1 CRA-475 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Civil Revision Application No.475 of 2010 Sou.Sunanda Vijay Rokade .. .. Petitioner v/s. Shri Vijay Namdev Rokade .. .. Respondent Mr.Shrishailya S. Deshmukh for Petitioner. Mr.J.D. Khairnar for Respondent. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 19th January 2011 P.C. : 1.Rule, returnable forthwith. 2.The Petitioner/wife has challenged the order of the learned Civil Judge, Senior Division, Niphad, District Nasik, dated 17th July 2010 upon her application for considering the territorial jurisdiction of the Court under Section 19 of the Hindu Marriage Act (the Act). Under Section 19 of the Act, the territorial jurisdiction of the Court would be the Court where the marriage was solemnised, the Respondent resided, parties to the marriage last resided together or where the wife resided on the date of her Petition. The parties got married in Aurangabad on 29th February 2 CRA-475 2007. The Respondent/husband is the Senior Scientist stationed in Khopoli. The Petitioner/wife is the Professor also stationed in Khopoli. Both of them reside in Khopoli consequent upon their service. Counsel on behalf of the Respondent stated that both of them have been residing there since prior to their marriage. 3.The husband hails from Niphad, District Nashik. He has filed the Petition in the Court of Civil Judge, Senior Division, Niphad, Nashik District. The parties lived for some time in Niphad which was the native residence of the husband. However, consequent upon the postings of both of them, they have been residing in Khopoli. Living in the native house of the husband for some time is not the last residence of the parties. The place where the parties work for gain, carry on business or are employed is the place of matrimonial home of the parties. That is, therefore, the place where the parties last resided together. In this case that is in Khopoli. 4.Counsel on behalf the Petitioner/wife states that there is no infrastructure for any posting for a Senior Scientist in Niphad and hence he could never have been employed at that place. Admittedly, the Petitioner/wife never served in that place. The native residence of the 3 CRA-475 husband can never constitute the matrimonial home of the parties when both the parties are employed and stationed elsewhere. 5.It would be inequitable for the husband who married in Aurangabad and is serving in Khopoli to sue in Niphad because it would be most inconvenient for the wife to defend his action at such place. The territorial jurisdiction of a Family Court is statutorily conferred at four specific places. The very purpose and object of granting such wide territorial jurisdiction would be frustrated, if the husband sues at his native place. The wife s application challenging the territorial jurisdiction has, therefore, a lot of substance. 6.The observation of the learned Judge that the place of temporary service of the husband where he served for a few days would not grant jurisdiction to the Court at that place would not be appropriate since the service where the husband is usually posted is not a place of residence for a few days. Of course, in a case where the husband has been transferred, essentially only for a few days and where, therefore, both the parties never shifted, the Court at such place would not have territorial jurisdiction. If the transfer is a regular transfer in the normal course for a person such as the Senior Scientist who could be posted only at such 4 CRA-475 places that have the required infrastructure and if the wife also admittedly serves there, the place of the employment would constitute the place of their last residence. Further, the native place of the parents, where the parties do not reside as they have left the native place for employment or business in another town or city, can never constitute their last residence. The concept of residence that is contemplated in determination of the territorial jurisdiction of the Courts is the voluntary residence or the ordinary residence of the parties. When the parties leave their native place and work for gain either in business or in employment at another place, they must be taken to be ordinarily and voluntarily residing at such place chosen by them. 7.The case of Jeewanti Pandey vs. Kishan Chandra Pandey, AIR 1982 SC 3 decided the issue relating to the jurisdiction of the Courts at the native place of the parties when they resided and worked for gain elsewhere. The parties originally belonged to Pithoragarh district in Uttar Pradesh. The husband served as a radio technician in the Ministry of Home Affairs, Rail Bhawan, New Delhi. They married in Delhi. The marriage lasted three days after which the husband left the wife and never returned to their residence. The wife sued the husband for restitution of her 5 CRA-475 conjugal rights in Delhi. The husband sued the wife in Almora District Court, Uttar Pradesh, for nullity of his marriage. The Supreme Court had to consider whether the District Court at Almora, Uttar Pradesh had territorial jurisdiction to determine the husband s claim. Whilst observing that the term residence connotes a permanent dwelling and not a place of temporary sojourn, the Supreme Court considered the concept of residence in paragraph 13 of the judgment thus: 13. It is plain in the context of cl. (ii) of Section 19 of the Act, that the word resides must mean the actual place of residence and not a legal or constructive residence: it certainly does not connote the place of origin. The word  resides is a flexible one and has many shades of meaning but it must take its colour and content from the context in which it appears and cannot be read in isolation. It follows that it was the actual residence of the appellant at the commencement of the proceedings.... It was held that the territorial jurisdiction vested in the Court at Delhi. 6 CRA-475 8.Similarly in the case of Janak Dulari vs. Narain Dass, AIR 1959 Punjab 50 (DB), the husband was employed for three and half months in Amritsar where the parties resided was held to have jurisdiction as against the Court in Gurdaspur where the wife went for three days to live with her brother-in-law after leaving her husband. 9.As argued by Counsel on behalf of the husband, the facts of the case would matter. In this case, the parties are seen to have been residing last at Khopoli. The marriage has taken place in Aurangabad. The Respondent to the Petition (the Petitioner/wife herein) resided in Khopoli at the time of the presentation of the Petition by the husband. Consequently, the Court of the learned Civil Judge, Senior Division, Niphad is a Court without territorial jurisdiction. The Petition of the husband cannot proceed in that Court. The Petition shall have to be returned to proper Court for filing and then proceeding thereat. 10.The order of the learned Judge dated 17th July 2010 assuming territorial jurisdiction is, therefore, required to be interfered with and is set aside. The Court of the Civil Judge, Senior Division at Niphad shall return the papers to the Respondent/husband for filing in proper Court. Until that is done, the 7 CRA-475 Petition of the husband in the Court at Niphad shall not proceed. 11.Rule is made absolute accordingly. 12.Application for stay of this order is refused. Instead the aforesaid Petition shall remain stayed. (SMT.ROSHAN DALVI, J.)