Gujarat High Court
Ranjanben W/O Nayanbhai ... vs Nayanbhai Parshottambhai Parmar on 5 August, 2025
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
C/FA/4888/2023 JUDGMENT DATED: 05/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4888 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 4888 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA Sd/-
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Approved for Reporting Yes No
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RANJANBEN W/O NAYANBHAI PARSHOTTAMBHAI PARMAR D/O
DUDAJIBHAI CHANABHAI CHANDPA
Versus
NAYANBHAI PARSHOTTAMBHAI PARMAR
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Appearance:
APURVA K JANI(7057) for the Appellant(s) No. 1
MR.AKASH J PANDYA(7206) for the Defendant(s) No. 1
MR.AMIT R JOSHI(6682) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
Date : 05/08/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
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1. Present First Appeal under Section 19(1) of the Family Courts Act,
1984 is preferred against judgment and decree dated 22-09-2023 passed
in Family Suit No.1709 of 2017 passed by the Family Judge, Family
Court, Ahmedabad.
2. By the impugned judgment and decree, the Family Court,
Ahmedabad had allowed Family Suit filed by respondent-husband thereby
dissolving marriage solemnized between the appellant and respondent by
invoking Section-13(1) (i-a) and (i-b) of Hindu Marriage Act.
3. Learned Advocate for the appellant at the outset has submitted that
the Family Court has proceeded with suit without there being jurisdiction
to try even from the pleadings of husband, marriage was consummated at
Rajkot, and even son was born out of wedlock at Rajkot. Therefore, there
was no cause of action, which had arisen within territorial jurisdiction of
Family Court, Ahmedabad.
4. Learned Advocate for the appellant has submitted that though issue
was sought to be raised by the appellant before the Family Court at
Ahmedabad, but Family Court, Ahmedabad did not take cognizance and
even the issue was not framed. It is submitted that right of the appellant-
wife to file written statement was also closed by the Family Court,
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Ahmedabad, thereby precluding wife from raising an issue lack of
territorial jurisdiction.
5. It is further submitted that upon respondent-husband having filed
Family Suit at Family Court, Ahmedabad, the appellant had immediately
filed Misc. Civil Application No. 3342 of 2017 before this Court and this
Court vide order dated 19-04-2018 had admitted the matter and granted
interim relief in terms of Para-8(iii) and therefore, proceedings before
Family Court, Ahmedabad were to be stayed. However, during the
operation of stay itself, the Family Court has proceeded with the trial
and closed right of the appellant to file written statement and framed the
issues. It is submitted that in written arguments submitted by the
appellant, issue of jurisdiction was very much raised. He has referred to
Exh-58; written arguments of the appellant, wherein in the very first
para, issue of jurisdiction has been raised.
6. Learned Advocate for the appellant has submitted that even
without going into merits of the case, where it was for the Family Court
to examine whether it has the jurisdiction. It is submitted that neither in
the pleadings of respondent-husband in its application nor in any
subsequent documents or evidence, he has lead any evidence to establish
that marriage was consummated or that the parties were residing in
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Ahmedabad to give jurisdiction to Family Court, Ahmedabad.
7. As against this, learned Advocate for respondent-husband has
submitted that the appellant-wife had an opportunity to raise issue of
territorial jurisdiction, but she has not raised any such issue and
therefore, even while framing issues vide Exh-10, the Family Court has
not taken into consideration issue of territorial jurisdiction. Now, after
conclusion of the trial, it is not open for the appellant to raise an issue
territorial jurisdiction.
8. Learned Advocate has submitted that the appellant-wife was aware
of fact that respondent-husband at the time of filing of suit before the
Family Court, Ahmedabad, was actually resident of Ahmedabad and that
is how, Family Court, Ahmedabad had territorial jurisdiction. Learned
Advocate has submitted that the Family Court has in fact relied upon
admission of the appellant-wife in her deposition about the fact of
admission that they were residing at Ahmedabad and therefore, Family
Court, Ahmedabad had territorial jurisdiction.
9. Learned Advocate has thereafter taken this Court to findings given
by Family Court by going through evidence of respondent-husband vide
Exh-11 and that of his father vide Exh-31 to indicate that false complaint
has been filed against respondent-husband and family members, in which
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respondent has been acquitted and therefore, filing of false complaint as
amounted to cruelty justifying decree of divorce on the basis of cruelty.
10. He has also drawn attention of this Court to deposition of this very
witness to support separation from the date being 24-05-2012 since when
wife has started residing separately and thereafter, suit was filed in the
year 2017, where continuous separation was established.
