Family Court Appeal No. 88 of 2011,Civil Application No. 217 of 2011

23rd July, 2012

Petitioner Counsel: Mr. Uday Warunjikar,Mr. Amit Gupta
Respondent Counsel: Mr. Vikramadiya Deshmukh,Mr. Sushant Chavan,Ms. Mrunalini Deshmukh , Ms. Kavita Brid

Cases Cited:
Saleem Bhai Vs. State of Maharashtra, AIR 2003 SC 759 [Para 9]
Popat and Kotecha Property Vs. State Bank of India Staff Association, (2005) 7 SCC 510 [Para 9]
C.Natrajan Vs. Ashim Bhai & Anr., 2007 ALL SCR 2663=AIR 2008 SC 363 [Para 9]
Kamala & Ors. Vs. K.T. Eshwara Sa & Ors., 2008 ALL SCR 1627=(2008) 12 SCC 661 [Para 9]
Revanasiddappa Vs. Mallikarjun, 2011 ALL SCR 1209=(2011) 11 SCC 1 [Para 14]
K.Radha Krishna Nayyar Vs. Smt. Radha, AIR 1992 J&K 1 [Para 22]
Viswanathan P.K. Vs. Sindhu M.K., AIR 2010 Kerala 58 [Para 36]
Ayyappan Kurup Krishna Pillai Vs. Parukutty Amma Subhadra Amma, AIR 1971 Kerala 44 (F.B.) [Para 38]
Mohd. Maqbood Damnoo Vs. State of Jammu and Kashmir, (1972) 1 SCC 536 [Para 41]

JUDGMENT

-A. M. Khanwilkar, J. :- This appeal takes exception to the judgment and order passed by the Family Court, Mumbai, at Bandra, in Interim Application No. 343 of 2008 in Petition No. A-2052 of 2008 dated 25th March, 2009. By that order, the Family Court dismissed the application preferred by the Appellant for rejecting the above noted petition in exercise of powers under Order VII, Rule 11(a) and (d) of the Code of Civil Procedure, 1908.

2. Briefly stated, the marriage between the parties was solemnised on 5th December, 1993 as per the Hindu Vedic rites at Jammu. The parties last resided together as husband and wife in Jammu from December, 1993 till June, 2008. Two sons were born out of the said wedlock at Jammu. First son, Karam Veer, was born on 18th December, 1994, and younger son, Hirday Veer, on 9th February, 1998. The respondent filed petition for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 and for permanent custody of the minor children, permanent alimony of '2 crores and return of all the items referred to in Annexure 'B' of the petition to the respondent.

3. As aforesaid, the Appellant filed application under Order VII, Rule 11(a) and (d) of C.P.C. for rejection of the petition on the assertion that, admittedly, the Appellant is domiciled in the State of Jammu and Kashmir. Further, the marriage was solemnised in the State of Jammu and Kashmir. Hence, the parties were governed by the Jammu and Kashmir Hindu Marriage Act, 1980 (hereinafter referred to as "the State Act") and not provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Central Act"). According to the Appellant, the Courts in the State of Jammu and Kashmir have exclusive jurisdiction to entertain the petition for dissolution of marriage between the parties solemnised on 5th December, 1993 at Jammu, as per the provisions of the State Act. Hence, the petition filed before the Family Court at Mumbai by the respondent invoking provisions of the Central Act suffered from inherent lack of competence to try the same. The petition was barred by law, as the parties were governed by the provisions of the State Act.

4. The application was contested by the respondent. According to the respondent, the Family Court at Mumbai was competent to try and decide the petition filed under the Central Act, as the respondent was presently residing at Mumbai, considering the purport of Section 19(iii-a) of the Central Act.

5. The Family Court, by the impugned decision dismissed the application preferred by the Appellant. It held that the Appellant could not have filed application under the provisions of Order VII, Rule 11 of C.P.C. to challenge the jurisdiction of the Family Court at Mumbai, being domicile of the State of Jammu and Kashmir. For, those provisions were not applicable to State of Jammu and Kashmir. The application so filed was, ab initio, untenable. The Court then went on to observe that the provisions of the Central Act have been amended to empower the wife to file a petition at the place where she resides at the time of presentation of the petition. Further, the Court has to lean in favour of having jurisdiction. In that, the subject of marriage and divorce falls under the Concurrent List, and there is no express bar in the State Act. For the above reasons, the application filed by the Appellant was rejected as untenable. The Appellant has challenged the said decision by way of present appeal.

6. At the outset, we have no hesitation in overturning the opinion of the Family Court that the Appellant being domicile of State of Jammu and Kashmir, could not have filed the application for rejection of plaint under Order VII, Rule 11, of C. P. C. That reason to say the least, is unstatable. It is too cardinal to mention that in the proceeding filed in a Court governed by the provision of C. P. C., the party thereto, regardless of his / her domicile, is bound to and must invoke the provisions of the same Code for appropriate relief or direction in those proceedings.

