Delhi High Court
Kailash Chandra Sharma vs Smt. Ragini on 12 October, 2018
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 12th October, 2018
+ MAT.APP(F.C.)269/2018
KAILASH CHANDRA SHARMA ..... Appellant
Through Mr. Randhir Singh and Mr. S.K.
Gupta, Advocates
versus
SMT. RAGINI ..... Respondent
Through Mr. Manee Mridul, Mr. Achintya
Dvivedi and Mr. B.P. Pandey,
Advocates
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S. SISTANI, J. (ORAL)
CM APPL 42806/2018 (exemption)
1. Exemption is allowed, subject to all just exception.
2. The application stands disposed of.
MAT.APP(F.C.)269/2018
3. Challenge in this appeal is to the order dated 24.09.2018 passed by the
Family Court, by which a petition under Section 9 of the Hindu
Marriage Act seeking restitution of conjugal rights has been rejected
on the ground of territorial jurisdiction. The impugned order dated
24.09.2018, reads as under:
"Ms. Rajkotia submits that this court has wrongly taken
a view in another previously filed petition, between the present
parties bearing No.794/17, that territorial jurisdiction does not
lie in this court.
However, the present being a petition under section 9
of HMA, the court may assume the jurisdiction for the reason
that respondent in her WS in the previous petition, in para 13
had pleaded that she is ready to join the company of the
petitioner. It is argued that the aforesaid pleading of the
respondent indicate that she is willing to join the company of
the petitioner at Delhi, therefore, the matrimonial home was
Delhi. Ms. Rajkotia, therefore, submits that this court has the
territorial jurisdiction to entertain the petition.
I have given my thoughtful consideration to the
submission made by Ms. Rajkotia. However, the court still
holds the view which it has expressed in order dated
18.07.2018, while allowing the application under Order 7 Rule
11 CPC in HMA No.794/17. This court, therefore, does not
have the territorial jurisdiction.
The petition is rejected under Order 7 Rule 11 CPC.
File be consigned to record room."
4. Learned counsel for the appellant submits that, in fact, both the parties
are interested in residing together, i.e., both the parties wish to seek
restoration of conjugal rights under Section 9 of the Hindu Marriage
Act. It is contended that since the appellant resides in Delhi, he has
invoked the territorial jurisdiction of this Court.
5. The reasons for rejecting the petition finds mentioned in an earlier
order between the same parties dated 18.07.2018. Paras 5, 6, 7 and 8
read as under:
"5. I have heard ld. Counsels for both the parties and with
their assistance, I have perused the record and the
statement of the petitioner.
6. From the statement of the petitioner, which is recorded on
oath, it can be gather that both the parties were working at
different stations and had not made up mind for a
particular place to be their matrimonial home. None of
them had planned to seek transfer to the place of posting
of the other. Respondent visited the husband for the first
time in February 2017, after about 2 months of marriage,
when they both went to Haridwar, Uttarakhand.
Thereafter, respondent visited Delhi in March 2017 to sit
for a competitive exam. Both of these visits can not be
held to be for the purpose of residing or living together.
In her first visit, they had both gone to Haridwar,
Uttarakhand together and the second visit was for taking
an exam.
7. It is respondent's last visit from 27.04.2017 to
03.05.2017, on which petitioner invokes the jurisdiction
of this court. In his statement, petitioner has stated that
she had stayed with him after taking leave from the
office. It is, therefore, not his case that respondent had
shifted base, to start living with him. For a party to
invoke jurisdiction u/sec.19 (iii) of the HMD, it has to be
established that the parties resided together with the
intention of giving the place some semblance of
permanency. Short visit, after taking leave of the office
would only qualify to be a casual visit. This 5-6 days
long visit, which was the first by the respondent to the
house of petitioner would not clothe this court with the
territorial jurisdiction, when no permanency was sought
to be attached to this place of visit. It is not the case of
the petitioner that respondent intended to seek a job in
Delhi or a transfer in Delhi or that she intended to take a
long leave from her office. This court is, therefore, of the
opinion that petitioner can not invoke the round of 'last
resided together' as provided for u/sec.19(iii) of the HMA
to invoke territorial jurisdiction of this court.
8. In the aforesaid facts & circumstances, application u/o 7
Rule 11 CPC is allowed. Present petition is, thus not
maintainable before this court. The same is rejected
exercising power u/o 7 Rule 11 CPC with liberty to the
petitioner to file the same before the court of competent
jurisdiction."
6. At this stage, learned counsel for the appellant submits that the parties
are interested to stay together and the appellant would approach the
respondent and, therefore, no further orders are required to be passed
in this appeal.
7. Accordingly, the appeal is dismissed as not pressed.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J
OCTOBER 12, 2018
pst
