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Sony (Random)     07 April 2012

Contest jurisdiction

Hi, i wish to know if my husband has filed a petition for divorce in ludhiana (his parent's house) but the marriage was solemnized in delhi and we have been living in delhi for the entire part of our married life.  can i contest jurisdiction of court under section 19 of HMA or is filing a request for transfer in Supreme Court the only option? Also, if possible can i submit my application on objection of jurisdiction before the first hearing date?

I have only received a small notice for date with no accompanying copy of petition, is this common practice? If a divorce case was filed and i have been summoned, should a copy of petition not be attached??

Thanks for all help.



Learning

 12 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     07 April 2012

Summons served without a copy of plaint/petition is NOT a valid service of summons. It is basic principle of natural justice that the person should know the allegations against him. How do they expect you to file a Written Statement/Reply without knowing the main petition. But I would still advise you to raise the plea of jurisdiction on the first hearing and participate through a pleader. 

Secondly as regards the jurisdiction on available facts - the ludhiana court has no jurisdiction and petition there is misconceived and bound to be returned for filing in the proper court. However if he succeeds in establishing jurisdiction somehow (since I don't know the complete facts) Supreme Court transfer petition would be your key. 

Feel Free to talk !

Arvind Singh Chauhan (advocate)     07 April 2012

Nothing to add after answer of Mr. Chug.

Sony (Random)     07 April 2012

many thanks for you kind help.

what options do i have considering an invalid service of summons? but to give in to the harassment my husband wishes to inflict- to hire a lawyer and travel to ludhiana to fetch a copy of petition and prepare my reply? 

if i  have not received a copy of petition and i wish to raise the jurisdiction plea, am i still to travel and get a copy of petition and prepare my reply? 

Sony (Random)     07 April 2012

Mr. Chugh, would really appreciate your kind advice.

rajiv_lodha (zz)     07 April 2012

Most of the answers clear ur doubts, but beware....................as u already suspect, he seems to be an oversmart fellow...............he may have COVERED THE JURISDICTION GROUND in his petition.

Its a big issue, try ur best to get the copy of petition & then decide how/where to start.

gud luk..................rajiv

Adv. Chandrasekhar (Advocate)     07 April 2012

The experts above rightly advised you that notice unaccompanied with petition is not a proper service, only in theory.  Practically several courts serve the notices without annexing the petitions.  Once the respondent appears in the court and informs the presiding judge about non-service of petition, the judge directs the petitioner to serve a copy of the petition there and then.  This is happening even after amendment of C.P.C.

He must have mentioned in one of the paragraphs of his petition, that the parties resided together in Ludhiana and so the court in Ludhiana has got jurisdiction.  It may be a blatant lie.  But to prove it a lie, evidence is required.  So, the court cannot through the petition on the ground of lack of territorial jurisdiction, just by your mentioning the fact that the marriage was solemnized in Delhi and the couple lived together in Delhi and the respondent is living in Delhi.  Certainly, you can take up this issue as a "preliminary objection" in your reply and also if advised so, you can also move separate application requesting the court to decide the question of territorial jurisdiction.

It is important to note that in matrimonial matters, it is mandatory to the court to insist first for "mediation/counselling".  So, once you appear in the court, the court will not direct you to file reply but insist you to go through "mediation/counselling".  Needless to say, on the first date of hearing itself, without submitting to the jurisdiction of the court, you can ask for interim maintenance as well as lititgation expenses, if you are in need of those things.

Finally, I suggest you, the proper course of action for you is to consult an advocate and file appropriate case against your husband in Delhi jurisdiction and fle transfer petition in S.C. seeking transfer of his case from Ludhiana to Delhi.

Sony (Random)     07 April 2012

Thank you all for your generous help. I shall seek your advice further. thanks again for this helpful platform and kind individuals here.

Sony (Random)     07 April 2012

As all the learned experts advise, till the time the transfer request in SC is heard (how long should  expect it to come through?) cn i file a separate divorce petition in delhi court?

Further, i believe that the ration card in ludhiana carries my name. Is this sufficient grounds for my husband to prove jurisdiction. But we have always lived in Delhi and we have other legal documents carrying delhi address. 

Adv. Chandrasekhar (Advocate)     08 April 2012

You have not told which case he filed at Ludhiana.  If it is divorce case and you also intend to get divorce and for this you propose to file divorce case in Delhi, it is useless and costly exercise.  If both parties are intended to go for divorce, the better method is Mutual Consent Divorce (MCD).  It is hardly matter whether it will be filed in Delhi or Ludhiana, as the steps in this case are simple and the case will be disposed in two to three hearing.  Before reaching MCD agreement, decide all the relevant questions, i.e., permanent alimony and child custody, if there are children.

Otherwise, move the SC for transfer of his case from Ludhiana to Delhi. 

FYI, generally if husband files divorce case in some other place, which is inconvenient to wife and wife does not  want to give divorce but wants that  that case has to be transferred to her place, she generally files maintenance case under Section 125 cr.p.c. at her place and approach the S.C. for transfer of husband's case to her home town.  This is the general practice.  


(Guest)

DEAR SONY

VARIOUS CASE LAWS OF SC HAS AVAILABLE ON THIS PROBLEM.

FILE A PETITION TO TRANFER THE CASE FROM LUDHIANA TO DEHLI.  PROVE THAT LANG DISTANCE, UNABLE TO TRAVAL, ETC. SC WILL PASSED ORDER IN YOUR FAVOUR.

YOU HAVE RECEIVED THE NOTICE/SUMMON SO YOU HAVE TO APPEAR IN COURT OTHERWISE CASE MAY EXPARTY IN YOUR NANE PRESENT.

FOR MORE ADVISE- CONTACT.


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