7. Even so, the moot question debated before us is: Whether the subject petition preferred by the respondent, under the provisions of the Central Act, before the Family Court at Mumbai, can be said to be barred by law?

8. Before we analyse this issue, it may be useful to reproduce paragraphs 1, 2 and 30 of the petition filed by the respondent before the Family Court, Mumbai. The same read thus:-

"1. At all the times material for the purposes of this petition both the petitioner and the Respondent are Hindus by religion and hence governed by the provisions of Hindu Marriage Act, 1955. The petitioner is domiciled in the Sate of Maharashtra and the Respondent is domiciled in Jammu & Kashmir.

2. The Petitioner then a spinster having her maiden name as Sheila Bhassin married the Respondent then a bachelor on 5th December, 1993 as per the Hindu Vedic Rites at Choice Resorts club, Bypass Jammu, Jammu. The said marriage is not registered.

30. The Petitioner being a lady and his wife is currently residing in Mumbai and therefore, this Hon'ble Court has jurisdiction to try and entertain the present Petition of the petitioner."

9. It is well-established position that, while considering the prayer for rejection of plaint under Order VII, Rule 11, of C.P.C., the relevant facts which need to be examined are the averments in the plaint. No other aspect is germane. [See Saleem Bhai v. State of Maharashtra, reported in A.I.R. 2003 S.C. 759, Popat and Kotecha Property v. State Bank of India Staff Association, reported in (2005) 7 S.C.C. 510, C.Natrajan v. Ashim Bhai & Anr., reported in A.I.R. 2008 S.C. 363 : [2007 ALL SCR 2663], and Kamala & Ors. v. K.T. Eshwara Sa & Ors., reported in (2008) 12 SCC 661] : [2008 ALL SCR 1627].

10. Accordingly, the question must be answered in the light of averments in the petition - extracted hitherto. The Respondent has asserted that at all the times material for the purposes of the petition both the parties are Hindus by religion and hence governed by the provisions of the Central Act. She has then stated that she is domiciled in the State of Maharashtra. Further, the marriage between the parties was solemnised at Jammu, but was not registered. She has then averred that, presently, she was residing within the local limits of Family Court, Mumbai, since the time she was separated from her husband in June, 2008. Therefore, the Family Court, Mumbai has jurisdiction to try and entertain the Petition.

11. The Appellant, however, has firstly placed emphasis on the averment in the petition, which admits that the Appellant (husband) is domiciled in the State of Jammu and Kashmir. The question is: Whether, on account of that fact, the provisions of the Central Act are inapplicable to the Appellant, who, indisputably, is a Hindu? Correspondingly, whether the respondent (a Hindu) - after her marriage with the Appellant in Jammu, ceases to have any protection of the Central Act - notwithstanding the fact that, she has asserted that she was domiciled in the territory to which the Central Act applied on the date of her marriage; and more particularly even on the date of presentation of the petition by her before the Family Court, Mumbai? For that, we would first untangle the extent and application of the "Central Act".

12. Section 1(2) predicates that the Act extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends, who are outside the said territories.

13. Section 2 of the Central Act provides for application of the Act. Clause (a) of sub-section (1) thereof stipulates that the Act applies to any person who is a "Hindu by religion" in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. Clause (c) of sub-section (1) is in the nature of a residuary clause. It stipulates that the Central Act would apply to "any other person" domiciled in the territories to which the Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt within the Central Act if that Act had not been passed.

