Court No. - 32 Case :- FIRST APPEAL No. - 857 of 2017 Appellant :- Diwakar Kaushik Respondent :- Smt. Charu Lata Dwivedi @ Gudia Counsel for Appellant :- Vinay Kumar Pandey Counsel for Respondent :- Markanday Singh Hon'ble Shashi Kant Gupta,J. Hon'ble Pradeep Kumar Srivastava,J.
A preliminary objection has been raised by the learned counsel appearing for opposite party with regard to territorial jurisdiction of family court at Mathura.
Heard learned counsel for the parties and perused the record.
This appeal has been filed against the judgement and order dated 26.10.2017 passed by the Principal Judge, Family Court, Mathura in Case No. 202 of 2017: Diwakar Kaushik Vs. Smt. Charu Lata Dwivedi @ Gudia, whereby divorce petition of petitioner-appellant was returned by the court below for filing the same before the appropriate court as the court below at Mathura had no jurisdiction to hear the matter.
Brief facts of the case are that according to the appellant, marriage of opposite party with the petitioner-appellant was solemnized on 19.1.2014 at Sabarmati, Ahmadabad (Gujrat) and after marriage they were living as husband and wife in the village Shankerpur, Aligarh and Mathura. Further, since the appellant was an employee of the Merchant Nevi on contract basis and he spent about 6 to 9 months time out of station, the opposite party was not happy with the appellant and lastly on 15.6.2015 after quarreling with the appellant she deserted her husband and went to her parental house at Ahmadabad and since then she is living there. Paragraph 6 of the plaint which is relevant is quoted as under:
"6& ;g fd ;kph vkSj izR;qRrjnkrk nksuksa vfUre ckj eFkqjk eas ,d lkFk orkSj ifr iRuh jgs Fks tgka ls fd izR;qRrjnkrk fnukad 15&6&2015 dks eFkqjk ls ;kph dk ifjR;kx djds vius ek;ds vgenkokn pyh x;h vkSj rc ls vc rd ogha jgrh pyh vk jgh gS bl ;kfpdk dks izLrqr djus ds le; Hkh ;kph eFkqjk esa gh fuokl dj jgk gS tks bl ekuuh; U;k;ky; dks okn dks Jo.k djus o r; djus dh {ks=kf/kdkfjrk ds vUrxZr gSA"
Submission of learned counsel for the appellant is that admittedly petition was filed under Section 13 of the Hindu Marriage Act on 09.03.2017 before the Principal Judge, Family Court, Mathura, which was registered as Case No. 202 of 2017. In paragraph 6 of the plaint, it has been stated that petitioner-appellant and opposite party were residing at Mathura and due to some dispute lastly on 15.6.2015, the opposite party deserted the appellant and went to her parental house at Ahamdabad and since then she is residing there. Further, since the appellant at the time of filing divorce petition under Section 13 of the Hindu Marriage Act, was residing at Mathura, the court below at Mathura had jurisdiction to hear the case, hence petition was maintainable at Mathura.
Section 19 of the Hindu Marriage Act which is relevant in this regard reads as under:
"19. Court to which petition shall be presented.- (1) Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction-
(i) the marriage was solemnized, or
(ii) the respondent, at the time of the presentation of the petition resides, or
(iii) the parties to the marriage last resided together, or (iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive."
From perusal of record, it appears that petitioner-appellant has not filed any cogent document to establish that the parties to the marriage last resided at Mathura. The rent receipt dated 02.2.2017 showing that they were residing at Kampoo Ghat (Janta Nursing Home wali gali) Tehsil and District Mathura also does not support the case of the petitioner-appellant as he himself has stated in paragraph 6 of the plaint that opposite party deserted him on 15.6.2015 and since then she is living with her parents at Ahmadabad. Rent receipt is of the subsequent date i.e. 02.02.2017. Thus, it is crystal clear that at the time of filing of divorce petition, appellant and opposite party were not living together in Mathura. In view of this, we are of the view that appellant has not been able to establish that parties to the marriage last resided together in Mathura. Thus, none of the conditions provided under Section 19 of the Hindu Marriage Act for presenting the petition under the Act exist in the present case, therefore, the divorce petition was not maintainable at Mathura.
In view of what has been stated above, we see no illegality or infirmity in the order impugned in this appeal, hence appeal is liable to be dismissed.
Accordingly, appeal is dismissed.
Order Date :- 22.2.2019 RCT/-