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Smt. Garima vs Rahul Pradhan on 6 May, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Case :- FIRST APPEAL No. – 211 of 2019

Appellant :- Smt. Garima

Respondent :- Rahul Pradhan

Counsel for Appellant :- Jai Narain,Vipin Kumar

Counsel for Respondent :- Ajay Kumar Srivastava,D.P.S.Chauhan,Satya Prakash Sharma

Hon’ble Shashi Kant Gupta,J.

Hon’ble Pradeep Kumar Srivastava,J.

(Delivered by Hon’ble P.K. Srivastava, J.)

1. Heard learned counsel for the parties and perused the record.

2. This appeal has been preferred against the order dated 15.10.2016 passed in Marriage Petition No. 970 of 2015: Rahul Pradhan Vs. Garima Pradhan, by learned Additional District Sessions Judge/F.T.C. Court No. 2, Ghaziabad, rejecting the application dated 24.8.2016 (32Ga2) holding that the court has jurisdiction to dispose of the case.

3. The brief facts of the case are that the plaintiff-respondent filed a divorce petition before learned court below under Section 13 of Hindu Marriage Act. The appellant-defendant gave an application (32-ga) stating that both the parties lived together in Ghaziabad till 2013. They lastly resided thereafter in Kashganj. In June 2013, the plaintiff-respondent went to Philippines and appellant-defendant stayed with her in-laws in her matrimonial house. From 11.10.2014 to 30.12.2014, the appellant had to go to Philippines and the ticket and Visa was arranged by the plaintiff-respondent himself. Thereafter, the plaintiff left her in Delhi to live with her brother and the expenses were given to her by the plaintiff. Again for going to Philippines, plaintiff arranged ticket and Visa of appellant from 27.4.2015 to 30.5.2015 and during this period, she lived in Philippines. Till 02.6.2015, both the husband and wife lived in Delhi, thereafter the plaintiff-respondent left her to her parents in Kashganj on 03.6.2015 and came back to his house in Kashganj. Therefore, the court has got no jurisdiction to try the suit.

4. Against this application, the plaintiff-respondent filed objection (paper no. 34-ga) denying the allegation of appellant-defendant and stated that both the plaintiff and defendant lived last time in House No. 16, Ground Floor, Shakti Khand-4, Indirapuram Thana, Indirapuram, District Ghaziabad as husband and wife. Thereafter, the plaintiff went to Philippines and started doing job there. The application under Section 24 of Hindu Marriage Act has already been disposed of by this court and the case is fixed for cross-examination of the defendant. To avoid the cross-examination, this application has been given by her which is liable to be rejected.

5. An objection/counter affidavit was filed by the defendant denying the allegation of plaintiff-respondent. She has stated that it is wrong that they lived lastly in Flat no. 116, Ground Flour, Shakti Khand-4, Indrapuram, Ghaziabad. Before the petitioner left for Philippines, they left the Flat and shifted to Kasganj where she lived with her-in-laws in their house. The statement of the petitioner given in the family court, Kasganj in Misc. Case no. 287 of 2015 also proves this fact that they last resided together in Kasganj.

6. The appellant-defendant filed certified copy of order dated 22.9.2016 of High Court on transfer application no. 349 of 2016, photocopies of residence certificate, marriage registration certificate, passport and statement of D.W. 1(petitioner in this case) in Misc. Case No. 287 of 2015.

7. After hearing learned counsel for both sides, learned court below rejected the application holding that jurisdiction lies with the court.

