Sardool Katyayan @ Manu Katyayan vs Pooja Katyayan
2022 Latest Caselaw 15364 MP

                                 1

IN THE HIGH COURT OF MADHYA PRADESH : AT JABALPUR
                   BEFORE
              HON'BLE SHRI JUSTICE SUJOY PAUL
                                     AND

     HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
             ON THE 22nd OF NOVEMBER, 2022

                     FIRST APPEAL NO.1523 OF 2022
Between:-

SHARDOOL     KATYAYAN    @    MANU
KATYAYAN S/O. SHRI RAJ GOPAL
KATYAYAN,    AGED   :   39   YEARS,
PROFESSION : NEWS EDITOR, R/O. B-152,
FIRST  FLOOR,   SHIVALIK   COLONY,
MALVIYA NAGAR, NEW DELHI.
                                                               ...APPELLANT
                                                               NO.1

 (BY SHRI SHREYAS DUBEY -ADVOCATE)

 AND

POOJA KATYAYAN W/O. SHARDOOL
KATYAYAN,      AGED : 42 YEARS,
PROFESSION : DOCTOR, R/O. M-19,
ARVIND VIHAR, BAAGH MUGALIYA,
BHOPAL. (M.P.)
                                                               ..RESPONDENT/
                                                               APPELLANT
                                                               NO.2

(BY SHRI SHREYAS DUBEY, ADVOCATE)
 --------------------------------------------------------------------------------------
                              2

      This appeal coming on for orders this day, JUSTICE SUJOY
PAUL passed the following :
                                  ORDER

I.A. No.13872/2022 for condonation of delay of 73 days is taken up and for the reasons stated in the application, I.A. No.13872/2022 is allowed. Delay is condoned.

Heard on merits.

Learned counsel for the appellants submits that appellant and respondent both have jointly filed application under section 13B of Hindu Marriage Act before the Court below seeking divorce on mutual consent. The Court below by the impugned order dated 16.06.2022 (Annexure A/2) dismissed the joint prayer on the ground that the Court does not have territorial jurisdiction.

Assailing the said finding, the attention of this Court is drawn by Shri Shreyas Dubey, Advocate on paragraph-11 and 12 of the impugned judgment dated 16.06.2022. It is canvased that the Court below has given mutually inconsistent finding wherein on the opening line of para- 11, a finding is recorded that the appellant No.2 is resident of Bhopal whereas in the last line of same paragraph contention of appellants was declined by holding that it cannot be concluded that the appellants are residents of Bhopal.

Shri Shreyas Dubey, Advocate has placed reliance on Section 19(iiia) of the Hindu Marriage Act, 1955 and urged that even if wife was residing on the date of presentation at Bhopal and was petitioner, the application was maintainable. In this view of the matter, the Court

below has committed an error of fact and law in declining the joint prayer.

We have heard him at length. In our opinion, it was joint application preferred by both the parties before the Court below, it is not necessary to issue notice in this matter. Pertinently this appeal is also filed by both the parties jointly. The appeal is pregnant with affidavit of both the appellants. Paragraph-11 of the impugned judgment dated 16.06.2022 is reproduced for ready reference.

**11& bl ekeys esa vk;s rF;ksa ls ;g Li"V gS fd vkosnd dz- 1 U;w fnYyh dk fuoklh gS vkSj vkosfndk dz- 2 Hkksiky dh fuoklh gSA vkosndx.k dk fookg esjB m-iz- esa laIkUu gqvk FkkA vkosndx.k }kjk vius [email protected] i= ;k lk{; esa ,sls dksbZ rF; ugha crk;s fd fookg ds ckn vafre ckj ,dlkFk Hkksiky esa dgka jgs vkSj dc jgs gSaA vkosndx.k dk fookg izek.k i= Hkh esjB m-iz- dk gSA vc jgh ckr vk/kkj dkMZ dh rks vk/kkj dkMZ fdlh Hkh LFkku ij cuok;s tk ldrs gSa rks vk/kkj dkMZ ds vk/kkj ij bl fu"d"kZ ij ugha igqapk tk ldrk fd vkosndx.k Hkksiky ds fuoklh gSaA** (E.S.) The underline portion shows that the argument of Shri Shreyas Dubey has substantial force. The Court below has given contradictory findings in the opening line and in the last line of the same paragraph. If the finding given in the first line is accepted, the Court below was required to examine the question of jurisdiction in the teeth of Section 19 (iiia) of the Hindu Marriage Act, 1955. The Court below has given mutually inconsistent finding, which cannot sustain judicial scrutiny. Resultantly, the impugned judgment dated 16.06.2022 is set aside. The matter is restored in the file of Family Court, Bhopal.

The Court below is directed to rehear the parties and decide the matter afresh keeping in view the observations made by this Court hereinabove. It is made clear that this Court has not expressed any opinion on merits of the case. The appeal is disposed of. The parties undertake to appear before the Court below on 05.12.2022. The Court below shall make an endeavor to decide the matter afresh within a period of 30 days' therefrom.

        (SUJOY PAUL )                      (PRAKASH CHANDRA GUPTA)
           JUDGE                                   JUDGE
  RC




RASHMI TIKARAM CHIKANE
2022.11.24 11:33:10 +05'30'