1 (902) WP 9920/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Amk WRIT PETITION NO. 9920 OF 2010 Sangeeta Sanjay Aggarwal .. Petitioner Vs. Sanjay B. Aggarwal .. Respondent Mr. R. T. Lalwani for the Petitioner. Ms. Rajani Aiyar, Sr. Counsel a/w. Mr. Ibrahim Merchant i/b K. V. Aiyar & Associates for the Respondent. CORAM : MRS. ROSHAN DALVI, J. Date : 24th February, 2011 P.C. 1. This Writ Petition is filed by the Petitioner wife against Respondent husband challenging the order of interim maintenance granted by the Family Court. She has also challenged the territorial jurisdiction of the Family Court, Mumbai, in the Petition for divorce filed by the husband. 2. The husband sued for divorce as the main relief. The parties owned a property jointly in which they had resided and which was their matrimonial home. Hence the husband also sued for an injunction in respect of the said property, which was their matrimonial home, restraining the wife from entering upon and disturbing his possession therein and for partition of that property. 3. The parties married within the jurisdiction of the Family Court, Mumbai. The territorial jurisdiction 2 (902) WP 9920/10 of the Family Court to decide the Petition for divorce is not challenged. The parties last resided together in Sneh Ashish at Plot No.14, Sector No.28, Vashi, New Mumbai. This was their matrimonial home. The wife challenged the territorial jurisdiction only with regard to the relief in respect of their matrimonial home. 4. It is accepted by the wife that both the reliefs are grantable by the Family court under Section 7 of the Family Courts Act, 1984. However it is contended that the Petition for divorce should have been filed in Family Court, Mumbai and the Petition with regard to the property of the parties should have been filed in Family Court, Thane. It is contended on behalf of the wife that the Petition for divorce is correctly filed and the Petition to that extent may proceed but the relief in respect of matrimonial home can be challenged only in Family Court, Thane and therefore cannot proceed before the Family Court, Mumbai. 5. The territorial jurisdiction of the Court is required to be considered upon the main reliefs sought in the Petition. The main relief in the Petition is the decree for dissolution of marriage claimed by the husband. Various incidental reliefs may also be claimed in such a Petition. The jurisdiction of the Family Court under Section 7 of the Family Courts Act is with regard to such decree for divorce. Reliefs in respect of property of the parties or either of them, relief of injunction arising out of marital relationship, declaration of legitimacy of persons, proceeding for maintenance, proceeding with regard to the custody and access of children etc. are incidental reliefs which are 3 (902) WP 9920/10 other than the main relief sought in the Petition. The territorial jurisdiction of the Court cannot be separately considered for each of the incidental reliefs. All the incidental reliefs which are within the domain and jurisdiction of the Family Court under Section 7 of the Family Courts Act can be granted by the same Court. For example any injunction against the Respondent arising out of marital relationship as in his case could be granted by the Family Court, Mumbai even though she resides at the time of filing of the Petition in district Thane. Similarly relief of maintenance could be granted to her despite her residence out of territorial limit or jurisdiction of the Family Court. Had there been some issues to the marriage, the relief with regard to the custody and access of those issues could have been granted by the Family Court, Mumbai even if the children resided in Thane at the time the Petition was filed or heard. The contention, therefore, that the Family Court has territorial jurisdiction to decide prayer (a) but not prayers (c) & (d) is misconceived. 6. Mr. Lalwani relied upon the Judgment in the case of Sudipta Sanjeeb Chakraborty Vs. Sanjeeb Chakraborty II (2009) DMC 212 Bombay High Court in which the territorial jurisdiction of the Family Court has been decided and came to be upheld by this Court in Petition filed with regard to a flat of the party situated outside the territorial limits of the Court’s jurisdiction. Though the parties resided in Mumbai, the property was in Pune. That was not their matrimonial home. The Petitioner in that Petition applied for relief under her civil rights for injunction against her husband not to create third party rights in the tenanted premises and 4 (902) WP 9920/10 also claimed 50% rent of the said premises. The Suit was, therefore, not filed in respect of the matrimonial home of the parties as is this Suit. It was in respect of another property which was tenanted by the husband and from which rent was received. The wife applied for reliefs against the husband not to create further third party rights and to share the rent received. It was, therefore, that the litigation was in respect of another property. That was a “suit for land”. Consequently Sections 15 to 20 of the Code of Civil Procedure required the Suit to be filed where the property was situated. In para 8 of that Judgment it was observed that the basic and substantial suit was for divorce which was within the jurisdiction of Family Court, Mumbai. The matter incidental to the matrimonial matter fell within the ambit of sections 16 to 20 of the Code of Civil Procedure giving jurisdiction to the Court where the property was situated. It was held that such Court can pass an appropriate order in respect of those incidental matters arising out of main Petition and declare the civil rights of the parties. 7. In this case the husband has sued for divorce which is the main and substantial relief. In his application he has applied for relief with regard to the matter incidental to the matrimonial matter being the matrimonial home which is jointly owned by the parties and in which only the wife resides. Since under Section 7 (C) of the Family Courts Act, 1984 the Court would have jurisdiction to decide the dispute in respect of the property of the parties or either of them, reliefs (c) & (d) would fall within that section. 5 (902) WP 9920/10 8. The argument of Mr. Lalwani that for granting reliefs in respect of a property a separate Petition called Petition B, as per the Rules framed by this Court, would have to be filed is also misconceived because in one Petition for the main and substantive relief, various other incidental reliefs can be applied for. The rules are only directory and framed only essentially for statistical purpose of ascertaining the number of Suits filed for various separate reliefs. Those Suits would be separately filed for the substantive reliefs claimed in those Petitions. 9. Since in the husband’s Petition, which is for divorce, the right in respect of matrimonial home is also claimed, the territorial jurisdiction of the Family Court in which the Suit is filed would be considered upon the main relief. The wife takes no exception to the Petition for divorce filed by the husband in the Family Court, Mumbai though she resides in district Thane. Consequently the impugned order is correct and does not deserve any interference. ( ROSHAN DALVI, J.)