Bombay High Court
Sia Virendra Kamat Nee Sarvada ... vs Mr. Virendra Damodar Kamat on 22 February, 2021
Bench: Nitin W. Sambre
15.125.19 mca.doc
ISM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
MISC. CIVIL APPLICATION NO. 125 OF 2019
Sia Virendra Kamat ....Applicant
Nee Sarvada Sudheer Parulekar
V/s.
Mr. Virendra Damodar Kamat .....Respondent
WITH
MISC. CIVIL APPLICATION NO. 130 OF 2020
Mr. Virendra Damodar Kamat ....Applicant
V/s.
Sia Virendra Kamat ....Respondent
Mr. Pralhad Paranjape a/w Mr. Manish Kelkar for the Applicant in
MCA 125/2019 and for Respondent in MCA 130/2019
Mr. Mayur Khandeparkar a/w Mr. Gandhar Raikar i/b Siddhesh
Borkar for Applicant in MCA 130/2019 and for Respondent in MCA
125/2019
CORAM : NITIN W. SAMBRE, J.
DATE: FEBRUARY 22, 2021.
P.C.:
1] Misc. Civil Application 125 of 2019 is taken out by wife with a
prayer for exercising powers under Section 24 of Code of Civil
Procedure, 1908 [Hereinafter referred to as 'CPC' for the sake of
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brevity] seeking transfer of matrimonial proceedings being Marriage
Petition No. 42 of 2018 initiated by husband in the Court of 1st
Additional Civil Judge Senior Division at Margaon to the Family
Court at Bandra, Mumbai.
2] Misc. Civil Application No. 130 of 2020 is initiated by husband
seeking exercise of powers under Section 24 of the CPC seeking
transfer of matrimonial proceedings being No.A-101360 of 2018
pending on the fle of Family Court, Bandra to the Court at Panaji-
Goa.
3] Facts for deciding both these Applications are as under.
4] Parties to the petition got married on 7 th December 2017 at
Margao in the state of Goa. Marriage was also solemnized by
following Hindu rituals on 12th December 2017 at Sindhudurg, state
of Maharashtra. After matrimonial discord, wife started residing at
her parents home which is at Mumbai whereas Respondent, a
businessman continued to stay in Goa.
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5] Wife, citing ground of hardship and non receipt of
maintenance, sought transfer of the proceedings initiated by the
husband, from Goa to Bandra Family Court whereas husband sought
transfer of proceedings initiated by wife in Bandra Family Court to
Goa Court.
6] Mr. Paranjape, learned counsel appearing for the Applicant
would urge that proceedings pending at Goa at the behest of the
husband are required to be transferred to Mumbai as husband has
asked her to leave the matrimonial home i.e. Goa. According to him
proceedings at Margaon are for annulment of marriage under Article
20 of the Law of Divorce whereas marriage Petition is for divorce
under section 12 1(a) of the Hindu Marriage Act. Shri Paranjape
would urge that Applicant wife is serving in bank at Mumbai. She is
residing with her parents who are senior citizens and that being so, it
will be diffcult for her to travel all the way from Mumbai to Goa on
each date of the proceedings. As such he would urge that the issue of
hardship can be inferred in her favour, from the aforesaid
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background and as such prayed for transfer of the proceedings from
the Court at Goa to Court at Bandra, Mumbai.
7] Learned counsel appearing for the Respondent would urge that
non-Applicant husband was born in Goa and as such is domiciled of
Goa. Section 49 of the Portuguese Civil Code, 1867 as applicable to
Goa, provides that a married woman's domicile shall be as that of
her husband. Hence according to him, in view of aforesaid provisions,
place of domicile of the wife has to be considered as Goa. He would
invite attention of this Court to the declaration of marriage signed by
wife and the offcial Registrar of Marriage which was made in the
offce of Civil Registrar Margaon, Goa, in terms of Article 1079 r/w
1081 of the Portuguese Civil Code. He would urge that neither Hindu
Marriage Act, 1955 nor Family Court Act 1984 have been notifed in
the state of Goa. Only Portuguese Civil Code is applicable to domicile
of Goa. According to him, wife voluntarily left the home of the
Applicant and did not return back, as she has started residing with
her parents in Mumbai. He would urge that annulment of marriage is
based on provisions of Portuguese Civil Code, which proceedings are
at the stage of recording of evidence. As such according to him Court
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at Mumbai will not have any jurisdiction. It is further claimed that
Court of Civil Judge Senior Division passed an order answering
preliminary issue as to jurisdiction of Goa Court to try the
proceedings at the behest of the wife and the same is answered
against wife which is not questioned till this day. As such
submissions of Shri Khandeparkar are, under provisions of Section
24 of the CPC, proceedings can be transferred from Court having no
jurisdiction to Court having jurisdiction and vice versa and that
being so, in the light of aforesaid submissions, Court at Mumbai will
not have any jurisdiction to entertain the proceedings whereas Court
at Goa will have authority to entertain the proceedings. In the
aforesaid background the claim is, prayer of the wife for transfer
needs to be rejected whereas prayer of the husband needs to be
allowed. He would rely on provisions of Article 5 of the Portuguese
Civil Code so as to substantiate his aforesaid contentions. Drawing
support from the Division Bench Judgement in the matter of Monica
Variato Vs. Thomas Variato in LPA No. 31 of 1998 on 19th June 2000.
