A decree granted by a court lacking territorial jurisdiction is voidable and not automatically void; the statutory right to divorce under specific sections exists even if previous proceedings are pending.

JUDGMENT :

ANIL KSHETARPAL, J.

1. The present Appeal has been filed under Section 19 of the Family Courts Act, 1984 assailing the Judgement dated 08.01.2025 [hereinafter referred to as the 'Impugned Judgment'], passed by the learned Principal Judge, Family Court, District North West, Rohini Court, Delhi, [Family Court], in HMA No. 1040/2020 titled Pallavi Jain v. Nitin Jain, allowing the petition under Section 13 (1A)(ii) of HMA filed by the Respondent herein and thereby dissolving the marriage between the parties.

FACTUAL MATRIX:

2. At the outset, it will be apposite to advert to the salient facts leading up to the institution of the present appeal. The marriage between the Appellant and the Respondent was solemnized on 15.01.2005, according to Hindu rites and customs at Delhi. Out of the said wedlock, a child was born on 30.10.2006.

3. On a petition filed by the Appellant under Section 9 of the Hindu Marriage Act, 1955 , [ HMA ], for restitution of the conjugal rights, a Judgment dated 11.09.2018 was passed by the learned Family Court, Central, Tis Hazari Courts, Delhi, in favour of the Appellant. Pursuant thereto, an execution petition under Order XXI Rule 32 and 33 of the Code of Civil Procedure, 1908 , [CPC] bearing No.10/2019 was filed by the Appellant, which is pending adjudication before the learned Principal Judge, Family Court, Delhi.

4. Thereafter, a divorce petition was filed by the Respondent under Section 13 (lA)(ii) of the HMA before the learned Family Court, Rohini Courts, Delhi. Vide the Impugned Judgment, the marriage of the Appellant and the Respondent was dissolved. Being aggrieved, the Appellant has filed the present Appeal.

CONTENTIONS OF THE PARTIES

5. The primary contention of the Appellant is that the learned Family Court lacked territorial jurisdiction to decide the case. This contention arises from the Appellant‟s claim that the Respondent resides in Gurugram, Haryana, and that apart from the present impugned proceedings, all other proceedings between the parties relating to the dispute were conducted or are currently pending within the State of Haryana. Further, it was stated that the Exhibit PW-14 therein, i.e., the Rent Agreement, does not support the claim of the Respondent for invoking the jurisdiction of the learned Family Court.

6. Learned counsel for the Appellant has contended that since the execution petition is pending against the Respondent, the matter is sub-judice between the parties and the divorce ought not to have been granted.

7. Learned counsel for the Appellant has further submitted that the Respondent concealed material facts relevant to the present divorce proceedings. Notably, the Respondent had earlier filed a petition under Section 10 of the HMA (Case No. 1384/2018) before the learned Family Court, Gurgaon, which was dismissed as withdrawn, and a divorce petition under Section 13 (1)(ia) of the HMA (Case No. 52/2017), which was dismissed on 12.07.2018.

8. Learned counsel for the Appellant submits that Section 13 (1A)(ii) of the HMA grants a statutory right to either party to seek divorce, which must be read with Section 23 (1)(a) of the HMA , which bars a party from taking advantage of their own “wrong”.

ANALYSIS

9. We have heard the Appellant at length and have also perused the pleadings.

10. A perusal of the impugned Judgement indicates that the contention of territorial jurisdiction was raised by the Appellant herein before the learned Family Court as well. The learned Family Court, while finding the contention not tenable, held that the Rent Agreement, Ex. P.W. 1/4 has been proved on record through the testimony of RW-2, who is the landlord of the Respondent. This Court is not inclined to disagree with the reasoning of the learned Family Court.

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