2012(3) ALL MR 562
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

MRIDULA BHATKAR, J.

Shekhar Harchand Indra Vs. Ms. Sangeeta Shekhar Indra

Writ Petition No.1930 of 2012

14th March, 2012

Petitioner Counsel: Mr. S.J.CHAURASIA i/b ASHOKA LAW FIRM

Special Marriage Act (1954), S.31(1)(iii-a) - Petition by wife - Can be filed at place she is residing on the date of presentation - No specific period of stay of residence is prescribed.

Reality in the life is required to be taken into account while interpreting the Section. She may not have a permanent roof but like refugee she may shift from one place to other. Therefore, to meet such difficult situation, and to give an opportunity to overcome the hardship, sub section (iii-a) facilitates the wife to file a petition where she is residing on the date of presentation of the petition. Phrase "residing on the date of presentation" is used carefully and thoughtfully, hence to be understood in the same spirit. Thus, there is no specific period of stay of residence is mentioned so is not required to determine the territorial jurisdiction. Whatever the address provided by the wife, if it is within the jurisdiction of that Court and in support of that address if an affidavit is filed, then on that basis the Court can entertain the petition and decide the preliminary issue. [Para 6,8]

Cases Cited:
Meher Singh Vs. Deepak Sawhny & another, 1998(4) ALL MR 536 =1999 (1) Bom.C.R. 107 [Para 8]
I.C.I.C.I. Vs. Sri Durga Bansal Fertilizers Ltd. And others, 1999(3) ALL MR 286=1999(4) Bom.C.R.306 [Para 8]
Sudesh w/o. Sushilkumar Handa Vs. Abdul Aziz s/o. Umarbhai Opai & Another, 2001(1) ALL MR 670=2001(supp.2) Bom. C.R.2 [Para 8]
Arjun Dada Gadge Vs. Mallappa Gurappa Chougule & another, 2003(4) ALL MR 39 =2004(1) Bom.C.R.741 [Para 8]


JUDGMENT

JUDGMENT :- This Petition takes an exception to the order dated 15/12/2011 passed by the Family Court, Mumbai by which the application challenging the jurisdiction of the Family Court filed by the husband is rejected. The respondent-wife has filed a petition for divorce before the Family Court under section 27(1) of the Special Marriage Act. The petitioner husband raised preliminary objection under section 9-A of the Code of Civil Procedure on the ground of territorial jurisdiction. It was argued that in view of Section 31 of the Special Marriage Act, the Court has no jurisdiction to try and decide the petition.

2. The respondent-wife has filed petition in the Family Court, Mumbai, as she claimed that she was residing at Andheri, Mumbai. The counsel appearing for the petitioner has challenged the address and averments of the wife about her residence in Mumbai. Learned counsel has submitted that the wife was holding a Pan Card at the address of her father, who is residing at Vasai. Her parents have a house at Vasai, District-Thane. Therefore, she could not file a petition in Mumbai. Though under section 31(1)(iii-a) of the Special Marriage Act,1954, the wife can file a petition where she is residing on the date of presentation of the petition, the meaning of word residence should be understood as a permanent or temporary residence with some proof. Learned counsel argued that the respondent-wife has not produced any proof to show that she has been residing at Andheri at the address given in the petition for a considerable period of time. Therefore, the divorce petition cannot be entertained by the Family Court, Mumbai. Learned counsel further argued that it was necessary for the Family Court to frame preliminary issue under section 9-A of the Civil Procedure Code in respect of the jurisdiction and record evidence and then to decide the application. However, the Family Court failed to do so. Hence the order passed by the Family Court is to be set aside.

3. The petition involves a very short point of interpretation of Section 31(1)(iii-a) of the Special Marriage Act, 1954. The Section is reproduced as follows.

