Filing maintenance application from the place of residing is Valid ?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.

CIVIL REVISION APPLICATION NO.67 OF 2014

Manoj s/o Ishwarlal Sharma
vs
Riti@ Archana w/o Manoj Sharma

CORAM  : A.S.CHANDURKAR, J.

DATE   : January 05,  2017
Citation: 2017(1) ALLMR 508

The applicant is aggrieved by order dated 27/03/2014 passed by the   learned   Principal   Judge,   Family   Court,   Amravati   below   Exhibit­24 thereby rejecting the application filed by the applicant under Section 9A of the Code of Civil Procedure, 1908 (for short, the Code). The applicant was married with the non­applicant on 31/01/2009 at Paratwada.   The parties thereafter resided together at Indore.         On account of some matrimonial disputes, the non­applicant was compelled to leave the matrimonial home on 28/10/2011 and reside with her parents at Amravati.   Thereafter on 28/11/2012, the non­applicant filed proceedings before   the   Family   Court   at   Amravati     under   Section   18   of   the   Hindu Adoptions and Maintenance Act, 1956 (for short, the said Act) for grant of maintenance.       In those proceedings the applicant moved an application under Section 9A of the Code raising a plea of the Court at Amravati had no jurisdiction to entertain the proceedings inasmuch as no part of cause of action   had   arisen   within   the   jurisdiction   of   said   Court.     According   to applicant, as the marriage was solemnized at Paratwada, Dist. Amravati, the Court there would have jurisdiction.   The application was opposed by the non­applicant and by the impugned order the learned Judge of the Family Court held that as part of cause of action had arisen at Amravati where nonapplicant was residing with her parents, the application raising objection to the territorial jurisdiction was liable to be rejected.

2.  Shri P. S. Tiwari, learned counsel for the applicant reiterated the contentions as raised in the application below Exhibit­24.   He submitted that as per provisions of Section 20(a) of the Code, the Court at Amravati had no jurisdiction whatsoever inasmuch as the marriage had been solemnized at Paratwada and thereafter the parties were residing at Indore.  Since no cause of action or even part thereof had arisen at Amravati, the Family Court there has   no   jurisdiction   to   entertain   the   proceedings.     In   support   of   his submission, the learned counsel placed reliance on the following decisions :

(i) Neeta   Deelipkumar   Suchak   v.   Deelipkumar     Mohanlal   Suchak,   AIR   1983 Bombay 235.
(ii) Arun Kumar Bedi v. Anjana Bedi AIR 1984 Calcutta 49.
(iii) Ashok Laxman Kale v. Ujwala Ashok Kale 2007(1) Bom. C.R. 16.
(iv) Pankaj Suryakant Lohar v. Mayuri Pankaj Lohar 2002(4) Mh.L.J. 828.

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3. Shri N. A. Gawande, the learned counsel for the non­applicant supported the impugned order and submitted that as the non­applicant was not being maintained by the applicant, she was constrained to leave the matrimonial house and reside with her parents at Amravati.  He submitted that the learned Judge of the Family Court rightly placed reliance upon judgment of Division Bench of this Court in Sucheta Dilip Ghate and anr. vs.   Dilip   Shantaram   Ghate   2003(4)   Mh.L.J.   445  while   rejecting   the objection   raised   by   the   applicant.       According   to   the   learned   counsel, provisions   of   the   Hindu   Marriage   Act,   1955,   Hindu   Minority   and Guardianship Act, 1956,  Hindu Succession Act, 1956 and the said Act would be required to be read in conjunction with one another and for said purpose, he  placed  reliance  upon  the  judgment of  Honourable  Supreme  Court in Padmja   Sharma   vs.   Ratan   Lal   Sharma   2000(4)   SCC   266.     He   also submitted that the   objection in question to the territorial jurisdiction had been raised belatedly and hence same was not liable to be entertained.

4. I have heard the learned counsel for the parties at length and I have   given   due   consideration   to   their   respective   submissions.     Under provisions of Section 18(2) of the said Act, a Hindu wife is entitled to live separately   from   her   husband   without   forfeiting   her   right   to   claim maintenance subject to certain situations.  These situations are contemplated by sub clauses (a) to (g) of Section 18(2) of the said Act.   Thus if the entitlement   to   live   separately   from   her   husband   is   recognised   and   such separate   residence   does   not   have   the   effect   of   forfeiting   her   claim   to maintenance, it would be obvious that part of cause of action for claiming maintenance could arise at such separate place of residence.  This place may be different from the place where she last resided with her husband or where the marriage took place.   Under provisions of Section 20(c) of the Code proceedings  should be initiated where the cause of action wholly or in part arises.

