Jurisdiction is matrimonial location - recent judgements

@ Author

Your que. is not very clear, mind mentioning here specifically under which Section / which Act she filed what and what you are asking from us once again please ?

Hi, (yes I should have been more specific)

She has filed for interim maintenance and maintenance under HMA 1956  (u/s 18, 20 &23) after deserting me. She currently stays in Mumbai. I'm a resident of Goa and  we stayed in Goa during our married life period fo 2years and 11 months. Our marriage was performed in Mumbai and registered there, but other than those 2 days of marriage day and registering, our stay has been in Goa. 

Any judgements saying that the maintainenace or divorce jurisdiction should be where the parties last resided together would be of great help.

Thanks,

@ Author

Interesting que. I am not sure if Goa has a Family Court established under Family Court Act so educate me with latest structure of Goa Courts on this.


In my opinion since Mumbai now has several Family Courts instituted under FCA, 1984 to raise preliminary objection before any written statement is filed by your side the below two paras with my reasoning will help your side greatly;


1. Civil preliminary objection defence your side shall take is based on below piece of gyan;


A suit for maintenance under Sec.18, 20 R/w 23 (2) of The Hindu Adoption and Maintenance Act 1956 is not a suit under any of the provisions of the Hindu Marriage Act, 1955. This being a suit of civil nature, the civil court has jurisdiction entertain and try the suit under S. 9 of Civil Procedure Code.

Such a suit can only be instituted in;

a. the court within whose jurisdiction the marriage was performed; or

b. the court within whose territorial limits the wife was abandoned or deserted; or

c. the court within whose jurisdiction the husband treated his wife with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.

A suit claiming a right of maintenance to be charged on immovable property has to be instituted in the court within whose jurisdiction such property is situated.

So it also means that you have to carefully study the full body of pleadings of your wife suit (I know limitations of such open forum where a query can't disclose para by para but this is besides the point as Law Points never change) and see if the suit has been institute in the proper court also you have to see if Goa does not have a Family Court as if Goa has a Family Court then above S. 9 comes as persuasive pleading. If not, challenge the question of jurisdiction at the initial stage of the proceeding and make it a preliminary issue without disposal of it nothing shall move press that.

2. Now here in this para I explain in details extraordinary power of Family Courts especially hardcore Mumbai Family Court and effect of HAMA that they keep on decising and relevance in favor of you;

2.1 First pray for framing of issues on Jurisdiction and maintainability in Family Court Mumbai where she has filed the HAMA suit / plaint.

2.2. Your side shall place heavy reliance on S. 20 of the Code of civil procedure, to say that since the parties were residing at Goa when the cause of action arose the family court at Mumbai have lost its jurisdiction on the date the suit / plaint is instituted here before Mumbai Family Court as no cause of action in part or continuing happened ever here so far as HAMA is concerned stress HAMA again !.
{Had it been HMA I would not have asked you to stress HAMA again and again.}

For clarity I am reproducting here S. 20 CPC which shall bail you out is my force view;

“S.20. Other suits to be instituted where defendants reside or cause of action arises-

Subject to the limitations aforesaid, every suit shall be instituted in a Court; within the local limits of whose jurisdiction--

(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not resides, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises."

2.3 These are some of the settled principles of Law in S. 20 CPC relating to your briefs which is to hold that the petition of the petitioning / wife has to be instituted in a court within local limits of whose jurisdiction the defendant / husband at the time of commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, or where the cause of action, wholly or in part arises. Clauses (a), (b) and (c) of S. 20 CPC are independent of each other. Clause (c) of S. 20 confers jurisdiction on a court within local limits of whose jurisdiction the cause of action, wholly or in part arises. Whether the cause of action either wholly or in part arises in a suit would depend on the averments made in the suit or marriage petition for that matter. In other words, the cause of action for filing of the suit should be ascertained from the facts stated in the plaint/petition. The cause of action means the circumstances forming infraction of the right or immediate occasion for action. By concerned Court it is left to be determined in each individual case as to where the cause of action arises. Further as we are aware the cause of action in suit/petition has no reference to the defence taken in the suit nor is it related to the evidence by which the cause of action is established.