8. Aggrieved by impugned order, this appeal has been filed.

9. The appellant has challenged the impugned order on the ground that the same is wrong and perverse. In absence of any material evidence available on record, it is to be proved that plaintiff-respondent resided last time at Ghaziabad. Learned court below ignored the residence of plaintiff-respondent with the appellant at Kashganj. No proof of address of Ghaziabad was given by the plaintiff and the finding recorded about the passport being obtained by the respondent at the address of Ghziabad is absolutely wrong. Both the parties lastly resided at Kashganj where she was left by her husband who has ancestral house where his parents resides and the plaintiff also resided at House No. 258, Sahavar Gate, Kashganj situated at Kashganj town in District Kashganj. In district Ghaziabad, plaintiff has no house after he left for Philippines. Appellant is presently residing with her parents in Kashganj. Her father who is aged about 66 years, is a retired person from service. District Ghaziabad is situated at the distance of 200 KM from Kashganj town and the mode of transportation is only Bus. Her father being old and sick person, for her it is very troublesome to reach at Ghaziabad from Kashganj. When the plaintiff went to Philippines for his job, defendant-appellant was shifted by him at her Sasural in Kashganj. Therefore, finding of the learned court below is against the law and evidence on record and is liable to be set aside.

10. Section 19 of the Hindu Marriage Act provides that-

(19) Every petition under this Act shall be presented to the district court within the local limits of whose ordinary civil jurisdiction-

(i) the marriage was solemnized, or

(ii) the respondent, at the time of presentation of the petition, resides, or

(iii) the parties to marriage last resided together, or

(iiia) 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 presentation of the petition, in a case where the respondent is, at the 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.

11. This section lays down rules relating to territorial jurisdiction of the court. The first clause refers to the place where marriage between the parties was solemnized in terms of performance of rites and ceremonies. The question of residence is not relevant under this clause. The second clause relates to the place where respondent was residing at the time of presentation of petition. The third clause which is applicable to the facts of this case is the place where the parties last resided together. It is possible, as in this instant case, that the parties might have lived together after marriage at more than one different places in India. In such case, the last resided place becomes material for the purpose of jurisdiction. If the husband and wife, after residing together for some time at any place in India, went abroad and on returning to India started living separately, the court within whose jurisdiction they last resided in India would have jurisdiction to entertain a matrimonial petition.

12. SectionIn Jeewanti Pandey vs Kishan Chandra Pandey, (1981) 4 SCC 517, it has been held that residence ordinarily means a residence of permanent character, an abode for a considerable time where the husband and wife lived. A place for temporary or casual visit is not covered in the term. The word “resides” under Sectionsection 19 denotes the actual place of residence at the commencement of the proceedings and not the place of origin.

13. It is admitted between the parties that their marriage took place in Aligarh. Initially, it was a love marriage and later on, an arranged marriage also took place in Aligarh on 16.2.2010 in the presence and in the agreement with the parents of both sides. From the pleadings of both sides it is also clear that both the parties belong to Kasganj and after marriage on 16.2.2010, they lived together for sometimes in Kasganj in the parental house of petitioner situated in Mohalla Mohan Gopal Bhawan, Kasganj. It is also admitted that both started living in Indrapuram, Ghaziabad, as the petitioner was working in Noida. It has been stated in the petition that when the petitioner got his job in Philippines, after sometimes, he took the respondent to Philippines and he arranged passport and visa for the same. It has been also stated by the petitioner, though not admitted by the respondent, that respondent made a complaint in Philippines Embassy and he was asked by his employer company to resolve his family problem, and therefore, he came back to India with respondent. The petitioner has further stated that on 25.4.2015, she went to her parents with her bag and baggage in his absence. He tried to bring her back several times but failed and finally she refused to live with him on 4.6.2015.

14. It is pertinent to mention that nowhere in the petition, the petitioner has stated where they last resided together. Para 26 of the petition which relates to local jurisdiction, does not specifically mention about it. In fact, the petition is confused on this point. Further, in para 5 of the counter reply 31A-1, petitioner has stated that after marriage, from the very beginning, the respondent created pressure to live separately from his parents and therefore, they lived together in Faridabad, Ghaziabad and Philippines after a few months of their marriage. Again, in para 20 and 17 of counter reply, he has stated that on coming back from Philippines, the respondent did not go to her parents nor went with petitioner, she rather lived in Delhi in a room(hired?). This pleading amply clarifies that both did not live together after coming back from Philippines.

