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Mrs. Esther Kiron Vs. FranklIn Promod Kiron - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberDivorce Suit No. 22 of 1978
Judge
Reported inAIR1983Cal56
ActsDivorce Act, 1869 - Sections 3, 10 and 17; ;Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 10
AppellantMrs. Esther Kiron
RespondentFranklIn Promod Kiron
Excerpt:
- .....the indian divorce act for confirmation of the decree nisi passed ex parte by the learned district judge, burdwan for dissolution of marriage between the petitioner mrs. esther kiron and respondent mr. franklin promod kiron in this divorce suit. 2. the petitioner-wife pleaded for a decree for dissolution of the marriage with the respondent under section 10 of the indian divorce act alleging in the petition that she was married to the respondent according to christian rites on 18-2-74 at the baptist church at chitaldanga, p. o. rupnarayanpur, p. s. salanpur, district burdwan within the jurisdiction of the learned district judge, burdwan. she further stated that after marriage the petitioner went to live with her husband at gumia, district giridih (bihar) where they lived together till.....
Judgment:

Amitabha Dutta, J.

1. This is a Reference under Section 17 of the Indian Divorce Act for confirmation of the decree nisi passed ex parte by the learned District Judge, Burdwan for dissolution of marriage between the petitioner Mrs. Esther Kiron and respondent Mr. Franklin Promod Kiron in this Divorce Suit.

2. The petitioner-wife pleaded for a decree for dissolution of the marriage with the respondent under Section 10 of the Indian Divorce Act alleging in the petition that she was married to the respondent according to Christian rites on 18-2-74 at the Baptist Church at Chitaldanga, P. O. Rupnarayanpur, P. S. Salanpur, District Burdwan within the jurisdiction of the learned District Judge, Burdwan. She further stated that after marriage the petitioner went to live with her husband at Gumia, District Giridih (Bihar) where they lived together till 14-6-75. Soon after her marriage the petitioner came to learn that the respondent had illicit connection with one Nili William of Chelidanga of Asansol and when the petitioner tried to prevent the respondent from having such illicit relationship the respondent began to torture the petitioner for which she had to leave the place of her husband on 15-6-75. Since then she has been living with her father at Chitaldanga. According to the petition, the respondent deserted the petitioner by his conduct by living adulterous life with the said woman for which the petitioner was compelled to leave the matrimonial home. There is no averment in the petition that at the time of presentation thereof the respondent-husband was living within the territorial jurisdiction of the District Judge, Burdwan.

3. In view of the averments in the petition we find that the learned District Judge, Burdwan had no jurisdiction to entertain the petition under Section 10 of the Indian Divorce Act which provides that any wife may present the petition to the District Court. The expression 'District Court' has been defined in Clause (3) of Section 3 of the Act as follows :

'(3) 'District Court' means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction or of whose jurisdiction under this Act the husband and wife reside or last resided together.'

4. In the present case the averments in the petition show that the parties last resided together at Gumia in the district of Giridih in the State of Bihar. Although the petitioner stated in her petition that she wad living at Chitaldanga within the jurisdiction of the District Judge, Burdwan at the time of presentation of the petition there was no averment in the petition that the respondent-husband was living within the jurisdiction of the District Judge, Burdwan on the date of the presentation of the petition. Nor is there any evidence in the deposition of the petitioner who alone deposed before the learned District Judge, Burdwan to show that the husband was living within the jurisdiction of the District Judge, Burdwan on the date of presentation of the petition. On the other hand, she stated in her evidence that the parties lived together as husband and wife till 14-6-75 which date, in the light of the petition, is the date when the petitioner last resided with her husband at Gumia, Giridih (Bihar).

5. In the circumstances, we find that the learned District Judge, Burdwan had no jurisdiction to entertain the petition under Section 10 of the Indian Divorce Act andj so the decree nisi passed by him is without jurisdiction. As under Section 45 of the Indian Divorce Act the provisions of the Civil P. C. apply to proceedings under the Indian Divorce Act we find that the petition under Section 10 of the Indian Divorce Act filed by the petitioner should be returned under Order 7, Rule 10 of the Civil P. C. for presentation in the Court having jurisdiction to entertain the lame.

6. We, therefore, reject the Reference and set aside the decree nisi passed by the District Judge, Burdwan and send the case back to him for return of the petition under Order 7, Rule 10 of the Civil P. C. for presentation in the Court having jurisdiction to entertain the same. We further mention that the evidence and the findings of the learned District Judge in the proceeding before him will not be binding on the parties in the future proceeding that may be instituted by either of them in the Court having jurisdiction.

7. There will be no order for costs.

Chittatosh Mookerjee, J.

8. I agree.

Sharma, J.

9. I agree.


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