Orissa High Court
Mamata Sahoo vs Aswani Kumar Sahoo … Opposite Party on 10 March, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO.28856 of 2024
(In the matter of application under Articles 226 and
227 of the Constitution of India).
Mamata Sahoo ... Petitioner
-versus-
Aswani Kumar Sahoo ... Opposite Party
For Petitioner : Mr. S.K.Mishra, Sr.Advocate
For Opposite Parties : Mr. M.K. Chand, Advocate
CORAM:
JUSTICE G. SATAPATHY
DATE OF HEARING :31.01.2025
DATE OF JUDGMENT:10.03.2025
G. Satapathy, J.
1. In invoking the extra ordinary jurisdiction of
this Court under Articles 226 & 227 of the Constitution of
India, the petitioner in this writ has challenged the order
dated 08.10.2024 passed by learned Judge Family Court,
Cuttack in CP No. 93 of 2019 refusing to reject the
petition filed by the OP-husband for dissolution of
marriage for want of territorial jurisdiction in an
WP(C) No.28856 of 2024 Page 1 of 10
application U/S. 19 of the Hindu Marriage Act, 1955 (in
short, “the Act”).
2. In the course of hearing, Mr.Samir Kumar
Mishra, learned Senior Counsel for the petitioner by
taking this Court through the averments made in the
petition filed by the OP-husband for dissolution of
marriage in an application U/S. 13 of the Act read with
Sec. 7 of the Family Courts Act has submitted that the
OP-husband has described in such petition to have last
resided at Cuttack with his wife-cum-writ petitioner at
Sankarpur, Cuttack, but the averments made by the
OP-husband at paragraphs-4, 5, 6, 10 & 11 reveals that
the couple last resided at Cuttack till 22.06.2017,
however, the petition for dissolution of marriage was
presented on 01.02.2019 when the OP-husband was
not residing at Cuttack and, therefore, the learned
Judge Family Court, Cuttack lacks territorial jurisdiction
to entertain the application of OP-husband for divorce
against the petitioner-wife in view of the stipulation
contain in Sec. 19(iii) of the Act because the parties
WP(C) No.28856 of 2024 Page 2 of 10
have never resided together for the last time at
Cuttack. It is, however, on being asked as to the
objection to the territorial jurisdiction should have been
taken at the earliest, Mr.Mishra, learned Senior Counsel
relies upon the decision in Hawkins Cookers Limited
Vrs. Jagannath Traders; 2013 (Supp.-1) OLR 73.
On the aforesaid submissions, Mr.Mishra has prayed to
allow the writ petition by setting aside the impugned
order and directing the Court concerned to return the
petition of OP-husband to present before the Court
having territorial jurisdiction in the matter.
3. On the contrary, Mr.Manas Kumar Chand,
learned counsel appearing for the OP has submitted
that the learned Judge Family Court, Cuttack has got
jurisdiction to entertain the matter, but the petitioner is
playing dilly dally tactics to protract the litigation and
he is raising the jurisdictional issue after filing of the
examination-in-chief of the OP-husband and, therefore,
the writ petition merits no consideration.
WP(C) No.28856 of 2024 Page 3 of 10
4. After having considered the rival
submissions upon perusal of record, since the petitioner
appears to have invoked the jurisdiction of the Family
Court, Cuttack U/S. 19 of the Act questioning the
maintainability of the petition filed by OP-husband for
dissolution of marriage for want of territorial
jurisdiction, this Court considers it appropriate to
extract the provision of Sec. 19 of the Act:-
“19. Court to which petition shall be
presented.–Every petition under this Act shall
be presented to the District Court within the
local limits of whose ordinary original civil
jurisdiction:–
(i) the marriage was solemnized, or
(ii)the respondent, at the time of the
presentation of the petition, resides, or
(iii) the parties to the marriage last resided
together, or
[(iii-a) in case the wife is the petitioner, where
she is residing on the date of presentation of the
petition; or]
(iv) the petitioner is residing at the time of the
presentation of the petition, in a case where the
respondent is, at that time, residing outside the
territories to which this Act extends, or has not
been heard of as being alive for a period of
seven years or more by those persons who
would naturally have heard of him if he were
alive.”
WP(C) No.28856 of 2024 Page 4 of 10
A casual glance of aforesaid provision of
law makes it ample clear that the party to the marriage
can present a petition under the Act to the district
Court within local limits of whose ordinary original civil
jurisdiction, they had last resided together, but it is not
in dispute that in case the wife wants to present such
petition, she can present it where she is residing on the
date of presentation of the petition.