15. On the contrary, in para 29 of her WS, respondent has stated that they lived together in Ghaziabad for sometimes in a hired house. They went to Philippines when her husband was promoted and posted in Philippines. She has admitted that he took her to Philippines and for that he arranged her visa and passport.

16. In the above background as struck from the pleadings of the parties, we come to the application on which the impugned order has been passed by the learned Family Court. The respondent has stated in the application that after the petitioner went to Philippines in June, 2013, respondent lived in her Sasural (in-laws house), in Kasganj. She lived in Philippines in installments from 11.10.2014 to 30.12.2014 and from 27.4.2015 to 30.5.2015 and the visa etc. was arranged by her husband. In between the above two period, she lived in Delhi with her brother where she was left by petitioner himself and expenses were borne by him during the period. The petitioner-husband has said, for the first time in his objection that prior to he went to Philippines, they lastly resided in the Flat at Ghazibad and after he left for Philippines, the respondent-wife continued living in the same flat in Ghaziabad and whenever he used to come to India during vocations, both lived there together.

17. The above discussion goes to evidently demonstrate that (1) both did not leave India together, (2) before they both left for Philippines, the petitioner used to come to India and live with her and (3) they both went to Philippines together subsequently after about one year as alleged in the application supported by visa and air ticket of the respondent-wife.

18. Therefore, on the basis of aforesaid discussion, we are of the view that the only thing relevant for the purpose of disposal of this appeal is to determine (1) when they left India together for Philippines? and (2) in between the period the petitioner went to Philippines alone and when subsequently they both went to Philippines, where they lived together, in Ghaziabad as alleged by petitioner or in Kasganj as alleged by respondent? These questions are to be determined on the basis of evidence on record. Following facts make it more probable to conclude that both the parties lived together lastly in Kasganj:

A. The photostat copy of passport of respondent Smt Garima Pradhan wife of Sri Rahul Pradhan (petitioner) 24C-1, is on record which has been issued on 29.10.2013 in which the address has been mentioned as H. No. 258, Gopal Bhawan, Gali Koriyan, Shahwar Gate, Kasganj, Kashiram Nagar. The photo-estate copy of passport of petitioner Rahul Pradhan, paper no. 37C-1/5, is also on record which bears same address of Kasganj. This is the address of parental house of petitioner-husband as pleaded in para 3 of the counter reply filed by him in which it has been also pleaded that the post marriage rituals and functions took place there.

B. The photo-estate copies of visa 25C-1 and 26C-1 of the respondent-wife is also on record which are from 25.8.2014 to 24.11.2014, from 30.3.2015 to 29.6.2015 and from 12.5.2015 to 15.8.2015. It was expressly stated in her application that the petitioner left for Philippines in June, 2013. In his objection 34C-2 dated 22.9.2016, the petitioner has not denied specifically the fact that he went Philippines in June, 2013 nor he has mentioned any other date when he went to Philippines. It is important to mention that the passport of his wife was issued after he left for Philippines as the date of issuance thereof is 29.10.2013, much after the date he left for Philippines, and her address in the passport is not that of Ghaziabad but of her in-laws address of Kasganj. It is admitted fact that her passport etc. was arranged by petitioner and if she was living in Ghaziabad, why he did not give address of Ghaziabad?

C. Petitioner-husband has said for the first time, at a very belated stage, in his objection that they lived together in Ghaziabad before he left for Philippines where he used to come subsequently in vocations. If he was living in Ghaziabad, it was a house on rent and he should have filed some rent agreement or rent receipt etc. But no such evidence has been filed by him. Why?

