The Allahabad High Court while dismissing an appeal said that the term ‘residing’ though not defined under the Hindu Marriage Act, clearly denotes more than a casual visit to a place falling within the territorial jurisdiction of the Court where a divorce proceeding may be instituted.
The Division Bench of Justice Saumitra Dayal Singh and Justice Syed Aftab Husain Rizvi passed this order while hearing an appeal filed by Smt Adity Rastogi.
The appeal has been filed under Section 19 of the Family Courts Act, 1984 arising from the order dated 11.08.2023 passed by the Additional Principal Judge, Family Court, Moradabad in Matrimonial Case filed under Section 13 of the Hindu Marriage Act, 1955. By that order, the court below has dismissed the proceedings instituted by the appellant as lacking in territorial jurisdiction.
The Court said that,
While there may be some substance in the submissions being advanced by the counsel for the appellant that the court below did not allow the appellant any opportunity to rebut the facts stated in the application dated 11.08.2023 filed by the respondent and while there may be substance in the further submissions being advanced by the counsel for the appellant that at present, no proceedings for divorce are pending between the parties before the competent court in Australia, at the same time, those considerations may not lead us to any conclusion as to error committed by the court below in refusing to entertain the divorce proceedings instituted by the appellant. It is so because for whatever reasons that may exist, it remains undisputed to the appellant that she is residing in Australia.
Though she may have briefly visited India and may have instituted the divorce proceedings at that time, considering the undisputed status of her residency in Australia, the provisions of Section 19(b)(a) of the Act would not come to her rescue.
“Once it is admitted to the appellant that she is continuing to reside in Australia though under force of circumstance, it has to be maintained in law that she is not residing within the territorial jurisdiction of the Family Court, Moradabad.
Consequently, we find no error in the order passed by the court below dated 11.08.2023″, the Court observed while dismissing the appeal.
If however, status of the appellant’s residency changes that may give rise to fresh cause on the strength of that change of status, the Court further said.