He would urge that wife has gained domicile of Goa by virtue of
marriage. That being so, at her behest, proceedings cannot be
entertained under the Hindu Marriage Act or under the Family
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Courts Act at Mumbai.
8] As far as prayer of the transfer of the proceedings of the
husband is concerned Shri. Paranjape would oppose his claim in the
backdrop of aforesaid submissions.
9] Considered rival submissions.
10] It is not in dispute that parties to the proceedings are Hindu by
religion. In the aforesaid background, the contention of Shri
Khandeparkar are, judgement in the matter of Monica Variato [cited
supra] expressly provides for jurisdiction with the Court at Goa and
not the Court at Bombay. The said issue was dealt with by the Apex
Court in the matter of Vinisha Jitesh Tolani @Manmeet Laghmani Vs.
Jitesh Kishore Tolani1. The Apex Court in para 13 of the said
judgement has held that in view of applicability of Hindu Marriage
Act throughout the country, it is not open for the parties to canvas
that only Goa Court will have jurisdiction and not the other Courts in
India. The aforesaid judgement in the matter of Monica Variato [cited
1 (2010) 5 SCC 748
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supra] by Mr. Khandeparkar has been duly considered by the apex
Court and has recorded fnding in para 13 as under:
"13........Section 2 of the Hindu Marriage Act extends the
operation of the Act to the whole of India except Jammu
and Kashmir and also applies to Hindus domiciled in the
territories to which the Act extends who are outside the
said territories. In other words, the provisions of the Hindu
Marriage Act, 1955 would be applicable to the petitioner's
case and can be heard by any Court having jurisdiction
within the territories to which it applies".
11] Apart from above, Bombay High Court in the matter of Smt.
Irene Blanch Khera and another Vs. Shri. Glenn John Viay [ MCA
No. 144 of 2018] had an occasion to consider similar situation. This
Court in the aforesaid judgement has already held that courts at Goa
and Mumbai are subordinate to the High Court at Bombay and as
such, this Court in law can order transfer of the proceedings from
state of Goa to Mumbai. Though Mr. Khandeparkar has relied on the
principle of Sub silentio so as to claim that judgement of the Apex
Court has not specifcally dealt with issue raised about ouster of
jurisdiction, however it is diffcult to infer and apply said principle to
the aforesaid case particularly when it is held that Family Court at
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Mumbai will also have jurisdiction to try and decide the proceedings
which are initiated at Goa.
12] In the present case presumption of valid marriage can be
inferred, as both the parties have admitted marriage and
cohabitation. Even if the parties to the Application have lived together
as husband and wife, however fact remains that the marriage which
is solemnized in Goa or in Maharashtra, proceedings for its
annulment/divorce either under provisions of Goa law or Hindu
Marriage Act can be decided by the Court in Mumbai i.e. Family
Court, Bandra. It cannot be said that just because parties are of
domicile of Goa and are governed by Portuguese Civil Code, then
exclusively Goa Court will have jurisdiction as the Court while
dealing with cause brought before it need to adjudicate the claim
having regard to the legal provision/enactment by which such
relationship is governed.
13] Considering the object with which Section 24 is incorporated in
CPC thereby empowering the High Court to order transfer of the
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proceedings within State/its jurisdiction, it cannot be said that this
Court cannot exercise the jurisdiction for ordering the transfer of the
matter from Court at Goa to Court at Bombay merely because the
laws by which the proceedings are regulated has no applicability in
Mumbai. It can be noticed that Section 24 carves out an exception to
the territorial jurisdiction. The convenience and hardship of wife in
the matrimonial proceedings is of importance while considering the
prayer for transfer.
