Mamata Sahoo vs Aswani Kumar Sahoo ... Opposite Party
2025 Latest Caselaw 4797 Ori

Orissa High Court

Mamata Sahoo vs Aswani Kumar Sahoo ... Opposite Party on 10 March, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
               W.P.(C) NO.28856 of 2024

   (In the matter of application under Articles 226 and
   227 of the Constitution of India).

   Mamata Sahoo                        ...              Petitioner
                            -versus-

   Aswani Kumar Sahoo                  ...       Opposite Party

   For Petitioner            : Mr. S.K.Mishra, Sr.Advocate

   For Opposite Parties      : Mr. M.K. Chand, Advocate


       CORAM:
                   JUSTICE G. SATAPATHY

                   DATE OF HEARING :31.01.2025
                   DATE OF JUDGMENT:10.03.2025
G. Satapathy, J.

1. In invoking the extra ordinary jurisdiction of

this Court under Articles 226 & 227 of the Constitution of

India, the petitioner in this writ has challenged the order

dated 08.10.2024 passed by learned Judge Family Court,

Cuttack in CP No. 93 of 2019 refusing to reject the

petition filed by the OP-husband for dissolution of

marriage for want of territorial jurisdiction in an

application U/S. 19 of the Hindu Marriage Act, 1955 (in

short, "the Act").

2. In the course of hearing, Mr.Samir Kumar

Mishra, learned Senior Counsel for the petitioner by

taking this Court through the averments made in the

petition filed by the OP-husband for dissolution of

marriage in an application U/S. 13 of the Act read with

Sec. 7 of the Family Courts Act has submitted that the

OP-husband has described in such petition to have last

resided at Cuttack with his wife-cum-writ petitioner at

Sankarpur, Cuttack, but the averments made by the

OP-husband at paragraphs-4, 5, 6, 10 & 11 reveals that

the couple last resided at Cuttack till 22.06.2017,

however, the petition for dissolution of marriage was

presented on 01.02.2019 when the OP-husband was

not residing at Cuttack and, therefore, the learned

Judge Family Court, Cuttack lacks territorial jurisdiction

to entertain the application of OP-husband for divorce

against the petitioner-wife in view of the stipulation

contain in Sec. 19(iii) of the Act because the parties

have never resided together for the last time at

Cuttack. It is, however, on being asked as to the

objection to the territorial jurisdiction should have been

taken at the earliest, Mr.Mishra, learned Senior Counsel

relies upon the decision in Hawkins Cookers Limited

Vrs. Jagannath Traders; 2013 (Supp.-1) OLR 73.

On the aforesaid submissions, Mr.Mishra has prayed to

allow the writ petition by setting aside the impugned

order and directing the Court concerned to return the

petition of OP-husband to present before the Court

having territorial jurisdiction in the matter.

3. On the contrary, Mr.Manas Kumar Chand,

learned counsel appearing for the OP has submitted

that the learned Judge Family Court, Cuttack has got

jurisdiction to entertain the matter, but the petitioner is

playing dilly dally tactics to protract the litigation and

he is raising the jurisdictional issue after filing of the

examination-in-chief of the OP-husband and, therefore,

the writ petition merits no consideration.

4. After having considered the rival

submissions upon perusal of record, since the petitioner

appears to have invoked the jurisdiction of the Family

Court, Cuttack U/S. 19 of the Act questioning the

maintainability of the petition filed by OP-husband for

dissolution of marriage for want of territorial

jurisdiction, this Court considers it appropriate to

extract the provision of Sec. 19 of the Act:-

"19. 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 original civil jurisdiction:--

(i) the marriage was solemnized, or

(ii)the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or [(iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or]

(iv) the petitioner is residing at the time of the presentation of the petition, in a 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."

A casual glance of aforesaid provision of

law makes it ample clear that the party to the marriage

can present a petition under the Act to the district

Court within local limits of whose ordinary original civil

jurisdiction, they had last resided together, but it is not

in dispute that in case the wife wants to present such

petition, she can present it where she is residing on the

date of presentation of the petition.