14. Indubitably, the Central Act (as is the case of the State Act), is a socially beneficial legislation. Interpretation of such legislation cannot be as if the words therein are cast in stone. (see Revanasiddappa v. Mallikarjun, ((2011) 11 SCC 1) : [2011 ALL SCR 1209]. It must be given a purposive interpretation to further and not to frustrate its object and intent. No doubt the Central Act extends to the whole of India except the State of Jammu and Kashmir. But it also applies to Hindus domiciled in the territories to which the Act extends, who are outside the said territories. Thus, the Respondent was always governed by the provisions of the Central Act. The provisions in this Act, empowering the Respondent to file Petition, continued to apply irrespective of the fact that her marriage was solemnised at Jammu. For, the Respondent asserts that at the time of her marriage she was domiciled in the territory to which the Central Act applied; and more importantly even at the time of presentation of the Petition before the Family Court at Mumbai. Indeed, the Appellant, a Hindu, is a domicile of State of Jammu and Kashmir - to which the Central Act has not been extended. Nevertheless, by virtue of the expansive provision in section 2 of the Central Act, it applies to "any person" who is a Hindu by religion. It is one thing to say that the Central Act is not extended to the State of Jammu and Kashmir. But it does not follow that the rights and remedies provided therein cannot be enforced by the person governed by the Central Act against a Hindu person who is domiciled in the State of Jammu and Kashmir. Significantly, the rights and remedies provided in the Central Act and also in the State Act, in respect of the subject of Hindu marriage and issues incidental thereto, are substantially identical. In that, clauses (i) to (iv) in section 21 of the State Act are pari materia to corresponding clauses (i) to (iv) of Section 19 of the Central Act. The Central Act, however, contains one additional clause, i.e., clause (iii-a), which has been invoked by the Respondent in the present case, empowering the wife to file petition under the Central Act before the District Court within the local limits of whose original civil jurisdiction she is residing on the date of presentation of the petition. This provision has been inserted with a view to bestow an invaluable and inviolable right on an estranged wife, considering the socio-economic disadvantaged position of the women in our country. We have to keep in mind that the controversy is in relation to the declaration of dissolution of marriage between the parties, who are Hindus and their marriage was performed as per Hindu Vedic rites. Both, the Central and the State enactments, purport to deal with the subject of Hindu marriages and issues incidental thereto. Notably, there is nothing in the Central Act or for that matter, the State Act, that such declaration can be obtained "only" from the courts in the territories to which the respective enactments extend - where the marriage was performed. No provision of law has been brought to our notice - expressly providing that if a Hindu woman governed by the Central Act marries to a Hindu - man governed by the State Act or the marriage is performed outside the territories to which the Central Act extends, she would be denuded of the right bestowed on her under section 19(iii-a) of the Central Act. On the contrary, both the enactments (section 19 of the Central Act and section 21 of the State Act) give option to the parties to invoke the jurisdiction of the Court of their choice, in the manner specified therein. That includes place of marriage. As aforesaid, the place of Hindu marriage is not the only criterion, much less decisive one for invocation of the concerned enactment. Further, that criteria cannot be read conjointly with any other specified criteria - as each option is made mutually exclusive by use of expression "or". Considering the scheme of options regarding invoking jurisdiction of the Court, the argument that the petition filed by the Respondent wife in the Family Court at Mumbai is barred by law - because the Appellant is domiciled in the State of Jammu and Kashmir, cannot be countenanced. Any other interpretation, in our considered opinion, would be rewriting these provisions.

15. Let us now consider the next point urged by the Appellant. According to him, it is admitted in the petition that the marriage between the parties was solemnised at Jammu. We have already touched upon this argument hitherto. In our opinion, there is nothing in the Central Act to even remotely suggest that the marriage between Hindu spouses must be performed within the territories to which the Central Act extends. What is enough is that the marriage must be a valid Hindu marriage, as stipulated in Section 5 read with section 7 of the Central Act and nothing more. That marriage may have been performed within or outside the territories to which the Central Act extends.

16. According to the Respondent, at the time of presentation of the petition, she was domiciled in the territories to which the Central Act extends and continues to reside within the territorial jurisdiction of the Family Court, Mumbai, since separation from her husband in June, 2008. Suffice it to observe that there is nothing in the Central Act to suggest that, if a Hindu marriage is performed outside the territory to which the Central Act extends, it would denude any party to the marriage from presenting petition under Section 19 of the Central Act before the Court within the local limits of whose ordinary original civil jurisdiction, one of the five factors specified in the said section is fulfilled.

17. Reverting to Section 5 of the Central Act, it stipulates conditions for a valid Hindu marriage. Section 7 provides for ceremonies for a Hindu marriage. None of these provisions can be read to suggest that the marriage between the Hindus must necessarily be performed within the territorial limits to which the Central Act extends. Indeed, Section 8 provides for registration of Hindu marriages. The fact that register pertaining to the proof of Hindu marriages is maintained by the State Government or the Appropriate Authority within the territorial limits, to which the Central Act applies, does not mean that the said provision mandates the performance of the marriage by Hindu persons within the territorial limits to which the Act extends. At any rate, these provisions cannot and do not whittle down the sweep of Section 19 of the Central Act, which bestows right in the person, to whom the Central Act applies, to present petition in the District Court within the local limits of whose ordinary original civil jurisdiction, one or more of the five factors are fulfilled.

18. To put it differently, by virtue of the fact that a person, who is a Hindu by religion, performs marriage outside the territorial limits, to which the Central Act extends, would not cease to be a Hindu for the purposes of the Central Act. So long as the person remains Hindu by religion, the provisions of the Central Act would apply and can be invoked for dissolution of marriage, subject to fulfilment of one or more of the five factors specified in Section 19 of the Central Act for presentation of the petition before the concerned District Court.

19. A priori, the respondent, who was otherwise governed by the provisions of the Central Act, by performing marriage at Jammu, in conformity with the conditions for a valid Hindu marriage, would continue to be a Hindu for the purposes of the Central Act, even if she lived with her husband at Jammu soon after their marriage. She can also avail of the rights or remedies available under the State Act, having married at Jammu to a person ordinarily residing in the territories to which the State Act extends. That does not mean that the respondent is denuded of her right to present petition under Section 19 of the Central Act even upon fulfilment of one or more requirements of Section 19. Section 19 of the Central Act does not carve out any express exception in that behalf. The State Act cannot eclipse or supersede that right enured to the respondent, especially in absence of any express provision in any Act (Central or State) in that behalf. Thus understood, it is incomprehensible as to how the petition filed by the respondent can be thrown out at the threshold, being barred by law.

