Family Court Appeal No.55 of 2009

18th September, 2014.

Petitioner Counsel: Mr. S.R. PAGE

JUDGMENT

A. S. OKA, J. :- Heard learned counsel appearing for the Appellant and the learned counsel appearing for the Respondent.

2. By the impugned judgment and decree, the learned Judge of the Family Court has dismissed a Petition filed by the Appellant-wife. The prayer made in the Petition filed by the Appellant is for dissolution of marriage by an order of confirmation of oral talaq dated 7th June, 2006. However, in the order dated 30th March,2009 passed by this Court in the present Appeal, a statement of the learned counsel appearing for the Appellant has been recorded that the Petition filed by the Appellant was covered by clause (b) of the Explanation to sub-section (1) of section 7 of the Family Courts Act, 1984 (for short "the said Act of 1984"). Clause (b) of the Explanation to sub-section 1 of section 7 provides for filing a suit for declaration as to matrimonial status of any person. Thus, the Petition filed by the Appellant will have to be treated as a suit which is covered by the Explanation (b). It is a suit or proceedings for a declaration that the marriage between the Appellant and Respondent stands dissolved by the confirmation of an oral talaq in writing dated 7th June, 2006.

3. By the impugned decree, the Petition filed by the Appellant has been dismissed on two grounds. The first ground is lack of territorial jurisdiction. The second ground is of the bar of limitation.

4. As far as the first ground is concerned, the learned counsel appearing for the appellant invited our attention to clause 14 of the Petition filed by the Appellant. He also invited our attention to the fact that the oral talaq was given at Mumbai as evidenced by the Divorce Certificate dated 7th June,2006 issued by the Chief Quazi of Mumbai. His submission is that by virtue of the residence of the Appellant in Mumbai at the time of filing of the Petition and by virtue of the fact that the oral talaq was given in Mumbai, the Family Court at Bandra, Mumbai has the jurisdiction to entertain this Petition.

5. We have considered the submissions of the learned counsel for the Appellant. As stated earlier, what is filed by the Appellant is a suit for declaration of matrimonial status which is governed by Explanation (b) of sub-section (1) of section 7. In view of sub-section (1) of section 10 of the said Act of 1984, subject to the provisions of the said Act of 1984, the provisions of the Code of Civil Procedure, 1908 (for short "the said Code") are applicable to the Family Courts. There is no provision in the said Act of 1984 or the Rules framed thereunder which determines the territorial jurisdiction of the Family Courts contrary to the provisions of the said Code. Therefore, the territorial jurisdiction will be governed by the said Code. The provisions regarding the territorial jurisdiction are contained in sections 15 to 20 of the said Code. On a plain reading, none of the sections 16 to 19 will apply to the present case. Section 20 of the said Code will apply which reads thus:

"20. Other suits to be instituted where defendants reside or cause of action arises- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-

(a) the defendant or each of the defendants where there are more than one at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gains, or

(b) any of the defendants where there are more than one, at the time of the commencement of the suit,actually and voluntarily resides, or carries on business or personally works for gain, provided that in such case either the leave of the Court is given or the defendants who do not resides, or carry on business or personally work for gain, as aforesaid, acquiesce in such institution or

(c) the cause of action, wholly or in part arises.

(Explanation: A corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has also a subordinate office at such place."

6. At this stage, it will be necessary to refer to the jurisdiction clause in the petition filed by the Appellant. It reads thus:

"14. The Petitioner and the Respondent got married to each other at Nairobi (South Africa) both cohabited together in Mumbai, Tokyo, Dubai. The Petitioner is residing in Khar, Mumbai in the given cause address of this Petition within the territorial jurisdiction of this Hon'ble Court. Therefore, this Hon'ble Court has the jurisdiction to entertain and try this Petition."

7. According to the Appellant, the Family Court gets jurisdiction by virtue of her stay in Mumbai at the time of filing of the Petition. it is admitted that the marriage was solemnised at Nairobi and the parties lastly cohabitated at Dubai. Going by the cause title of the Petition filed by the Appellant, there are two addresses of the Respondent. The first is of Lahore (Pakistan) and the second one is of Sharjah (UAE). Therefore, on the date of the filing of the Petition, the Respondent was not residing or was not carrying on business or was not personally working for gain in Mumbai. This is not a case where the Respondent has acquiesced to the jurisdiction of the Family Court at Bandra, Mumbai.

8. When a declaration is claimed under section 34 of the Specific Relief Act, 1963, the cause of action for filing a suit is the denial of the status claimed by the Plaintiff. It is not the case of the Appellant that the Respondent disputed the factum of talaq while he was in Mumbai. In fact, there is no specific allegation that while in Mumbai or in India, the Respondent disputed the fact of the talaq. Therefore, it cannot be said that any part of cause of action for filing the Petition has arisen within the territorial jurisdiction of the Family Court at Bandra, Mumbai.

9. Therefore, we find no error in the view taken by the learned Judge of the Family Court when he came to the conclusion that the Family Court had no jurisdiction to entertain the Petition filed by the Appellantwife. In view of the finding, instead of returning the Petition for presentation to proper Court, the learned Judge has dismissed the same as the same could not be presented to any Court in India. Though we are confirming the decree on the ground of lack of territorial jurisdiction, we make it clear that the Appellant will be entitled to file appropriate proceedings before a proper Court or proper forum in accordance with law.

10. Finding regarding the bar of limitation recorded by the Family Court needs to be ignored as it is a finding recorded by a Court having no jurisdiction.

11. Subject to what is observed above, the Appeal is dismissed. However, there will be no order as to costs.

Appeal dismissed.