in love and decided to get married secretly in Goa, as the respondent did not expect her parents to consent to their marriage. And the respondent, according to the petitioner, had gone over to Goa on 31.12.2002 to give the joint declaration in the office of the Sub-Registrar, Margao and again on 26.12.2002, for the solemnisation of marriage. On both days, she had returned to Belgaum on the same day to avoid raising any suspicion in the minds of her parents.
4. The petitioner contends that the petitioner and the respondent had signed a declaration as required under Article 1075 of the PC Code declaring their intention to get married arid had presented it to the Office of the Sub-Registrar, Margao on 11.12.2002. A notice indicating the intention was displayed on the Notice Board of the said office inviting objections to the proposed marriage from the public within fifteen days, as required under Article 1076 of the P.C. Code. As there were no objections, the Sub-Registrar had solemnised the marriage in accordance with Article 1081 of the PC Code on 26.12.2002.
5. The petitioner and the respondent were thus named under the regime of a communion of assets and are governed by the relevant provisions of the P.C. Code.
6. Her parents, on coming to know of the marriage on 12.4.2003, had reconciled to the fact and had thereafter arranged a formal engagement ceremony on 19.9.2003 at Belgaum and a religious marriage ceremony was also held in Goa at Ramnathi Temple Hall, Fatorda, Margao on 17.11.2003. They resided at their matrimonial home at Fatorda, Margao from 17.11.2003.
7. In May 2004, the respondent had raised a complaint that she was not prepared to continue to live with the petitioner, if his mother and this bachelor brother also continued to live along with them. Since the petitioner dismissed the idea, the respondent was wholly dissatisfied. On 13.12.2005, she is said to have left for Belgaum and failed to return to their matrimonial home. The petitioner’s attempts to contact her were resisted. Thereafter, the respondent is said to have instituted a matrimonial case before the Family Court, Belgaum in M.C. No. 75/2006 under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the “HM Act” for brevity) on the several allegations made therein. She had also filed an application under Section 24 of the HM Act claiming maintenance and litigation expenses.
8. The petitioner had appeared before the Family Court and filed his written statement and raised a preliminary objection, that the petition filed under the Act was not maintainable and that the Family Court at Belgaum had no jurisdiction to entertain the case. This was treated as a preliminary issue. By an order dated 5.1.2007, the Family Court has rejected the petitioner’s objection, It is this, which is under challenge in the present, writ petition.
9. It is contended that though a religious marriage was performed on 17.11.2003, as was customary in Goa amongst all Hindu Goans, where members of the two spousal families and their friends and relatives participate. This did not imply that their marriage was to be governed by the HM Act.
10. The Counsel for the petitioner would su