20. In the present case, clause (i) of Section 19 of the Central Act is not available, as the marriage between the parties was performed at Jammu. Even clause (ii) of Section 19 will have no application, as the Appellant herein (original respondent), at the time of presentation of the petition, was residing at Jammu and not within the local limits of Family Court, Mumbai. Even clause (iii) of Section 19 will have no application, as the parties had last resided together at Jammu. Similarly, clause (iv) of Section 19 has no application to the fact situation of the present case. However, as the respondent (original petitioner), being the wife, resides within the local limits of Family Court, Mumbai, on the date of presentation of the petition, clause (iii-a) of Section 19 of the Central Act would come into play. Thus understood, it is incomprehensible as to how the petition filed by the respondent can be rejected in exercise of powers under Order VII, Rule 11, of C.P.C.

21. To get over the above position, the counsel for the Appellant has placed emphasis on the averment in the petition, which admits that the Appellant is domiciled in Jammu and Kashmir and more particularly that the marriage was solemnised between the parties at Jammu. According to the Appellant, the parties are, therefore, governed by the provisions of the State Act, and, since the remedy of filing petition for the relief claimed is provided in the State Act, the parties will have to abide by the said regime.

22. The thrust of the argument of the Appellant is founded on the exposition of the Division Bench of Jammu and Kashmir High Court in the case of K.Radha Krishna Nayyar v. Smt. Radha, reported in A.I.R. 1992 J&K 1. It was argued that the respondent could not have filed proceedings before the Family Court at Mumbai, that too, invoking the provisions of the Central Act. Instead, the parties were governed by the provisions of the State Act, which mandates filing of such proceedings in the Court within the territory of State of Jammu and Kashmir.

23. We will now analyse the abovesaid decision. The Court, in paragraph 1 of the said decision, has formulated three questions which were intended to be answered in the said decision. In that case, however, the parties to the petition were married at Madras - admittedly outside the territorial jurisdiction to which the State Act extends. The Appellant-husband filed a petition for dissolution of marriage by a decree of divorce under Section 13 of the State Act in the Court of District Judge, Jammu. That petition was dismissed on the finding that the said Court had no territorial jurisdiction to decide the case. That was the real issue for consideration before the Division Bench. The Division Bench, however, formulated wider questions as under:-

"(1) What is the scope of S. 21 of the (State) Act so far as the persons who were not subject to the State Act at the time of their marriage are concerned?

(2) Whether the persons whose marriages have been solemnized under the Central Act No. XXV of 1955 can seek any relief within the State of Jammu and Kashmir under this Act?

(3) Whether the persons who were governed by the State Act at the time of their marriage can get a relief in any other court in the country under the provisions of the Central Act?"

24. The Court first adumbrated the history of legislation of the Central Act and the State Act. In paragraph 7, it proceeded to address the principal question of law as to whether the forum of jurisdiction is to be determined with reference to the performance or the solemnisation of marriage between the parties or on the basis of their residence, under Section 21 of the State Act. We may usefully refer to paragraphs 7 to 9 of the said decision, which answer the three points formulated for consideration. The same read thus:-

"7. The important question of law to be determined in the case is as to whether the forum of jurisdiction is to be determined with reference to the parties or the solemnisation of marriage between them or on the basis of their residence, under Section 21 of the State Act. Section 21 of the State Act corresponds to S. 19 of the Central Act and the words, "residing outside the territories to which this Act extends" used in both the sections is explicit in terms and without any ambiguity. In other words, the provisions of S. 21 of the Act shall apply or required to be applied to the parties with reference to their solemnisation of the marriage. If the marriage between two Hindus, whether residents of the State or not, is solemnised within the territorial jurisdiction to which the State Act extends, the forum for presentation of the petition under the State Act shall be determined under S. 21 of the Act but not otherwise. If any other interpretation is put to the said section, disastrous results may follow resulting in the failure of justice on account of contradictory judgments and decrees. In a case where a non-State subject is married to a person who is governed by the provisions of the State Act, the forum of jurisdiction for seeking the relief under the Act cannot be left to the discretion of the parties inasmuch as they may choose to approach the different courts, one governed by the Central Act and the other by the State Act. In that event passing of the conflicting judgments and decrees cannot be ruled out. This Court in that event may not be in a position even to consolidate the proceedings or transfer the same from one court to another to avoid conflicting judgments. The forum for getting relief under the Act has, therefore, to be chosen keeping in view the place of solemnization of the marriage between the parties irrespective of their permanent residence or domicile. If the marriage is solemnized within the State the provisions of S. 21 would be applicable and if the respondent at that relevant time was residing outside the territories of the State the petitioner may be justified in presenting the petition in any court in the State where he or she is living. A perusal of sub-s. (2) of S. 1 of the two Acts would clearly show that the State Act is intended to be made applicable to the State of Jammu and Kashmir whereas the Central Act extends to whole of India except this State and "applies also to Hindu domicile in the territories to which this Act extends, who are outside the said territories". It is pertinent to note that the latter words used in sub-s. (2) of the Central Act as referred to hereinabove have been omitted by the State Act in sub-s. (2) of S. 1. "Domicile" has nowhere been defined either under the State Act or the Central Act but it denotes the relationship between a person and a particular territorial unit possessing his own system of law which is different from nationality or citizenship. It determines a person's personal status and the law applicable to him in the matters such as majority or minority, marriage, divorce and succession. A person can acquire a domicile of his choice by a conscientious act. Mere residence at a particular place is not the only test to determine the domicile and the court is required to consider the quality and character of residence for determining the domicile of a citizen. The territorial jurisdiction of the State Act is, however, applicable to all the Hindus, Budhists, Jains and Sikhs who have been specified in S. 2 of the Act irrespective of their residence or domicile. Point No. 1 is, therefore, decided by holding that S. 21 of the Act is applicable to persons specified in S. 2 of the State Act whose marriage is solemnized within the State of Jammu and Kashmir irrespective of their domicile.