5. The core issue of territorial jurisdiction as
raised in this case can only be decided by going
through the averments of the plaint/petition in the
nature of the plaint, but by not referring to the defence
of the other side. On a careful glance of the
plaint/petition for dissolution of marriage as filed by the
OP-husband, it reveals that in paragraph-1 of such
petition, the OP-husband has averred that they had last
resided together at Sankarpur, Cuttack, but the
petitioner-wife by referring to the averments in
paragraphs-4, 5 & 6 takes a plea that since the OP-wife
is staying separately from the petitioner-husband from
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the month of June, 2017, the parties cannot be said to
have last resided together at Cuttack at the time of
presentation of petition on 01.02.2019. Be that as it
may, the objection to the jurisdiction has to be taken at
the earliest possible opportunity and in all cases where
issues are settled, at or before such settlement which is
mandate of Sec. 21 of the Code of Civil Procedure,
1908 (in short, “the CPC“) which is applicable to the
suits and proceeding before a Family Court as made
clear by Sec. 10 of the Family Courts Act, 1984.
6. Admittedly, the petitioner has raised the
jurisdictional issue for the first time by filing a petition
on 15.09.2024, but the proceeding was initiated by the
OP-husband on 01.02.2019. Mr.Mishra, learned Senior
Counsel in the course of argument has contended that
the petitioner has also raised such plea in her written
statement, but fact remains that the petitioner-wife has
not raised such issue specifically pleading clear ouster
jurisdiction of the trial Court. Law is well settled that
while deciding the jurisdictional issue, the averments
WP(C) No.28856 of 2024 Page 6 of 10
taken in the plaint/petition in the nature of plaint can
be looked into, but the defence of the other side cannot
be taken into consideration in deciding the question of
territorial jurisdiction of the Court. Further, according to
Sec. 21 of the CPC under the heading “objection to
jurisdiction”, it has been prescribed therein that no
objection to the place of suing shall be allowed by any
Appellate or Revisional Court unless such objection was
taken in the Court of first instance at the earliest
possible opportunity and in all cases where issues are
settled, at or before such settlement, and unless there
has been a consequent failure of justice. In the instant
case, the affidavit evidence of the OP-husband has
admittedly been filed on 16.04.2024, but the petitioner-
wife has filed the petition to question the
maintainability of the petition U/s. 19 of the Act on
15.09.2024. It is, therefore, very clear that the
petitioner-wife has not taken any objection to the
territorial jurisdiction of the learned Family Court at the
earliest. What is most significant is that the petitioner
WP(C) No.28856 of 2024 Page 7 of 10
has relied upon paragraph-23 of the decision in
Hawkins Cookers Limited(supra) to contend that
the delay in filing the petition is inconsequential, but
this Court in such paragraph of the decision has held as
under:-
“23. Third question relates to as to whether the
Court ought to decide the issue relating to
territorial jurisdiction before the commencement
of the trial of the suit. The question of lack of
inherent jurisdiction can be raised at any stage
of a case, but an objection as to the territorial
jurisdiction could be waived which could be
express or implied. An implied waiver can be
gathered by the conduct of the parties.”
7. Further, this Court while rendering the
decision in Hawkins Cookers Limited(supra) has
relied upon the decision in G.Ayyappan Pillai Vrs.
State of Kerala and another; 2010(28)VST-
411(Kerala), wherein the Kerala High Court has held
as under:-
“24.That the Court should have decided the
issue as to the alleged lack of territorial
jurisdiction before the parties went into trial of
the suit. In this case the order to return the
plaint for presentation in the proper Court was
passed after the appellant produced his evidence
and part of the evidence of the respondents was
WP(C) No.28856 of 2024 Page 8 of 10
recorded. This was not in accordance with the
message contained in Section 21 of the Code.
Unlike in a case of inherent jurisdiction, an
objection as to territorial jurisdiction could be
waived which could be express or implied. An
implied waiver can be gathered by the conduct
of the person who was said to have waived the
right. In this case though the respondents raised
a contention regarding lack of territorial
jurisdiction, they cross examined the appellant
and his witnesses and even examined their
witness in part. Hence the respondents could be
deemed to have waived their objection as to the
territorial jurisdiction of the Court. Therefore the
Sub-court, Ernakulam, had jurisdiction to try the
suit”
8. In the aforesaid facts and circumstances,
especially when the petitioner has approached the
learned trial Court for ouster of its territorial jurisdiction
belatedly after filing of the examination-in-chief of the
OP-husband and that too, after near about five years of
institution of the proceeding which has been filed for
dissolution of marriage between the parties, this Court
does not consider it appropriate and proper to accept
the technicality of territorial jurisdiction for questioning
the maintainability of the petition after five years which
in this case becomes inconsequential inasmuch as in
the event of holding the petition for dissolution of
WP(C) No.28856 of 2024 Page 9 of 10
marriage to be not maintainable before the learned
Judge Family Court at Cuttack would not preclude the
OP-husband to present such application for dissolution
of marriage in the Court at the place where according
to the petitioner-wife they last resided together. Hence,
it is ordered.
9. In the result, the writ petition being devoid
of merit stands dismissed on contest, but in the
circumstance there is no order as to costs.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Signature NotDated
Verified
the 10th day of March, 2025/Kishore
Digitally Signed
Signed by: KISHORE KUMAR SAHOO
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 10-Mar-2025 15:07:15
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