Rahul Prakash Gavande vs Pushpa Rahul Gavande
2023 Latest Caselaw 1639 Bom

                                                          990 FCA 50 OF 2021.odt

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                      990 FAMILY COURT APPEAL NO.50 OF 2021

                          RAHUL PRAKASH GAVANDE
                                    VERSUS
                           PUSHPA RAHUL GAVANDE
                                      ...
                 Advocate for Appellants : Mr. Chate Govind
          Advocate for Respondent : Mrs. Jayshri P. Reddy (appointed)

                              CORAM          : MANGESH S. PATIL &
                                               S. G. CHAPALGAONKAR, JJ.

                              DATE           : 17.02.2023

PER COURT :

Heard the learned advocate for the appellant-husband.

2. The petitioner-husband is challenging the judgment and order passed

by the Family Court Aurangabad primarily dismissing his petition on the

ground that it had no jurisdiction.

3. Though the learned Judge of the Family Court has made some attempt

to refer to the merits as well, in our considered view, once having reached a

conclusion that it had no jurisdiction, the only course open for it was to

return the petition or at least should have desisted from making an attempt

to decide the matter on merits as well.

4. Be that as it may, the petitioner's stand that he being the resident of

Aurangabad and the couple having last resided together at Aurnagabad, by

virtue of clause (iii) of Section 19 of the Family Court Act, the Family Court

990 FCA 50 OF 2021.odt at Aurangabad had the jurisdiction is discarded by the learned Judge firstly

on the ground that the averment in regard to the last residence was written

in hand in the petition after the office had raised the objection. Secondly on

the ground that though the appellant was directed to file an affidavit in that

respect he had failed to do so.

5. As has been submitted by the learned advocate for the appellant we

have gone through the record and proceeding of the Family Court but do not

find any such order or direction to him to file an affidavit.

6. Simultaneously, we cannot ignore the fact that the petitioner had

tendered affidavit-in-lieu of examination in chief inter alia mentioning that

in the year 2014 when the couple was residing in Aurangabad that she had

left his company. The learned Judge could have referred to and met this

statement in the examination in chief before jumping to the conclusion that

there was no evidence regarding the couple having last resided together at

Aurangabad.

7. Over and above, the respondent-wife had not appeared in spite of

service of summons and had not controverted the averments in the petition

or had challenged the statements in the examination in chief. It appears

that the learned Judge merely suspected that the stand of the petitioner that

the couple had resided together lastly at Aurangabad was not believable. It

was expected that if the learned Judge was of the considered view based on

the material before her that the statement of the petitioner was liable to be

990 FCA 50 OF 2021.odt discarded, it should been done emphatically instead of drawing inferences

based on surmises and conjectures.

8. We allow the appeal partly. We set aside the judgment and order

under challenge and remand the appellant's petition to the Family Court for

decision afresh including the issue regarding place of suing, by extending an

opportunity to the appellant of leading additional evidence, if he so chooses.

9. Learned advocate Mrs. Reddy was appointed to represent the

respondent and we quantify her fees at Rs. 2000/- (Rs. Two Thousand only)

to be paid through the High Court Legal Aid Services Authority.

 ( S. G. CHAPALGAONKAR, J.)                          (MANGESH S. PATIL, J.)



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