A.M. Khanwilkar, J.

This appeal takes exception to the judgment and order passed by the Family Court, Mumbai, at Bandra, in Interim Application No. 343 of 2008 in Petition No. A-2052 of 2008 dated 25th March, 2009. By that order, the Family Court dismissed the application preferred by the Appellant for rejecting the above noted petition in exercise of powers under Order VII, Rule 11(a) and (d) of the Code of Civil Procedure, 1908.

2. Briefly stated, the marriage between the parties was solemnized on 5th December, 1993 as per the Hindu Vedic rites at Jammu. The parties last resided together as husband and wife in Jammu from December, 1993 till June, 2008. Two sons were born out of the said wedlock at Jammu. First son, Karam Veer, was born on 18th December, 1994, and younger son, Hirday Veer, on 9th February, 1998. The respondent filed petition for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 and for permanent custody of the minor children, permanent alimony of `2 crores and return of all the items referred to in Annexure ‘B’ of the petition to the respondent.

3. As aforesaid, the Appellant filed application under Order VII, Rule 11(a) and (d) of C.P.C. for rejection of the petition on the assertion that, admittedly, the Appellant is domiciled in the State of Jammu and Kashmir. Further, the marriage was solemnised in the State of Jammu and Kashmir. Hence, the parties were governed by the Jammu and Kashmir Hindu Marriage Act, 1980 (hereinafter referred to as “the State Act”) and not provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Central Act”). According to the Appellant, the Courts in the State of Jammu and Kashmir have exclusive jurisdiction to entertain the petition for dissolution of marriage between the parties solemnised on 5th December, 1993 at Jammu, as per the provisions of the State Act. Hence, the petition filed before the Family Court at Mumbai by the respondent invoking provisions of the Central Act suffered from inherent lack of competence to try the same. The petition was barred by law, as the parties were governed by the provisions of the State Act.

4. The application was contested by the respondent. According to the respondent, the Family Court at Mumbai was competent to try and decide the petition filed under the Central Act, as the respondent was presently residing at Mumbai, considering the purport of Section 19(iii-a) of the Central Act.

5. The Family Court, by the impugned decision dismissed the application preferred by the Appellant. It held that the Appellant could not have filed application under the provisions of Order VII, Rule 11 of C.P.C. to challenge the jurisdiction of the Family Court at Mumbai, being domicile of the State of Jammu and Kashmir. For, those provisions were not applicable to State of Jammu and Kashmir. The application so filed was, abinitio, untenable. The Court then went on to observe that the provisions of the Central Act have been amended to empower the wife to file a petition at the place where she resides at the time of presentation of the petition. Further, the Court has to lean in favour of having jurisdiction. In that, the subject of marriage and divorce falls under the Concurrent List, and there is no express bar in the State Act. For the above reasons, the application filed by the Appellant was rejected as untenable. The Appellant has challenged the said decision by way of present appeal.

6. At the outset, we have no hesitation in overturning the opinion of the Family Court that the Appellant being domicile of State of Jammu and Kashmir, could not have filed the application for rejection of plaint under Order VII, Rule 11, of C. P. C. That reason to say the least, is unstatable. It is too cardinal to mention that in the proceeding filed in a Court governed by the provision of C. P. C., the party thereto, regardless of his / her domicile, is bound to and must invoke the provisions of the same Code for appropriate