The Delhi High Court has held that an appeal challenging an order passed in divorce proceedings cannot be maintained against the State.

A Division Bench comprising Justice Vivek Chaudhary and Justice Renu Bhatnagar was dealing with a plea filed by a wife who had filed the appeal against the State even though the husband's pleadings and conduct formed the subject matter of the proceedings.

“We fail to comprehend as to how the present appeal, challenging an order passed in divorce proceedings between the appellant-wife and the respondent-husband, could be maintained against the State of NCT of Delhi, particularly when the respondent-husband has not been impleaded as a party to the present appeal,” the Court observed.

The Court was dealing with an appeal filed by the wife under Section 19 of the Family Courts Act, 1984, against an order passed by the Family Court returning her divorce petition under Order VII Rule 10 of the Code of Civil Procedure for presentation before the appropriate court.

The Family Court had held that it lacked territorial jurisdiction under Section 19 of the Hindu Marriage Act, 1955 (HMA). The wife had sought dissolution of marriage on the ground of cruelty.

The parties had married on January 18, 2019 at Gurugram. After marriage, they resided together at the husband's matrimonial home in Sangam Vihar, Delhi, for around one-and-a-half to two years. Thereafter, following the husband's employment at Gurugram, they shifted to rented accommodation there and continued to live together for more than four years.

The wife alleged that she had been subjected to cruelty during marriage, particularly on account of her husband's habitual consumption of alcohol.

She further alleged that she was thrown out of the matrimonial home approximately two weeks before filing of the divorce petition and thereafter resided separately with the children near her parental home.

The Family Court found that although the parties had earlier lived together at Sangam Vihar, their last shared residence was at Gurugram. It therefore held that the earlier Delhi residence was insufficient to confer territorial jurisdiction under Section 19(iii) of the HMA.

Before the High Court, the wife contended that the parties had residence at Sangam Vihar for around one-and-a-half to two years was sufficient to confer jurisdiction on the Family Court in Delhi. She argued that Section 19(iii) did not require the joint residence to be the last in point of time.

Rejecting the submission, the Court noted that Section 19(iii) of the HMA specifically provides jurisdiction to the court within whose territorial limits “the parties to the marriage last resided together.”

“Merely relying upon the parties' earlier residence at Sangam Vihar for about one and a half years cannot confer territorial jurisdiction upon the learned Family Court when, admittedly, the parties thereafter shifted to Gurugram and lastly resided together there,” the Court held.

It observed that the parties had lived together at Sangam Vihar for around one-and-a-half to two years after marriage and thereafter resided together at Gurugram for more than four years.

The Bench held that the statutory expression “the parties to the marriage last resided together” makes the last place of joint residence determinative for the purpose of Section 19(iii) of the HMA.

The Bench dismissed the appeal both on the ground of maintainability and on merits.

Title: POONAM v. STATE NCT OF DELHI

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