Jurisdiction for divorce - goa

IN your matter goa is also jurisdiction as husband and wife last resided there .and Hindu marriage act is also applicable in goa.

This judgment may provide some guidance, though the facts of the case appear o be not directly applicable to you: https://indiankanoon.org/doc/1984363/

I thank both of you for this prompt responses

@ Author, 

1. If husband is petitioner to a divorce petition under HMA based on presented facts, then as per S. 19 (1) (i) and (iii) HMA Court to which petition shall be presented is where parties marriage took place (Delhi) OR the parties to marriage last resided together (Goa).

2. Boy is originally from Mumbai (original domicile as single before marriage) and the Girl is from New Delhi (original domicile as single before marriage) whereas domicile together of both boy and girl before marriage was Goa and their marriage tool place in Delhi. 

3. When question comes for choosing jurisdiction by either to file for divorce then for boy based on this brief has only two option that is either at Delhi or at Goa. He choose Goa (not only for they living together there but due to his having a property there with his own name title deed).

4. Now you say they got married in 2011. From brief the marriage took place in Delhi. My question here is just prior to date/month of marriage where both boy and girl were 'residing respectively' and second question is just after marriage next date where the boy and girl were "residing together'? See the different questions and answer accordingly. 

5. If both were 'residing respectively' in Goa while working in same organisation (not very material the work place location) then it could be said they were respectively holding 'domicile' of Goa before marriage. Further, if both were 'residing together' just next day after marriage till filing of divorce petition by boy at Goa then it could again be said they were respectively holding 'domicile' of Goa at the time of filing by one party divorce petition. Hence Goa Court has jurisdiction to try the case. Moreover, it is burdened duty of Court while admitting a case before her to clear jurisdiction of the Court and then proceed on 'trial' least damage to party inadvertently happens even so if neither party raised 'jurisdiction' question is my view.

6. Now you say in your brief the boy filed divorce and then say some cash transaction is already given to girl and now the ld. judge has observed (oral most probably) and raised doubt of jurisdiction you are here - right? So my question now is under which Section of HMA the boy has filed 'divorce' petition? I asked so because if he rather both of them are not undergoing divorce via mutual consent divorce route (i.e. S. 13 A and S. 13 B HMA) to dissolve their marriage via their personal laws i.e. HMA then using any other Section under HMA the cash payment made would not stand test and cannot be recovered. Normally when some payment consideration made to other party in divorce it is in a maintenance case OR as full and final alimony OR under mutual consent divorce route. I do not see this 'cash payment' which has been made to be part of some 'maintenance' Order of ld. Judge? I still did not see this 'cash payment' which has been made to be part of some 'alimony' Order of ld. Judge? I infact did not even see this 'cash payment' which has been made to be part of some 'mutual consent agreement' between parties as all that is mentioned in this brief is 'divorce' word and subsequently 'cash payment already made' and then doubt created by a ld. judge on 'jurisdiction issue'!

7. So first clarify quote question as asked in above few paras and then let us see how principals of law can be applied. 

8. Goa does has special status in terms of marriages and divorce, succession, custody, property Personal Laws amongst others but your brief need not touch local flavour at this moment till few questions raised above are clarified is my view.

Sir,

Hats off to your detailed study of my brief note. I can surely clarify here and now -

Before marriage both the boy and girl were 'residing respectively in Goa and after marriage they lived together in Goa till the date of his escape

At a later date after filing the petition, the lawyers came to a settlement which involved giving all the household appliances etc to the girl and a demand draft for an agreed amount. This was signed by both of them in court. The mutual consent application clearly mentioned that it was a ' full and final alimony'. Only then did the girl agree to leave the house and give us the keys.

Later, it was to be that the girls lawyer was to offer no contest and then that the judge would go ahead with granting the decree.

At that stage, the judge is citing Jurisdiction issues.

I hope I am clear.

Thanks again sir

@ Author, 

1. Then it is clear that this brief is a case under Mutual Consent Divorce and both boy and girl prior to marriage (important) and after marriage (again important) r/w at the time of filing the petition (most important) under mutual consent divorce Clause are throughout ‘domicile’ of Goa. All three conditions fulfilled and passes test of ‘jurisdiction’. 

2. Now question comes of Statement under Oath of respective parties during ‘two statutory Motions’ to a filed joint mutual consent divorce petition. I understood some advocate made some agreement and immediately the boy got worked up and got her rid of his prized possession (property keys as you briefly hint here) thinking both two statutory motions would henceforth undergo smooth as cheese. So the question now is has the girl given her “first statement” under Oath? Has the ld. Judge 'recorded the same' and then announced '6 months cooling period’ for possible reconciliation / patch up to parties and announced 'next date of hearing'? 