Section 31(1)(iii-a)- In case the wife is the petitioner, where she is residing on the date of presentation of the petition, or,

4. Thus, the relevant sub section (iii-a) states that, if the wife is the petitioner under the Special Marriage Act, 1954, then the petition can be filed at the place where she is residing on the date of presentation of the petition. This section is added in the Special Marriage Act by way of amendment Bill No.XL of 2003.Section 31 of the Act is in respect of territorial jurisdiction of the Court. As per earlier Section 31 of the Act the petition can be filed-

1. Where the marriage is solemnized,

2. Where the respondent is residing at the time of presentation of the petition,

3. Where the parties resided last together .

5. However, considering the erstwhile provision of law, a petition could not be filed by the aggrieved wife within local limits of the jurisdiction where she was residing. Thus, as it was found not adequate or fair to the woman, so with a view to meet that hardship, by way of amendment Sub Section (iii-a) is inserted. The term residence invites a flexible understanding.The Section does not speak about any specific period of residence of the petitioner-wife, before she wants to present a petition at a particular place. This section expressly provides a wider interpretation.

6. Reality in the life is required to be taken into account while interpreting the Section. If wife leaves her matrimonial home, then she may take shelter at her maiden home or she may reside with her relatives, friends or as a paying guest. She may avail option of setting her own home too. There is possibility that her parents may not like her decision to leave her matrimonial home and option to reside with the parents naturally shuts down and the woman has to stay of her own or at the mercy of her relatives. She may not have a permanent roof but like refugee she may shift from one place to other.

7. Therefore, to meet such difficult situation, and to give an opportunity to overcome the hardship, sub section (iii-a) facilitates the wife to file a petition where she is residing on the date of presentation of the petition. Phrase "residing on the date of presentation" is used carefully and thoughtfully, hence to be understood in the same spirit. Thus, there is no specific period of stay of residence is mentioned so is not required to determine the territorial jurisdiction.

8. If such issue of territorial jurisdiction is raised as a preliminary issue under section 9-A of the Code of Civil Procedure, then the Court shall frame that issue and hear it as preliminary issue before proceeding in the matter. It depends on the Court to record the evidence if it is required. It is not mandatory for the Court to record the evidence to decide the issue of territorial jurisdiction while deciding the preliminary issue. In view of sub section (iii-a) a latitude is given to the wife to present a petition where she resides. Therefore, whatever the address provided by the wife, if it is within the jurisdiction of that Court and in support of that address if an affidavit is filed, then on that basis the Court can entertain the petition and decide the preliminary issue.In the present case, the issue was framed by the Judge of the Family Court. It is not very happily worded. However, it conveys meaning that the issue in respect of the territorial jurisdiction is framed. The Family Court Judge has considered the position of law and has considered the address of Andheri, Bombay, given by the wife which is within the territorial jurisdiction of the Family Court, Mumbai.

Learned counsel has relied on the following rulings.

Meher Singh Vs. Deepak Sawhny & another, 1999 (1) Bom. C.R. 107 : [1998(4) ALL MR 536],

AND

I.C.I.C.I. Vs. Sri Durga Bansal Fertilizers Ltd. And others, 1999(4) Bom. C.R. 306 : [1999(3) ALL MR 286].

In these rulings the Division Bench of this Court has taken a view that, if the defendant takes objection under section 9-A of the Civil Procedure Code, then that issue of territorial jurisdiction is to be framed and to be decided as a preliminary issue after proper adjudication and adjudication would require giving of an opportunity to the parties to lead evidence, if required. He also relied on-

Sudesh w/o Sushilkumar Handa Vs.Abdul Aziz s/o Umarbhai Opai & Another, reported in 2001(supp.2) Bom. C.R. 2 : [2001(1) ALL MR 670].

Arjun Dada Gadge Vs.Mallappa Gurappa Chougule & another, 2004(1) Bom. C.R.741 : [2003(4) ALL MR 39].

In these cases, the same view taken by the Division Bench is followed by holding that essence of provisions of Section 9-A is issue of jurisdiction should not be only decided at the interlocutory stage, but at the threshold before the Court proceeds with any other issue. The finding given by the Benches of this Court in these four judgments in respect of Section 9-A is to be accepted. However, these four judgments do not help the petitioner-husband as there is no finding in all the four judgments in respect of the requirement of evidence under section 31(1)(iii-a) of the Special Marriage Act,1954. It is to be noted that Section 9-A empowers the party to raise the objection preliminarily on the point of jurisdiction, however, Section 31 (1) (iii-a) is a specific provision which answers such objection of the point of jurisdiction raised by the husband in the petition filed under the Special Marriage Act, 1954.

Thus, I am of the view that there is no merit in the petition.

Petition is summarily dismissed Under Order 41 Rule 11(1) of the Civil Procedure Code.

Ordered accordingly.