Point No. 2

8. As held while deciding point No. 1, that the State Act is applicable to the persons specified in S. 2 of the State Act irrespective of their domicile, but having regard and with reference to the place of solemnization of their marriage, it follows the irresistible conclusion that Central Act No. XXV of 1955 shall be applicable to the persons specified in sub-s. (2) of S. 1 of the Central Act and they may choose the forum under S.21 of the State Act for seeking any relief within the State of Jammu and Kashmir if the marriage was solemnized within the territories of the State but not otherwise. In case where the marriage has been solemnised outside the State of Jammu and Kashmir, the forum for filing the petition has to be determined under S. 19 of the Central Act.

Point No. 3

9. In view of the finding on point No. 1 it is held that the persons who were governed by the State Act at the time of marriage and whose marriage was solemnised within the State of Jammu and Kashmir, can get a relief only in the State and not in any other Court in the country under the Central Act unless both the parties have settled and have become domicile of a place to which the State Act is not applicable but the Central Act applies. In that case, the provisions of sub-s. (iv) of S. 21 of the State Act and sub-s. (iv) of S. 19 of the Central Act would not apply. For the purpose of attracting the provision of sub-s. (iv) and the applicability of the Central and the State Acts, the place of solemnization of the marriage is important and relevant." (emphasis supplied).

25. A bare reading of the above extract reveals that the Court, essentially, answered the controversy, on being convinced that the factum of place of solemnisation of the marriage between the parties is the decisive factor. It proceeded to hold that once it is found that the marriage was solemnised within the State, the divorce proceedings could be instituted only in the Courts within the State of Jammu and Kashmir. The Court has adverted to one of the possibilities of a non-State subject marrying to a person, who is governed by the provisions of the State Act. It observed that, in that case, the forum of jurisdiction for securing relief under the State Act cannot be left to the discretion of the parties. Inasmuch as they may choose to approach different Courts - one governed by the Central Act and the other by the State Act. That may give rise to passing of conflicting judgments and decrees, and especially when there is no possibility of consolidating the proceedings or transferring the same from one Court to another to avoid conflicting judgments. It is for that reason it opined that the forum for getting relief under the State Act has to be chosen, keeping in view the place of solemnisation of the marriage between the parties, irrespective of their permanent residence or domicile. Here we wish to remind ourselves that such a situation can be eschewed by the concerned Court where the subsequent suit / proceeding is filed by exercising powers under Section 10 of the Code of Civil Procedure, 1908, or Section 7 of the Jammu and Kashmir Code of Civil Procedure Act, 1977, as the case may be. Further, we cannot gloss over the power of the Supreme Court of India to transfer any suit, appeal or other proceedings under Section 25 of the Code of Civil Procedure, 1908 read with Article 142 of the Constitution of India.

26. Be that as it may, the respondent has argued that the view taken by the Jammu and Kashmir High Court is a narrow and pedantic interpretation of Section 21 of the State Act, and is virtually re-writing of the said provision. It was argued that the purport of the provision such as Section 21 investing jurisdiction in the Court cannot be decided on the basis of the impracticability of consolidation or transfer of proceedings filed before different Courts by the parties. That cannot be a decisive factor.

27. We deem it appropriate to reproduce Section 21 of the State Act, which reads thus:-

"21. Court to which petition shall be presented.

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

(i) the marriage was solemnised, or

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

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

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that 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."

28. Going by the plain language of this provision, it recognises the right of the parties to present petition referable to the provisions of the State Act before the appropriate Court. The factors spelt out are clauses (i) to (iv). Each factor is independent and mutually exclusive of the other. Even on satisfaction of one of the four factors, the parties would be competent to present petition referable to the provisions of the State Act before the District Court within the local limits of whose ordinary original civil jurisdiction the action can proceed. That is made amply clear from the use of expression "or" to separate each of them. Taking any other view would mean that, unless more than one factor referred to in Section 21 is present and so mentioned in the petition, the petition cannot be presented before the Court in that State. In our opinion, the factum of performance of marriage within the State of Jammu and Kashmir is not the decisive factor.

