JUDGMENT - VAGYANI B.B., J.:-Admit. By consent of both parties taken up for final hearing.

2. This Family Court appeal filed by appellant original petitioner in Petition No. C-40/2002 is directed against the order of return of petition for presentation before proper forum passed by incharge Principal Judge, Family Court, Aurangabad. In brief, the facts giving rise to this family Court appeal are as under:

3. The appellant is the legally wedded wife of the respondent. The marriage was solemnized at Pune on 26-1-2001 whereas reception ceremony was arranged on 28-1-2001 at Aurangabad. The marriage was also registered with Sub-Registrar at Aurangabad. After marriage appellant cohabited with the respondent at Bombay. It is serious grievance of the appellant that the respondent subjected her to harassment. Because of harassment, appellant was forced to withdraw her company. The mother-in-law of the appellant brought appellant to Pune and kept her in her company for the period of 10 days. Thereafter, appellant came to Aurangabad on 7-3-2001. In spite of genuine efforts for reconciliation the respondent did not take appellant for cohabitation. The respondent thus deserted the appellant without any justification and refused and neglected to maintain her.

4. The appellant filed Petition No. C-40/02 in the Family Court at Aurangabad against respondent for grant of maintenance under section 18 of Hindu Adoptions and Maintenance Act, 1956. The respondent appeared in the said proceeding and sought 16 adjournments. He also raised objection to the jurisdiction of the Family Court on the ground that no cause of action arose at Aurangabad.

5. After hearing both the sides, the Judge Family Court accepted the contention raised on behalf of respondent with regard to jurisdiction and returned the plaint to the appellant for presentation before proper forum by order dated 18th July, 2003.

6. The appellant filed Petition No. 180/2003 in the Family Court at Bombay for maintenance. However said petition for maintenance was withdrawn by the appellant on 14-10-2003. Feeling aggrieved by order of return of plaint dated 18th July, 2003, appellant filed this appeal on 13th August, 2003.

7. The learned Advocate Shri S.S. Nirkhee for respondent raised strong objection with regard to the maintainability of appeal on the ground that the appellant acted upon the order passed by Judge Family Court Aurangabad and filed petition for maintenance in the Family Court at Bombay. The learned Advocate Shri Nirkhee in this behalf heavily relied upon Order VII, Rule 10-A(5) of the Code of Civil Procedure. In support of his submissions, he relied upon (Waqf Masjid Pindain others v. Athar Husain Haidri another)1, A.I.R. 1985 All. 100

8. The learned Advocate Shri A.M. Karad for appellant submitted that the Judge, Family Court did not follow the procedure laid down in Order VII, Rule 10-A of Civil Procedure Code. According to Shri Karad, Advocate, the Family Court did not at all intimate the appellant that the Court for want of territorial jurisdiction wanted to return the plaint. He further submits that the appellant did not at all submit any application before the Judge Family Court, Aurangabad as contemplated in Order VII, Rule 10-A(2) of Civil Procedure Code. In the absence of intimation from the Court and in the absence of submission of application under Order VII, Rule 10-A(2) of Civil Procedure, Code, bar of sub-clause (5) of Rule 10-A of Order VII of Civil Procedure Code cannot be pressed into service.

9. Shri Karad further submitted that the appellant is residing at Aurangabad and due to lack of means of maintenance, her sufferings continued even at Aurangabad and this being the position, the Family Court Aurangabad has jurisdiction. In support of his submission, he relied upon the decision on Division Bench of this Court in the case of (Sucheta Dilip Ghate another v. Dilip Ghate another)2, 2003(5) Bom.C.R. 822.

10. We gave anxious consideration to the rival submission

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