Nikita @ Rinki v. Ajay Khandelwal

1. For the reasons stated in the application, the same is allowed and the delay of 28 days in filing the appeal is condoned. CM APPL. 22867/2024

2. The application stands disposed of.

3. The present appeal has been filed by the appellant under Section 19 of the Family Courts Act, 1984, challenging the Order dated 07.12.2023 passed by the learned Additional Principal Judge, Family Court, West District, Tis Hazari Courts, Delhi (hereinafter referred to as,‘Family Court’) in HMA No.1111/2023 titled Ajay Khandelwal v. Nikita @ Rinki, dismissing the application filed by the appellant under Order VII Rule 10 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as, ‘CPC’), while observing as follows:-

4. Brief facts as stated in the divorce petition and which led to filing of the present appeal are that the respondent has filed the above divorce petition, bearing No. 1111/2023, under Sections 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 (hereinafter referred to as, ‘HMA’). In the said petition the appellant had filed an application under Order VII Rule 10 of the CPC, alleging therein that the learned Family Court at Tis Hazari Courts, Delhi, does not have the territorial jurisdiction to adjudicate on the Divorce Petition as the parties had not last resided together at Delhi but at Faridabad, Haryana.

5. The appellant claims that the marriage between the parties was solemnised on 23.01.2007 at Banquet Hall, NIT, Faridabad, Haryana, according to Hindu rites and ceremonies. After the marriage, the parties lived and cohabited together as husband and wife at House No.52/39, Gali No.17, Nai Basti, Anand Parbat, New Delhi-110005. Their marriage was duly consummated and out of the said wedlock, a male child was born on 02.04.2009 at Vandana Nursing Home, Sector-22, Faridabad, Haryana, who is in the care and custody of the appellant. It is stated that since the widowed mother of the appellant was residing in Faridabad, Haryana, the appellant used to often visit her there.

6. The main grievance as put forth in the instant appeal is that the learned Family Court, while dismissing the application under Order VII Rule 10 of the CPC, has overlooked the fact that the respondent has purposely invoked the jurisdiction of the Court near to him by concealing the material fact that the parties last resided together at the Faridabad residence of the appellant, for a period of six years, from 2013 to 2018. It is further stated that in the year 2013, the appellant/wife had shifted to her parental home at Faridabad along with her son, who was then admitted in DAV Public School, Faridabad. It is further stated that in 2013, the respondent - husband also started residing with the appellant at her parental home at Faridabad and used to commute to Delhi for his business. It is further stated by the appellant that there is no assertion in the plaint as to where the parties lastly resided together,which fact the learned Family Court has failed to consider.

7. On the other hand, it is contended by the learned counsel for the respondent that, in paragraph no. 33 of the petition for divorce, filed by the respondent, it is categorically mentioned that the parties resided together as husband and wife at Anand Parbat, New Delhi. It is further submitted by the learned counsel for the respondent that, the learned Family Court, while hearing the arguments, had enquired from the respondent as to where he had last resided together with the appellant, and it was submitted by the respondent that they had last resided together at Anand Parbat, New Delhi.

8. It is also stated by the learned counsel for the respondent that even in various paragraphs of the written statement, the appellant has duly admitted the fact that after the marriage, she resided in the matrimonial house, which is situated at Anand Parbat, New Delhi.

9. It is stated by the learned counsel that the respondent had earlier filed a petition under Section 9 of the HMA, seeking restitution of the conjugal rights, before the learned Family Court, and in those proceedings, no objection regarding the territorial jurisdiction was ever raised by the appellant and, in fact, in the said petition, the appellant had entered into a compromise with the respondent and agreed to join him at the matrimonial house situated at Anand Parbat, New Delhi. Later, when the appellant did not join the respondent at the said matrimonial house, the respondent was constrained to file the petition for divorce under Section 13(1)(ia) and 13(1)(ib) of the HMA.

10. It is stated that in view of the aforesaid submissions, there is no infirmity in the order passed by the learned Family Court.

11. We have considered the submissions of the learned counsel for the parties and perused the records.

12. Order VII Rule 10 of the CPC deals with the power of a Court to return a plaint. It reads as under:

13. It is a settled position of law that the question of whether a plaint is to be returned under Order VII Rule 10 of the CPC is required to be examined solely on the basis of the averments in the plaint and the documents filed by the plaintiff therewith, and without considering the defence raised by the defendant.