Skip to content


S. Saroja Vs. P.G. Emmanual - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 719 of 1963
Judge
Reported inAIR1965Kant12; AIR1965Mys12; (1964)1MysLJ114
ActsIndian Divorce Act - Sections 10
AppellantS. Saroja
RespondentP.G. Emmanual
Excerpt:
.....their part to continue to live there in that way for some appreciable length of time - husband and wife resided together for short intervals during vacations in mysore - held, mysore was place where they were rightly found to have last resided together. - integrated child development service programme. integrated child development service programme (icds) : [d.v. shylendra kumar,j] scheme envisaged for providing proper social conditions and atmosphere for the informal development of the personality of the child expansion of anganawadi centres selection of anganawadi workers - guidelines procedure composition of selection committee modification of selection committee-government order statement of objections filed on behalf of the state government, government sought to bring about a..........case the parties had no fixed place or residence but resided at various places during their married life and in some places for a short time, and they last resided together at a place only for a week. that place was held to be the place where they last resided.(12) i am therefore of opinion that mysore where the husband and wife resided together though for short intervals during the vacations available to the wife, was the place where they were rightly found to have last resided together by the district judge.(13) i therefore see no reason to disturb the order made by the district judge and i dismiss this revision petition. but i make no order as to costs(14) revision dismissed.
Judgment:
ORDER

(1) The serious question to be decided in this revision petition is one of jurisdiction. The petitioner before me is the wife and the respondent is her husband. On July 7, 1962 the husband made an application to the District Judge, Mysore, under Section 10 of the Indian Divorce Act for a dissolution of the marriage. The ground on which such dissolution was sought was adultery. It is undisputed that these two spouses were married in the year 1954 and that until about 1956 they lived about in Bangalore. Both these spouses are Government employees; the wife is a teacher in a school and the husband is and Inspector of Police. When the wife was transferred to Tumkur in the year 1956 and the husband was transferred to Mysore, they could not naturally find it possible to live together in the same place. But the husband's allegation in his application was that in the year 1958 he and his wife last resided in Mysore and that thereafter the wife deserted him and was living in adultery. The preliminary objection to the proceeding by the wife was that the District Judge, Mysore, was not competent to take cognizance of the application presented by the husband since at no relevant point of time, according to the wife, did she and her husband reside within his jurisdiction.

(2) Section 10 of the Divorce Act authorises the presentation of a petition for the dissolution of the marriage to the District Court or to the High Court. The expression 'District Court' is defined by Section 3(3) of the Act which reads:

'District Court' means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction or of whose jurisdiction under this Act, the husband and wife reside or last resided together.'

Since it is the case of both sides that they were not residing together on the date of presentation of the application, the limited question to be decided by the District Judge was whether as pleaded by the husband they last resided together in Mysore. If they did, it was of course clear that the court of the District Judge, Mysore, was the Court to which the husband might present his application as indeed he did.

Four witness were examined for the husband in support of his story that the place of last residence was Mysore. The wife examined herself in rebuttal. The finding of the District Judge which he recorded after discussing the entire evidence in the case is as follows:

'From the above discussion, it is therefore, clear that the respondent was visiting the petitioner on and off during the holidays and vacations while he was at Mysore. Factually, therefore, the petitioner has succeeded in proving that he was residing with the respondent at Mysore some time prior to the filing of this petition'.

It is somewhat regrettable that the District Judge did not record a finding that the parties last resided together within the limits of his jurisdiction, although he concluded that they did reside within the limits of his jurisdiction some time before the husband made his application. But I have no doubt in my mind that the place where the parties last resided together was Mysore, according to him.

(3) Mr. Doddakalegouda advanced two contentions. The first was that the finding recorded by the District Judge is unsupportable and second was that even if as found by the District Judge the wife visited the petitioner off and on during the holidays and vacation when he was in Mysore, such visits could not constitute residence for the purpose of section 3 of the Act.

(4) The challenge to the correctness of the finding recorded by the District Judge may be briefly disposed of. In a revision petition like the one before me, I can disturb the finding of the District Judge only if I can say that there is no evidence to support it, and unless I can say so it would be my business to uphold it.

(5) Now among the witnesses examined by the husband, the first is P.W. 1, an Assistant Sub-Inspector. The second is P.W. 2, a driver of the Mission Hospital, Mysore. The third is P.W. 3 who is a van driver. The last witness was the husband. The effect of the evidence given by all these witness was that during 1956-57 while the wife was serving as a teacher in the Girls School at Tumkur she visited her husband either during the summer vacation or during the dasara holidays or during the christmas holidays and that during those visits she was residing with her husband. The wife in the course of her evidence denied these visits. But if the District Judge believed the evidence produced by the husband and did not consider the evidence of the wife acceptable, whatever might be the view which I might myself be disposed to take on a fresh assessment of the evidence myself, I would not be justified in substituting my own finding for that recorded by the District Judge on what essentially is a pure question of fact. I therefore proceed on the assumption that it has been established that during the years 1956 and 1957 the wife did during the summer, dasara and christmas holidays, visit her husband when he was functioning as a Sub-Inspector in Mysore and stayed with him during those visits. The question is whether if the wife stayed with her husband in that way, it could be said that she and her husband last resided together in Mysore for the purpose of section 3 of the act.

(6) The argument pressed on me by Mr. Doddakalegouda was that since the visits made by the wife to her husband were purely temporary visits for short period without there being any element of permanence about it, the District Judge could not have properly found that there was a residence of the two spouses in Mysore. Now proceeding according to the ordinary meaning of the word 'reside' a person resides in a place where he generally eats, sleeps and drinks. The words 'reside' and 'resident' are to be found in many enactments, but the meaning to be given to those words in one enactment is not necessarily the same as that which should be given in another. The meaning which best fits into the context where the expression occurs and which would be appropriate having regard to the scheme and purpose of the Act is the meaning which should be given to it.