14] If we refer to Section 22 of the Code of Civil Procedure, 1908
same empowers the Court to transfer proceedings which may be
instituted in more than one Court. While exercising jurisdiction
under Section 24, it has to be ensured that the Court to which the
proceedings are ordered to be transferred has jurisdiction to try the
said suit or proceedings.
15] The territorial, pecuniary and jurisdiction over the subject
matter are three independent heads on which jurisdiction of the
Court depends. The objection to the Court's jurisdiction, territorial
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or pecuniary is technical. However, that by itself will not prompt the
Court to infer absence of inherent jurisdiction.
16] In case if Court passes an order in absence of territorial or
pecuniary jurisdiction, it cannot be said that the Court is lacking
inherent jurisdiction. In support of the aforesaid observations, it will
be appropriate to draw support from the judgment of the Apex Court
in the matter of Offcial Trustee, West Bengal and Ors. vs. Sachindra
Nath Chatterjee and Anr2. The relevant observations read thus :
"This jurisdiction of the Court may be qualifed or
restricted by a variety of circumstances. Thus, the
jurisdiction may have to be considered with reference to
place, value and nature of the subject matter. The power
of a tribunal may be exercised within defned territorial
limits. Its cognizance may be restricted to subject-matters
of prescribed value. It may be competent to deal with
controversies of a specifed character, for instance,
testamentary or matrimonial causes, acquisition of lands
for public purposes, record of rights as between landlords
and tenants. This Classifcation into territorial
jurisdiction, pecuniary jurisdiction and jurisdiction of
the subject matter is obviously of a fundamental
character. Given such jurisdiction, we must be careful to
2 AIR 1969 SC 823
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distinguish exercise of jurisdiction from existence of
jurisdiction; 'for fundamentally different are the
consequences of failure to comply with statutory
requirements in the assumption and in the exercise of
jurisdiction. The authority to decide a cause at all not the
decision rendered therein is what makes up jurisdiction;
and when there is jurisdiction of the person and subject
matter, the decision of all other questions arising in the
case is but an exercise of that jurisdiction."
17] Apart from above, observations of the Madhya Pradesh High
Court in the matter of Vishnoo Kumar Budhan and Ors. vs. Liladhar
are worth referring to, which read thus:
"Jurisdiction of the Court depends on 3 circumstances, viz.,
territorial, pecuniary and jurisdiction over the subject matter.
The existence of jurisdiction is different than exercise of
jurisdiction. The territorial jurisdiction or pecuniary
jurisdiction of the Court can be said, to be exercise of
jurisdiction, this is so, because of Section 21(1) and (2) of the
Code of Civil Procedure. An objection that court has no
jurisdiction to try the suit because of the territorial
incompetence of the Court or because of the value of the
subject matter of the suit has to be raised in the Court of frst
instance at the earliest possible opportunity, otherwise no
3 ILR(1993)MP700
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objection is permissible subsequently, unless it is
demonstrated that the exercise of the jurisdiction has resulted
in failure of justice. The objection to the Court's jurisdiction,
territorial or pecuniary, are both technical and does not
amount to absence of inherent jurisdiction. There is no
inherent lack of jurisdiction in the Court if the order is passed
in absence of territorial or pecuniary jurisdiction of the Court.
However, in the third category when the Court has no
jurisdiction upon the subject matter then there is inherent
lack of jurisdiction to decide the matter. The objection of
absence of such jurisdiction can be raised at any stage. The
competence of the Court to try the proceedings as mentioned
under Section 24 therefore has necessarily, reference to
"subject matter of dispute". When there is jurisdiction over the
subject matter, the decision of all other questions in the case
are only exercise of that jurisdiction. Want of territorial
jurisdiction is not one of those defects which renders the
Court's decision a nullity. But when there is want of inherent
jurisdiction, nothing can cure it, neither consent nor waiver
nor estoppel. Want of territorial or pecuniary jurisdiction is not
fatal defect to a suit or proceeding, it is only an irregularity
and is curable. In Hiralal Patni v. Shri Kali Nath, AIR 1962 SC
199, in paragraph 4, the Supreme Court has held :
"It is well settled that the objection as to the local
jurisdiction of a Court does not stand on the same footing
as an objection to the competence of a Court to try a case.
