ORDER
A.K. Mathur, J.
1. The petitioner by this writ petition has prayed that the respondent No. 1 may be directed to first decide the issue No. 1 regarding jurisdiction and may be prohibited from proceeding with the case on all the three issues simultaneously.
2. The marriage of the petitioner with respondent No. 2 was celebrated on 21-2-1985 at Jodhpur. The petitioner and the respondent No. 2 last resided as husband and wife at Jodhpur. Out of this wed-lock a male child was born on 21-2-1985. Thereafter, they had no marital relation. The respondent No. 2 is working in the U.P. Government Secretariat at Lucknow. It is alleged that in order to snatch dowry in high handed manner the respondent No. 2 tried to avoid the petitioner and ultimately filed a petition for divorceunder Section 13 of the Hindu Marriage Act, (1955) before the Principal Judge, Family Court, Lucknow. The petitioner was served a summon without any copy of the petition and when the petitioner appeared in person on 28-3-1991 she was supplied with the copy of the petition. On that day the Principal Judge was on leave and so the case was fixed for 15-5-1991 and on 15-5-1991 the petitioner moved an application for reconciliation. The petitioner could not reach Lucknow on 2-7-1991, therefore, an ex parte order was passed. On that day an application for interim custody of the child was filed by the respondent No. 2 but the same was rejected' as not pressed. On the next date i.e. 4-9-1991 the petitioner moved an application for recalling the ex parte order and that application of the petitioner was allowed and the case was fixed for reconciliation on 21-10-1991 as well as for filing the written-statement. However, on 28-8-1992 the following three issues were framed: --
(1) Whether this court has no territorial jurisdiction to entertain the suit? If so, its effect?
2. Whether the respondent committed cruelty on the petitioner as alleged by her in her petition?
(3) Whether the respondent deserted the petitioner for a period of more than 2 years continuously without any reasonable and sufficient cause?
3. The case was fixed for hearing on 16-11-1992. The petitioner could not understand the meaning of word 'final hearing' so she requested for its explanation and also requested that since the family court at Lucknow has no jurisdiction, therefore, the issue No. 1 should be decided first. The petitioner was given an understanding by the Judge, Family Court that he will first decide the question of jurisdiction so she will bring all her witnesses to give evidence on issue No. 1 on 16-11-1992. The petitioner having the above understanding and belief reached Lucknow on 16-11-1992 with her witnesses. But the learned Judge started recording of the evidence of the respondent's (husband)witness and recorded the statement of PW I Jai Narain and PW 2 Ganesh Shankar without first recording the statement of respondent (husband) himself. When the petitioner requested that the issue No. I may be decided first, the learned Judge disallowed the prayer and ordered verbally that all the three issues will be decided at the time of final hearing and so he will record the statements of respondent No. 2's witnesses on all the three issues and thereafter he will fix the case for petitioner's evidence. The petitioner protested against this but without any result. As the petitioner is ignorant of law because the necessary legal assistance has not been permitted she could not effectively present the case and it is because of this draw back that when the petitioner was all of a sudden asked on 16-11 -1992 to cross-examine the witnesses of the, respondent (husband) on all the three issues she could not properly conduct the case and she came back with her witnesses. Since the learned Judge has refused to decide the issue No. 1 as a preliminary issue, therefore, the petitioner has been driven to file the present writ petition.
4. The petitioner has submitted that it was a pure legal question whether the court at Lucknow had the territorial jurisdiction to decide this matter therefore, this issue should have been decided at the first instance instead of deciding all the three issues together.
5. A reply has been filed by respondent No. 2 (Husband) and he submitted that the writ petition is not maintainable as the petitioner was aggrieved by the order passed by the Judge. Family Court, Lucknow, therefore, it should have been agitated before the Allahabad High Court. Secondly, it is submitted that the question whether the Lucknow Court has territorial jurisdiction or not is not a pure question of law because it is a mixed question of fact and law. Therefore, this Court should not interfere in this matter.
6. Before going to decide the questionwhether this Court had a jurisdiction or notwe have to examine whether the issue No. 1which relates to the jurisdiction of the court isa pure question of law or is a mixed questionof fact and law.
7. Section 19 of the Hindu Marriage Act, (1955) deals with the court to which petition shall be filed. It says that 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 solemized; 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 (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. So far as the fourth contingency is concerned in the present case it has no material hearing. In the present case, the marriage was solemnized at Jodhpur & the respondent at the time of the presentation of the petition resides at Jodhpur. Therefore, the petition could have been filed at the place where the marriage was solemnized or the respondent at the time of the presentation of the petition resides or the parties to the marriage last resided together. Now the question is that whether the parties to the marriage last resided at Lucknow or not and secondly whether the respondent at the time of the presentation of the petition resided at Lucknow or not. Since for both these questions the necessary evidence has to be led and a finding has to be recorded whether the parties to the marriage last resided at Luck-now or at what place, therefore, this is not a ! pure question of law which can be decided by the learned Judge. The learned Judge has to record a finding whether the parties to the marriage last resided at Jodhpur or Lucknow or the the respondent at the time of the presentation of the petition resided at Luck-now with the petitioner or not. On both these questions of facts the determination is required and that requires going into a factual enquiry. Therefore, it cannot be said to he a pure question of law. It is true that if it had been a pure question of law then the learned Judge should have decided the issue No. 1 first, but since this question of law regarding the jurisdiction of the court involves a question of fact also, therefore, the matter cannot be decided purely on the legal aspect but the matter needs to be decided after recording factual aspect and a finding whether both the parties resided at Jodhpur or the respondent resided last at Lucknow when the petition was filed. Thus, this case involves an investigation of facts also as such it is a mixed question of law and facts wherein the question of jurisdiction invloves then such issue cannot be decided as a preliminary issue. This proposition stands fortified by the decisions given in the case of S.S. Khanna v. F. J. Dillon (AIR 1964 SC 497); Cheni Ram v. Shanti Devi (AIR 1980 Raj 192) and Estrela Batteries Ltd. v. Modi Industies Ltd. (AIR 1976 All 201).
8. In this view of the matter, I think, the learned Judge has rightly approached the matter. Since I have already found it to be a mixed question of fact and law, therefore, I need not to decide this question whether this Court has jurisdiction or not.
9. In the result, I don't find any merit in this writ petition and the same is dismissed summarily.