Allahabad High Court
Devanand Yadav vs Asha Malviya on 7 January, 2025
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:3310-DB
Court No. - 29
Case :- FIRST APPEAL No. - 83 of 2024
Appellant :- Devanand Yadav
Respondent :- Asha Malviya
Counsel for Appellant :- Ajay Kumar Gautam
Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Donadi Ramesh,J.
1. This appeal is directed against the judgment and order passed by the Additional Principal Judge, Family Court, Azamgarh, dated 24.11.2023; whereby application filed by the appellant under Section 13 of the Hindu Marriage Act, 1955, for dissolution of marriage has been rejected.
2. The appeal has been entertained and notices were directed to be issued to the opposite party. Though steps were taken to effect service of notice by registered/speed post, but the notices are treated to have been served in view of the recital in the report of the postal authority, as per which, the respondent has refused to accept notices. Even before the trial court the opposite party had not appeared in the matter. This Court on 8.7.2024 has already held service of notice on the opposite party to be sufficient. In that view of the matter, we proceed to consider the appeal on merits by treating the service of notice on the opposite party to be sufficient.
3. In petition under Section 13 of the Hindu Marriage Act, the appellant has alleged that he came in contact with the opposite party while working in the Railway Security Force, on Facebook. Initial introduction turned into mutual admiration between the parties leading to their solemnizing marriage on 5.7.2018 at the Arya Samaj Temple, Krishna Nagar, Prayag. Appellant has then asserted that the opposite party has not been fulfilling her marital obligations and only visited him for few days to take most of the salary amount and refused to perform her marital obligation. Such proceedings were instituted before the Family Court at Azamgarh. It is also asserted in the proceedings instituted by the appellant that the respondent without his consent had aborted pregnancy and has extended threats and torture to him.
4. The proceedings were registered before the Family Court and notices were issued to the opposite party. The Family Court found the notices to have been duly served upon the opposite party and since none appeared on her behalf, the proceedings were directed to be continued ex-parte as against the wife. Family Court has, however, rejected the application on following twin grounds:-
(i) Family Court at Azamgarh has no jurisdiction to entertain the petition; and
(ii) Appellant has not been able to substantiate that any marriage was solemnized between him and opposite party as per Hindu Customs and Traditions.
5. Counsel for the appellant argues that the finding on both counts is perverse and since the appellant and the opposite party lived as husband and wife at Azamgarh, as such, the Family Court at Azamgarh had the territorial jurisdiction to entertain the petition for dissolution of marriage. Section 19 of the Hindu Marriage Act specifies the Court which would have jurisdiction to entertain a petition for dissolution of marriage. Section 19 reads as under:-
"19. Court to which petition shall be presented.-
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 solemnised, 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
(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, 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."
6. Family Court has treated the case of the appellant to be covered under sub-clause (i) of Section 19 as per which the place where such petition could be presented is the place where marriage was solemnized. Marriage was solemnized at Allahabad and consequently proceedings under Section 13 were not maintainable before the Family Court at Azamgarh. This finding is emphatically challenged on the ground that the parties to the marriage last resided together at Azamgarh and, therefore, the claim of the appellant would be covered under sub-clause (iii) of Section 19 and the petition before the Family Court at Azamgarh was maintainable.
7. We have considered the aforesaid submissions of counsel for the appellant with reference to the pleadings and the case of the appellant as per records. The plaint instituted under Section 13 has been perused by us with the assistance of counsel for the appellant. In the entire plaint there is no pleading to the effect that the appellant and the opposite party have lived together as husband and wife lastly at Azamgarh. Unless it is specifically pleaded that parties to the marriage last resided at Azamgarh, the argument that Family Court at Azamgarh has no jurisdiction to entertain the petition cannot be countenanced. In the absence of any specific pleading made to bring the case of the appellant within the clutches of Section 19 (iii), the court below was clearly justified in refusing to entertain the petition on the ground of lack of territorial jurisdiction. The only pleading made in the petition under Section 13 is to the effect that the marriage between the parties was solemnized at Allahabad.
8. Once that be so, the cause of the appellant cannot be covered under Section 19(iii) of the Act of 1955. The Family Court, therefore, was clearly justified in refusing to entertain the application of the appellant under Section 13 of the Hindu Marriage Act for dissolution of marriage on the ground of lack of territorial jurisdiction. The finding in that regard, therefore, is not shown to be erroneous or perverse so as to call for any interference in the present appeal.
9. So far as the finding with regard to marital status of the appellant is concerned, we feel that once the Court at Azamgarh had no territorial jurisdiction to entertain the issue, any further finding with regard to marital status of the appellant was wholly uncalled for and is liable to be overlooked.
10. In view of the deliberations and discussions held above, we refuse to entertain the present appeal in the light of the observation made above. The appeal is, consequently, dismissed.
11. Dismissal of this appeal, however, would not preclude the appellant from instituting fresh proceedings in respect of dissolution of marriage before the competent forum.
Order Date :- 7.1.2025
Ranjeet Sahu