Competence of a Court to try a case goes to the very root
of the jurisdiction, and where it is lacking it is a case of
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inherent lack of jurisdiction. On the other hand an
objection as to the local jurisdiction of a Court can be
waived and this principle has been given a statutory-
recognition by enactments like Section 21 of Code of Civil
Procedure."
18] As such, even if after transfer the Court at Bombay will not
have territorial jurisdiction, still it wont lack inherent jurisdiction to
try proceedings if order under Section 24 is passed. This Court in
the matter of Asha @ Deepa Sharma vs. Ramchandra L. Sharma 4 in
para 10 has held thus :
"10. A close reading of Sections 23 and 24 would make it
clear that Section 23 speaks of forum where an
application for transfer is to be made and Section 24
provides the exercise of power of transfer by the High
Court or for that matter by the District Court. While
exercising the power of transfer under Section 24, it is not
necessary that the suit or proceeding must be transferred
only to the court which has jurisdiction to try that suit or
proceeding. Rather, as provided under Sub-section (5) of
Section 24, while exercising the power of transfer under
Section 24, the High Court or the District Court as the
case may be, may transfer the suit or proceedings to a
court which has no jurisdiction. I have, therefore, no
hesitation in holding that even if the court at Jamnagar
4 1997 BLR Vol. 100 page 55
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has no jurisdiction, if the circumstances so warrant, this
Court may order for transfer of the aforesaid proceedings
to the courts at Jamnagar. However, the question is
whether in the light of the contentions raised by the
learned Counsel for the parties, a case for transfer of the
aforesaid proceedings to the courts at Jamnagar is made
out or not. Before I come to the facts of the case, the
authorities cited by the learned Counsel for parties may
be referred."
19] Bombay High Court in the matter of Mrs. Sweta Milind Hoble
Vs. Mr. Milind Anil Hoble5 and Mr. Milind Anil Hoble Vs. Mrs. Sweta
Milind Hoble6 had an occasion to consider similar issue.
20] Admittedly in the case in hand, parties have married by
following Hindu rituals. Respondent has tried to resist the
jurisdiction under Section 24 of the CPC only on the plea that parties
are domicile of Goa after marriage and as such, it is Portuguese Law
which will govern the relationship. Even if for the sake of argument
same is accepted, that by itself in my opinion will not put an embargo
on the right of a party to claim transfer under Section 24 of the CPC.
5 Misc. Civil Application No. 265 of 2018
6 Misc. Civil Application (ST) No. 32454 of 2018
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The fact remains that High Court of Bombay at Goa is part of the
High Court and the Court at Goa from where proceedings were
sought to be transferred is subordinate to High Court.
21] Similar arguments were canvassed in the case of Vinisha Tolani
as canvassed by the husband in this case. This Court in the said
judgement relied on the judgement of apex Court in the matter of
Subramaniam Swami V. Ramkrishna Hegde 7. It was inferred that
High Court had jurisdiction to transfer the proceedings from Goa to
Bombay.
In the aforesaid judgement of the Apex Court, it has been held
that in case if more than one Court had jurisdiction to try the
proceedings, Plaintiff is a dominus litis.
22] As far as the facts of the present case are concerned, to and fro
travel of wife would be around 1200 Kms and she will be required to
spend minimum 3 days, as two days for travel and one day for
attending the Court proceedings.
7 (1990) 1 SCC 4
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23] Apart from above, it is to be noted that she is serving and
earning for herself and is residing with her parents who are senior
citizens. Applicant is also not getting any maintenance. That being so,
Applicant wife will suffer more hardships than that of non-Applicant
husband.
24] As such in my opinion, case for transfer at the behest of
Applicant wife is made out. As such Misc. Civil Application No. 125 of
2019 stands allowed in terms of prayer clause 20(a) which reads thus:
"(a) The record and proceedings of the case bearing Marriage
Petition No. 42 of 2018 fled by the Respondent in the Court
of Ld. First Additional Civil Judge Senior Division, at
Margaon be transferred to the Family Court at Bandra".
25] Whereas Application preferred by husband being Mic. Civil
Application No. 130 of 2019 stands rejected.
[NITIN W. SAMBRE, J.]
Digitally signed by
IRESH IRESH SIDDHARAM
SIDDHARAM MASHAL
Date: 2021.08.27
MASHAL 17:41:28 +0530
