IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.67 OF 2014
Manoj s/o Ishwarlal Sharma
[email protected] 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.
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 :
“ … 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.
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.