Mrs. Nisha Raj vs Dr. Paul Mohan Raj

A.S. Bopanna, J.—The petitioner is assailing the order dated 09.12.2011 passed in MC No. 787/2007, which is impugned at Annexure-A to the petition. The undisputed facts are that the petitioner herein is the wife of the respondent and they have two major children. At this juncture, due to certain marital discord, the respondent has filed the petition in MC No. 787/2007 u/s 10(1)(ix) and (x) of the Indian Divorce Act before the Family Court at Bangalore. The petitioner herein has filed objection statement to that petition. In addition, the petitioner has also filed an application under Order 14 Rule (2) of CPC praying that the maintainability of the petition be considered as a preliminary issue. The application has been rejected by the impugned order.

The contention on behalf of the petitioner is that the marriage of the petitioner and the respondent had not taken place in Bangalore nor have they last resided in Bangalore, so as to enable the respondent to present the petition before the Family Court at Bangalore as late as in the year 2007. It is contended that the petitioner and the respondent had resided in Dehra Dun as husband and wife. The respondent though moved to Bangalore, he had come alone and the petitioner had not joined him to set up marital home. It is therefore contended that Court below was not justified in its conclusion.

The learned counsel for the respondent would however seek to sustain the order passed by the Court below. It is contended that the petitioner and the respondent had resided in different places like Delhi, Jabalpur Missouri and lastly they had resided in Bangalore and in that circumstance, the respondent had instituted the petition before the Family Court at Bangalore. It is contended that the Family Court after referring to these aspects of the matter has also taken note of the documentary evidence, which was available in the form of ration card and has thereafter arrived at the conclusion that the Family Court at Bangalore has jurisdiction. In such circumstance, when the application has been rejected by the Court below after taking into consideration all aspects of the matter, the same does not call for interference.

In the light of the rival contentions, the position of law that the petition of the present nature could be instituted in the Court of the District Judge in whose jurisdiction the marriage was solemnized or where the husband and wife resided or last resided together cannot be in dispute.

It is in that circumstance the question arises as to whether the present petition would be maintainable before the Family Court at Bangalore. It is no doubt true that the Family Court has referred to the ration card which had been produced before it. Though the Court below has indicated that the date of issue is not clear it is contended on behalf of the petitioner that it was issued in the year 1993 and it would not be of relevance to the position in the year 2007.

Be that as it may what is otherwise to be taken into consideration is as to whether the petitioner and the respondent had last resided in Bangalore before the petition was filed. The petitioner contends that she is an employee of the Ministry of Defence and at no point of time, she had worked in Bangalore under the said avocation. That apart, it is pointed out that throughout she was a resident of Dehra Dun. There is no contrary material to controvert the same. In the light of the said contention, reliance is also placed on the affidavit filed by the children wherein it is stated by them that their parents had not resided together in Bangalore. In addition to these aspects, what is necessary to the noticed is that from the very averments made in paragraph 18 of the petition filed by the respondent herein before the Family Court, it is seen that the respondent herein has indicated that the parties have lived separately ever since 30.06.2004. If the said admitted averment of the respondent is kept in view, the ration card relied upon for an earlier period would be of no consequence.

That apart, the instant petition, filed is in the year 2007 when the petitioner before the Court below himself contended that they have been residing separately from the year 2004 and the petitioner herein contends that she was an employee of Ministry of Defence and that she is residing in Dehra Dun, certainly it cannot be accepted that the petitioner and the respondent had last resided together at Bangalore as husband and wife in the year 2007 immediately prior to the presentation of the petition. In that view I am of the opinion that the Court below was not justified in rejecting the application. Consequently the order dated 09.12.2011 is set aside. The application filed before the Court below is allowed holding that the Family Court at Bangalore does not have jurisdiction to entertain the petition in MC No. 787/2007. The Family Court is accordingly directed to return papers to the petitioner to present the same before the Court having jurisdiction to entertain the same.

The petition stands disposed of in the above terms.