5. Learned Single Judge in Pankaj Suryakant Lohar (supra) while considering an objection raised to the territorial jurisdiction of the Court to entertain proceedings held that if no cause of action arises at the place where the wife was residing separately, such Court would not have jurisdiction to entertain   proceedings   for   grant   of   maintenance.     The   facts   of   said   case indicate that the parties had last resided together at Goregaon, Mumbai which was beyond the territorial limits of the Thane Court.  The wife who was   residing   separately   at   Thane   had   filed   proceedings   for   grant   of maintenance.    It   was   held   that  since   the   cause   of   action   had   arisen   at Goregaon, the Court at Thane lacked territorial jurisdiction to entertain the proceedings.  This judgment of learned Single Judge is dated 06/08/2002. It is however to be noted that the Division Bench of this Court in Sucheta Dilip Ghate and anr. (supra) considered a similar question raising challenge to the territorial jurisdiction of the Court.  The parties therein were married at Pune and had thereafter started residing at Ahmedabad.  The wife was thereafter compelled to leave the matrimonial house and reside at Pune. Thereafter proceedings under Section 18 and 20 of the said Act were filed at the Family Court Pune.  While considering the question as regards territorial jurisdiction of the Court at Pune to entertain the proceedings, the Division Bench held that as the wife was compelled to leave the matrimonial home and   reside   separately,   the   Court   at   the   said   place   where   she   resided separately would also have jurisdiction.   In paragraph 6 of the aforesaid judgment it has been observed thus :

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“ …  The Hindu Adoptions and Maintenance Act has no provision regarding the
jurisdiction   of   the   Court   to   which   the   application   for   maintenance   is   to   be
presented.  The provisions of Hindu Adoptions and Maintenance Act are beneficial
and social legislation for the benfit of women and infirm old parents for their
maintenance   while   in   distress.     It   cannot   be   imagined   by   any   stretch   of
imagination that such person in distress would have to run from pillar to post for
relief   under   the   provisions   of   Hindu   Adoptions   and   Maintenance   Act,   if   the
husband or son keeps on changing his residence or prefers to reside in far away
town from the town of wife or parents.  In view of this we are of the considered
view   that   taking   recourse   to   clause   (c)   of   Section   20   of   the   Code   of   Civil
Procedure, the proceedings could be instituted at a place of residence of wife who
is residing at different place than her husband. ”

This judgment of the Division Bench is dated 23/03/2003.  The same is therefore subsequent to the judgment of learned Single Judge in Pankaj Suryakant Lohar (supra).  It is therefore clear that to the extent the judgment   of   learned   Single   Judge   in  Pankaj   Suryakant   Lohar  (supra) holding that the Court where the wife was residing separately did not have territorial jurisdiction stands impliedly overruled by the subsequent judgment of the Division Bench in Sucheta Dilip Ghate and anr. (supra).  It may also be stated that in yet another  subsequent decision by the Division Bench of this Court in Sunita w/o Ravi Sangavai vs. Ravi s/o Venkatesh Sangavai 2004(1)   Mh.L.J.  870,   the   aforesaid   judgment   of   the   Division   Bench   in Sucheta Dilip Ghate (supra) has been referred to and followed.  These two judgments of the Division Bench bind this Court and hence I am inclined to follow the ratio laid down therein.

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6. The judgment of  learned Single Judge  in  Neeta Deelipkumar Suchak  (supra)   considers   provisions   of   Clause­12   of   the   Letters   Patent. Considering the facts of aforesaid decision, said decision does not assist the case of the applicant.  Similarly, the decision in  Arunkumar Bedi (supra) of the Calcutta High Court to the extent it runs contrary to the judgments of the Division Bench of this Court cannot be followed.   In  Ashok Laxman Kale (supra) proceedings for recovery of streedhan articles were initiated at the Family Court at Aurangabad.  Parties therein were married at Deogaon, Tal. Kannad.  The wife last resided at Aurangabad.  It was found by the Division Bench that the objection to the territorial jurisdiction was raised belatedly and hence same did not deserve to be considered.  It was however observed that   the   Family   Court   at   Aurangabad   had   no   territorial   jurisdiction   to entertain the petition for return of streedhan.   Considering the provisions of Section 18(2) of the said Act, the aforesaid decision does not assist the case of the applicant.

7. The facts of the present case indicate that though the parties were married at Paratwada and they resided together at Indore, the non­applicant was compelled to leave the matrimonial house and reside at Amravati.  The right to claim maintenance after living separately from her husband was sought to be exercised from the place where she was residing.  Thus part of cause of action had arisen at Amravati and therefore the Family Court at Amravati had the territorial jurisdiction to entertain the proceedings.   The impugned order holding so, therefore does not suffer from any jurisdictional error.

8. Hence for aforesaid reasons, I do not find that the learned Judge of the Family Court has committed any jurisdictional error while passing the impugned order.

The Civil Revision Application therefore stands dismissed with no order as to costs.

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