11. In rejoinder, learned Advocate for the appellant has drawn
attention of this Court with regard to findings given by the Family Court
on the basis of evidence of wife at Exh-38 and her sister at Exh-50 to
indicate that there were sufficient reasons with the appellant to reside
separately on account of harassment committed by respondent-husband.
12. Having considered rival submissions of the parties and having
perused the documents on record, the facts in brief are that the marriage
between the appellant and the respondent was solemnized on 23.05.2010
at Rajkot as per the Hindu rites and rituals. They have been blessed by
one son viz. Shivam, out of their wedlock who is at present residing with
the appellant. Initially their marriage life was cordial. However, after
three month, the appellant started quarreling with the respondent on
small issues. Thereafter, the appellant became pregnant. Then, the
appellant gave birth to a male child viz. Shivam. After birth of Shivam,
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their marriage life was running smoothly for about three months,
however, after that the parties started picking up huge quarrel on small
grounds. On dated 24.05.2012, the Parties picked up huge quarrel and
thereafter, filed complaint before Mahila Police Station being F.I.R.
No.102/2012 under Section 498A, 323, 504, 114 of IPC as also under
Sections 3 and 4 of Domestic Violence Act. Since then, the appellant has
left her matrimonial home along with minor child. In connection with the
complaint filed by the appellant, the respondent and his family members
were detained and later released on bail. Thereafter, Hon'ble Judicial
Magistrate First Class (Traffic), Rajkot acquitted the respondent and his
family members by passing an order in Criminal Case No.6293/12
21.06.2017. Thereafter, the respondent with the help of community
leaders tried to make compromise. The appellant has filed Cr.M.A.
No.370/2014 against the respondent under Section 125 of Cr.P.C. before
Hon'ble Principal Judge, Family Court, Rajkot the permanent
maintenance, wherein Hon'ble Court has ordered the husband to pay
Rs.4,000/- per month to the wife and Rs.1,500/- per month to the minor
child. The respondent has been paying said maintenance amount
regularly. Further, being the aggrieved and dissatisfied with the order of
the in Cr.M.A. No.370/2014, respondent-husband has filed Criminal
Revision Application No.531/16 for reducing maintenance amount, which
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is pending before Hon'ble High Court. Further, the appellant has filed
Cr.M.A. No.374/2016 under Section 125(3) of Cr.P.C. before Hon'ble
Family Court for enhancement of maintenance amount, which is pending.
13. The Family Suit was registered on 11-09-2017 in the Family Court
at Ahmedabad, where notice came to be issued. However, it is recorded
in Para-3 of the impugned judgment and decree that respondent has not
appeared for contested the petition and therefore, Application; Exh-9 was
moved by respondent-husband to close right of the appellant-wife to file
reply. Accordingly, order came to be passed below Application; Exh-9
closing right of the appellant-wife to file reply.
14. At this stage, it would be pertinent to refer to proceedings filed
and pending before this Court by appellant-wife being Misc. Civil
Application No.3342 of 2017, wherein by order dated 19-04-2018, while
issuing Rule and in absence of learned Advocate for respondent-husband,
interim relief in terms of Para-8(iii) was granted. Meaning thereby,
proceedings before the Family Court were ordered to be stayed. The
Court is inclined to accept submissions of learned Advocate for the
appellant in absence to contrary that when order below Exh-9 was passed
and right to file reply was closed, interim relief granted by order dated
19-04-2018 was in operation and therefore, the Family Court could not
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have proceeded with Application; Exh-9 or passing order therein.
15. It is pertinent to note that interim relief granted by this Court by
order dated 19-04-2018 came to be vacated on final disposal of Misc.
Civil Application No.3342 of 2017 by its order dated 10-10-2019.
16. The Court has perused order dated 10-10-2019, which was
proceedings filed by appellant-wife for transferring Family Suit from
Ahmedabad to Rajkot on the ground that the appellant had to travel
approximately 300 kms. along with her minor son that being only ground
and for the reasons recorded therein, the Court had dismissed application
and directed respondent-husband to pay traveling expenses.
17. In the opinion of this Court, when right to file reply was closed by
virtue of order below Exh-9, the appellant was precluded from raising an
issue of territorial jurisdiction. However, the Court has perused Exh-58,
which is written submissions of appellant-wife, wherein in Para-1 itself,
issue of territorial jurisdiction is raised. Relevant portion of Para-1 would
read as under:
"The applicant in this matter has filed the present petition under
Section 13(1) for obtaining a divorce against the respondent. The
marriage between the parties in this case was solemnized at Rajkot,
and we have also resided together as husband and wife at Rajkot.
