DIPAK BANERJEE Vs. SUDIPTA BANERJEE

JUDGEMENT

(1.) This is a revisional petition filed by the husband Dipak Banerjee, a B. E. Mechanical Engineering from Calcutta and a M. S. from New York and a computer professional who claims himself to be a citizen of United States of America, with his domicile in the States of Colorado having spent 10 years 10 months in different States there impugning an order dated June 22, 1985 passed by the learned Sub-Divisional Judicial Magistrate, Alipore whereby the latter found the Court having jurisdiction to entertain and try a proceeding under Section 125 of the Code of Criminal Procedure brought by the petitioner's wife Sm. Sudipta Banerjee for maintenance of herself and their only minor daughter, Sangeeta. This proceeding for maintenance was filed on June 27, 1984. The learned Magistrate overruled the petitioner preliminary objection questioning the jurisdiction of any Judicial Magistrate, Court in India in an international sense to try a claim for maintenance brought by his wife. The petitioner contends that his wife also retains the domicile of her husband and private international law brings in the conflict of laws supervening the field of operation of this proceeding.

(2.) Unfortunately the petitioner has not laid any oral evidence in the Trial Court in support of his contentions but he wanted to produce certain documents like passport, visa, nationalisation certificate, etc., in this Court to prove acquisition of his u/s. citizenship. It is an admitted position that the husband and wife had lived together and bad their matrimonial home in the United States of America between July 1972 and May 1978 where they presented a petition for divorce by mutual consent but did not see through the proceedings, the wife having left for her parents in India and the proceeding was ultimately withdrawn in 1979 through the wife's solicitors in U.S.A.

(3.) The marriage was solemnized at 186 Rash Behari Avenue, P. S. Tallyganj on May 30, 1970 according to Hindu rites and a female child was born to them on February 21, 1972 at Sindri where the petitioner's father-in-law resided. In July 1972 the petitioner took his wife and daughter to U.S.A. and he came back to India with them on 13.5.1978. The petitioner thereafter alone went back to U.S.A. on May 28, 1978 and ultimately after resigning his job in U.S.A. he came back to India on June 6, 1979 and since then he is living in his father's house at 40A Kalicharan Ghosh Road in the suburbs of Calcutta. On May 4, 1981 the wife and the child left 'the petitioner's father's house and went to live with her parent at 162/C/535 Lake Gardens, Calcutta-45. She filed on May 16, 1981 a petition for divorce in the District Judge's Court at Alipore, 24 Parganas being Matrimonial Suit No. 309 of 1981 which was remembered as 20 of 1984 before the 7th Court of the Additional District Judge's Court, on ground of cruelty and desertion under Section 13 of the Hindu Marriage Act 1985. The petitioner raised a preliminary question of jurisdiction in the said proceeding contending that he had U. S. domicile and no suit could lie against him in India and by an order dated 12.3.1985, learned Additional District Judge, 7th Court, Alipore held, inter alia that both the parties were of Indian domicile and his findings on domicile of the parties were not necessary to decide the issue on the jurisdiction of the said matrimonial Court and that the said Court had jurisdiction to try the suit. There was an order for payment of maintenance for the daughter in the said Matrimonial Suit @ Rs. 250 per month but it is an admitted position that the husband petitioner did not honour his commitments in this respect after he paid such maintenance for some time. Ad stated earlier the proceeding under Section 125 of the Code of Criminal Procedure for maintenance of the wife and child was filed by the opposite party Sudipta on June 27, 1984 when more than one year elapsed after the husband stopped sending any maintenance for the child.