Narayana Bala Bharathi vs Vishal Gagan
2013 Latest Caselaw 4825 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Decided on: 22.10.2013

+      MAT.APP.(F.C.) 25/2013, C.M. APPL. 7463/2013 (for stay),
       7464/2013 (for calling of records), 11339/2013 (for direction)
       & 12423/2013 (for condonation of delay)

       NARAYANA BALA BHARATHI              ..... Appellant
                   Through: Sh. S.K. Pandey, Advocate.

                         versus

       VISHAL GAGAN                             ..... Respondent

Through: Sh. Sudhir Nandrajog, Sr. Advocate with Sh. Vinod Diwakar and Sh.

Rana Kumar, Advocates.

Respondent in Person.

Sh. R.S. Goswami, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

1. This is an appeal under Section 19 of the Family Courts Act, 1984 (though originally filed as a revision petition under Article 227 of the Constitution read with Section 151 of the CPC, against an order dated 15.01.2013 passed by the Family Court, Saket, New Delhi in HMA No. 192/2012, it was later converted into an appeal). The impugned order pertains to proceedings filed by the husband (Mr. Gagan) against his wife (Ms. Bharathi) under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 for divorce. In those proceedings, an application was filed by Ms. Bharathi under Order

MAT. APPL(F.C.)25/2013 Page 1 VII Rule 11 CPC read with Section 151 for dismissal of the petition as it was claimed that the court in New Delhi had no territorial jurisdiction over the matter. The Family Court, in its order 15.01.2013, dismissed the application, holding that it did have jurisdiction over the proceedings. It is this order that is currently in appeal.

2. A background of the facts is helpful at this stage. The wife is an Indian Police Service officer of the Orissa cadre presently working with the Intelligence Bureau and presently posted in Bangalore. The husband is an Indian Administrative Service Officer of the Kerala Cadre, but was absorbed into the Orissa Cadre after marriage on 29.01.2001. The marriage was solemnized under provisions of the Hindu Marriage Act and registered at the office of the Sub-Registrar in Tumkur, Karnataka.

3. After marriage, both parties started residing together in Bhubaneswar, Orissa. Due to certain events that the husband today alleges, he filed the divorce petition on 05.03.2012. The Family Court through an order dated 07.03.2012 issued summons in this case, which was received by the wife personally in Delhi. However, it is claimed that these proceedings lie outside the territorial jurisdiction of the Family Courts in Delhi under Section 19 of the Hindu Marriage Act.

4. The learned counsel for the wife submits that she was transferred from Delhi to Bangalore in October 2011, and assumed official charge of her duties in the Bangalore office on 16th November,

MAT. APPL(F.C.)25/2013 Page 2 2011. It was argued that she resides in Bangalore till date, and reliance was placed on a certificate dated 19.03.2012 issued by the Ministry of Home Affairs to prove her transfer. It was further argued that while Ms. Bharathi did retain her accommodation in New Delhi at Government Quarter No. 67, Type IV, Nivedita Kunj, Sector-10, R.K. Puram, New Delhi, till 20th March, 2012, this was only for the completion of the academic session of her son who was staying in New Delhi with his maternal grandmother. However, it was argued that she had already left Delhi and was residing in Bangalore. Under these circumstances, learned counsel argued that Section 19 of the Hindu Marriage Act allows the exercise of jurisdiction only in certain limited circumstances, and that the mere holding of accommodation did not amount to residence under Section 19.

5. Rather, it was argued that residence requires the fact of and intention to stay permanently in a particular place. Since the wife had accepted summons while she was only visiting Delhi, and was residing in Bangalore, this exercise of jurisdiction was invalid. Reliance was placed, in the course of making these submissions, on Harshad Chiman Lal Modi v. DLF Universal Ltd. and Anr., (2006) 1 SCC 364 for the proposition that where the Court has no jurisdiction over subject matter by a reason of a limitation imposed by any statute, the Court cannot seize itself of the cause of action and on Jagir Kaur and Anr. v. Jaswant Singh, AIR 1963 SC 1521, for the proposition that „residence‟ means a permanent abode where one has the

MAT. APPL(F.C.)25/2013 Page 3 intention to live and not a mere casual residence for a temporary purpose.

6. Contrary to this, Mr. Sudhir Nandrajog, learned senior counsel for the husband, argued that the wife held accommodation in her name in New Delhi, and accepted summons in New Delhi personally. These facts, it was urged, along with the fact that their son was living in New Delhi along with the wife‟s mother, clearly demonstrate that she had a sufficient link with New Delhi in order to justify the exercise of jurisdiction.

