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Thursday, January 2, 2014

Divorce - Hindu Marriage Act - Jurisdiction -Or.VII, rule 11 C.P.C.I.A. filed through father - both spouses are permanent residents of England - Wife father filed a complaint under sec.498 A I.P.C against husband at Hyd - family court at Hyd has no jurisdiction over the case - Husband can not file Divorce O.P. on temporary visit to India - Sec.19 of Hindu Marriage Act - Where wife resides - Where marriage was taken place - Trial court returned the OP to present in proper court - High court confirmed the order and dismissed the CMA = Koyyalamudi Nageswara Rao.....APPELLANT/RESPOLNDENT/PETITIONER Koyyalamudi Pravena @ Vallabhaneni Praveena.....RESPONDENT/PETITIONER/RESPONDENT = PUBLISHED IN judis.nic.in/judis_andhra/filename=10320

Divorce - Hindu Marriage Act - Jurisdiction -Or.VII, rule 11 C.P.C. I.A. filed through father- both spouses are permanent residents of England - Wife father filed a complaint under sec.498 A I.P.C against husband at Hyd - family court at Hyd has no jurisdiction over the case - Husband can not file Divorce O.P. on temporary visit to India -  Sec.19 of Hindu Marriage Act - Where wife resides - Where marriage was taken place - Trial court returned the OP to present in proper court - High court confirmed the order and dismissed the CMA = 
The Hindu Marriage Act contains several provisions, which have a
leaning towards a woman spouse.  One such provision is Section 19 of the Act.
        9.  As observed earlier, the place of residence of defendant in a suit or
respondent in the O.P. would be an important factor to decide the territorial
jurisdiction in relation to for institution of a suit or O.P.  
However, the
provision referred to above carves out an exception in favour of a woman spouse.
Irrespective of the place of the residence of her husband, a woman can institute
the proceedings within whose territorial jurisdiction she resides.  
If this is
the exception accorded to the woman spouse, it is just un-understandable as to
how the appellant thought of instituting the proceedings at Ranga Reddy
District, when admittedly his wife is residing in England. 
 Even if he is
residing in India, it is as a visitor than a permanent or regular resident.
        10.  The appellant sought to justify the institution of the O.P. in the
Court at Ranga Reddy District by citing the reason that an F.I.R. was registered
against him under Section 498-A I.P.C in Chandanagar Police Station at
Hyderabad. 
A perusal of the F.I.R. discloses that the compliant was submitted
by the father of the respondent, but not herself.  
Further, the circumstances,
under which a criminal case is instituted are totally different from those that constitute the basis for filing civil cases.  
The trial Court has taken correct
view of the matter and we are not inclined to interfere with the same.
11.  The C.M.A. is dismissed.  There shall be no order as to costs. The
Miscellaneous Application filed in this C.M.A. shall stand disposed of.

THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND THE HON'BLE SRI JUSTICE S.V. BHATT              

C.M.A. No.218 OF 2013

Dated 03-09-2013
       
Koyyalamudi Nageswara Rao.....APPELLANT/RESPOLNDENT/PETITIONER          

Koyyalamudi Pravena @ Vallabhaneni  
Praveena.....RESPONDENT/PETITIONER/RESPONDENT          
       
Counsel for Appellant   :   Sri O. Manohar Reddy.

Counsel for Respondent  :   Sri J.C. Francis.


<GIST :

>HEAD NOTE :  

?Cases referred :

HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

AND

HON'BLE SRI JUSTICE S.V. BHATT    

C.M.A. No.218 OF 2013

JUDGMENT :  