29. It is noticed that the scheme of the State Act is pari materia to the scheme of the Central Act. Even in the State Act, there is nothing to indicate that the Act would apply only to the State subjects or persons who are permanent residents of the State. On the contrary, Section 2 applies to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj. Clause (c) of sub-section (1) of Section 2 of the said Act is verbatim to clause (c) of the Central Act. Section 5 of the said Act stipulates conditions for Hindu marriages. Section 7 of the State Act, predicates ceremonies for a Hindu marriage. Both, Section 5 and Section 7 of the State Act are identical to corresponding Sections 5 and 7 of the Central Act. Even on liberal reading of these provisions, there is nothing to indicate that the performance of the marriage must be within the territorial limits, to which the State Act extends. Section 8 of the State Act provides for registration of Hindu marriages. It is verbatim to Section 8 of the Central Act. Notably, neither Section 11 nor Section 12 of the State Act (corresponding to sections 11 and 12 of the Central Act respectively), providing for void marriages and voidable marriages, prohibit performance of Hindu marriage outside the territorial limits, to which the respective enactment extends.

30. To put it differently, if a Hindu, who happens to be a State subject or permanent resident of State of Jammu and Kashmir, was to perform marriage outside the territorial limits of the State, elsewhere, he would still be governed by the concerned enactment - State Act or Central Act as the case may be. For, he/she would not cease to be a Hindu for the purposes of the respective enactments. The quintessence of the Act - be it the State Act or the Central Act - is that the person invoking the same must be a Hindu by religion.

31. The Court, in the first place, went on to observe that, if the marriage between two Hindus, "whether residents of the State or not", is solemnised within the territorial jurisdiction to which the State Act extends, the forum for presentation of the petition under the State Act shall be determined only under Section 21 of the State Act. Indeed, clause (i) of Section 21 of the State Act provides that petition under the State Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction, the marriage was solemnised. But, that does not mean that Section 21 bars presentation of the petition under the Central Act by any one of the parties, because their marriage was solemnised within the territories to which the State Act extends. To wit, take a case of the destination marriage - which has evolved as a concept of contemporary times. Invariably, in these marriages none of the spouse may have any causal connection with the place where the marriage is solemnised. Does it mean that even those parties must necessarily go back to the same place where they performed their marriage in the State of Jammu and Kashmir with the petition for dissolution of their marriage, though the convenient forum for both of them will be their place of residence to which the State Act is not extended. The answer must be an emphatic "No". Let us take another case where during the posting in the State of Jammu and Kashmir whilst in Central Government service, two Hindus from other States in India, solemnise marriage in the State of Jammu & Kashmir. But later on, after some time, they are transferred to some other States in India and at that time, their marriage faces a rough weather. As per the interpretation of section 21 of the State Act in paragraph 7 of the said reported Judgment, the said parties will have to invoke remedy only under the State Act in the Court within whose local limits they had solemnised the marriage. Such interpretation would neither be purposive nor further the object and intent of the subject enactments.

32. The Court, then, noted that, in a case where a non-State subject is married to a person governed by the provisions of the State Act, the forum of jurisdiction for seeking the relief under the State Act cannot be left to the discretion of the parties. Inasmuch as they may choose to approach the different Courts, one governed by the Central Act and the other by the State Act. Notably, section 21 of the State Act does not envisage that one of the party to the proceeding must necessarily be a State Subject or permanent resident of the State. Further, the provisions of the State Act do not rule out the possibility of non-State Subject invoking remedy under the State Act, subject to its application. On the other hand, as noticed by us, the application of the State Act is to all Hindus, whether they are State subjects or otherwise - as is the case with the Central Act.

33. It would be a different matter if the parties were to present petition before the District Court or Family court, as the case may be, outside the territories, to which the State Act extends, by invoking provisions of the State Act. That is not the case on hand. In the present case, the respondent has invoked the provisions of the Central Act, and has presented petition before the Court, to which the Central Act extends. It is not the case of the Appellant that he is not a 'Hindu' within the meaning of the Central Act. So long as the spouses are Hindu by religion, and upon fulfilment of the requirements under Section 19 of the Central Act, the Respondent was entitled to present petition against him before the Family Court, Mumbai.

