Madhya Pradesh High Court
Niklesh Barwe vs Sudha Jaiswal on 11 December, 2023
Author: Sheel Nagu
Bench: Sheel Nagu
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 11 th OF DECEMBER, 2023
FIRST APPEAL No. 2251 of 2023
BETWEEN:-
NIKLESH BARWE S/O SHRI NAMDEV BARWE, AGED
ABOUT 37 YEARS, R/O HOUSE NO. 240, BEHIND PALASH
RESIDENCY, NORTH T.T. NAGAR, BANGANGA BHOPAL
(MADHYA PRADESH)
.....APPELLANT
(BY MR. NAVNEET SHUKLA - APPELLANT)
AND
SUDHA JAISWAL W/O SHRI NIKLESH BARWE D/O SHRI
RAMACHAL JAISWAL, AGED ABOUT 35 YEARS, R/O FF-
15, A BLOCK BOCHS RESIDENCY RMV 2ND STAGE,
ASHWATH NAGAR, 80, FEET ROADM BENGALURU
(KARNATAKA)
.....RESPONDENT
T h is appeal coming on for hearing this day, Justice Devnarayan
Mishra passed the following:
ORDER
This first appeal has been filed being aggrieved by the judgment and
decree passed by the First Additional Principal Judge Family Court Bhopal in
RCS HM No.553/2022 dated 10.08.2023 by which, the divorce petition of the
appellant/husband has been dismissed.
2. The case of the appellant before the Family Court in brief is that the
appellant and respondent were married as per Hindu Rites and Rituals on 12th
of December, 2012. After 02-03 months of their marriage, the behaviour of the
respondent changed and she conceived pregnancy but she did not want to
deliver the child. The respondent is suffering from paranoia. At her maternal
home on 17th of February, 2014, she delivered a male child but her
misbehaviour and paranoia attitude did not change. She denied to reside with
the appellant. The appellant went to her maternal home situated at Bangalore but
she also denied to reside with him. After certain time, again the appellant tried to
live with her wife at Bangalore but she has not cooperated so the appellant tried
to bring the respondent to his residence at Bhopal but she was not ready to live
with him at Bhopal and she consistently demanded to construct a dental clinic
from the appellant for her and when the appellant expressed his inability then,
she started quarreling with him. The appellant went to Jamnagar, Gujrat to
pursue his carrier but the respondent was not ready and willing to live with the
appellant as his wife and she did not want to continue to live at matrimonial
home on the ground of cruelty and thereafter, the appellant filed a divorce
petition before the Family Court Bhopal.
3. In the divorce proceedings, the respondent never appeared so the
Family Court proceeded ex-party. Family Court after adducing the evidence,
passed the impugned judgment/decree and dismissed the petition mentioning
that the appellant has failed to prove the ground of cruelty and the petition was
not within the jurisdiction of the Family Court Bhopal.
4. Heard on admission.
5. Learned counsel for the appellant has argued that the marriage was
solemnized in Bhopal. Some ceremonies of the marriage were performed in
Bhopal (M.P) and some ceremonies were performed at Ajamgarh (U.P.) but
the trial Court has not appreciated this fact in relation to Section 7 of the
Hindu Marriage Act, 1955.
6. Mr. Shukla has further argued that as per Section 7, no ceremony has
been fixed by the Act and as per this Section, marriage may be solemnized in
accordance with the customary rites and ceremonies of either party thereto.
Thus, the Family Court Bhopal was having jurisdiction and the Court
erroneously dismissed the petition on the ground of jurisdiction.
7. Heard learned counsel and perused the record.
8. Hindu Marriage Act, 1955 provides that jurisdiction and procedure in
which the petition under this act can be presented as below:
"1 9 . 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 civil
jurisdiction.
(i) the marriage was solemnized;
(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 presentation of the
petition, in 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, the District Court/Family Court exercising the jurisdiction in
anyone of the places mentioned below where the petition can be filed:-
(a) the place where the marriage was solemnized;
(b) in case where the respondent is residing in any other place then the
residence of the opposite party to marriage;
(c) the place where parties of the marriage last resided together.
To determine by which way the marriage is solemnized and when the
marriage becomes complete and binding.
10. Section 7 of the Hindu Marriage Act mentioned as under:
"7 Ceremonies for a Hindu marriage.
(1) A Hindu marriage may be solemnized in accordance with
the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the saptpadi (that
is, the taking of seven steps by the bridegroom and the bride
jointly before the sacred fire), the marriage becomes complete
and binding when the seventh step is taken."
11. Thus, from perusal of the above provisions, it is clear that
whenever saptapadi is one of the ceremonies performed in marriage, then
marriage becomes complete on taking the seventh step before the sacred fire.
12. It is clear from the appellant's arguments that saptapadi was
performed at Ajamgarh (U.P.). Thus, the marriage was actually solemnized at
Ajamgarh (U.P.) and the prior or subsequent to ceremonies performed at
Bhopal (M.P.) are not material to decide the solemnization of the marriage. For
the purpose of Section 19 of the Act, the marriage between the parties was
actually solemnized at Ajamgarh (U.P.).
13. It is not the case of appellant that lastly both the parties resided at
Bhopal. As per the plaint averment, the appellant lastly resided with the
respondent in her parental home situated in Bangalore. Thus, Bhopal Court has
no jurisdiction as per the law prescribed under Section 19 of the Hindu
Marriage Act, 1955.
14. Hence, the appeal has no substance and is hereby dismissed at
motion stage.
15. All pending interlocutory applications are disposed of.
16. Let a copy of this order alongwith record be sent to the concerned
trial Court for information and necessary compliance.
17. Certified copy as per rules.
(SHEEL NAGU) (DEVNARAYAN MISHRA)
JUDGE JUDGE
julie
