Smt. Arathi, W/O Laxmikanth A. Bhat and Vs. (Nil) - Court Judgment

Excerpt:
hindu marriage act, 1995 (central act no. 25 of 1995) - section 19(ii) -- parties filing joint petition before family court for seeking divorce by mutual consent under section 13 - b -- respondent's name not shown-held, the court gets jurisdiction even if the respondent's name not shown or one of them resides within the court's jurisdiction. ; (b) family courts act, 1984 (central act no. 66 of 1984) - section 7(1) -- jurisdiction to entertain petition not confined to cases where respondent's name or residence must be shown. - order 29, rule 1: [k. sridhar rao & b. sreenivasa gowda, jj] suit on behalf of company filed by an officer without authorisation - power of attorney holder thereafter ratified said unauthorised act of filing suit- propriety held, when a person is appointed as power of attorney he gets all necessary powers to ratify acts of others who have conducted affairs of company without authorisation. ratification is valid. suit is maintainable. section 16(1)(c): suit for specific performance - willingness to perform - sale agreement stipulated execution within 3 months execution not made within said period despite notice by plaintiff and payment of 95% sale consideration - on the other hand defendants demanded additional charges towards registration of association - plaintiff when ready to pay balance consideration with stamp duty but denies to pay said additional charges, cannot be said as not willing to perform his part. - (2) on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. 2 (husband) submitted that when a joint petition is presented in terms of section 13-b of the act, the petitioners have to be considered as occupying both the position of petitioners as well as respondents. learned counsel urged that just as in a partition suit there is no distinction between the plaintiffs and defendants in as much as all the parties to the suit are seeking partition of the properties, on the same analogy in a petition presented under section 13-b of the act the parties are seeking the same relief and therefore the petitioner have to be treated both as petitioners as well as respondents.g.p. shivaprakash, j.1. the appellants presented a petition before the family court under section 13-b of the hindu marriage act, 1955 ('act' for short) seeking divorce.2. the provisions of section 13-b are set out below:-'13-b: divorce by mutual consent:-(1) subject to the provisions of this act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the marriage laws (amendment) act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.(2) on the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.' 3. the family court has rejected the petition on the ground of want of jurisdiction since in terms of section 19 of the act neither the marriage of the appellants was solemnized within the local limits of its original civil jurisdiction nor did they last resided together within its said jurisdiction. section 19 of the act reads as follows:-'19. 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(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.' 4. the family court while considering the provisions of section 19 of the act has held that though appellant no. i resided within the jurisdiction of the court, to give jurisdiction to the court in terms of section 19(ii), there must be necessarily a respondent in the petition and since the petition was presented jointly by the appellants in terms of section 13-b of the act, there was no respondent in the petition and hence the provision of section 19(ii) are not applicable to the facts of the case.5. sri s.s. haveri, learned counsel for appellant no. 1 (wife) and sri. c.r. ravi shankar, learned counsel appearing for appellant no. 2 (husband) submitted that when a joint petition is presented in terms of section 13-b of the act, the petitioners have to be considered as occupying both the position of petitioners as well as respondents. they submitted that as there was no contest between the parties, the first appellant in the circumstances could not be indicated as respondent and therefore the family court was in error in holding that it had no jurisdiction merely because in the cause title, no respondent was indicated. learned counsel urged that just as in a partition suit there is no distinction between the plaintiffs and defendants in as much as all the parties to the suit are seeking partition of the properties, on the same analogy in a petition presented under section 13-b of the act the parties are seeking the same relief and therefore the petitioner have to be treated both as petitioners as well as respondents. learned counsel invited our attention to the decision of this court reported in omprakash dhawan v. santhosh kumar, air 1965 mysore 110, in which while referring to the provisions of sections 21 and 99 of cpc, the court has observed that the policy of the legislature has been to treat objections to territorial jurisdiction as technical and not open to consideration by the appellate court, unless there has been a prejudice to either of the parties on the merits of the case.6. under the provisions of section 13-b of the act, a petition for dissolution of marriage, by a decree of divorce, could be presented to the district court by both the parties to a marriage together. in the circumstances, both the parties need to be shown in the cause title to the petition as petitioners. it would be incongruous to hold that if either of the parties to a marriage were to seek divorce on any of the grounds specified under section 13 of the act, the court would get jurisdiction, if the respondent shown therein were to reside at the time of presentation of the petition within the local limits of its ordinary original civil jurisdiction, but not in a case where both the parties to a marriage together present a petition for divorce by mutual consent merely because neither of the parties is shown as respondent in the cause title.7. for the foregoing reasons, we allow this appeal, set aside the order under appeal and remand the matter to the family court holding that it has jurisdiction to consider the petition on merits, since the first appellant resided within the local limits of its ordinary original civil jurisdiction at the time of presentation of the petition. the family court would proceed to dispose of the matter in accordance with law.appeal allowed.