34. Suffice it to observe that there is no express bar or prohibition in the State Act for presentation of petition by the parties who have performed marriage in the State of Jammu and Kashmir, before the competent Court outside the territories to which the State Act extends. Correspondingly, there is no express provision in the Central Act to suggest that, if the marriage is solemnised outside the territories to which the Central Act extends, presentation of petition by invoking provisions of the Central Act would be barred. That means, the parties are free to present the petition for dissolution of marriage either before the District Court in the State of Jammu and Kashmir, subject to fulfilment of factors provided in Section 21 of the State Act by invoking provisions of the State Act; or present petition before the Court within the territorial limits, to which the Central Act extends, upon fulfilment of conditions specified in Section 19 of the Central Act for relief of dissolution of marriage by invoking provisions of the Central Act. Both these options can co-exist, considering the setting in which the provisions of the Central Act, as also the State Act are placed.

35. It is indisputable that the Hindus covered by the State Act are no different than the Hindus governed by the Central Act and vice versa. If so, the manner in which the provisions have been construed by us would further the interests of the Hindus governed by the respective enactments, i.e., the Central Act and the State Act, as the case may be. The concomitant of this finding, is that, the petition presented by the Respondent cannot be treated as barred by law. In that case, we have to and must uphold the conclusion recorded by the Family Court of dismissing the application preferred by the Appellant to reject the petition filed by the respondent in exercise of powers under Order VII, Rule 11, of C.P.C.

36. The counsel for the Respondent had invited our attention to the decision of the Division Bench of Kerala High Court in the case of Viswanathan P.K. v. Sindhu M.K., AIR 2010 Kerala 58, in particular paragraphs 13 and 14 thereof, which has re-stated the settled legal principle that special must exclude the general. That Court was called upon to consider the efficacy of amendments to the Marriage Laws Amendment Act, 2003. The Court noted that Section 19 of the Family Court Act deals only with a general stipulation. The Court then noted that the stipulations in the Hindu Marriage Act deal with substantive right of the parties and substantive right of appeal, whereas the stipulations in the Family Court Act deal with procedural matters. It has further noted that, on the principle that prominence and predominance must be given to the statutes dealing with substantive rights in preference to those dealing with procedural stipulations, the stipulation of the period of limitation in Section 28(4) must be preferred.

37. The learned counsel also relied on the exposition in the Mayne's Treatise on Hindu Law and Usage, Sixteenth Edition, at page 452, which reads thus:-

"The right to obtain dissolution by filing a petition in the court of a Munsif under Travancore Nayar Act remains unaffected by any of the provisions of the Hindu Marriage Act by reason of the saving in sub-section (2) of section 29. What is saved is the right to obtain dissolution and not the right of dissolution or the grounds for dissolution; having regard to the plain language of the statute, as to its purpose, the right saved includes everything necessary, call it substantive, remedial or procedural to obtain the dissolution."

38. The learned counsel for the Respondent also placed reliance on another decision of Kerala High Court in the case of Ayyappan Kurup Krishna Pillai v. Parukutty Amma Subhadra Amma, AIR 1971 Kerala 44 (F.B.). In paragraph 3 of this decision, the Court, while dealing with the interpretation of Section 29(2) of the Hindu Marriage Act, observed thus:-

"3. ...The sub-section is only a saving of certain provision of certain enactments other than the Hindu Marriage Act, and by no stretch of imagination can it be said that its effect is to incorporate the saved provisions in the Hindu Marriage Act. That being so, if the word, "right" in the sub-section is to be read as meaning sub-section is to be read as meaning substantive right, the person for whose benefit the right is saved would be left without a remedy. If Section 5 of the Travancore Nayar Act which confers the right to present a petition for dissolution in the Court of the Munsiff is not saved, then there would be no means by which the person for whose benefit Parliament has gone to all the trouble of enacting the saving could enforce his right. He cannot present this petition for dissolution to the District Court, the forum specified in Section 19 of the Hindu Marriage Act, since that section confers jurisdiction on the District Court only in respect of petitions under that Act, and as I have already said, by no stretch of imagination can it be said that a petition for dissolution under the provisions of the Travancore Nayar Act is a petition under the Hindu Marriage Act."

39. In paragraph 2 of the same decision, the Court has re-stated the principle expounded in Mayne's Treatise (supra), and has observed thus:-

"It is important to note that what is saved is the right to obtain the dissolution (the emphasis is mine) -- not the right of dissolution or the grounds for dissolution, and, having regard to the plain language of the statute, as to its purpose, the right saved includes everything necessary, call it substantive, remedial or procedural, to obtain the dissolution. The right prosecuted in this particular case is the right in the Travancore Nayar Act. Sections 4 and 5, by which a marriage may be dissolved by a formal order of dissolution obtained on a petition presented by either spouse in the court of the Munsiff having jurisdiction - the dissolution can be on one or the other of the grounds specified in Section 5. It seems to me abundantly clear that this right to obtain a dissolution on a petition presented in the court of the Munsiff having jurisdiction, on the grounds specified in Section 5, remains unaffected by any of the provisions of the Hindu Marriage Act by reasons of the saving in sub-section (2) of S. 29 of that Act, and that the principal contention of the Appellant husband in this appeal brought under Section 7 of the Travancore Nayar Act against an order of dissolution made by a Munsiff, namely, that the Munsiff had no jurisdiction to entertain the proceeding, must fail. In this view, I think it unnecessary to embark on a consideration of the question whether the specification of a particular forum confers a substantive or a procedural or a remedial right. As I have already observed, all manner of rights, call them substantive, procedural, remedial, or what you will - the word "right" is wide enough to take in all of them - are comprehended by the saving so long as they relate to the obtaining of the dissolution."

