DYANESHWAR SITARAM SOHOLKAR Vs. SUREKHA DNYANESWAR SOHOLKAR

JUDGEMENT

(1.) The appellant, who is the husband of the respondent, has filed this appeal challenging the judgment of the learned single Judge holding that this Court on the original side has no jurisdiction to entertain a petition for a decree of nullity of marriage under section 18 of the Indian Divorce Act, 1869 (hereinafter referred to as "the Act").

(2.) It is not necessary to refer to the details of the grounds on which a decree of nullity is sought by the appellant and it is sufficient to mention that according to the petitioner, the respondent having refused to allow him to consummate the marriage and having refused to come back to him even after repeated requests, an inference that the respondent was impotent at the time of marriage and was still impotent was evident on the facts of the case and, therefore, the appellant filed the petition praying that he was entitled to a declaration that the marriage between the appellant and the respondent, which had taken place on 11th May, 1980 at St. Phillips Church at Nasik Road was null and void under section 18 read with section 19 (1) of the Act.

(3.) When the petition was called out for hearing before the learned single Judge the respondent-wife was absent. The evidence of the appellant was recorded. He had stated that he and his wife both had professed Protestant Christian religion. He referred to facts and circumstances on which he wanted an inference of impotence of the respondent to be drawn. The learned Judge, however, on his own found that he had no jurisdiction to entertain the petition because the evidence of the appellant showed that the parties had at no time intended to make Bombay their matrimonial home and that the parties had last resided and cohabited together at Nasik. Before the learned Judge it was conceded by the learned Counsel for the appellant-husband that the parties had at no time cohabited and resided at Bombay. But the contention raised before the learned Judge was that under the Act the appellant had a choice of two Courts and he could at his option file a petition under the Act for a declaration of nullity of marriage either in the High Court or in the District Court within the jurisdiction of which the parties had resided. The learned Judge took the view that the territorial jurisdiction of the Bombay High Court in its original jurisdiction extends only up to the local limits of Greater Bombay and no further and though the High Court and the District Court had concurrent jurisdiction under the Act, the only Court which had jurisdiction to entertain the petition for nullity was the Court within whose jurisdiction the parties reside or had last resided together. The learned Judge, therefore, found that the parties not having resided within the limits of the original jurisdiction of the Bombay High Court, the Court was competent to try the petition. The petition was, therefore, dismissed.