The High Court
Case Details
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
Legal Reasoning
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 WP(C) No.28856 of 2024 Page 1 of 10 application U/S. 19 of the Hindu Marriage Act, 1955 (in short, “the Act”). 2.
Legal Reasoning
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 WP(C) No.28856 of 2024 Page 2 of 10 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,
Decision
the writ petition merits no consideration. WP(C) No.28856 of 2024 Page 3 of 10 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:— the the time of respondent, at (i) the marriage was solemnized, or (ii)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.” WP(C) No.28856 of 2024 Page 4 of 10 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 WP(C) No.28856 of 2024 Page 5 of 10 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 WP(C) No.28856 of 2024 Page 6 of 10 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 WP(C) No.28856 of 2024 Page 7 of 10 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 WP(C) No.28856 of 2024 Page 8 of 10 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 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" regarding lack of 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 WP(C) No.28856 of 2024 Page 9 of 10 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, Dated the 10th day of March, 2025/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 10-Mar-2025 15:07:15 WP(C) No.28856 of 2024 Page 10 of 10