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2012 Supreme(Bom) 1328
High Court of Judicature at Bombay
A.M. KHANWILKAR & N.M. JAMDAR
Shashi Leekha S/o. Shubhash Chander Leekha S/o. Shubhash Chander Leekha
Versus
Sheila Shashi Leekha
FAMILY COURT APPEAL NO.88 OF 2011 WITH CIVIL APPLICATION NO.217 OF 2011
Decided on : 23-07-2012
For the Appellant:Uday Warunjikar with Amit Gupta, Advocates.
For the Respondent:Vikramadiya Deshmukh with Sushant Chavan i/by Ms. Mrunalini Deshmukh & Ms. Kavita Brid, Advocates.
Headnote:Hindu Marriage Act, 1955 - Sections 13(1)(i-a) and 19(iii-a) - Civil Procedure Code, 1908, Order VII, Rule 11 - Jurisdiction of Family Court.
A party, to proceedings filed in Court governed by provision of CPC, regardless at his/her domicile is bound to and must invoke provisions of CPC for appropriate relief or direction in those proceedings. - 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 CPC. 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 CPC, the party thereto, regardless of his/her domicile, is bound to and must invoke the provisions of the same Code for appropriate relief or direction in those proceedings.
Hindu Marriage Act, 1955 - Section 19 - Dissolution of marriage.
Since respondent-wife, Hindu by religion staying in Mumbai, married with appellant, a Hindu staying in Jammu & Kashmir hence petition for dissolution of marriage filed by wife under Act, 1955 cannot be rejected under Order VII, Rule 11 of CPC. - To put it differently, by virtue of the fact that a person, who is a Hindu by religion, performs marriage outside the territorial limits, to which the Central Act extends, would not cease to be a Hindu for the purposes of the Central Act. So long as the person remains Hindu by religion, the provisions of the Central Act would apply and can be invoked for dissolution of marriage, subject to fulfilment of one or more of the five factors specified in Section 19 of the Central Act for presentation of the petition before the concerned District Court.
In the present case, clause (i) of Section 19 of the Central Act is not available, as the marriage between the parties was performed at Jammu. Even clause (ii) of Section 19 will have no application, as the appellant herein (original respondent), at the time of presentation of the petition, was residing at Jammu and not within the local limits of Family Court, Mumbai. Even clause (iii) of Section 19 will have no application, as the parties had last resided together at Jammu. Similarly, clause (iv) of Section 19 has no application to the fact situation of the present case. However, as the respondent (original petitioner), being the wife, resides within the local limits of Family Court, Mumbai, on the date of presentation of the petition, clause (iii-a) of Section 19 of the Central Act would come into play. Thus understood, it is incomprehensible as to how the petition filed by the respondent can be rejected in exercise of powers under Order VII, Rule 11, of CPC.
JAMMU AND KASHMIR HINDU MARRIAGE ACT, 1980 - Section 21 - Scope of.
A petition under H.M. Act, 1955 by any one of parties whose marriage was solemnized within territories of J&K, not barred by Section 21 of Act. - The Court, in the first place, went on to observe that, if the marriage between two Hindus, "whether residents of the State or not", is solemnised within the territorial jurisdiction to which the State Act extends, the forum for presentation of the petition under the State Act shall be determined only under Section 21 of the State Act. Indeed, clause (i) of Section 21 of the State Act provides that petition under the State Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction, the marriage was solemnised. But, that does not mean that Section 21 bars presentation of the petition under the Central Act by any one of the parties, because their marriage was solemnised within the territories to which the State Act extends. To wit, take a case of the destination marriage - which has evolved as a concept of contemporary times. Invariably, in these marriages none of the spouse may have any causal connection with the place where the marriage is solemnised. Does it mean that even those parties must necessarily go back to the same place where they performed their marriage in the State of Jammu and Kashmir with the petition for dissolution of their marriage, though the convenient forum for both of them will be their place of residence to which the State Act is not extended. The answer must be an emphatic "No". Let us take another case where during the posting in the State of Jammu and Kashmir whilst in Central Government service, two Hindus from other States in India, solemnise marriage in the State of Jammu & Kashmir. But later on, after some time, they are transferred to some other States in India and at that time, their marriage faces a rough weather. As per the interpretation of Section 21 of the State Act in paragraph 7 of the said reported Judgment, the said parties will have to invoke remedy only under the State Act in the Court within whose local limits they had solemnised the marriage. Such interpretation would neither be purposive nor further the object and intent of the subject enactments.
JAMMU AND KASHMIR HINDU MARRIAGE ACT, 1980 - Section 21 - Hindu Marriage Act, 1955, Section 19 - Petition for dissolution of marriage.
Parties, whose marriage had taken place in State of J&K, have option to file petition for dissolution of marriage under State Act or Central Act. - Suffice it to observe that there is no express bar or prohibition in the State Act for presentation of petition by the parties who have performed marriage in the State of Jammu and Kashmir, before the competent Court outside the territories to which the State Act extends. Correspondingly, there is no express provision in the Central Act to suggest that, it the marriage is solemnised outside the territories to which the Central Act extends, presentation of petition by invoking provisions of the Central Act would be barred. That means, the parties are free to present the petition for dissolution of marriage either before the District Court in the State of Jammu and Kashmir, subject to fulfilment of factors provided in Section 21 of the State Act by invoking provisions of the State Act; or present petition before the Court within the territorial limits, to which the Central Act extends, upon fulfilment of conditions specified in Section 19 of the Central Act for relief of dissolution of marriage by invoking provisions of the Central Act. Both these options can co-exist, considering the setting in which the provisions of the Central Act, as also the State Act are placed.
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 reli
