AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.37 OF 2008 Khushbhu Rahul Dayama, Indian Inhabitant, presently residing at 1/C, Paras Nagar, Gufa Tekri Road, Jogeshwari (E), Mumbai – 400 060. ) ) ) ) ... Appellant Vs. Mr. Rahul Arunkumar Dayama, Indian Inhabitant, presently residing at Near Ashtabhuja Devi Mandir, Post – Bhusawal, Dist. Jalgaon, Maharashtra. ) ) ) ) ... Respondent Mr. I.M. Chagla, senior advocate i/b M/s. Federal & Rashmikant for the appellant. Mr. Kartik Desai i/b M/s. Kartikeya & Associates for the respondent. CORAM : SMT. RANJANA DESAI & R.S. MOHITE, JJ. DATED : 7TH APRIL, 2008. ORAL JUDGMENT :- (Per (Smt.) Ranjana Desai, J.) 1. Rule. Respondent waives service. By consent of the parties, taken up for hearing forthwith. AJN 2 2. The appellant and the respondent filed a joint petition for divorce by mutual consent in the Family Court at Bandra being Petition No.F- 315/2008. By the impugned order dated 4/3/2008, learned Judge of the Family Court rejected the petition on the ground that the Family Court has no jurisdiction to entertain the same. Being aggrieved by the said order, the appellant-wife has approached this court. 3. Learned Judge of the Family Court has in the impugned order observed that the appellant has averred in the petition that she resides in Bombay. Learned Judge has referred to section 19 of the Hindu Marriage Act and further observed that the parties in this case were married in Bhusaval and there is no averment as to the effect that they last resided in Mumbai. Learned Judge has further observed that this coupled with the fact that the respondent is shown to be residing at Jalgaon makes it evident that the Family Court at Bandra has no jurisdiction to entertain the petition. Learned Judge has further observed that section 19 of the Hindu Marriage Act does not provide for jurisdiction to the Family Court when one of the petitioners was residing in Mumbai. AJN 3 4. We have heard Mr. Chagla, learned senior counsel appearing for the appellant. He submitted that interpretation put on section 19(iiia) by learned Judge is wrong. He submitted that section 19(iiia) was introduced in the Hindu Marriage Act, 1955 by the Marriage Laws (Amendment) Act, 2003. He drew our attention to the Statement of Objects and Reasons of the said Act and submitted that section 19(iiia) was introduced taking into consideration the inconvenience caused to a woman because of the absence of a provision enabling her to file divorce petition in the court within whose jurisdiction she resides. He submitted that section 19(iiia) will have to be so interpreted as to achieve its object and inasmuch as learned Judge has overlooked the object of this provision, the impugned order be set aside. 5. Learned counsel appearing for the respondent did not dispute the legal submission advanced by Mr. Chagla. 6. Neither the Hindu Marriage Act, 1955 nor the Special Marriage Act, 1954 contained any provision enabling the aggrieved wife to file a petition for relief under the provisions of these Acts in the Court within the local limits of whose jurisdiction she may be residing. As the existing provisions were not considered adequate or fair so far as women are concerned, a decision was taken to amend the provisions of AJN 4 these Acts. In the Hindu Marriage Act, 1955, with which we are concerned here, section 19(iiia) was introduced enabling the aggrieved wife to present a petition to the district court within local limits of whose ordinary original jurisdiction she is residing on the date of presentation of the petition. Similar amendment was introduced in the Special Marriage Act, 1954. 7. We may quote the relevant portion of the Statement of Objects and Reasons of the Marriage Laws (Amendment) Act, 2003. “Statement of Objects and Reasons. - “The Special marriage Act, 1954 and the Hindu Marriage Act, 1955 provide that a petition for relief under the provisions of these Acts shall be presented to the District Court within the limits of whose original civil jurisdiction the marriage was solemnized or the respondent, at the time of the presentation of the petition, resided or the parties to the marriage last resided together or the petitioner was residing at the time of the presentation of the petition, in a case where the respondent was at the time residing outside the territories to which these Acts extended or had not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he were alive. However, these provisions are not considered adequate or fair as far the women are concerned. Under the existing provisions, a petition cannot be filed by the aggrieved wife to the District Court within the local limits of whose ordinary jurisdiction she may be residing. In view thereof, the Government has decided to amend the provisions of these Acts so that the wife can also file petition in the District Court within local limits AJN 5 of whose jurisdiction she may be residing. The proposed amendments to sections 31 and 19 of the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 respectively are based on the recommendations of the Law Commission of India and the National Commission for Women. 2. The Government has also decided to amend section 39 of the Special Marriage Act, 1954 and section 28 of the Hindu Marriage Act, 1955 to provide respectively that the parties to a matrimonial suit could prefer appeal within a period of ninety days instead of thirty days. This amendment is based on the observations made by the Supreme Court in a judgment delivered recently. The amendment to these provisions is proposed so that unscrupulous litigant spouses are not facilitated to frustrate the marriage, taking advantage of the inadequate period provided in law. 3. The Bill seeks to achieve the above objects.” 8. Section 19(iiia) reads thus : “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) xxx xxx xxx (ii) xxx xxx xxx (iii) xxx xxx xxx (iiia) in case the wife is the petition, where she is residing on the date of presentation of the petition, or” AJN 6 9. From the aforesaid, it is abundantly clear that section 19(iiia) was introduced in the Hindu Marriage Act keeping in mind the hardship caused to a woman because of the absence of a provision enabling her to file a petition in the court in whose jurisdiction she resides. It is aimed at relieving her of the inconvenience. In our opinion, therefore, this provision should be so construed as to further the legislative intent. If it is held that the petitions for divorce by mutual consent where wife is one of the petitioners, are to be left out of the purview of section 19(iiia) and that it would apply only to contested proceedings, that would frustrate the benign object behind this provision. In our opinion, on a plain reading, section 19(iiia) confers jurisdiction, in any case where the wife is the petitioner, in that Family Court within whose jurisdiction she resides. It would cover petitions for divorce by mutual consent also. 10. In the present case, the appellant-wife being a resident of Mumbai on the date of presentation of the petition, the petition was correctly filed before the Family Court at Bandra, Mumbai. Learned Judge of the Family Court at Bandra, therefore, erred in holding that the Family Court at Bandra had no jurisdiction to entertain the petition. 11. In the circumstances, we set aside the impugned order dated AJN 7 4/3/2008 passed by the Family Court at Bandra, Mumbai. We remand the matter to the Family Court at Bandra with a direction to entertain the petition and proceed in accordance with law. [SMT. RANJANA DESAI, J.] [R.S. MOHITE, J.]