JUDGMENT
B.B. Vagyani, J.
1. Admit. By consent of both parties taken up for final hearing.
2. This Family Court Appeal filed by appellant original petitioner in Petition No. C-40/2002 is directed against the order of return of petition for presentation before proper forum passed by incharge Principal Judge, Family Court, Aurangabad. In brief, the facts giving rise to this family Court appeal are as under:
3. The appellant is the legally wedded wife of the respondent. The marriage was solemnized at Pune on 26-1-2001 whereas reception ceremony was arranged on 28-1-2001 at Aurangabad. The marriage was also registered with Sub-Registrar at Aurangabad. After marriage appellant cohabited with the respondent at Bombay. It is serious grievance of the appellant that the respondent subjected her to harassment. Because of harassment, appellant was forced to withdraw her company. The mother-in-law of the appellant brought appellant to Pune and kept her in her company for the period of 10 days. Thereafter, appellant came to Aurangabad on 7-3-2001. In spite of genuine efforts for reconciliation the respondent did not take appellant for cohabitation. The respondent thus deserted the appellant without any justification and refused and neglected to maintain her.
4. The appellant filed petition No. C-40/02 in the Family Court at Aurangabad against respondent for grant of maintenance under Section 18 of Hindu Adoptions and Maintenance Act, 1956. The respondent appeared in the said proceeding and sought 16 adjournments. He also raised objection to the jurisdiction of the family Court on the ground that no cause of action arose at Aurangabad.
5. After hearing both the sides, the Judge Family Court accepted the contention raised on behalf of respondent with regard to jurisdiction and returned the plaint to the appellant for presentation before proper forum by order dated 18th July 2003.
6. The appellant filed petition No. 180/2003 in the family Court at Bombay for maintenance. However said petition for maintenance was withdrawn by the appellant on 14-10-2003. Feeling aggrieved by order of return of plaint dated 18th July 2003, appellant filed this appeal on 13th August 2003.
7. The learned advocate Shri S.S. Nirkhee for respondent raised strong objection with regard to the maintainability of appeal on the ground that the appellant acted upon the order passed by Judge Family Court Aurangabad and filed petition for maintenance in the Family Court at Bombay. The learned advocate Shri Nirkhee in this behalf heavily relied upon Order VII, Rule 10-A (5) of the Code of Civil Procedure. In support of his submissions, he relied upon Waqf Masjid Pindain and Ors. v. Athar Husain Haidri and Anr. .
8. The learned advocate Shri A.M. Karad for appellant submitted that the Judge, Family Court did not follow the procedure laid down in Order VII, Rule 10-A of Civil Procedure Code. According to Shri Karad, Advocate, the Family Court did not at all intimate the appellant that the Court for want of territorial jurisdiction wanted to return the plaint. He further submits that the appellant did not at all submit any application before the Judge Family Court, Aurangabad as contemplated in Order VII, Rule 10-A(2) of Civil Procedure Code. In the absence of intimation from the Court and in the absence of submission of application under Order VII, Rule 10-A(2) of Civil Procedure Code, bar of Sub-clause (5) of Rule 10-A of Order VII of Civil Procedure Code cannot be pressed into service.
9. Shri Karad further submitted that the appellant is residing at Aurangabad and due to lack of means of maintenance, her sufferings continued even at Aurangabad and this being the position, the Family Court Aurangabad has jurisdiction. In support of his submissions, he relied upon the decision of Division Bench of this Court in the case of Mrs. Sucheta Dilip Ghate and Anr. v. Dilip Ghate and Anr. reported in 2003(4) Mh.L.J. 445 = 2003(3) Mh.L.R. 238,
10. We gave anxious consideration to the rival submissions made at the bar. From the perusal of record, it is seen that the Judge, Family Court on its own did not come to the conclusion that the Court lacks territorial jurisdiction. The respondent has raised objection and the same has been accepted by Judge Family Court and straightway returned the plaint to the appellant. It was obligatory on the part of Judge, Family Court to give intimation to the appellant being plaintiff that the Court wanted to return the plaint for want of Jurisdiction. It is an admitted fact that appellant did not at all submit any application under Order VII, Rule 10A(2) of Civil Procedure Code. Therefore, prima facie the bar contained in Order VII, Rule 10-A(5) of Civil Procedure Code cannot be pressed into service.
