Vaibhav Verma vs Smt. Priya Verma Alias Pooja Verma
2022 Latest Caselaw 3723 UK

       IN THE HIGH COURT OF UTTARAKHAND AT
                     NAINITAL

       THE CHIEF JUSTICE SHRI VIPIN SANGHI
                       AND
       JUSTICE SHRI RAMESH CHANDRA KHULBE

                 First Appeal No.216 of 2022

                   22nd NOVEMBER, 2022

Vaibhav Verma                                      ......Appellant
                                 Vs.

Smt. Priya Verma alias Pooja Verma                 ......Respondent

Presence: -

Mr. Amar Murti Shukla, learned counsel for the appellant.

JUDGMENT: (Per Shri Vipin Sanghi, Chief Justice)

Present appeal is directed against the judgment dated 28.05.2022 passed by the Family Court , Haldwani, District Nainital in Civil Case No.114 of 2017, preferred by the appellant-husband against the respondent-wife to seek divorce under Section 13(1)(ia) of the Hindu Marriage Act. By the impugned judgment, the divorce petition has been dismissed on account of lack of territorial jurisdiction by the Family Court.

2. The marriage of the parties was solemnized at Lucknow on 25.11.2015. The respondent-wife, admittedly, resides at Lucknow. The appellant claims territorial jurisdiction of the Family Court at Haldwani on the premise that parties last resided together at Haldwani.

3. On this issue, the Family Court has considered the matter threadbare while also taking into consideration the statement of the appellant-husband and has returned the findings that the parties did not reside together at Haldwani as claimed by the appellant. The discussion made in the impugned order on the aforesaid aspect reads as follows:-

"08. The issue no. 3 has been tried with the intent that whether the Court has no territorial jurisdiction to hear the instant case?

On the part of the respondent it has been argued that as per Sec-19 the petition for dissolution of marriage could be filed before the Court within local territories of which the marriage was solemnized or at the time of presentation of the petition, the respondent resides or parties of the marriage last resided. The wife can file her petition in such a place where she resides, whereas any party moves outside on the date of commencement of the Act or since 7 years, no information of longevity, the petition could be filed before the Court of local jurisdiction of the petitioner. It is established fact that the marriage of both the parties was not held in Haldwani, nor the respondent resided at Haldwani at the time of presentation of the petition. The respondent has stated that both the parties not last resided in Haldwani, but in Katni, Madhya Pradesh. The other two conditions not applicable in the facts and circumstances of the present case.

It was stated on the part of the petitioner that the petitioner and the respondent last resided in Kathgodam District Nainital up to September 2016. The Respondent has surprisingly reached Katni and returned from there after quarrels so her residence at Kani could not be treated as last resided with each other. It has also been argued that the respondent had filed her Transfer Petition No- 1195/2017 before the Hon'ble Supreme Court. The Hon'ble Supreme Court has dismissed/disposed of her transfer petition with directions to the respondent to avail the facility of the Video-conferencing and if required to be present in the Court in person, then she could claim travel expenses.

Copy of the Order is available as 53 Ga/2. As per the

petitioner, after getting the aforesaid order, this Court cannot question the issue of jurisdiction of the Court. In compliance of the orders of the Hon'ble Supreme Court, as per direction of this Court, the respondent has received the travel expenses Rs.2500/- per hearing.

Page-11.

Therefore due to such a reason she has not forced to frame issue of jurisdiction and she cannot raise the issue of jurisdiction at the stage of arguments.

From perusal of the case file it is clear that in the circumstances of the present case Sec.19 (iii) is applicable on the point of jurisdiction. Therefore it has to be seen that whether after marriage the parties resided together lastly in Haldwani. The petitioner in his plaint and in the cross-examination it has been narrated that the petitioner and the respondent last resided in Kathgodam District Nainital in September 2016. Noticiably the petitioner has narrated vide Para-3 of the plaint the respondent went Lucknow at the time of Dashahera for the instance of her papers and returned to Katni after 8-10 days by herself. The aforesaid averments has been made after the prior incident at katni on 10-11 September 2016, which clarifies that the respondent has came from Katni and after 8-10 days stay returned to Katni. Again in Para-6 of the averments it has been narrated that the respondent reached Katni on 6/7 April 2017, called Police after creating quarrels and then she returned to Lucknow on 12-4-2017 along with her father. Petitioner was cross-examined as PW-1. He has stated in his cross-examination that he was posted in Big Bazar Katni from the year 2015 to February 2018. The examinee has stated that the respondent used to move Haldwani and Lucknow, lastly she resided in Haldwani in September 2016. At around 16-17 April he went to Katni with his wife. Then the respondent lastly resided with him in Katni up to 10-11- 2016 and in between she used to visit Lucknow without his consent, thereafter in the night of 6-7 April 2017 she

reached surprisingly, quarreled and called the Police. Thereafter on 11-4-2-17 the respondent closed the door of the room, withdrawn his Pen-drive and threatened him to suicide, then he called Police. He called Police 3 times in that night. Next day on 12-04-2017, respondent returned to Lucknow along with her father. On asking in the cross-examination as the respondent lastly resided in Katni not in Kathgodam, the examinee replied that he could not remember. From this only the averments made in the plaint stands proved as false.

