1 SSK/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6359 OF 2009 Mr.Craig Maxwell Sterry ....Petitioner Versus Ujawal Raut ...Respondent Mr.Simil Purohit a/w. Mr.Aditya Khanna, Advocates for the Petitioner. Mrs. Mrunalini Deshmukh a/w. Mr. Vikramaditya Deshmukh, Advocates for the Respondent. CORAM : R. V. MORE, J. DATED : 1st JULY, 2010. P.C.: Heard learned Counsel for the respective parties. 2. The Petitioner is original Respondent-husband and Respondent is original Petitioner-wife. The Respondent-wife filed a petition for divorce against the Petitioner-husband on the ground of cruelty. The Petition was filed under the provisions of the Special Marriage Act, 1954 read with the Foreign Marriage Act, 1969. 3. There is no dispute that the Respondent is an Indian National and is domiciled in the State of Maharashtra, and the Petitioner is a British National. The marriage was solemnized in the U.S.A. Certificate to that effect is annexed at page 43 of the petition. 2 4. The Petitioner-husband in the above mentioned petition filed by the Respondent-wife filed an application under section 9-A of the Code of Civil Procedure, 1908 challenging the jurisdiction of the Family Court. The jurisdiction was challenged on the ground that the marriage of the Petitioner and Respondent was not solemnized under the Foreign Marriage Act, 1969 and therefore, the said Act is not applicable. Mr. Purohit, learned Counsel for the Petitioner relied upon provisions of section 4 of the Foreign Marriage Act, 1969 to substantiate his submission. He also submitted that the Respondent-wife was not residing at Mumbai and therefore, the Family Court will not get jurisdiction to entertain her petition. Mrs. Deshmukh, learned counsel for the Respondent-wife on the contrary supports the impugned order. She relied upon section 18 of the Foreign Marriage Act, 1969 to contend that the impugned order is correct and no interference is required. 5. Having heard learned Counsel for the respective parties and having gone through the impugned order alongwith the relevant provisions of the Foreign Marriage Act, 1969, I do not find any merit in the petition. Section 18 (1) of the Foreign Marriage Act, 1969 reads as follows: “18. Matrimonial reliefs to be under Special Marriage Act, 1954 - (1) Subject to the other provisions contained in this section, the provisions of Chapter IV, V, VI and VII of the Special Marriage Act, 1954, shall apply in 3 relation to marriages solemnized under this Act and to any other marriage solemnized in a foreign country between parties of whom one at least is a citizen of India as they apply in relation to marriages solemnized under that Act.” (emphasis supplied) Careful reading of the section reveals that the provision of the Special Marriage Act, 1954 are applicable not only to marriages solemnized under Foreign Marriage Act, 1969 but also to any other marriage solemnized in a foreign country between parties of whom one at least is a citizen of India. Admittedly, Respondent-wife is a citizen of India, and therefore petition to dissolve the marriage can be entertained by the Family Court. 6. Under sub-clause (c) of Section 18(2) of the Foreign Marriage Act, 1969, the petition for dissolution of marriage can be filed in a District Court, where the Petitioner is residing at the time of presentation of the petition. The averment made in paragraph no.1 of the petition discloses that the Respondent-wife is an Indian citizen and domiciled in Maharashtra. The address given in the cause title further discloses that she is residing in Mumbai and therefore, the petition is rightly filed in the Family Court in Mumbai. Mr. Purohit, learned Counsel for the Petitioner-husband, in this regard submitted that the Petitioner-husband disputed the assertion of the Respondent-Wife that she was residing at Mumbai at the time of filing of the petition. He contends that since Petitioner-husband has disputed the 4 said fact, the Trial Court was duty bound to record evidence and decide the issue. The submission is merit less. Firstly, whether the Respondent-wife is residing at Mumbai at the time of filing of the petition or not, is a question of fact and same cannot be the subject matter of the application under section 9-A of the Code of Civil Procedure, 1908. If the Petitioner-husband wants to dispute this fact, it is always open for him to do so at the stage of final hearing of the petition and for that purpose he can always lead evidence. In the above facts and circumstances, I do not find any error in the impugned order. The petition is devoid of any substance and is therefore, dismissed. 7. Mr.Purohit, learned Counsel for the Petitioner, at this stage requested for stay of the above order. Since I have refused to interfere in the impugned order, no question of stay arises. Request is accordingly, rejected. (R. V. MORE, J.)