        The appellant herein filed O.P. No.794 of 2010 before the Family Court,
Ranga Reddy District at L.B. Nagar, against his wife the respondent herein under
Sections 13(1a) and (1b) of the Hindu Marriage Act, for divorce. 
 He pleaded
that the marriage between them took place on 19.02.2003   and that they were
blessed with a male child on 08.07.2005.  Both of them are settled in Norwich,
England.
The appellant claims to be rationalist and sated that before his
marriage with respondent, a rosy picture was given to him.    
He stated that
after marriage, the respondent started acting in irrational and eccentric manner
and used to get irritated without any provocation.  
He alleged that the
respondent used to spend lavishly and that he had to incur huge expenditure, to
satisfy her needs.  
He has also furnished the details of travel to India and the
developments that have taken place between them over the period and ultimately
prayed for decree of divorce.
        2.  The respondent entered appearance in the O.P. and she filed I.A.
No.1898 of 2012 under Order VII Rule 11 of C.P.C. with a prayer to reject the
O.P.  
She pleaded that the appellant and herself are permanent residents of England and that there is no basis or justification for the appellant to file O.P. in a Court in India.
She further pleaded that even if the appellant has
came to India for a short visit, he cannot institute the O.P. against her, when she is a permanent resident of England.  
The I.A. was opposed by the appellant.
The trial Court allowed the I.A. through the order dated 08.01.2013. Hence, this
C.M.A. under Order 43 rule 1 C.P.C.
        3.  Sri O. Manohar Reddy, learned counsel for the appellant submits that a
plaint or original petition filed in a civil Court can be rejected only on
establishing the grounds mentioned in the Rule 11 of Order VII of C.P.C., and
none of such grounds are present in the instant case.  He pleads that the very
fact that the trial Court has directed return of O.P. discloses that I.A. filed
under Order VII Rule 11 of C.P.C. was untenable.  The learned counsel further
submits that even if the defendant in a suit, or respondent in O.P. take the
plea that the Court does not have territorial jurisdiction in the matter, the
same can be decided as a preliminary or one of the issues.
        4.  Sri J.C. Francis, learned counsel for the respondent on the other
hand, submits that the appellant filed the O.P. before trial Court with a
malafide intention to harass the respondent and the minor child.  He submits
that undisputedly both the parties are permanent residents of England (United
Kingdom) and the behaviour of the appellant towards the respondent was totally
unbearable.  The learned counsel submits that the intention of the appellant in
filing the O.P. in India is that in case the respondent travels to this country,
the VISA and other documents become invalid for want of renewal and thereafter
he can get rid of her once for all.
        5.  The appellant instituted proceedings before the Family Court claiming
divorce against the respondent.  Extensive narration of various events is made
in the O.P.  This is not the stage or occasion to deal with the same.
        6.  On coming to know that the O.P. is filed against her, the respondent
got filed I.A. No.1898 of 2012 through her father, who is a resident of India.
It was stated that the trial Court has no jurisdiction since both the parties
are residing in England.
The plea of the appellant on the other hand was that
although they are the permanent residents of United Kingdom, they occasionally
come to India and in fact a case under Section 498-A I.P.C. was instituted
against him in Chandanagar police station at Hyderabad.  The Family Court
directed that the O.P. be returned for being presented before the proper Court.
        7.  The provisions contained in C.P.C. particularly from Sections 16 to 20
mandate that a suit or petition must be instituted in a Court within whose
territorial jurisdiction the defendant or respondent as the case may be,
resides.
The other factors that guide the jurisdiction of the Court, are the
location of the subject matter of the proceedings, or the place at which the
cause of action has arisen.
The proceedings under the Hindu Marriage Act are
also covered by these provisions.  Normally proceedings are instituted in the
Court, within whose territorial jurisdiction, the respondent in the O.P.
resides.  There may also be instances, where the O.P. is filed in the Court
within whose jurisdiction the marriage has taken place.
However, though the
O.P. in such cases can be said to have been filed as per law, if the respondent
in such O.P. raises an objection stating that she is not residing in that place,
the application under Section 24 of C.P.C. for transfer of the proceedings is
entertained.
        8.  The Hindu Marriage Act contains several provisions, which have a
leaning towards a woman spouse.  One such provision is Section 19 of the Act.
        9.  As observed earlier, the place of residence of defendant in a suit or
respondent in the O.P. would be an important factor to decide the territorial
jurisdiction in relation to for institution of a suit or O.P.
However, the
provision referred to above carves out an exception in favour of a woman spouse.
Irrespective of the place of the residence of her husband, a woman can institute
the proceedings within whose territorial jurisdiction she resides.  
If this is
the exception accorded to the woman spouse, it is just un-understandable as to
how the appellant thought of instituting the proceedings at Ranga Reddy
District, when admittedly his wife is residing in England. 
 Even if he is
residing in India, it is as a visitor than a permanent or regular resident.
        10.  The appellant sought to justify the institution of the O.P. in the
Court at Ranga Reddy District by citing the reason that an F.I.R. was registered
against him under Section 498-A I.P.C in Chandanagar Police Station at
Hyderabad.  A perusal of the F.I.R. discloses that the compliant was submitted
by the father of the respondent, but not herself.  
Further, the circumstances,
under which a criminal case is instituted are totally different from those that constitute the basis for filing civil cases.  
The trial Court has taken correct
view of the matter and we are not inclined to interfere with the same.
11.  The C.M.A. is dismissed.  There shall be no order as to costs. The
Miscellaneous Application filed in this C.M.A. shall stand disposed of.
______________________  
L. NARASIMHA REDDY, J    
_____________________  
S.V. BHATT, J
September 3, 2013

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