11. Order XLIII(1)(a) of Civil Procedure Code, provides remedy of appeal under provisions of Section 104 of Civil Procedure Code in case of an order under Rule 10(A) of Order VII returning plaint for presentation to the proper Court except where the procedure specified in Rule 10A of Order VII has been followed. Therefore, it is beyond doubt clear that only in case of compliance of procedure specified in Rule 10A of Order VII of Civil Procedure Code the remedy of appeal is barred. If procedure specified in Rule 10A of Order VII of Civil Procedure Code is not followed, the order returning the plaint for presentation to the proper Court is appealable. This valuable statutory right of appeal of the appellant cannot be taken away simply because application for maintenance was filed at the Family Court at Bombay. The appellant has already withdrawn the said petition.
12. In case of Wakf Masjid Pindain referred supra, plaintiff submitted application for the return of plaint along with documents filed by him for presentation before the Wakf tribunal and therefore, there was compliance of procedure specified in Rule 10-A of Order VII of Civil Procedure Code and this being the position it was held by Single Judge of Allahabad High Court that Appeal was not maintainable in view of Rule 10-A(5) of Order VII of Civil Procedure Code. The facts of said case are altogether different. In the case in hand, the appellant did not submit any application under Sub-clause (2) of Rule 10-A of Order VII of Civil Procedure Code. Therefore, bar of Sub-rule (5) of Rule 10-A of Order VII of Civil Procedure Code cannot be pressed into service.
13. Even otherwise the order of return of plaint is erroneous. The Judge family Court has failed to take into consideration that cause of action means circumstance forming infraction of legal right of deserted wife. In similar situation the Division Bench of this Court in case of Mrs. Sucheta D. Ghate referred supra has held that cause of action means a circumstance forming infraction of the right or immediate occasion for action. In case of Mrs. Sucheta D. Ghate the appellant was compelled to leave matrimonial house and reside separately at Ahmedabad. The circumstance further compelled the appellants to shift to Pune where they started residing with the father of the appellant No. 1. On the date of filing the petition for maintenance the appellants were residing at Pune. Similar kind of objection was raised with regard to territorial jurisdiction. The Division Bench of this Court turned down the objection and held that the cause of action in part did arise at Pune. It is observed that by no stretch of imagination it can be said that cause of action arose only at Ahmedabad. It is observed that as a matter of fact circumstance forming infraction of the right of appellants continues and exists at Pune. In other words, suffering of the appellant due to lack of means for maintenance continued in Pune and in view thereof, it is held that cause of action also arose at Pune.
14. The Hindu Adoptions and Maintenance Act has no provision regarding jurisdiction of the Court to which application for maintenance is to be presented. The provisions of Hindu Adoption and Maintenance Act are beneficial and social legislation for the benefit of women and infirm old parents for their maintenance while in distress. Such person in distress would have to run from pillar to post for relief under provision of Hindu Adoptions and Maintenance Act, if the husband or son keeps on changing his residence or prefers to reside in far away town from the town of wife or parents. Taking into consideration the nature of the right of wife in distress, this Court held that the proceedings for maintenance can be instituted at a place of residence of wife who is residing at different place than her husband.
15. Relying on the ratio in the case of Mrs. Sucheta D. Ghate we find no hesitation in holding that the Family Court at Aurangabad shall have jurisdiction to entertain the petition filed by the appellant under Section 18(2) of the Hindu Adoptions and Maintenance Act.
16. In the result, Family Court Appeal is allowed. The order dated 18th July 2003 passed by Incharge Family Court Judge Aurangabad in Petition No. C-40/2002 is quashed and set aside. The matter is remitted back to the Family Court, Aurangabad. The Family Court, Aurangabad is directed to decide the petition for maintenance under Section 18(2) of Hindu Adoptions and Maintenance Act, 1956 afresh as early as possible preferably within a period of 3 months from the date of receipt of order keeping in view the observations made in the judgment.