AKSHAYBHAI RAJESHBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Revision Application is directed against an order dated 15.06.2019 passed by the learned Principal Judge, Family Court, Junagadh in Criminal Miscellaneous Application No.626 of 2018 below Exh.20 whereby the applicant herein requested the Court to dismiss the application seeking maintenance as the applicants therein did not stay within the territorial jurisdiction of the Court concerned. It is requested in it that on the point of territorial jurisdiction, on the grounds mentioned in the application and the documents produced, respondents nos.1 and 2 stay at Rajkot and despite that, the application is preferred in the territorial jurisdiction of the learned Principal Judge, Family Court, Junagadh, and therefore, it is required to be rejected.

(2.) Shri Harshesh R Kakkad, learned advocate for the applicant, submitted that in view of the documents produced on record that respondent no.2 herein i.e. daughter of the applicant has got admission in play house situated at Rajkot, and therefore, in reality respondent no.1 is staying at Rajkot and only for the purpose of harassing the applicant, the application under Section 125 of the Code of Criminal Procedure, 1973 is filed within the territorial jurisdiction of Junagadh Court. It is further submitted that when respondent no.1 - wife has admitted that her daughter Hiva, is admitted in play house at Rajkot, the Court should believe that respondent no.1 - wife is not staying at Junagadh, and therefore, the Court at Junagadh has no jurisdiction to entertain the application. He has further based his contention on the ground that a child of three or three and half years cannot stay without the mother, and therefore, in reality, it should be presumed that respondent no.1 is staying at Rajkot, and therefore, the Court at Junagadh has no territorial jurisdiction. He has further submitted that merely because uncle of respondent no.1 has filed an affidavit in support of her application filed under Section 125 of the Code of Criminal Procedure, 1973, it will not give jurisdiction to the Junagadh Court. He has further submitted that there is no evidence produced on record to say that she intends to stay at Junagadh permanently whereas the applicant - husband is staying at Rajkot, and therefore, with a view to harass him, this application is preferred at Junagadh.

(3.) So far as territorial jurisdiction is concerned, it should be determined based on the pleadings of the parties. It cannot be determined on the basis of presumptions and assumptions of the respondent. Averments made in the petition, supported by affidavit, in absence of evidence contrary to it, would be believed to be true. Even otherwise, factual averments disputing the same based on photographs unless accepted to be true, requires leading of evidence to decide the same. In an application filed under Section 125 of the Code of Criminal Procedure, 1973, respondent no.1 - wife has shown the address to be that of Junagadh when she was staying with her uncle as she was driven out by the applicant - husband. Over and above that, there is an affidavit of her Uncle produced supporting the said claim. In view of Section 126(1)(b) of the Code of Criminal Procedure, 1973, respondent no.1 - wife can file proceeding where she resides. The documents, which are annexed with the maintenance application as also the affidavit produced unequivocally, proves that she stays at Junagadh, and therefore, learned Family Court at Junagadh has territorial jurisdiction. Not only that, pursuant to the application filed by respondent no.1 - wife dated 01.11.2018, the applicant - husband vide Exh.15 dated 01.02.2019 filed reply to the main maintenance application as also the interim maintenance application filed by respondent no.1 - wife. With a view to delay passing of the interim order of maintenance, application Exh.20 objecting to territorial jurisdiction came to be drafted on 16.03.2019 and presented to the Court on 01.05.2019. It is only with a view to defeat the passing of interim maintenance order that the applicant has given such an application objecting to the territorial jurisdiction of the Court at Junagadh. However, application under Section 125 of the Code of Criminal Procedure, 1973 itself reflects that there is an averment in it that she stays with her daughter at Junagadh with her Uncle. Merely because parents of respondent no.1 - wife stays at Rajkot, it will not debar the learned Family Court at Junagadh to entertain her application as she stays at Junagadh with her Uncle. If, at all, the applicant was to object to the territorial jurisdiction of the Junagadh Court, the day on which common reply to the main application as also interim maintenance application was filed, he could have moved that application objecting to the territorial jurisdiction of the Court. However, foreseen the order of interim maintenance passed against him, it is nothing but a device found by the applicant objecting to the territorial jurisdiction and thereafter challenging that order before this Court.