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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, VAIBHAVI D. NANAVATI, JJ.
AKIL PERVEZ SON OF TAYAB FAZAL HUSAIN – APPELLANT
Versus
TASNIME D/O SIRAZE HOUSSEN MOHAMMED ALI ADAMALI – RESPONDENT
FIRST APPEAL NO. 1622 of 2021
Decided on : 09-08-2021
Family Courts Act, 1984 – Section 7(b) and 19 – Civil Procedure Code,1908 – Section 20 - Divorce - Decree of declaration of his matrimonial status under provisions of Section 7(b) of Family Courts Act, 1984 on the basis of divorce and hence cause of action arose at Mumbai as divorce has been taken place at Mumbai and hence present suit does not cover under purview of any personal law and so, provisions of Section 20 of the Code of Civil Procedure are applicable for deciding jurisdiction - That as per the Section 20 of C. P. C., suit to be instituted where defendants reside or cause of action arises.
Finding of the court :
Court are of opinion that impugned order cannot be said to be in accordance with law on point of jurisdiction and, therefore, court quash and set aside impugned order - Family Court shall register the family suit and thereafter proceed further to decide same in accordance with law – Court direct Family Court to decide suit within a period of six months from date of receipt of order - It appears that other side is not at all interested in opposing suit instituted by the appellant - Respondent is now happily remarried and has settled at Madagascar - In such circumstances, there should not be any delay on the part of Court below in disposing of the suit in accordance with law on premise that the respondent has not appeared.
Result : Appeal stands disposed of.
JUDGMENT :
(J.B.PARDIWALA)
1. This appeal under Section 19 of the Family Courts Act, 1984 (for short ‘the Act’) is at the instance of the original plaintiff and is directed against the order dated 17.7.2019 passed by the Principal Judge, Family Court, Surat below Ex.1 in the Family Suit No.70 of 2019, by which after preliminary hearing the Family Court thought fit to return the plaint to the appellant herein for being presented before the Court of competent jurisdiction.
2. The impugned order reads thus :-
2. The petitioner has presented this suit for a decree of declaration of his matrimonial status under the provisions of Section 7(b) of the Family Courts Act, 1984.
3. At the time of presentation of the suit, an objection was raised regarding jurisdiction to file the present suit before this Court, as the petitioner is residing at USA and the respondent is residing at Madagascar and their divorce has taken place at Mumbai and hence, the matter was for kept for hearing on the point of jurisdiction.
4. I have heard the learned advocate for the petitioner. The learned Advocate for the petitioner stated that the marriage of the parties took place at Surat and hence, as per provisions of Special Marriage Act, this Court has Jurisdiction to entertain this suit.
5. From the record and submission of the petitioner, it is clear that at present, the petitioner is residing at US and the respondent is residing at Madagascar and their divorce has taken place at Mumbai. The petitioner has filed the present suit for a decree of declaration of his matrimonial status under the provisions of Section 7(b) of the Family Courts Act, 1984 on the basis of the divorce took place at Mumbai and hence the cause of action arose at Mumbai as the divorce has been taken place at Mumbai and hence the present suit does not cover under the purview of any personal law and so, the provisions of Section 20 of the Code of Civil Procedure are applicable for deciding the jurisdiction. That as per the Section 20 of the C. P. C., the suit to be instituted where the defendants reside or cause of action arises. In the present suit, the defendant resides at Madagascar and the cause of action arose at Mumbai as the divorce that has taken place at Mumbai, on which basis the suit for decree of declaration of the matrimonial status is filed.
6. Considering the provisions of law as well as the factual aspects of the matter, I find that this court has no jurisdiction to entertain this suit and the plaint is required to be returned to the petitioner for its presentation before the proper Court having jurisdiction and I pass the following order :-
ORDER
The plaint be returned 'to the applicant for its presentation before the proper court having jurisdiction.
Date : 17-07-2019
(Ketankumar Jashvantsinh Dasondi)
Place : Surat Principal Judge,
Family Court, Surat code : GJ00200”
3. We shall now look into the plaint of the Family Suit which reads thus:-
Occupation: Service,
Residing at : 25 Morrissey Blvd. # 1339, Boston, MA 02125, USA.
VERSUS
Defendant Tasnime Daughter of Mr. Siraze Houssen Opponent Mohammed Ali Adamali,
Religion: Shia Dawoodi Bohra Sect of Muslim Personal Shariat Law, Aged about: 29 years,
Occupation: Not known, Residing at : LOT IVL2J, Ambodivonkely, Ambohimanarina, 101 Antananarivo, Madagascar.
Phone: +261 340572538
Email : adamali.tasnime@gmail.com
Subject : Suit for declaration of Divorce Under Section 7(b) of The Family Courts Act, 1984, as applicable in India.
The plaintiff abovenamed most respectfully prays that :-
The plaintiff is a male who married to the defendant woman on the 16th day of May, 2015 A.D. at Surat, according to Muslim Shariat Law as the marriage between the plaintiff and defendant took place in the Surat city, t
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