5. The core issue of territorial jurisdiction as

raised in this case can only be decided by going

through the averments of the plaint/petition in the

nature of the plaint, but by not referring to the defence

of the other side. On a careful glance of the

plaint/petition for dissolution of marriage as filed by the

OP-husband, it reveals that in paragraph-1 of such

petition, the OP-husband has averred that they had last

resided together at Sankarpur, Cuttack, but the

petitioner-wife by referring to the averments in

paragraphs-4, 5 & 6 takes a plea that since the OP-wife

is staying separately from the petitioner-husband from

the month of June, 2017, the parties cannot be said to

have last resided together at Cuttack at the time of

presentation of petition on 01.02.2019. Be that as it

may, the objection to the jurisdiction has to be taken at

the earliest possible opportunity and in all cases where

issues are settled, at or before such settlement which is

mandate of Sec. 21 of the Code of Civil Procedure,

1908 (in short, "the CPC") which is applicable to the

suits and proceeding before a Family Court as made

clear by Sec. 10 of the Family Courts Act, 1984.

6. Admittedly, the petitioner has raised the

jurisdictional issue for the first time by filing a petition

on 15.09.2024, but the proceeding was initiated by the

OP-husband on 01.02.2019. Mr.Mishra, learned Senior

Counsel in the course of argument has contended that

the petitioner has also raised such plea in her written

statement, but fact remains that the petitioner-wife has

not raised such issue specifically pleading clear ouster

jurisdiction of the trial Court. Law is well settled that

while deciding the jurisdictional issue, the averments

taken in the plaint/petition in the nature of plaint can

be looked into, but the defence of the other side cannot

be taken into consideration in deciding the question of

territorial jurisdiction of the Court. Further, according to

Sec. 21 of the CPC under the heading "objection to

jurisdiction", it has been prescribed therein that no

objection to the place of suing shall be allowed by any

Appellate or Revisional Court unless such objection was

taken in the Court of first instance at the earliest

possible opportunity and in all cases where issues are

settled, at or before such settlement, and unless there

has been a consequent failure of justice. In the instant

case, the affidavit evidence of the OP-husband has

admittedly been filed on 16.04.2024, but the petitioner-

wife has filed the petition to question the

maintainability of the petition U/s. 19 of the Act on

15.09.2024. It is, therefore, very clear that the

petitioner-wife has not taken any objection to the

territorial jurisdiction of the learned Family Court at the

earliest. What is most significant is that the petitioner

has relied upon paragraph-23 of the decision in

Hawkins Cookers Limited(supra) to contend that

the delay in filing the petition is inconsequential, but

this Court in such paragraph of the decision has held as

under:-

"23. Third question relates to as to whether the Court ought to decide the issue relating to territorial jurisdiction before the commencement of the trial of the suit. The question of lack of inherent jurisdiction can be raised at any stage of a case, but an objection as to the territorial jurisdiction could be waived which could be express or implied. An implied waiver can be gathered by the conduct of the parties."

7. Further, this Court while rendering the

decision in Hawkins Cookers Limited(supra) has

relied upon the decision in G.Ayyappan Pillai Vrs.

State of Kerala and another; 2010(28)VST-

411(Kerala), wherein the Kerala High Court has held

as under:-

"24.That the Court should have decided the issue as to the alleged lack of territorial jurisdiction before the parties went into trial of the suit. In this case the order to return the plaint for presentation in the proper Court was passed after the appellant produced his evidence and part of the evidence of the respondents was

recorded. This was not in accordance with the message contained in Section 21 of the Code. Unlike in a case of inherent jurisdiction, an objection as to territorial jurisdiction could be waived which could be express or implied. An implied waiver can be gathered by the conduct of the person who was said to have waived the right. In this case though the respondents raised a contention regarding lack of territorial jurisdiction, they cross examined the appellant and his witnesses and even examined their witness in part. Hence the respondents could be deemed to have waived their objection as to the territorial jurisdiction of the Court. Therefore the Sub-court, Ernakulam, had jurisdiction to try the suit"

8. In the aforesaid facts and circumstances,

especially when the petitioner has approached the

learned trial Court for ouster of its territorial jurisdiction

belatedly after filing of the examination-in-chief of the

OP-husband and that too, after near about five years of

institution of the proceeding which has been filed for

dissolution of marriage between the parties, this Court

does not consider it appropriate and proper to accept

the technicality of territorial jurisdiction for questioning

the maintainability of the petition after five years which

in this case becomes inconsequential inasmuch as in

the event of holding the petition for dissolution of

marriage to be not maintainable before the learned

Judge Family Court at Cuttack would not preclude the

OP-husband to present such application for dissolution

of marriage in the Court at the place where according

to the petitioner-wife they last resided together. Hence,

it is ordered.

9. In the result, the writ petition being devoid

of merit stands dismissed on contest, but in the

circumstance there is no order as to costs.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Signature NotDated Verified the 10th day of March, 2025/Kishore Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 10-Mar-2025 15:07:15