Hara Kumar Rath vs Diptimayee Mishra And Another

Arindam Sinha, J

Mr. Rath, learned advocate appears on behalf of applicant/appellant-husband. He submits, his client is aggrieved by order dated 19th  October, 2023 of the Family Court refusing to admit his client’s civil proceeding for dissolution of the marriage on ground of lack of jurisdiction. The appeal was presented on reported delay of nine days. The delay be condoned and the appeal admitted.

Mr. Mohanty, learned advocate appears on behalf of respondent-wife and in fairness does not oppose the application.

We have perused the application and accept the causes shown. The delay is condoned and the appeal admitted. The application is disposed of.

Mr. Rath submits, the marriage was solemnized on 18th May, 2011 as per Hindu rites and customs at Dhenkanal. The marriage happened within local limits of the district Court at Dhenkanal. Under section 7 in Family Courts Act, 1984 the Family Court has jurisdiction. First sentence from para-3.i in impugned order is reproduced below.

“3.i.  In  the  plaint,  it  is  averred  that  the  petitioner married the respondent on 18.05.2011as per Hindu rites and customs at Dhenkanal.”

He relies  on clause-(i) under section 19 in Hindu Marriage Act, 1955. He submits, place where marriage was solemnized is a jurisdictional fact. The Family Court erred in not appreciating the fact. No other fact discussed in impugned order can overcome the jurisdictional fact. He adds, his client filed for divorce first before the Family Court and thereafter respondent-wife filed in the Court at Bengaluru.

Mr. Mohanty submits, civil proceeding for dissolution of marriage was filed by his client before the competent Court at Bengaluru. Appellant-husband is contesting the case, at present referred to mediation. He submits further, his client filed the civil proceeding in the Court at Bengaluru bona fide as she had not till then been noticed in the civil proceeding instituted by respondent-husband in the Family Court at Dhenkanal. These and other facts were considered by said Court. Also considered were authorities on interpretation of term ‘jurisdiction’. As such, interference in appeal is not warranted.

There can be no doubt that place where a marriage was solemnized is a jurisdictional fact giving jurisdiction to the district Court, within the local limits of whose ordinary original civil jurisdiction, it was done. Clearly, the Family Court has jurisdiction to receive try and determine the civil proceeding instituted by appellant-husband for dissolution of the marriage. The authorities relied upon by the Family Court to hold otherwise are not applicable as none of them deal with jurisdiction based statutory provision on jurisdictional fact. In Jyotish Prokas Vs. Bagla Kanta reported in AIR 1922 Calcutta 274 view taken was on jurisdiction in context of nature of cause of action and relief sought. Brij Kishore Singh vrs. Smt. Nutan Singh, reported in 1995 Criminal Law Journal 1486 is view taken on jurisdiction in context of limits imposed on power of Court to hear and determine issues between parties seeking to avail themselves of its process by reference to factors including, inter alia, subject matter of the issue. Judgment of the Supreme Court in Foreshore Co-operative Housing Society Ltd. vrs. Praveen D Desai (D) Their Lrs. & Others reported in (2015) 6 SCC 412 is interpretation of term ‘jurisdiction’ as an expression used in a variety of senses as draws colour from its context. Expanded meaning was given to the term rather than a conventional and narrow one.

Impugned order is reversed in appeal. The Family Court will proceed to try and determine the civil proceeding. We observe that reasons of geography may cause respondent-wife to be advised to move the Supreme Court for transfer of the case to the Court at Bengaluru.

The appeal is allowed and disposed of.

..…………………………..