(1.) Invoking the jurisdiction of this Court under Section 115 of the Code of Civil Procedure, the applicant-wife has called in question the legality and validity of the order dated 15.5.2009 by which the objection to maintainability of the proceeding under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') on the ground of lack of territorial jurisdiction has been turned down.
(2.) In order to appreciate the challenge made to impugned order reference to few facts is necessary. Admittedly, applicant and non-applicant got married as per Hindu rites on 9.5.2006 at Bhopal. The non-applicant/husband has filed a petition under Section 13 of the Act seeking dissolution of marriage in the Court of Additional Judge to the Court of First Additional District Judge, Sehore. On receipt of notice of proceedings, the applicant-wife entered appearance and raised an objection with regard to the maintainability of the proceeding on the ground of lack of territorial jurisdiction. In the objection it was inter alia stated that from perusal of paragraph 2 of the petition under Section 13 of the Act, it is apparent that the parties had last resided together in Bhopal. In paragraph 8 it was stated that the non-applicant stayed in hotel Crescent for a period of three days i.e. from 22nd July to 24th July, 2007. An objection was raised that the Court, at Sehore has no territorial jurisdiction to entertain the proceeding under Section 13 of the Act. Trial Court vide order dated 15.5,2009 held that from perusal of paragraph 13 of the petition under Section 13 of the Act, it is apparent that the parties resided together on 26.7.2007 at Sehore. The applicant-wife no where in her application stated that where she resided lastly with non-applicant. It was further held that the question of jurisdiction is a mixed question of law and fact and can be decided only by recording evidence. Accordingly, the application was rejected and it was observed that in case the applicant-wife in her written statement makes an averment with regard to jurisdiction of the Court, the same shall be tried as preliminary issue.
(3.) Mr. A.K. Choubey, learned counsel for the applicant, assailing the order passed by the trial Court has submitted that from perusal of paragraphs 8 and 9 of the petition under Section 13 of the Act, it is apparent that the parties have resided ANJALISHUKLA(SMT.) Vs. SUNIL KUMAR SHUKLA together for a brief spell of five days i.e. from 22nd July to 26th July, 2007 at Sehore. The learned counsel for the appellant placing reliance on the decision of the Supreme Court in Smt. Jeewanti Pandey v. Kishan Chandra Pandey, AIR 1982 SC 3 has contended that in order to give jurisdiction on the ground of residence something more than temporary stay is required. Therefore, the Court at Sehore has no territorial jurisdiction to entertain the petition.