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Swami Sadashiva Brahmendra Sar (Nil)     09 May 2010

Agreement on jurisdiction in matrimonial cases

Dear friends,

In most of the matrimonial disputes the parties live at too far places from each other. Husband may be employed in Bangalore, his parants and other relatives may be living in Kolkata and other remote places, and wife may have filed a case in her parental city Chandigarh . Reports disclose that each third family in India is prone to matrimonial disputes. Is it not advisable to make a contract before the marriage regarding jurisdiction of the court.?

In civil law it is settled position that parties can enter in to contract as to where among many jurisdictions the case will be filed.

Can this rule be applied to criminal law  particularly in matrimonial offences ?



 4 Replies


(Guest)

Sh. Dr. Tripathi ji,

1. I for one fully agree with your advise and why CrPC / IPC jurisdiction why not Civil matrimonial as well as Guardianship (GWA) jurisdiction it should be thought of?.

I will give you a very interesting live scenario which will even will make you wonder how trial courts takes matrimonial cases in Delhi district courts.  

Under HMA (Tis Hazari Courts, Delhi)

1. Wife files a S. 13 (1) (ia) (ib) with X place in South Delhi as her Oath Affidavit "ordinarily residence of" address in Sept. 2006. The marriage of parties took place at Connaught Place. Both spouse made North West District of Delhi as their ordinarily residence post marriage. Still defendent husband to this suit lives and works from North West District.
2. Wife files Sowrn Oath Evidence Affidavit under S. 24 HMA with same X place in South Delhi as her Oath Affidavit "ordinarily residence of" address in 2006.
3. In 2007 Husband as Natural Guardian gets visitation order to visit wife's place as in her Memo of Parties and as in her above two affidavits to discover that she never lives at that address. A trail of local jurisdiction Police Investigation supported with Directorate of Estate RTI replies leaves behind "facts" that X place in South Delhi is not the place where she "ordinarily resides"
4. Husband files Contempt of Court Order and later files before HC of Delhi U/s 24 CPC transfer of case to Family Court at North West Distric tof Delhi where under Family Courts Acts a Family Court is formed in 2008.
5. HC of Delhi directs the trial court to decide "issue" of jurisdiction before deciding any other issue.
6. Cooly Trial Court directs wife to file fresh "affidavit of ordinarily residence of with proof of residence" on the date of filign her abv. divorce suit as well as on today's date her "ordinarily residence of address with proof"
7. Wife is super smart and perhaps this is one of a kind case in entire Indian matrimonial Judiciary history that wife files first affidavit stating "the previous address filed at the time of filing divorce petition is her corresspondence address" and now at this time where she is stayign is "her temporary address and she may change this address as and when she gets suitable accommodation"

If you see S. 19 HMA Read with S. 7 (1) (a) (f) Family Court Act, 1984 then place where husband lives that is at North West district of delhi where the Family Court under Family Court Act is extablished in Delhi (NCT) the suit shoudl be transfered to, BUT court is going soft over wife's plea so what you suggested is a tough call for amendment is what I mean to say here.

Now see same parties jurisdiction issues under GWA (Guardianships and Wards act) (Tis Hazari Courts, Delhi)

1. Husband as natural guardian using wife's above divorce suit filed under oath affidavit memo of parties "ordinarly address" files S. 12 / S. 25 GWA for guardianship / custody of female child a suit in Feb. 2007.
2. The child after birth lived at North West Disrict of Delhi before her removal in 2002 by her mother snatching the custody from her natural guardian and moved to "corresspondence and temporary address" as showeth hereafter.
3. The process service of this suit was not effected at "ordinary residence of address of South Delhi where mother said she with child oridinarily resides as per her above divorce suit.
4. Later the process service of GWA suit was effected at mother's office address. She appears and files her written statement on 93 day for which dismissal at default application (time barred) was already filed by natural guardina though Court showed lenianece and accepted her w/s.
5. Later natural guardian was allowed visitation under GWA and he found that mother and child are not living at South Delhi address.
6. Here also he approached HC of Delhi to transfer the case to Family Court at North West District. But, this time HC of Delhi gives direction to natural guardina to move an applicaiton before trial court for change of jurisdiction. He follows direction of the Delhi HC.
7. Now see the fun and cnfusion of trial court in the name of "child jurisdiction" which is totally different then parents "ordinarily residence" as you may also be aware of  (S. 9 GWA). Trial Court hearing GWA suit of natural guardian (husband) directs mother to file sworn affidavit with her and child's address at the time of filing her written statement as well as of today's date.
8. Mother obliges the court and same like HMA oath affidavit this time she files similar oath affidavit stating at the time of filign her written statement under this act she has a corresspondence address and presently she is living at a temporary address and she will change this address as and when she gets suitable accommodation. 