3. If first motion statement has been recorded as per statutory provisions and cooling period announced by way of Order of the ld. Judge then the ld. judge cannot now wriggle out that is at the time of second statement citing imaginary ‘domicile’ question is my view hence clarity of above para is needed? 

4. Flip above, further, if, as soon as both (boy and girl) filed Mutual Consent Petition along with their private agreement (MoU) copy and boy already fulfilling the Terms and Conditions of ‘mutual’ consent then ld. judge remarked about ‘jurisdiction’ then there is a case in hand (worrisome as boy already gave some money and second party the girl has not even recorded her Statement so the whole case even if jurisdiction bar is removed still will not bring fruitful result to parties is my view).

5. So now clarify the stage of proceeding. Has First Statement recorded of parties? Has ld. Judge allowed First Motion and announced Order on cooling period that is a date given after 6 months for second Motion to parties to be present in Court to say their say if they proceed on divorce or want to reconcile etc. or otherwise?  

6. I hope you may be aware that in a mutual consent divorce petition two motions happens. They are called first motion and after a gap of minimum 6 months second motion happens. These motions are nothing but recording of statement with few basic questions (inquiries by Court) done on respective boy and girl to a case!. 

7. So let me hear further from you then we will apply Law / remedy amongst others. In my opinion straightaway giving you Citation of Apex Court and/or otherwise may not help as there are two issues which I see evolving in this brief, one some consideration already paid and second the girl is told to us to be vanished ! So until clear answers cometh even citation given to you then where is the girl to agree (be bind) to come to court (any be it superior Court to Goa where appeal to be filed) it and moreover if no girl in picture how you can proceed further as ex part decree now cannot happen ? ? ? 

If in the court record, there is no documentary  proof to prove that you both resided together in Goa, get those documents (your employment card, salary slips etc.) and file them through an application supported by an affidavit specifically mentioning that you both resided together in Goa.  If your contention is not controvered by the opposite party, the court has to exercise its jurisdiction on the basis of your affidavit and supporting documents.

Thanks again, Let me try to clarify to both of you -

1. It is not a case under Mutual Consent Divorce. A regular petition was filed and after a couple of dates, the lawyers advised us that it could be a long drawn process and that even if we had sufficient evidence (which we surely had), and that the Learned Judges are generally softer towards the girl's favour.

2. The lawyers (I have full respect for them) met the girl, she put forth her demands, which we agreed to fulfill, which included many household appliances and a substantial amount, which we paid by Demand Draft, under a 'Consent Terms' document that was signed by both the parties and signed in the Court under Oath. The document clearly mentioned it as a One time settlement of alimony and maintenance. This happened a year ago. The girl's lawyer clearly stated in court that he did not want to 'Cross examine'. The case was proceeding towards granting of the decree but suddenly the Learned Judge expressed that Goa is not the jurisdiction and that she would dismiss the case. She was subsequently promoted and we had another Learned judge, who asked for the Society Chairman (of the building where the boy has a house) to testify that he had signed the maintenance receipt. He refused to be present in court out of fear. We waited for a while and are being informed that if the case is dismissed, we would have to file a fresh petition in Mumbai and the whole process would have to start again.

There is no Family court in Goa and matters are taken up like any other suit. It is 3 years since the petition was filed.

Thanks for your patience

Do not allow the Goa court to dismiss the case because you will face a lot of difficulties to get divorce in Bombay court.  The issue is jurisdiction.  The jurisdiction of Goa court lies if both husband and wife lived together last time in Goa.  This fact has to be proved by the petitioner by way of evidence.  There are several methods to prove this fact.  One, by getting evidence from the landlord.  If he is not turning up to depose in the court, then you can have other methods also to prove this fact.  As you both worked from the same organization, you can get your salary documents of both the parties from the organization.  If it is required you can summon the responsible officer from the organization to prove that you both worked together in Goa Office.  That itself proves you both stayed together as husband and wife in Goa.  In most of the courts, generally the affidavit from the parties is accepted.  In addition to this, you can bring one or two collegues also in the witness box to prove this fact that you both lived together.  I do not know, why your advocates are not suggesting you this simple solution.

@ Author,

1. I agree to short and correct advice given by ld. brother Sh. Chandrasekhar. Infact that is what I also would have advised you after probing all angles out of your very first brief to know correct facts which were not very clear from your first brief.

2. Value adding; there is legal term called "Proof Affidavit" wherein witnesses submit respective Proof Affidavit vouching long period of domicile and knowing the person well from such and such period (who is petitioner to this divorce petition). Boy's advocate must know this simple thing and he can get them submitted as proof of  parties 'domicile' in Goa.

3. I conclude by observing in this brief that the boy needs to consult another advocate as correct remedies have been given in this brief by all my fellow replies and beyond these it is this boy's luck that is all I have to say. 

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