KISHORE KUMAR TIWARI Vs. MANJU TIWARI

JUDGEMENT

(1.) HEARD .

(2.) THIS is an appeal at the instance of appellant -husband directed against the judgment and decree dated 13/1/2009 passed by Principal Judge, Family Court, Gwalior in case No. 515 -A/2008 (Hindu Marriage Act) dismissing the suit for want of territorial jurisdiction.

(3.) FACTS necessary for disposal of this appeal are to the effect that marriage between the appellant -husband and respondent -wife was solemnized on 28/5/1982 at Jhansi. According to the appellant ever since marriage respondent -wife did not live with him as wife and had adopted peculiar hostility against his parents. Further without informing the appellant, she had left the house for her parents at Jhansi. The appellant had filed a petition under Section 9 of Hindu Marriage Act for restitution of conjugal rights before the Family Court, Jhansi registered as case No. 68/90, which was decided in his favour and for its execution the case was registered as 93/90. Both matters were heard together. The Family Court gave two options to both while disposing of the matter on 18/9/1991 viz. either the appellant stays with respondent at Jhansi and perform his marital obligations or frequent to Jhansi for maintaining marital relationship where she was working. It is alleged that respondent - wife did not accept either proposal as she never wanted to co -habit with the appellant. Despite intervention by the senior members of the community, respondent did not concede and was not prepared to live with appellant. Under such circumstances, the appellant had filed a suit under Section 13(1)(a)(2)(II) of Hindu Marriage Act for divorce in the Family Court, Jhansi. However, the suit was dismissed on 1/5/1995. Thereafter, the appellant has been making sustained efforts for bringing the respondent back to the home but all his efforts yielded no result, therefore, again he filed a case at Gwalior for restitution of conjugal rights, but the same was dismissed on 25/11/2006. Under such circumstances, appellant has filed this suit for divorce on the ground of cruelty, which stood dismissed by the impugned judgment and decree. Respondent -wife had denied the allegations made in the plaint as detailed in para 4 of the impugned judgment and has taken a preliminary objection regarding maintainability of suit at Gwalior as neither marriage between the appellant and respondent was solemnized at Gwalior nor appellant and respondent had ever lived together at Gwalior. Besides earlier case for restitution of conjugal rights and for divorce filed by the appellant at Jhansi have also been dismissed. Hence, the Court at Gwalior lack territorial jurisdiction. The aforesaid objection has been well considered by the trial Court in para 10 and 11 of the impugned judgment and it is found that as marriage was solemnized at Jhansi and appellant and respondent had never lived together at Gwalior at any point of time, therefore, the Court at Gwalior has no territorial jurisdiction to hear the matter.