In all above 2 cases the "corresspondence address" even does not serve the purpose ot accept "court process" or complience of court orders so what on earth is "corresspondence address" serving the purpose for>? Can a criminal case run on "corresspondence address" and what about "physical address" the words often used to set criminal jurisdiction of a complaint / criminal case? I think trial court does not know atleast in Delhi by the review of above facts!

If you see S. 9 (1) GWA Read with S. 7 (1) (g) Family Court Act, 1984 then it is "ordinary residnece of" address of a child till his removal is taken into consideration for setting jurisdiction in child guardianship / custody cases and catena of citations from SC to Delhi HC are placed before trial court. So child was removed from North West district of Delhi where the Family Court under Family Court Act is established in Delhi (NCT) the suit shoudl be transfered to, BUT court is going soft over mother's / wife's plea so what you suggested is a tough call for amendment is what I mean to say here. 

Same is the fate of S. 125 CrPC application (filed at Patiala House Courts, Delhi) by same wife agaisnt same husband wherein Husband / defendent approached (for a change this time) Sessions Court to set the jurisdiction of wife's S. 125 CrPC suit filed in Sept. 2006 and till date all the above three cases are in limbo. She has not even been awarded S. 24 interim nor S. 125 CrPC interim and facts are that both these are filed way back in 2006 ? Then wife files for maintenance in GWA also if these two were not enough. Under GWa her maintenance plea was dimissed as there is no provision for maintenace under GWa The Act if you read it..  

Beauty of all above situations are that wife is still not satisfied and in August 2009 she files for similar reliefs (maintenance) under DV Act against husband at Patiala House Courts, Delhi using "same corresspondence address and temporary address" and setting the jurisdiction.  

I always wondered why have Order 6 / Rule 14 A clause 5 CPC for jurisdiction of a civil suits and S. 177 CrPC for criminal jurisdiction when a wife is playing fool to the Courts like above facts. Scrap all these and let allow wife's file a suit against their husband from Mars / Venus / moon :-)

So in nut shell lauging reading above peculiar facts connivance of trail courts of Delhi I say that what we need is tough "perjury" Law in matrimonial cases and nothing else is my limited view unless you may like to through light in above unique situation to resolve the same. 

Oh BTW husband has already filed 3 perjury affidavits in all above three cases only on address grounds leave aside other perjury facts / evidences he placed on record.  As usual trial courts donot have enough ammo to take up even perjury when evidences are material facts so God only can save a part of Judiciary.

Rgds.

1 Like

Swami Sadashiva Brahmendra Sar (Nil)     09 May 2010

A few decades ago marital relations, particularly in villages, were prefered within few miles distance. This was for the sake of   convenience in journy and several other practical reasons.

Now , I would advise to enter in to intra-city marital relations due to proximity of litigations.

N.K.Assumi (Advocate)     09 May 2010

The question thought provoking and the nswer is truly an eye opener to give a serious thought on this jurisdictional matters. Thanks for the question and the Answer from Dr.Arun.

1 Like

rajan (general)     08 August 2013

Sir my q is.

My wife is from sangli(south maharashtra) and has filed divorce from there.As i m taking care of kids in wardha(east maharashta).can i apply for case transfer  in nagpur high court (bombay bench) or need to file in  bombay high court only.


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