40. The counsel for the Respondent was at pains to persuade us to take the view that, on the interpretation given by the High Court of Jammu and Kashmir, the provisions of the State Act would be inconsistent with the provisions of the Central Act, and in that case, by applying Article 254 of the Constitution of India, it will have to be held that the Central Act ought to prevail. It is not necessary to elaborate on this submission for more than one reason. Inasmuch as, we have already taken the view that the remedies under any of the two enactments can be invoked. In any case, the argument will have to be negatived, as Article 254 will have no application in the present case. Inasmuch as, the extent of the Central Act is limited, and does not extend to State of Jammu and Kashmir. The extent of State Act is limited to, that State. Therefore, there can be no inconsistency in the two enactments, and even if there was to be any inconsistency, the argument regarding Article 254 of the Constitution would be unavailable.

41. The counsel for the Appellant invited our attention to the decision of the Apex Court in Mohd. Maqbood Damnoo v. State of Jammu and Kashmir, (1972) 1 S.C.C. 536. It is not necessary to dilate on this decision. In that case, the validity of the Jammu and Kashmir Preventive Detention (Amendment) Act, 1964 was challenged. The Court, after adverting to the historical background, considered the challenge. The exposition in that case has no relevance to the issue under consideration.

42. The learned counsel also invited our attention to the provisions of the Constitution of Jammu and Kashmir and, amongst others, the provisions pertaining to Permanent Residence and State Subject Definition contained in Appendix XII. Emphasis was placed on these provisions to contend that the Appellant was a State Subject; and that the State subjects were governed only by the State Act. Further, the Respondent, after marriage, acquired the status of State subject of same class as that of her husband. That status she continued to possess till she resided in the State and had not left the State for permanent residence outside the State. As a matter of fact, these provisions would answer the controversy on hand. Admittedly, the Respondent was not the State subject at the time of marriage. Further, going by the averments in the petition, it is obvious that the Respondent has left the State permanently and has now settled down in Mumbai, which is outside the State of Jammu and Kashmir. Thus, the status acquired by her after her marriage is no longer available to her. Further, if the argument of the Appellant was to be accepted, it would follow that the State Act was no more applicable to the Respondent, not being a State subject.

43. Be that as it may, in the present case, the assertion in the petition filed by the respondent is that the Appellant is domicile of State of Jammu and Kashmir. However, it is not the case of the respondent that the Appellant is the State subject or a permanent resident of the State of Jammu and Kashmir. Even assuming that we were to agree with the Appellant that the State Act applies only to the State subjects, or that the State subjects are governed only by the State Act, the Appellant will have to establish that he is a State subject. A person, who is domiciled in the State, need not necessarily be a permanent resident of the said State or a "State subject" within the meaning of the Constitution of Jammu and Kashmir. That is a question of fact to be pleaded and proved, which can happen only at the trial of the petition. Even for that reason, the relief claimed by the Appellant in the application under consideration to reject the plaint in exercise of powers under Order VII, Rule 11, of C.P.C. cannot be countenanced.

44. The counsel for the respondent had contended that, if Section 21 of the State Act was to be interpreted in the manner done by the Jammu and Kashmir High Court, in that case, the Court may have to examine whether Section 21 of the State Act is ultra vires Article 14 of the Constitution, because it would result into discrimination between Hindu women, whose marriage was solemnised within the State of Jammu and Kashmir and those whose marriages were solemnised outside the State. According to the respondent, the said interpretation of the State enactment would mean that a Hindu woman, whose marriage was solemnised outside the State of Jammu and Kashmir, can file a petition in any Court in India where she is residing at the time of presentation of the petition. However, the same benefit is not extended to a Hindu woman, whose marriage is solemnised within the State of Jammu and Kashmir, notwithstanding the fact that such Hindu woman at the time of presentation of petition for dissolution of marriage may not be residing within the State of Jammu and Kashmir. According to the respondent, that interpretation of Section 21 of the State Act may result in two equals being treated as unequals, for which reason, it would be hit by Article 14 of the Constitution of India. However, it is not necessary for us to dwell upon this argument for the reasons already recorded.

45. Taking overall view of the matter, therefore, we have no hesitation in rejecting the stand of the Appellant that the petition presented by the respondent before the Family Court, Mumbai, was barred by law. Accordingly, the Family Court was right in rejecting the application preferred by the Appellant for rejection of the plaint in exercise of powers under Order VII, Rule 11, of C.P.C.

46. Resultantly, this appeal fails. The same is dismissed. Civil Application also stands disposed of accordingly.

Appeal dismissed.