D. The respondent-wife has filed the statement of the petitioner-husband Rahul Pradhan dated 27.6.2016 given in Misc. case no. 287 of 2015, SectionGarima Pradhan vs Rahul Pradhan before the Family Court, Kasganj, in which he has stated on oath that he, after one year of his reaching to Philippines, called Garima Pradhan in Philippines because this much of time was consumed in getting her passport and in getting registration of their marriage. He got her passport prepared. During this one year, Garima Pradhan lived with his father and mother and also lived in Mukherjee Nagar, Delhi with her brother and he used to bear half of the expenses of rent. He used to send her thirty thousands rupees per month. He has further stated that Garima Pradhan stayed in Philippines with him first time for three months and second time she came in April, 2015 and stayed with him for two months in the month of April-May. This statement of petitioner Rahul Pradhan amounts to admission on his part that after he left for Philippines, the respondent-wife and he lived together, either in Kasganj or in Delhi. He has himself admitted in his pleading/objection that before he took his wife to Philippines ( and she went with him nearly after one year ), he used to come to India during vocations and lived with respondent-wife. The natural inference is that he lived with her in Kasganj, being his permanent parental house where his wife lived with his parents.

E. The fact that both the parties resided together appears to have been (deliberately?) omitted by the petitioner-husband in the plaint as well as counter reply. When the respondent-wife filed application, then he started saying that they last resided together in Ghaziabad. But his own statement on oath in misc. case falsifies his version.

19. The Allahabad High Court Hindu Marriage and Divorce Rules, 1956 provides in Rule 5 as follows:

“Rule 5- In addition to the particulars required to be given under Order VII, Rule 1 of the Code and Sectionsection 20(1) of the Act, every petition for judicial separation, nullity of marriage and divorce shall contain the following particulars:

(a)…………………..

(b)…………………..

(c) the principal permanent address where the parties cohabited and the address where they last resided together;

20. Clearly, the petitioner-husband has not mentioned in the plaint the place the parties last resided together and his plaint does not contain necessary pleading as required by Rule 5 of the Rules. On the contrary, the respondent-wife has alleged Kasganj to be the place where they last resided together prior to the date of filing of this petition and the same finds support from the address mentioned in her passport which was prepared by the petitioner-husband. Moreover, living there appears to be natural also as parents of both sides are permanent residents of Kasganj. The same fact has been admitted by petitioner-husband in his statement before the Family Court, Kasganj.

21. Above all, while dealing with a matrimonial dispute, the approach of the court should be a little tilting in favor of women, as it is in consonance with our constitutional scheme which provides for right to equal justice and access to justice, obligating the state to take special measures to eliminate inequalities existing in the society. SectionIn Krishna Veni Nagam vs Harish Nagam, AIR 2017 SC 1345, it was remarked by the supreme court that the reason behind the orders in allowing the transfer petitions filed by wives mechanically, has been to consider their inconvenience, the financial or physical problems they face in attending court at distant place, so that they are not denied justice on account of their inability to participate in the proceedings instituted at different places.

22. On the basis of above discussion, we find that the conclusion arrived at by the learned Family Court in passing the impugned order is not based on the pleadings of the parties and evidence on record. The learned court appears to have been guided by one single averment in WS of respondent-wife that they lived in a hired house in Ghaziabad and when her husband got promotion, they went to Philippines. But that particular sentence cannot be read in isolation, particularly when there is positive evidence that she went to Philippines after about one year the husband joined in Philippines. The address on the passport of respondent-wife and the on oath statement of the petitioner-husband in misc. case, his not specifically pleading the place they last resided together nor filing any rent agreement or rent receipt before or after he left for Philippines about the house taken on rent in Ghaziabad and positive evidence on record and the natural circumstances, all indicate that they lastly lived together in Kasganj. Therefore, we find that the impugned order suffers from illegality and perversity and is not sustainable.

23. The appeal is allowed. The impugned order dated 15.10.2016 in Petition No. 970 of 2015, passed by the Additional District Sessions Judge/Fast Track court no. 2, Ghaziabad, in Rahul Pradhan vs Garima Pradhan rejecting the application 32Ga-2 is set aside. Consequently, application 32Ga- 2 is allowed.

24. The lower court record be sent back to the learned court below along with a copy of this judgment for information and necessary compliance.

Date:-06.5.2019

RCT/-

(Pradeep Kumar Srivastava, J) (Shashi Kant Gupta, J.)

 

 

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