SHEKHAR HARCHAND INDRA Vs. SANGEETA SHEKHAR

JUDGEMENT

(1.) This Petition takes an exception to the order dated 15/12/2011 passed by the Family Court, Mumbai by which the application challenging the jurisdiction of the Family Court filed by the husband is rejected. The respondent-wife has filed a petition for divorce before the Family Court under section 27(1) of the Special Marriage Act. The petitioner husband raised preliminary objection under section 9-A of the Code of Civil Procedure on the ground of territorial jurisdiction. It was argued that in view of Section 31 of the Special Marriage Act, the Court has no jurisdiction to try and decide the petition.

(2.) The respondent-wife has filed petition in the Family Court, Mumbai, as she claimed that she was residing at Andheri, Mumbai. The counsel appearing for the petitioner has challenged the address and averments of the wife about her residence in Mumbai. Learned counsel has submitted that the wife was holding a Pan Card at the address of her father, who is residing at Vasai. Her parents have a house at Vasai, District-Thane. Therefore, she could not file a petition in Mumbai. Though under section 31(1)(iii-a) of the Special Marriage Act,1954, the wife can file a petition where she is residing on the date of presentation of the petition, the meaning of word residence should be understood as a permanent or temporary residence with some proof. Learned counsel argued that the respondent-wife ha snot produced any proof to show that she has been residing at Andheri at the address given in the petition for a considerable period of time. Therefore, the divorce petition cannot be entertained by the Family Court, Mumbai. Learned counsel further argued that it was necessary for the Family Court to frame preliminary issue under section 9-A of the Civil Procedure Code in respect of the jurisdiction and record evidence and then to decide the application. However, the Family Court failed to do so. Hence the order passed by the Family Court is to be set aside.

(3.) The petition involves a very short point of interpretation of Section 31(1)(iii-a) of the Special Marriage Act, 1954. The Section is reproduced as follows.