Delhi High Court
Mr Nitin Khetan vs Mrs Ekta Khetan on 25 May, 2023
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 25.05.2023
+ MAT.APP.(F.C.) 98/2022 & CM APPLS. 30689/2022,
32963/2022, 37834/2022, 56225/2022
MR NITIN KHETAN ..... APPELLANT
versus
MRS EKTA KHETAN
,
..... RESPONDENT
Advocates who appeared in this case:
For the Appellant: Mr. Bharat Arora and Mr. Abdul Israr, Advocates.
For the Respondent: Ms. Tanya Kathuria and Mr. Saksham Advocates.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
HON'BLE MR. JUSTICE MANOJ JAIN
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Appellant impugns order dated 08.06.2022, whereby the Family
Court has returned the petition on the ground of territorial jurisdiction.
2. The Family Court has held that in the petition petitioner has not
disclosed that he is residing at Mohali, Chandigarh or that he
alongwith the respondent had shifted to Indirapuram, Ghaziabad in the
year, 2015 and thereafter, the children had shifted to Kanpur, Uttar
Signature Not Verified
Digitally Signed
Signing Date:30.05.2023
11:11:03
Pradesh to the parental home of the respondent with no intention of
returning back to Indirapuram.
3. Learned counsel for appellant submits that the impugned order
has been passed on 08.06.2022 without giving any opportunity to
either party to prove the factual matrix or the place of residence of the
children. He submits that the appellant had categorically stated in the
petition that the children were born and were residing permanently at
Lakshmi Nagar, Delhi. He submits that respondent had filed a written
statement on 07.06.2022, contending that the children had shifted to
Kanpur. He submits that no opportunity was given to the appellant to
controvert the said averment or to the parties to establish the correct
factual matrix. He submits that arguments were heard on 07.06.2022
and the impugned order was passed on the very next day.
4. It is noticed that on 10.12.2021, the Family Court had prima
facie observed that both the children were not residing within the
jurisdiction of this Court and were residing in Uttar Pradesh, however,
no opportunity was given to the appellant to file any document to
show that both the children were residing within the jurisdiction of
this Court. Appellant thereafter filed a petition before this Court
being CM (M) 1027/2021, primarily on the ground that a long date
had been given and appellant had been deprived of the right of
visitation with respect to the children.
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Digitally Signed
Signing Date:30.05.2023
11:11:03
5. Said petition i.e., CM (M) 1027/2021 was decided on
27.05.2022, directing the trial court to take up the matter on the next
date i.e., 02.06.2022 and decide the question of jurisdiction as well as
the application for visitation in accordance with law.
6. Thereafter, the Family Court on 02.06.2022 adjourned the
proceedings, at the request of learned counsel for respondent, to
06.06.2022. On 06.06.2022, parties were referred to the counsellor
but the disputes could not be settled and matter was thereafter listed
on 07.06.2022.
7. On 07.06.2022, respondent filed the written statement and
arguments on jurisdiction were heard and matter was reserved for
orders for 08.06.2022. Subsequently, an application was filed under
Order VII Rule 11 by the respondent on 07.06.2022 at 4.45 P.M.,
which was also put up on the following date.
8. On 08.06.2022, none appeared for the parties and the matter
was kept at 4 P.M. for orders. At 4.45 P.M., the impugned order had
been pronounced holding that the Court does not have jurisdiction.
The proxy counsel on behalf of the petitioner is shown as present.
9. It is an admitted position that no opportunity was given to the
parties to controvert the factual averment of the opposite party with
regard to the permanent place of residence of the children.
Signature Not Verified
Digitally Signed
Signing Date:30.05.2023
11:11:03
10. Petitioner in the petition has categorically stated that the
permanent place of residence of the children was Lakshmi Nagar,
Delhi. On the other hand, respondent has categorically stated that
prior to filing of the petition, the children had permanently shifted to
Kanpur, Uttar Pradesh and as such, they were permanent residents of
Kanpur.
11. With regard to the factual controversy, there is no material on
record as to how the Court has finally concluded it is only Kanpur,
which had the territorial jurisdiction and not Delhi.
12. In view of the fact that an opportunity was not granted to
parties to establish their respective factual averment, we are of the
view that the impugned order is not sustainable and the matter is liable
to be remitted to the Family Court to permit parties to lead evidence
with regard to the domicile of the children.
13. In view of the above, the impugned order is set aside. The
matter is remitted to the Family Court to frame an issue with regard to
jurisdiction and after framing the issue for giving an opportunity of
hearing to the parties to lead evidence.
14. Parties shall appear before the Family Court for directions on
03.06.2023. Appellant shall file replication to the written statement
filed by the respondent on or before the said date. Family Court shall
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Signing Date:30.05.2023
11:11:03
thereafter proceed with the proceedings in accordance with law,
however, expeditiously.
15. Learned counsel for appellant submits that since school summer
holidays are coming, he would like to approach the Family Court to
consider his request for grant of interim visitation/access to the
children.
16. It is clarified that the Family Court shall consider the
application, if moved by the appellant without awaiting the final
outcome on the issue of jurisdiction.
17. The appeal is disposed of in the above terms. It is clarified that
this Court has neither considered, nor commented upon the merits of
the contentions of either party with regard to the jurisdiction of the
Family Court and the permanent place of residence of children. All
rights and contentions of the parties are reserved.
18. Dasti under signature of the Court Master.
SANJEEV SACHDEVA, J
MAY 25, 2023 MANOJ JAIN, J
NA
Signature Not Verified
Digitally Signed
Signing Date:30.05.2023
11:11:03