Page-12 From the aforesaid evidence it is proved itself that the respondent had not resided lastly at Haldwani, but in Katni, Madhya Pradesh, wherein the petitioner was living for his service. Under Section 19 (iii) it is definitely not meant to reside with each other for the purpose of tourism or different from the intension of residing permanently otherwise at another place, so that it could be treated as the place where they resided lastly. But katni, Madhya Pradesh was not the place falling under the aforesaid category, but the petitioner lived there for his service, where he resided lastly with the respondent whereas he has narrated about last resided with respondent in Haldwani prior to the aforesaid averments and filed the case in this Court. It is noticeable that for determination of the jurisdiction this fact is not so important having made the marital relations also. Otherwise too in Para - 7 of the plaint it has been narrated that there had no any marital relations since 10 November 2016 whereas as per the plaint, the petitioner and the respondent had last resided in Nainital up to September 2016. It clarifies that they had marital relations at Katni up to 10 November 2016. Keeping in view from the aforesaid facts it is clear that this Court has no jurisdiction for trial of the present case.

The Hon'ble Supreme Court has not adjudicated the issue of jurisdiction of this Court vide adjudication dated 31.07.2017 and dismissal of Transfer Application

of the respondent could not meant that this Court has jurisdiction for trial of the case. The issue of jurisdiction of the trial Court could not be raised as ground of transfer application, but the question of jurisdiction could only be raised before the Court concerned, where the proceedings are continued. The transfer application is maintainable only under the provisions of section 19 notably for transfer of the case from any one Court to another Court. Under such a situation based on the adjudication of the Hon'ble Supreme Court aforesaid, this plea could not be taken that based on dismissal of the transfer application, this Court has gained jurisdiction for trial of the instant case. This Court has no jurisdiction for trial of the present case. In such a circumstances trial of issue no. 1 and 2 could not be done.

Page-13 The present case is liable to be relegated to the Court having jurisdiction."

4. The submission of learned counsel for the appellant is that even though the respondent had raised the issue of territorial jurisdiction in her written statement in paragraph no.12 and objected to the jurisdiction of the Family Court at Haldwani, when the issues were framed on 08.04.2019, she did not press for framing of the said issue. Thus, the submission is that the respondent had waived her objection of territorial jurisdiction and submitted to the jurisdiction of the Family Court at Haldwani.

5. On 08.04.2019, the Family Court passed the order on issues, apart from deciding under applications. We may extract relevant part of order dated 08.04.2019, which reads as follows:-

"8.4.2019 Called out. Present petitioner Vaibhav Verma in

person assisted by Ld. Counsel Hem Chandra Pathak.

Present respondent Priya Verma in person assisted by Ld. Counsel Sh. Nikhilesh Joshi.

Respondent has paid Rs.10,000/- to the petitioner today in lieu of cost imposed vide order dated 1.4.2019. Thereafter written statement filed by respondent. Copy supplied to the petitioner. On the basis of rival pleadings, the following issues framed:-

1. Has the respondent treated present petitioner with cruelty as Vaibhav stated in the petition?

2. Is the petitioner entitled to any relief? If so, then what relief?

No other issues arised or is pressed.

                                                Sd/-8.4.2019
                                Seal            Pankaj Tomar
                                                  Judge
                                           Family Court Haldani"

6. We have considered the aforesaid submission of learned counsel for the appellant and we do not find any merit on the same.

7. Admittedly, the respondent had raised issue of territorial jurisdiction in her written statement. The Family Court, firstly, erred in recording, in its order dated 08.04.2019 that no other issue arises. The issue with regard to territorial jurisdiction fairly arose in view of the objections raised by the respondent. It is further recorded that no other issue was pressed. Since the recording with regard to the issues arising is factually incorrect, the recording that no other issue was pressed loses its significance. There is nothing to show that the respondent has receded jurisdiction to the Family Court at Haldwani.

8. The task of framing issues, primarily falls on Court and it is the Court which has to frame the issues.

Under Order 14 of the CPC, Rule (3) provides that the Court may frame issues from all or any of the following materials, namely, allegations made on oath by the parties, or by any person present on their behalf, or made by the pleaders of such parties, or, allegations made in the pleadings or in answers to interrogatories delivered in the suit, or, the contents of documents produced by either party.

9. Thus, the failure on the part of the Court in framing the issue on jurisdiction do not lead to rejection or giving up of the objections to jurisdiction raised by the respondent in the written statement. The court is empowered to frame issues at any time before passing of the decree. It can amend the issues or frame additional issues, which actually arise for consideration.

10. Thus, the Family Court was justified in framing the issue of jurisdiction and considering the same while passing the impugned judgment.

11. In the light of the findings returned by the Family Court, learned counsel for the appellant has not even ventured to the same in findings the jurisdiction. That being the position, we find no merit in the present appeal and the same is dismissed.

12. Since, we do not find any merit in the appeal; we are not going into the aspect of delay.

________________ VIPIN SANGHI, C.J.

________________________ RAMESH CHANDRA KHULBE, J.

Dated: 22nd November, 2022 KKS/SK