(7) Now if section 3(3) refers to the place where the husband and wife last resided together, it does not appear to me to be correct to think that that place is the place where they resided together permanently, and would not include a place where they lived together as a man and wife even without there being any intention on their part continue to live there in that way for some appreciable length of time. When I say this, I do not mean to suggest that every place where the spouses might spend their time even though they do on a fleeing visit would be the place where they last resided. Each case must depend upon its own facts and circumstances and it is on the nature of those circumstances that the question should be determined whether the place where they stayed was the last place where they last resided together.

It may be that if the husband and wife have a permanent home and they absent themselves from that home on a short temporary visit either on a holiday or on some business and spend some time together in another place, it might be a travesty of language to suggest that the place which they so visited is also a place where they last resided together for the purpose of section 3 of the Act. But if on the contrary the spouses have no joint permanent home where they can reside together which might happen in a case where both of them have embarked upon his or her own independent career as it has happened in this case, and there can be no matrimonial home common to both of them and it therefore becomes necessary for the one to visit the other so that they may spend whatever time is available to them as man and wife, either in the home of the one or in the home of the other, it should take much persuasion for any one to think that the place where they so spend their time together and which they make their matrimonial home for the time being is not the place where they resided together within the meaning of Section 3 of the Act.

(8.) Any other view would create many difficult problems. The view that the only place where the spouses could be said to reside together or to have last resided together is the place where they intend or intended to live permanently or for a considerably long time, would lead to the result that if right from the inception and from the moment the spouses are married they never lived in the same place but lived in different parts of the country visiting each other when they found it possible to do so there would be no place in which they would have resided together within the meaning of section 3, and no court would therefore acquire jurisdiction to enquire into a matrimonial offence. The same would be the position in a case where straight from the place where the marriage is solemnized the parties proceeded on a honey-moon and even before returning to their home quarrel with one another and each goes his or her own way.

(9) If both the husband and wife are holding employments and therefore are obliged to live in different parts of the world or their own country and if the wife during her vacation or during the period when she finds it possible to do so proceeds to the place where her husband lives so that she may spend the available time with him, that visit can have no other purpose other than residence with her husband during that period. The object of the visit is that she should reside with her husband and whatever may be the duration of the visit the object would be the same. The position would not be different wherein a similar situation the husband visits his wife and when he does so what he desires to do is to reside with his wife during the time available to him.

It would be unmeaning to suggest that when those visits are made the husband and wife do not reside together. If the purpose obviously is that each of the spouses should have the company of the other and that the husband and wife should eat, drink and sleep together, nothing more is necessary to support the view that during the period of the visit the husband and wife intended to reside together, and the fact that the visit was of a short duration or did not have any appreciable degree of permanence cannot alter the situation.

(10) None of the cases cited during the argument can justify a different view. In Arthur Flowers v. Minnie Flowers, ILR 32 All 203, the permanent home of the spouses was Hyderabad Sind, and it was held that Meerut which was visited by the husband for some meeting was not the place where the spouses resided together although the husband had taken the wife with him during that visit. In Kershaw v. Kershaw, AIR 1930 Lah 916 the question was whether Lahore was the place where the husband and the wife last resided together and when it was established that the wife visited Lahore for making enquiries for the purpose of instituting proceedings against her husband, it was not unnaturally held that was not the place where there was any residence within the meaning of section 3. In David v. Mrs. Esther Dennis, AIR 1951 Nag 248 the husband proceeded from Amla to Nagpur just to enable the presentation of an application to the court in Nagpur. In Robey v. Robey : AIR1931Cal121 the husband proceeded to Calcutta for prosecuting a criminal proceeding and stayed in his brother's house. In Carol v. Carol : AIR1933All39 the husband who had his permanent home elsewhere proceeded to Allahabad for the purpose of selecting a site to found an establishment for breeding dogs. In all these cases that there was no residence within the meaning of Section 3 of the Act was the conclusion reached. These decisions which depended on their own facts, can have no application to the case before me.

(11) But the view which I have taken in this case receives full support from a long line of decisions to which I shall refer. In Bright v. Bright, ILR 36 Cal 964 it was established that the husband and wife had no permanent residence. For a period of 16 or 17 days in the month of December 1901 they resided together in Calcutta, and Fletcher J. found no difficulty in coming to the conclusion that during their visit to the Grand Hotel in Calcutta in December 1091 the husband and wife last resided together within the meaning of section 3 of the Act. In Murphy v. Murphy, ILR 45 Bom 547: (AIR 1921 Bom 211) Marten J. as he then was thought that in a case where the husband and wife had no permanent residence and last lived together in a hotel in Bombay for a greater part of a month when the husband was on leave from service in Mesapotamia, they could be regarded as having last resided together within the jurisdiction of the Bombay Court. In C. G. Ritchson v. W. L. D. Ritchson : AIR1934Cal570 , the husband was an employee in the railways and had no permanent place of residence. He took leave and went to Calcutta to spend sometime with his wife. Thereafter the parties separated. Ammer Ali J. did not have any doubt in his mind that they did last reside together in Calcutta. In Tara Singh v. Jaipal Singh, ILR (1946) 1 Cal 604 which was a similar case the parties had no fixed place or residence but resided at various places during their married life and in some places for a short time, and they last resided together at a place only for a week. That place was held to be the place where they last resided.

(12) I am therefore of opinion that Mysore where the husband and wife resided together though for short intervals during the vacations available to the wife, was the place where they were rightly found to have last resided together by the District Judge.

(13) I therefore see no reason to disturb the order made by the District Judge and I dismiss this revision petition. But I make no order as to costs

(14) Revision dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //