Gujarat High Court
Ranjanben W/O Nayanbhai ... vs Nayanbhai Parshottambhai Parmar on 5 August, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
C/FA/4888/2023 JUDGMENT DATED: 05/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4888 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4888 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Sd/-
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Approved for Reporting Yes No
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RANJANBEN W/O NAYANBHAI PARSHOTTAMBHAI PARMAR D/O
DUDAJIBHAI CHANABHAI CHANDPA
Versus
NAYANBHAI PARSHOTTAMBHAI PARMAR
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Appearance:
APURVA K JANI(7057) for the Appellant(s) No. 1
MR.AKASH J PANDYA(7206) for the Defendant(s) No. 1
MR.AMIT R JOSHI(6682) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
Date : 05/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE) Page 1 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:15:25 IST 2025 NEUTRAL CITATION C/FA/4888/2023 JUDGMENT DATED: 05/08/2025 undefined
1. Present First Appeal under Section 19(1) of the Family Courts Act, 1984 is preferred against judgment and decree dated 22-09-2023 passed in Family Suit No.1709 of 2017 passed by the Family Judge, Family Court, Ahmedabad.
2. By the impugned judgment and decree, the Family Court, Ahmedabad had allowed Family Suit filed by respondent-husband thereby dissolving marriage solemnized between the appellant and respondent by invoking Section-13(1) (i-a) and (i-b) of Hindu Marriage Act.
3. Learned Advocate for the appellant at the outset has submitted that the Family Court has proceeded with suit without there being jurisdiction to try even from the pleadings of husband, marriage was consummated at Rajkot, and even son was born out of wedlock at Rajkot. Therefore, there was no cause of action, which had arisen within territorial jurisdiction of Family Court, Ahmedabad.
4. Learned Advocate for the appellant has submitted that though issue was sought to be raised by the appellant before the Family Court at Ahmedabad, but Family Court, Ahmedabad did not take cognizance and even the issue was not framed. It is submitted that right of the appellant- wife to file written statement was also closed by the Family Court, Page 2 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:15:25 IST 2025 NEUTRAL CITATION C/FA/4888/2023 JUDGMENT DATED: 05/08/2025 undefined Ahmedabad, thereby precluding wife from raising an issue lack of territorial jurisdiction.
5. It is further submitted that upon respondent-husband having filed Family Suit at Family Court, Ahmedabad, the appellant had immediately filed Misc. Civil Application No. 3342 of 2017 before this Court and this Court vide order dated 19-04-2018 had admitted the matter and granted interim relief in terms of Para-8(iii) and therefore, proceedings before Family Court, Ahmedabad were to be stayed. However, during the operation of stay itself, the Family Court has proceeded with the trial and closed right of the appellant to file written statement and framed the issues. It is submitted that in written arguments submitted by the appellant, issue of jurisdiction was very much raised. He has referred to Exh-58; written arguments of the appellant, wherein in the very first para, issue of jurisdiction has been raised.
6. Learned Advocate for the appellant has submitted that even without going into merits of the case, where it was for the Family Court to examine whether it has the jurisdiction. It is submitted that neither in the pleadings of respondent-husband in its application nor in any subsequent documents or evidence, he has lead any evidence to establish that marriage was consummated or that the parties were residing in Page 3 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:15:25 IST 2025 NEUTRAL CITATION C/FA/4888/2023 JUDGMENT DATED: 05/08/2025 undefined Ahmedabad to give jurisdiction to Family Court, Ahmedabad.
7. As against this, learned Advocate for respondent-husband has submitted that the appellant-wife had an opportunity to raise issue of territorial jurisdiction, but she has not raised any such issue and therefore, even while framing issues vide Exh-10, the Family Court has not taken into consideration issue of territorial jurisdiction. Now, after conclusion of the trial, it is not open for the appellant to raise an issue territorial jurisdiction.
8. Learned Advocate has submitted that the appellant-wife was aware of fact that respondent-husband at the time of filing of suit before the Family Court, Ahmedabad, was actually resident of Ahmedabad and that is how, Family Court, Ahmedabad had territorial jurisdiction. Learned Advocate has submitted that the Family Court has in fact relied upon admission of the appellant-wife in her deposition about the fact of admission that they were residing at Ahmedabad and therefore, Family Court, Ahmedabad had territorial jurisdiction.
9. Learned Advocate has thereafter taken this Court to findings given by Family Court by going through evidence of respondent-husband vide Exh-11 and that of his father vide Exh-31 to indicate that false complaint has been filed against respondent-husband and family members, in which Page 4 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:15:25 IST 2025 NEUTRAL CITATION C/FA/4888/2023 JUDGMENT DATED: 05/08/2025 undefined respondent has been acquitted and therefore, filing of false complaint as amounted to cruelty justifying decree of divorce on the basis of cruelty.
10. He has also drawn attention of this Court to deposition of this very witness to support separation from the date being 24-05-2012 since when wife has started residing separately and thereafter, suit was filed in the year 2017, where continuous separation was established.