2.4 Now here you have to see (means re-read word by word again) the whole body of plaint that is after leaving matrimonial home did she ever come back to Goa – I think no so what will the body of her plaint overall say that she was forced to leave matrimonial home from such and such date / month / year from GOA and since then she is living in Mumbai hence cause of action arise in Mumbai - my que. is HOW especially under the backdrop of HAMA which does not even have a special section on Jurisdiction ????????? But you shall say that, this is not right interpretation to admit her plaint in Mumbai Family Court because clear rights of defendant / husband is ignored and in Law there is always a principals of equal justice and equity based for parties to a suit /plaint is it not so !. Since marriage was performed at Mumbai and registered in Mumbai and both parties were there only for 2 days so cause of action cannot be Mumbai as from total body of plaint all allegations is that of Goa – is it not right to say so without going into quality of allegations and or if she is going to get maint. or not as these two are secondary here and for Jurisdiction these two are never considered and we have to just concentrate on cause of action / jurisdiction merits only while force arguments.


2.5 From your second briefs there is no way I can say that any cause of action arise at Mumbai. Infact circumstances forming infraction of the right of the petitioning / wife does not even continues and exists at Mumbai just for the sole reason that on such and such day / month / year after staying all along these years in matrimonial home in Goa with defendant / husband she all of a sudden moved an application for claiming maint. rights that also under HAMA here in Mumbai ? This is not sustainable even in Mumbai Family Court Jurisdiction for the simple reason she choose HAMA and not HMA wherein even S. 7 R.w S. 8 FCA probably could have overruled this argument is my view. You see above where I mentioned that under HAMA there is nothing called Jurisdiction! So that is the point of Law reasoning one falls into and your case is perhaps one of those tricky case where false cause of action is being falsely created and Family Court Mumbai simply ignored the body of plaint / suit and simply read quickly / went by Memo of Parties accompanying the suit / plaint where her Mumbai address is mentioned is my adamant view OR in her suit / plaint she might have mentioned about Marriage registration / marriage at Mumbai but then HAMA first of all does not have Jurisdiction section unlike S. 19 HMA so where marriage happened and where registration took place are all immaterial for continuing HAMA suit in Mumbai Family Court brother…..J  .


I am not substituting above hardcore says of mine without attaching any citations with this reply as I personally feel no amount of citation helps if a case is not correctly plead (means you have to be very thick skinned when you will hear FC Judge saying that “this is a beneficial legislation and when wife in distress the jurisdiction though not mentioned in HAMA is not useful purpose etc….” But be adamant or challenge the same before HC you will get favourable order. Means your Ld. Advocate is supposed to know these two “objections”.  Anyhow the use of citation comes only if pleading on pure Law Points fails so whistle me then and meanwhile I am confident that if your side pleads well based on either of the above two Law Points gyan you will succeed.

All the best

PS.: I like to offer myself for self correction by hardcore Family Court Law points experts here.

Hi,

Thank you very much for the input, you have given me a ray of hope. Above all thanks for taking the time to write donw the explanation. I will attempt to repsond precisely:

There is no Family court in Goa, Goa has a diffrent law (called Communion law, handed over by the Portuguese and practiced here). Even when the counselling session happenned in Mumbai the counsellor also asked me if there was no family court in Goa ( I think it was probably a indication as you rightly pointed out that the jurisdiction should be Goa).

1.  In my response to her interim application + maintenance we strongly objected and mentioned the jusrisdiction subject couple of times. (but we did not have the same logic as you have suggested).

2.1  Can I add a additional application (next hearing on May 25th when I plan to put secn 340 on her) stating that the jurisdiction issue be resolved first, as I'd responded to her petition in Sept 10?

2.2 This was put up duirng the earlier response in Sept 10.

2.3, 2.4, 2.5 - perfect, will use them.

Additional information is that I did make 30+ attempts to bring her back and have copies of original SMS, emails, air tickets, mobile records etc.....Besides writing 4 letters requesting her to resume matrimonial life (which she blatantly refused and said I should get rid of my parents and then she will come). After doing all this she went ahead and filed for maintenance for 2lacs/pm + 500 sq ft flat in Mumbai.

If you could guide on point 2.1 above as to a additional plaint can be submitted at this point of time would be immense help.

Thanks very much.

@ Author

For my 2.1 - S. 340 CrPC (Perjury) may not help instead it will take the case back to ages ! Consider revieweing the Sections I suggested with your Ld. Advocate as the priority (as I assume) here is to bring the case to Goa - right
Anyhow even if S. 340 CrPC file in Mumbai FC then also ir-respective if case transferred to Goa or not the S. 340 CrPC can't be dismissed as S. 340 CrPC is filed in same Court where the cause of action existed and continued. Rest choice is yours as you may push the case....... .

Hi,

Thanks for the update.

Will I be able to withdraw the 340 case if wife comes back to negotiate and tries to settle the matter or the court wont allow that? Knowing that she is only after money, wanted to use this as a pressure tactic.

Thanks,