Allahabad High Court
Pawan Kumar vs Smt.Kanchan on 28 January, 2020
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 3 Case :- FIRST APPEAL No. - 135 of 2019 Appellant :- Pawan Kumar Respondent :- Smt.Kanchan Counsel for Appellant :- Anil Kumar Tiwari Counsel for Respondent :- Birendra Narain Shukla Hon'ble Ved Prakash Vaish,J.
Hon'ble Narendra Kumar Johari,J.
List has been revised.
Heard Sri Anil Kumar Tiwari, learned counsel for the appellant and Sri Birendra Narain Shukla, learned counsel for the respondent.
This is an appeal under Section 19(1) of the Family Courts Act, 1984 against the order dated 13.09.2019 passed by Principal Judge, Family court, Sultanpur in Original Suit No.281 of 2019 (Pawan Kumar Vs. Kanchan).
The brief facts of the present case are that the petitioner-husband filed a petition under Section 9 of the Hindu Marriage Act, 1955 alleging that a marriage between appellant and respondent-wife was solemnized on 17.06.2009 at Sultanpur. Out of the said wedlock a child was born on 23.05.2014; the appellant is living separately since 20.12.2014. The petition was registered and notice was issued to the respondent-wife.
Vide order dated 13.09.2019, learned Principal Judge, Family Court, Sultanpur dismissed the Original Suit No.281 of 2019 (Pawan Kumar Vs. Kanchan) filed by the appellant-husband on the ground that respondent-wife can move an application under Section 125 Cr.P.C. 1973 at Delhi, as she is residing at Delhi. The Principal Judge, Family court has also observed that the petition under Section 9 of the Hindu Marriage Act, 1955 can be filed where the marriage was solemnized or where the respondent is residing at Sultanpur at the time of filing the petition. The petition was dismissed vide impugned order date 13.09.2019 and the appellant was given liberty to file a petition before the concerned court at Delhi.
Learned counsel for the appellant submits that the marriage was solemnized at Sultanpur and, therefore, the Family court, Sultanpur have jurisdiction to entertain and try the present petition.
Learned counsel for respondent has also fairly conceded that as per Section 19 of Hindu Marriage Act, 1955 the petition can be entertained by the Family court, Sultanpur. Learned counsel for the respondent also submits that respondent-wife has filed an application under Section 125 of Cr.P.C. before the court at Delhi and the same is pending.
We have carefully considered the submissions made by learned counsel for both the parties.
Section 19 of the Hindu Marriage Act, 1955 reads as under:
"19 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 (iii-a) 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 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."
A bare perusal of Section 19 of the Hindu Marriage Act, 1955, it is clear that a petition under this Act can be filed before the district court within the local limits of whose ordinary original civil jurisdiction and marriage was solemnized, or the respondent, at the time of the presentation of the petition resides. Admittedly, in the present case, the marriage was solemnized at Sultanpur, hence, the petition under Section 9 of the Hindu Marriage Act, 1955 can be filed before the courts at Sultanpur. Thus, the impugned order dated 13.09.2019 is contrary to provisions of law and is liable to be set-aside.
In view of above discussions, the appeal is allowed and impugned order dated 13.09.2019 passed by Principal Judge, Family court, Sultanpur is set-aside. The case is remanded back to the concerned Principal Judge, Family court, Sultanpur to decide the petition bearing Original Suit No.281 of 2019 (Pawan Kumar Vs. Kanchan), after affording opportunity of hearing to both the parties, in accordance with law.
(Narendra Kumar Johari,J) (Ved Prakash Vaish,J) Order Date :- 28.1.2020 Reena/-