11. In rejoinder, learned Advocate for the appellant has drawn attention of this Court with regard to findings given by the Family Court on the basis of evidence of wife at Exh-38 and her sister at Exh-50 to indicate that there were sufficient reasons with the appellant to reside separately on account of harassment committed by respondent-husband.
12. Having considered rival submissions of the parties and having perused the documents on record, the facts in brief are that the marriage between the appellant and the respondent was solemnized on 23.05.2010 at Rajkot as per the Hindu rites and rituals. They have been blessed by one son viz. Shivam, out of their wedlock who is at present residing with the appellant. Initially their marriage life was cordial. However, after three month, the appellant started quarreling with the respondent on small issues. Thereafter, the appellant became pregnant. Then, the appellant gave birth to a male child viz. Shivam. After birth of Shivam, Page 5 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:15:25 IST 2025 NEUTRAL CITATION C/FA/4888/2023 JUDGMENT DATED: 05/08/2025 undefined their marriage life was running smoothly for about three months, however, after that the parties started picking up huge quarrel on small grounds. On dated 24.05.2012, the Parties picked up huge quarrel and thereafter, filed complaint before Mahila Police Station being F.I.R. No.102/2012 under Section 498A, 323, 504, 114 of IPC as also under Sections 3 and 4 of Domestic Violence Act. Since then, the appellant has left her matrimonial home along with minor child. In connection with the complaint filed by the appellant, the respondent and his family members were detained and later released on bail. Thereafter, Hon'ble Judicial Magistrate First Class (Traffic), Rajkot acquitted the respondent and his family members by passing an order in Criminal Case No.6293/12 21.06.2017. Thereafter, the respondent with the help of community leaders tried to make compromise. The appellant has filed Cr.M.A. No.370/2014 against the respondent under Section 125 of Cr.P.C. before Hon'ble Principal Judge, Family Court, Rajkot the permanent maintenance, wherein Hon'ble Court has ordered the husband to pay Rs.4,000/- per month to the wife and Rs.1,500/- per month to the minor child. The respondent has been paying said maintenance amount regularly. Further, being the aggrieved and dissatisfied with the order of the in Cr.M.A. No.370/2014, respondent-husband has filed Criminal Revision Application No.531/16 for reducing maintenance amount, which Page 6 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:15:25 IST 2025 NEUTRAL CITATION C/FA/4888/2023 JUDGMENT DATED: 05/08/2025 undefined is pending before Hon'ble High Court. Further, the appellant has filed Cr.M.A. No.374/2016 under Section 125(3) of Cr.P.C. before Hon'ble Family Court for enhancement of maintenance amount, which is pending.
13. The Family Suit was registered on 11-09-2017 in the Family Court at Ahmedabad, where notice came to be issued. However, it is recorded in Para-3 of the impugned judgment and decree that respondent has not appeared for contested the petition and therefore, Application; Exh-9 was moved by respondent-husband to close right of the appellant-wife to file reply. Accordingly, order came to be passed below Application; Exh-9 closing right of the appellant-wife to file reply.
14. At this stage, it would be pertinent to refer to proceedings filed and pending before this Court by appellant-wife being Misc. Civil Application No.3342 of 2017, wherein by order dated 19-04-2018, while issuing Rule and in absence of learned Advocate for respondent-husband, interim relief in terms of Para-8(iii) was granted. Meaning thereby, proceedings before the Family Court were ordered to be stayed. The Court is inclined to accept submissions of learned Advocate for the appellant in absence to contrary that when order below Exh-9 was passed and right to file reply was closed, interim relief granted by order dated 19-04-2018 was in operation and therefore, the Family Court could not Page 7 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:15:25 IST 2025 NEUTRAL CITATION C/FA/4888/2023 JUDGMENT DATED: 05/08/2025 undefined have proceeded with Application; Exh-9 or passing order therein.
15. It is pertinent to note that interim relief granted by this Court by order dated 19-04-2018 came to be vacated on final disposal of Misc. Civil Application No.3342 of 2017 by its order dated 10-10-2019.
16. The Court has perused order dated 10-10-2019, which was proceedings filed by appellant-wife for transferring Family Suit from Ahmedabad to Rajkot on the ground that the appellant had to travel approximately 300 kms. along with her minor son that being only ground and for the reasons recorded therein, the Court had dismissed application and directed respondent-husband to pay traveling expenses.
