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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajiv Narain Raina
CR No. 2330 of 2014
Mrs. Minerva Singh
v.
Ramvir
{Decided on 01/04/2014}
Divorce Petition--Territorial Jurisdiction--Return of Plaint--Objection as to jurisdiction can be taken even without filing written statement.
(A) Hindu Marriage Act, 1955, Ss.13 & 19--Divorce Petition--Territorial Jurisdiction--Return of Plaint--If the parties to the marriage has not last resided together within the jurisdiction of Family Court where petition was filed then that Court had no jurisdiction per se to even entertain the petition--Civil Procedure Code, 1908, O.7 R.10. (Para 29)
(B) Hindu Marriage Act, 1955, Ss.13 & 19--Divorce Petition--Territorial Jurisdiction--Return of Plaint--Objection as to jurisdiction can be taken even without filing written statement--For purposes of invoking Order 7, Rule 10, CPC, the determination can take place to see at the outset if there is any triable cause of action in the petition which can be ascertained from the pleadings in the plaint itself--Therefore, at the earliest possible opportunity the objection regarding jurisdiction can be taken as enjoined in Section 21 CPC--Civil Procedure Code, 1908, S.21 & O.7 R.10. (Para 32)
(C) Hindu Marriage Act, 1955, Ss.13 & 19--Divorce Petition--Territorial Jurisdiction--Divorce--A casual or temporary visit to a place cannot be construed as a matrimonial home or a place where the parties intend to reside together as a married couple--A visit can be a visit to any place like a hotel, holiday resort, religious place etc.--But a place of residence has to be one particular place or an operational base which the parties create, where the parties intend to make their place of residence where their hearth burns and their home is lit, fulfilling personal and social commitments according to their station in life. (Para 16)
(D) Hindu Marriage Act, 1955, Ss.13 & 19--Divorce Petition--Territorial Jurisdiction--Fraud, in any case bearing on jurisdictional facts, vitiates all judicial acts whether in rem or in personam; and no rule of private international law could compel a wife to submit to a decree procured by the husband by trickery. (Para 21)
(E) Hindu Marriage Act, 1955, S.19--Territorial Jurisdiction--Visiting of couple at a place for a ceremony, parties cannot confer jurisdiction upon the Family Court at that place as it would militate against the concept of last resided together enshrined in S.19 HMA. (Para 23)
(F) Hindu Marriage Act, 1955, Ss.13 & 19--Divorce Petition--Jurisdiction--Return of plaint--Held; If the Court is found to be lacking in territorial jurisdiction to entertain the plaint then the provisions of O.7 R.11 CPC have to be given their plain, clear and legislative meaning and the Court ought to return such plaint to be presented to the proper forum--Civil Procedure Code, 1908, O.7 R.10. (Para 23)
(G) Hindu Marriage Act, 1955, S.19--Territorial Jurisdiction--Question here one of ‘last resided’ together within the meaning and intendment of S.19 HMA and not permanent residence of the husband in a village where has roots may lie--For HMA, the locus of the matrimonial home is to be determined accordingly. (Para 24)
Mr. Rajiv Narain Raina, J.: - Ms. Geeta Luthra, learned Senior counsel appears for the petitioner-wife and Mr. R.S. Kundu appears for the respondent husband on caveat.
2. With the consent of parties, the matter is taken on board for final disposal at the motion stage since it relates to the preliminary point of jurisdiction of the Court.
3. Heard.
4. The petitioner and the respondent were married according to Hindu rites and ceremonies on July 19, 2010 at Delhi. The marriage was solemnized after a courtship of fourteen months. The respondent is an IAS Officer of the Punjab cadre. Soon after the marriage, the husband told the petitioner that he has to join his duty in Punjab by July 21, 2010 and that his wife should stay back temporarily in his native village with her in-laws, that is his parents. Soon after the wedding, on July 20, 2010 the petitioner was taken to her parental home for the pagphera ceremony. By the time the rituals were done; it was late and raining heavily. It is averred that the petitioner’s parents had requested the groom to stay on in Delhi and avoid night travel as it was not safe with expensive baggage and jewellry in tow. The respondent was adamant and did not accept this advice. In these circumstances the petitioner visited her in-laws for the remaining ceremony at the respondent’s native village Goria in Jhajjar district, in the State of Haryana.
5. Unfortunately, the marriage turned sour before it effectively began. It is seen from record that both the parties are highly educated people. There are allegations of demands of dowry on the wife’s family. It is alleged that the respondent soon after the wedding asked the petitioner’s father to purchase land to help his brother to start a factory as he was retiring from the Indian Army and needed to settle down in an avocation. It is alleged that soon after the marriage, the respondent deserted the petitioner never to return to his wife. The marriage turned a non-starter. The petitioner says that she made sincere efforts to save the marriage but met with failure.
6. In the circumstances, the petitioner was left with no option but to return to England with her visa expiring on August 30, 2010. The respondent was not willing to live with her or to take her back with him to Punjab where he is serving whilst belonging to the IAS Punjab cadre. Ever since, parties have been apart from each other and the petitioner herein has been living in UK compelled to do so with few options left.
7. In these circumstances, the respondent-husband filed for divorce on July 28, 2013 before the Family Court at Jhajjar, Haryana seeking dissolution of marriage by a decree of divorce. The couple had lived apart during the interregnum unable to reconcile their matrimonial differences.
8. For the purposes of this order, it is not necessary to go into the nature of allegations and counter-allegations since challenge in this petition is to the impugned order rejecting the application filed by the wife under Order 7 Rule 10 of the Code of Civil Procedure for return of plaint for want of territorial jurisdiction. Therefore, no opinion is expressed on the merits of the case or on the allegations since they remain open to trial exclusively in a matrimonial court of competent jurisdiction. But the question here is, triable in which court? Jhajjar or elsewhere?
9. The further facts are that on receiving summons from the Jhajjar Court on the divorce petition, the petitioner in the first instance approached the Supreme Court through Transfer Petition (Civil) No.1953 of 2013 praying that the case be transferred from Jhajjar, Haryana to a competent court at Delhi. The Transfer Petition was dismissed on December 15, 2013 by observing; “...having regard to the short distance between Jhajjar and Delhi, the Transfer Petition is accordingly dismissed”.
10. The petitioner then filed an application under Order 7 Rule 10 of the Code of Civil Procedure (for short ‘CPC’) in the divorce petition i
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