Bombay High Court
Meena Anilkumar Walambe (Smt.) vs Anilkumar Govind Walambe on 29 January, 1992
Equivalent citations: 1992(1)BOMCR514, (1992)94BOMLR88
JUDGMENT A.A. Cazi, J.
1. This civil revision application is directed against the order dated 25th April, 1991 passed by the Joint Civil Judge, Senior Division, Thane, holding that the Court at Thane had jurisdiction to try the Marriage Petition No. 304 of 1988.
2. The facts, necessary to consider the question that arise for decision, are as follows: The petitioner (original respondent) and the respondent (original petitioner) were married on 16th December, 1973 at Pune. A son Manish was born to them on 1st December, 1974 They resided sometime at Chembur and sometime at Thane. The husband's (respondent's) Parents are staying at Thane. In 1978, both the parties with their son went to U.S.A. On 29th November, 1988 the wife was sent back to India and she stayed with her brother at Nashik. On 13th December, 1988 the respondent came to India and filed Marriage Petition No. 304 of 1988 against the wife for divorce of the ground of cruelty. He filed this petition in the District Court at Thane.
3. The parties are Hindus and it is undisputed that they are governed by the Hindu Marriage Act, 1955. Section 19 of the Hindu Marriage Act reads as follows :
"19. 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 solemnized, 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".
The jurisdiction of the Thane Court was invoked in view of Clause (iii) of section 19. The wife raised a question on the Point of Jurisdiction. The trial Court by its impugned judgment and order dated 25th April, 1991 held that the Court at Thane had jurisdiction to try the petition. Hence, this Civil Revision application.
4. It is urged by Mr. Jahagirdar, the learned Counsel for the petitioner (wife), that it is the Court at Pune which would have jurisdiction in view of Clause (i) of section 19 or it would be the Court at Nashik which would have jurisdiction in view of Clause (ii) of section 19, but it is not the Court at Thane which would get Jurisdiction under Clause (iii) of section 19 as the parties did not last reside together at Thane but they last resided in U.S.A. Now, it may be that the Pune Court or the Nashik Court may be having jurisdiction under Clauses (i) and (ii) of section 19. However, we have to decide the question as to whether the Court at Thane has Jurisdiction under Clause ('iii) of section 19. Now, Clause (iii) of section 19 confers jurisdiction on the Court within the local limits of whose ordinary civil jurisdiction the parties last resided together. Now, It was not the intention of the Hindu Marriage Act to confer jurisdiction on a foreign Court where the parties are governed by the Hindu Marriage Act. A similar provision came up for consideration in , Jagir Kaur v. Jaswant Singh, from the proceedings under section 488 of the Criminal Procedure Code, 1898 and there also the question arose as to the meaning to be given to the term "last resided". It was observed there that "when sub. Section (8) of section 488 prescribing the limits of jurisdiction, speaks of the last residence of a person with his wife, it can only mean his last residence in the territories of India. It cannot obviously mean his residing with her in a foreign Country, for an Act cannot confer Jurisdiction on a foreign Court". If the term "last resided" in section 19 is interpreted in the manner as held by the Supreme Court in this decision then it will be the Thane Court that would have jurisdiction. The trial Court relied upon the decision reported in A.I.R. 1935 Bom. 121, Hartencia De Souza v. John Sebastian De Souza. That was a case were the parties where Christians and Indian Divorce Act was applicable. The parties were married in Bombay in 1919. The parties then went to reside at Nairobi in East Africa. After several trips between Bombay and Nairobi they resided from 1926 to 1933 at Nairobi. In 1933 the wife came back to Bombay and in 1934 she filed a matrimonial suit in the High Court for Judicial separation under the provisions of the Indian Divorce Act. The question before the Court was as to where the parties had last resided together. The answer was that for the purpose of Indian Divorce Act the parties last resided together at Bombay. It was observed "It is clear on the evidence that of all the High Court in India the High Court within whose jurisdiction the parties last resided together is this High Court. The fact that after residing together within the jurisdiction of this Court, they resided together somewhere else outside the jurisdiction of any High Court seems to me to be irrelevant".
5. Mr. Jahagirdar relied upon the decision reported in 64 Bom.L.R. 712, Hariram Dhalumal Karamchandani v. Jasoti Hariram. That was a case where section 19 was clearly not applicable. The question before the Court was as to which provision of law should be resorted to when the conditions of section 19 of the Hindu Marriage Act were not satisfied. In these circumstances, it was held that the provision of section 20 of the Civil Procedure Code should be resorted to for determining the question of jurisdiction. We are not placed in the situation of 64 Bom.L.R. 712. In our Case section 19 does apply and therefore resort to the provision of the Civil Procedure Code for the purpose of jurisdiction does not arise.
6. Hence, Civil Revision Application is dismissed. Stay vacated.
No order as to costs.
Writ to be sent to the trial Court expeditiously.