Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?` 3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
Whether it is to be circulated to the civil judge ?
========================================================= KIRTESH MULJIBHAI BUKELIYA Versus RACHNA W/O KIRTESH MULJIBHAI ========================================================= Appearance:
MR GAURAV CHUDASAMA, ADVOCATE for the Appellant(s) No. 1 MR.
KALRAV R PATEL, ADVOCATE for the Defendant(s) No. 1 ========================================================= CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :
22/02/2013 ORAL JUDGEMNT (PER :
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA) This First Appeal is at the instance of a husband in a suit for divorce and is directed against an order dated 22nd September 2012 passed by the Principal Judge, Family Court, Surat in Civil Misc. Application No. 49 of 2012 thereby holding that the Court concerned has no territorial jurisdiction to entertain the suit and thus, returned the plaint to the plaintiff for presentation before the appropriate Court.
Being dissatisfied, the plaintiff-husband has come up with the present appeal.
After hearing the learned counsel for the parties and after going through the materials on record, it appears that the suit was filed on the ground of desertion and cruelty and in the plaint, it was clearly stated that although the marriage had taken place in the District of Bhavnagar, the parties were thereafter residing together in the residential house of the husband situated in Surat till 25th July 2009, when the brother of the wife came and took her back.
As the defendant, after entering appearance, raised a preliminary issue as to whether the Court has territorial jurisdiction, the Family Court framed such a preliminary issue and on the basis of the findings recorded in the impugned order, arrived at the above conclusion.
Since the issue of territorial jurisdiction was raised before taking evidence, in our opinion, the learned trial Judge should have restricted his scrutiny to the averments made in the plaint. We find that in paragraph 4 of the plaint, there is a specific averment that on 25th July 2009, the brother of the wife came to the residence of the husband at Surat and took his sister away, and thereafter, she never returned. The aforesaid facts necessarily implies that that the parties last resided together at the residence of the husband at Surat, and consequently, the Court had jurisdiction to entertain the application.
We, thus, find that the learned Family Court committed substantial error of law in returning the plaint by totally overlooking the averments made in the plaint itself, more particularly when no evidence has been adduced denying the averments made in paragraph 4 of the plaint.
The appeal is, thus, allowed. The impugned order is set aside. The learned trial Judge is directed to proceed with the suit in accordance with law.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) mathew Page 4 of 4