7. The wife‟s submissions were rejected by the Family Court in the impugned order in the following terms:

"10. In the facts and circumstances of the case, I do not see eye to eye with the submissions raised by Learned counsel for the respondent for the reasons mainly that the respondent is residing in a Government accommodation within the jurisdiction of this court. She was served with the process of the court at the said residence. Her child was also living in said accommodation at Delhi alongwith mother of the respondent. It would not be out of place to mention here that the couple belongs to Indian Administrative Service (husband) and Indian Police Service (wife) respectively which can be transferred from time to time from one place to another. Thus, if for a moment it is presumed that this court has no jurisdiction on account of transfer of respondent to (sic) Banglore, what will happen if the respondent again gets transferred from (sic) Banglore after couple of months to some other place. In such circumstances, the petitioner in the present case will continue to follow the respondent at her new place of posting which obviously will cause tremendous prejudice

MAT. APPL(F.C.)25/2013 Page 4 to the rights of the petitioner. Since the respondent has a permanent abode in Delhi and occasionally visits her mother and was served with process of the court at her Delhi address, so, I am of the opinion that the respondent shall be construed to be living within the jurisdiction of this court at the time of filing of the present petition, hence, this court has territorial jurisdiction to deal with the matter."

8. Before addressing this question, it is useful to quote Section 19 of the Hindu Marriage Act:

"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 solemnized, 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

(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."

9. Thus, a divorce petition may be presented where the marriage was solemnized (in this case, the marriage was solemnized in Tumkur, Karnataka, as the marriage certificate - which neither party disputes), where the respondent resides, or where the parties last resided together. In this case, the husband does not claim that he and the wife last resided in New Delhi. Therefore, the only avenue left to

MAT. APPL(F.C.)25/2013 Page 5 establish jurisdiction under Section 19 is to show that the wife resides in New Delhi.

10. Crucially, Section 19 is mandatory in that it prescribes which courts have territorial jurisdiction over petitioners under the Hindu Marriage Act, and only those courts, which are so vested with jurisdiction, may hear such matters. Indeed, a court cannot - for reasons of convenience or otherwise - assume jurisdiction where the Act clearly vests such jurisdiction with another court.

11. On the facts of this case, it is not disputed that the wife received the summons while in Delhi. Neither is it disputed that she held accommodation at the time of presentation of the petition Government Quarter No. 67, Type IV, Nivedita Kunj, Sector-10, R.K. Puram, New Delhi, nor that her son was studying in New Delhi at the time. However, as letter No. 7/C-III/2009 (01)-1248, issued by the Ministry of Home Affairs, Government of India, on 19th March, 2012 notes, Ms.Bharathi had "been transferred from Delhi to Bangalore since October 20, 2011." The residence that is relevant under Section 19 is that of wife, and not of her son or her mother, and thus, the fact - as the husband argues - that they resided in Delhi does not affect the Court‟s determination. As the Supreme Court noted in Bhagwan Dass and Another v. Kamal Abrol and Others, (2005) 11 SCC 66, in considering the scope of „residence‟ under Section 19:

"10.........................The actual residence means the place where the person is residing actually at a given point of time ........................ his actual residence will be the place where he is presently residing and coupled

MAT. APPL(F.C.)25/2013 Page 6 with the fact of animus manedi or an intention to stay for a considerable period.............................."

12. In this case, it is not disputed by the husband that the wife, at the time of presentation of the petition, (which is crucial under the terms of Section 19), had been transferred to Bangalore and was physically residing there. The mere fact that she visited Delhi to meet her son does not translate into residence. Rather, the fact that she was working in Bangalore, and, in the absence of any contrary proof, intended to work in Bangalore for the coming future, clearly points to her residence in Bangalore. Here, the fact that she may have previously resided in Delhi does not have a bearing on the question as long as it is established that as on the date of the presentation of the petition, she had transferred her residence to Bangalore with no animus or intention to return to or stay in New Delhi. The Family Court‟s view that she had a „permanent abode‟ in New Delhi, thus, is an incorrect finding. As the Supreme Court noted in Bhagwan Dass, one who resides in a place must be distinguished from "one who merely works in a certain locality or comes casually for a visit and the place of work or the place of casual visit are different from the place of 'residence'." In order for that distinction to have any meaning on the facts of this case, it must be held that the wife does not reside in New Delhi, but rather in Bangalore.

13. Accordingly, it is the Family Court in Bangalore that possesses the jurisdiction to hear this matter under Section 19. Finally, it is important to note here that the fact that the two parties belong to the IAS and IPS respectively does not - contrary to the holding of the

MAT. APPL(F.C.)25/2013 Page 7 Family Court below - form an additional reason to assume jurisdiction in Delhi merely because of the possibility that they may be transferred in the future. Indeed, such considerations of transfer may affect the legal determination of whether Ms. Bharathi is residing in a particular place at the presentation of the petition, but cannot form an independent reason to assume jurisdiction.

14. In view of the above conclusions, the appeal has to succeed. The parties are hereby directed to, in the first instance, be present before the Family Court in Delhi, which issued the impugned order, on 06.11.2013 to enable the respondent to receive back the pleadings and documents which are part of the proceedings filed by him (HMA No. 192/2012). The proceedings shall thereafter be filed before the concerned Family Court in Bangalore. The parties are directed to be present before it, after due intimation by the petitioner/husband‟s counsel to the wife and her counsel in that regard (with respect to the Court, etc.) on 10.12.2013.

15. The appeal is allowed along with pending applications, but subject to the above directions. There shall, however, be no order as to costs.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) OCTOBER 22, 2013

MAT. APPL(F.C.)25/2013 Page 8