17. In the opinion of this Court, when right to file reply was closed by virtue of order below Exh-9, the appellant was precluded from raising an issue of territorial jurisdiction. However, the Court has perused Exh-58, which is written submissions of appellant-wife, wherein in Para-1 itself, issue of territorial jurisdiction is raised. Relevant portion of Para-1 would read as under:
"The applicant in this matter has filed the present petition under Section 13(1) for obtaining a divorce against the respondent. The marriage between the parties in this case was solemnized at Rajkot, and we have also resided together as husband and wife at Rajkot. Furthermore, the applicant deserted the respondent at Rajkot. Despite this, the present petition has been filed at Ahmedabad, which is, on the face of it, liable to be dismissed......"Page 8 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:15:25 IST 2025
NEUTRAL CITATION C/FA/4888/2023 JUDGMENT DATED: 05/08/2025 undefined
18. The Court is of the view that regardless of the contention being raised by either party, issue of jurisdiction has to be examined by the Court itself. Section-19 of Hindu Marriage Act, 1955 provides for the Court to which petition shall be presented and every petition under Hindu Marriage Act has to be presented to the District Court (Family Court) within the local limits of whose ordinary original civil jurisdiction:- (i) the marriage was solemnized, (ii) the respondent, at the time of the presentation of the petition, resides, (iii) the parties to the marriage last resided together, (iiia) in case the wife being the petitioner, where she is residing on the date of presentation of the petition or the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at relevant time, residing outside the territories to which the Hindu Marriage Act extends.
19. In the opinion of the Court, the Family Court before conferring itself jurisdiction to try Family Suit, is obliged to take into consideration territorial jurisdiction. Exh-1 being plaint on behalf of respondent-husband has categorically stated that marriage was solemnized at Rajkot on 23-05- 2010 and they resided as husband and wife, where son was born, who is presently residing with wife. For conferring territorial jurisdiction, in Para-12 of the plaint, respondent-husband has stated as under: Page 9 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:15:25 IST 2025
NEUTRAL CITATION C/FA/4888/2023 JUDGMENT DATED: 05/08/2025 undefined "I, the applicant, has been residing at the aforementioned address for the past four years and are employed at Katariya Automobiles, Sarkhej Highway, Bavla Road, Ahmedabad. The respondent in this matter has been living separately from the applicant since the year 2012. Therefore, this Hon'ble Court has the jurisdiction to entertain and try the present petition."
20. In the entire plaint or in the deposition by way of affidavit, there is nothing to indicate that respondent-husband and appellant-wife had resided together or cohabited as husband and wife, so as to invoke any of clauses of Section 19 of the Hindu Marriage Act.
21. Argument advanced by learned Advocate for respondent regarding admission by wife of residing together with husband at Ahmedabad, closure look at evidence recorded and appreciated by the Family Court, Ahmedabad in Para-13. While appreciating evidence of appellant-wife, the Family Court has recorded that "it is also admitted that petitioner (husband) has been resided at Ahmedabad, when she had filed above mentioned case", is only indicative of the fact that admission made by appellant was only to extent of respondent-husband was residing at Ahmedabad at the time, when proceedings under Section-125 of Cr.P.C. were initiated. However, residing of husband at Ahmedabad would not confer any jurisdiction to the Family Court, Ahmedabad, as the same would not fall in any of the clauses as prescribed under Section-19 of Page 10 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:15:25 IST 2025 NEUTRAL CITATION C/FA/4888/2023 JUDGMENT DATED: 05/08/2025 undefined Hindu Marriage Act, 1955.
22. In the opinion of this Court, the Family Court, Ahmedabad had no jurisdiction to try the Family Suit, as no cause of action had fallen within its territorial jurisdiction and that the appellant was precluded from raising issue of territorial jurisdiction by closing her right to file reply below Application; Exh-9, while stay of this Court on further proceedings were still operational.
23. In that view of the matter, impugned judgment and decree dated 22-09-2023 passed in Family Suit No.1709 of 2017 passed by the Family Judge, Family Court, Ahmedabad is rendered without jurisdiction and will have therefore, to be quashed and set aside.
24. As a consequence of quashing and setting aside of impugned judgment and decree to be without jurisdiction, the Family Suit will necessarily have to be transferred to the Court with proper jurisdiction. From pleadings, which are perused by this Court, it appears that Rajkot Family Court will be the Court of proper jurisdiction. The Court would have directed respondent-husband to the Court of appropriate jurisdiction. However, considering nature of dispute involved and time that has already lapsed, the Court deems it fit to direct the Family Court at Ahmedabad to transfer record of Family Suit No.1709 of 2017 to the Page 11 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:15:25 IST 2025 NEUTRAL CITATION C/FA/4888/2023 JUDGMENT DATED: 05/08/2025 undefined Family Court at Rajkot. Such process to be undertaken within a period of four weeks from the date of receipt of writ of this Court. Upon such transfer, the Rajkot Family Court with appropriate jurisdiction, shall register Family Suit and undertake proceedings from stage of filing of written statements on behalf of appellant-wife.
25. In view of the aforesaid, the present appeal stands partly allowed to the aforesaid extent. Direct service is permitted.
26. In view of order passed in the main appeal, Civil Application No.1 of 2023 stands disposed of accordingly.
(A.Y. KOGJE, J) (NSSG,J) PARESH SOMPURA Page 12 of 12 Uploaded by MR PARESH J SOMPURA(HC00451) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:15:25 IST 2025