Furthermore, the applicant deserted the respondent at Rajkot.
Despite this, the present petition has been filed at Ahmedabad,
which is, on the face of it, liable to be dismissed......"
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18. The Court is of the view that regardless of the contention being
raised by either party, issue of jurisdiction has to be examined by the
Court itself. Section-19 of Hindu Marriage Act, 1955 provides for the
Court to which petition shall be presented and every petition under
Hindu Marriage Act has to be presented to the District Court (Family
Court) within the local limits of whose ordinary original civil
jurisdiction:- (i) the marriage was solemnized, (ii) the respondent, at the
time of the presentation of the petition, resides, (iii) the parties to the
marriage last resided together, (iiia) in case the wife being the
petitioner, where she is residing on the date of presentation of the
petition or the petitioner is residing at the time of the presentation of the
petition, in a case where the respondent is at relevant time, residing
outside the territories to which the Hindu Marriage Act extends.
19. In the opinion of the Court, the Family Court before conferring
itself jurisdiction to try Family Suit, is obliged to take into consideration
territorial jurisdiction. Exh-1 being plaint on behalf of respondent-husband
has categorically stated that marriage was solemnized at Rajkot on 23-05-
2010 and they resided as husband and wife, where son was born, who is
presently residing with wife. For conferring territorial jurisdiction, in
Para-12 of the plaint, respondent-husband has stated as under:
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"I, the applicant, has been residing at the aforementioned address
for the past four years and are employed at Katariya Automobiles,
Sarkhej Highway, Bavla Road, Ahmedabad. The respondent in this
matter has been living separately from the applicant since the year
2012. Therefore, this Hon'ble Court has the jurisdiction to entertain
and try the present petition."
20. In the entire plaint or in the deposition by way of affidavit, there
is nothing to indicate that respondent-husband and appellant-wife had
resided together or cohabited as husband and wife, so as to invoke any
of clauses of Section 19 of the Hindu Marriage Act.
21. Argument advanced by learned Advocate for respondent regarding
admission by wife of residing together with husband at Ahmedabad,
closure look at evidence recorded and appreciated by the Family Court,
Ahmedabad in Para-13. While appreciating evidence of appellant-wife, the
Family Court has recorded that "it is also admitted that petitioner
(husband) has been resided at Ahmedabad, when she had filed above
mentioned case", is only indicative of the fact that admission made by
appellant was only to extent of respondent-husband was residing at
Ahmedabad at the time, when proceedings under Section-125 of Cr.P.C.
were initiated. However, residing of husband at Ahmedabad would not
confer any jurisdiction to the Family Court, Ahmedabad, as the same
would not fall in any of the clauses as prescribed under Section-19 of
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Hindu Marriage Act, 1955.
22. In the opinion of this Court, the Family Court, Ahmedabad had no
jurisdiction to try the Family Suit, as no cause of action had fallen within
its territorial jurisdiction and that the appellant was precluded from
raising issue of territorial jurisdiction by closing her right to file reply
below Application; Exh-9, while stay of this Court on further proceedings
were still operational.
23. In that view of the matter, impugned judgment and decree dated
22-09-2023 passed in Family Suit No.1709 of 2017 passed by the Family
Judge, Family Court, Ahmedabad is rendered without jurisdiction and
will have therefore, to be quashed and set aside.
24. As a consequence of quashing and setting aside of impugned
judgment and decree to be without jurisdiction, the Family Suit will
necessarily have to be transferred to the Court with proper jurisdiction.
From pleadings, which are perused by this Court, it appears that Rajkot
Family Court will be the Court of proper jurisdiction. The Court would
have directed respondent-husband to the Court of appropriate jurisdiction.
However, considering nature of dispute involved and time that has
already lapsed, the Court deems it fit to direct the Family Court at
Ahmedabad to transfer record of Family Suit No.1709 of 2017 to the
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Family Court at Rajkot. Such process to be undertaken within a period of
four weeks from the date of receipt of writ of this Court. Upon such
transfer, the Rajkot Family Court with appropriate jurisdiction, shall
register Family Suit and undertake proceedings from stage of filing of
written statements on behalf of appellant-wife.
25. In view of the aforesaid, the present appeal stands partly allowed
to the aforesaid extent. Direct service is permitted.
26. In view of order passed in the main appeal, Civil Application No.1 of
2023 stands disposed of accordingly.
(A.Y. KOGJE, J)
(NSSG,J)
PARESH SOMPURA
