Revision petition challenging a Family Court order rejecting an application to return an Original Petition for judicial separation on jurisdictional grounds dismissed. The Court held that territorial jurisdiction is a mixed question of fact and law requiring evidence.
Revision petition dismissed. No order as to costs.
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HON'BLE SRI JUSTICE RAMESH RANGANATHAN
CIVIL REVISION PETITION No.3103 of 2008
ORDER:
The order of the Family Court, Secunderabad, in I.A. No.12 of 2008 in O.P. No.413 of 2007 dated 13.05.2008, rejecting the petitioner’s application to return the O.P. for want of jurisdiction, is the subject matter of challenge in this revision petition.
The petitioner is the husband and is the respondent in O.P. No.413 of 2007 filed by his wife seeking judicial separation. In the O.P., the respondent herein contended that she was residing at flat No.409, Daya Kamal Towers, Padmaja Colony, Kharkana, Secunderabad.
Section 19 of the Hindu Marriage Act enables a petition for judicial separation to 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 presentation of the petition, resides or
iii. the parties to the marriage last resided together, or (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition.
The petitioner herein contended before the Family Court, Secunderabad that the respondent in this revision petition (petitioner in the O.P.) was residing at Ameerpet beyond the territorial jurisdiction of the Family Court, Secunderabad; he had got issued a legal notice to her address at Ameerpet on 03.10.2007; and a reply notice was issued by the respondent herein on 10.10.2007, wherein she did not dispute the factum of
her residing at Ameerpet; even, in the counter filed to the application in I.A. No.12 of 2008, the respondent herein had not denied that she was residing at Ameerpet; and, in such circumstances, the Court below ought to return the O.P. for want of jurisdiction.
All that the Court below has observed is that the question of residence of the petitioner, which has a bearing on the jurisdiction of the Court, is a mixed question of fact and law and, at this stage, the Family Court, Secunderabad could not go into the aspect in detail; as this aspect could be ascertained only after evidence is adduced. The Court below also noticed that the documents, relied upon by the petitioner i.e. receipts issued by courier, did not even bear the year and, therefore, held that the petition filed to return the O.P. was not maintainable.
The question of territorial jurisdiction of the Family Court, Secunderabad can always be raised as one of the issues which the Family Court would be required to decide after evidence is adduced. The petitioner herein is seeking return of the O.P. on the ground of lack of territorial jurisdiction for the Family Court, Secunderabad to decide the O.P. In holding that the question of territorial jurisdiction is a question of mixed fact and law, the Family Court, Secunderabad has not committed any grave illegality necessitating interference in proceedings under Article 227 of the Constitution of India. Suffice to observe that the question of territorial jurisdiction shall also be considered by the Family Court, Secunderabad along with the other issues in O.P. No.413 of 2007.
Subject to the above observations, the revision petition fails
and is, accordingly, dismissed. No order as to costs.
RAMESH RANGANATHAN,J Dt:17-06-2010 usd
2 issues framed by the court
Whether a challenge to the Family Court's jurisdiction based on the respondent's residence can be decided at the application stage without evidence.
Whether the Family Court committed grave illegality by holding that territorial jurisdiction is a mixed question of fact and law.
2 provisions across 2 enactments
HUSBAND
WIFE
RAMESH RANGANATHAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
