The Family Court lacked jurisdiction in the divorce proceedings, necessitating transfer of the case to the appropriate court as per the Hindu Marriage Act.

JUDGMENT

A.Y. KOGJE, J.

1. Present First Appeal under Section 19 (1) of the FAMILY COURTS ACT , 1984 is preferred against judgment and decree dated 22-09-2023 passed in Family Suit No.1709 of 2017 passed by the Family Judge, Family Court, Ahmedabad.

2. By the impugned judgment and decree, the Family Court, Ahmedabad had allowed Family Suit filed by respondent-husband thereby dissolving marriage solemnized between the appellant and respondent by invoking Section-13(1) (i-a) and (i-b) of HINDU MARRIAGE ACT .

3. Learned Advocate for the appellant at the outset has submitted that the Family Court has proceeded with suit without there being jurisdiction to try even from the pleadings of husband, marriage was consummated at Rajkot, and even son was born out of wedlock at Rajkot. Therefore, there was no cause of action, which had arisen within territorial jurisdiction of Family Court, Ahmedabad.

4. Learned Advocate for the appellant has submitted that though issue was sought to be raised by the appellant before the Family Court at Ahmedabad, but Family Court, Ahmedabad did not take cognizance and even the issue was not framed. It is submitted that right of the appellant- wife to file written statement was also closed by the Family Court, Ahmedabad, thereby precluding wife from raising an issue lack of territorial jurisdiction.

5. It is further submitted that upon respondent-husband having filed Family Suit at Family Court, Ahmedabad, the appellant had immediately filed Misc. Civil Application No. 3342 of 2017 before this Court and this Court vide order dated 19-04-2018 had admitted the matter and granted interim relief in terms of Para-8(iii) and therefore, proceedings before Family Court, Ahmedabad were to be stayed. However, during the operation of stay itself, the Family Court has proceeded with the trial and closed right of the appellant to file written statement and framed the issues. It is submitted that in written arguments submitted by the appellant, issue of jurisdiction was very much raised. He has referred to Exh-58; written arguments of the appellant, wherein in the very first para, issue of jurisdiction has been raised.

6. Learned Advocate for the appellant has submitted that even without going into merits of the case, where it was for the Family Court to examine whether it has the jurisdiction. It is submitted that neither in the pleadings of respondent-husband in its application nor in any subsequent documents or evidence, he has lead any evidence to establish that marriage was consummated or that the parties were residing in Ahmedabad to give jurisdiction to Family Court, Ahmedabad.

7. As against this, learned Advocate for respondent-husband has submitted that the appellant-wife had an opportunity to raise issue of territorial jurisdiction, but she has not raised any such issue and therefore, even while framing issues vide Exh-10, the Family Court has not taken into consideration issue of territorial jurisdiction. Now, after conclusion of the trial, it is not open for the appellant to raise an issue territorial jurisdiction.

8. Learned Advocate has submitted that the appellant-wife was aware of fact that respondent-husband at the time of filing of suit before the Family Court, Ahmedabad, was actually resident of Ahmedabad and that is how, Family Court, Ahmedabad had territorial jurisdiction. Learned Advoc