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Smt. Madhvi Sirothia Vs. N.N. Sirothia - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Refn. No. 753 of 1972
Judge
Reported inAIR1974All36
ActsHindu Marriage Act, 1956 - Sections 19
AppellantSmt. Madhvi Sirothia
RespondentN.N. Sirothia
Appellant AdvocateR. Dwivedi, Adv.
Respondent AdvocateV.C. Srivastava, Adv.
Excerpt:
.....as provided under order 6, rule 5 of the code of civil procedure. sirothia to furnish better particulars about the facts mentioned in paragraph 7 including the district in which, according to him, the wife visited him and lived under the same roof in which he lived as mentioned by him in paragraph 7 of the petition......last resided together. admittedly, neither marriage was solemnized in allahabad nor husband and wife resided on the date of institution of the petition in allahabad. the question to be determined was whether husband and wife had last resided together in allahabad. 2. section 19 does not deal with the length of residence, even a short residence may be sufficient to give the court jurisdiction to entertain the petition. the court below impliedly appears to have thought that residing together must refer to residing together for the purpose of enjoying the marital relationship as husband and wife. section 19 does not say any such thing. it only refers to their joint residence. if the husband and wife had lived together in the same residence then they must be deemed to have resided.....
Judgment:
ORDER

Hari Swarup, J.

1. This revision has been filed against the order of the Court below holding that it has jurisdiction to deal with the petition filed under Section 9 of the Hindu Marriage Act for the relief of restitution of conjugal rights and for other reliefs in the elternative. The Court below has held that the husband and wife last resided together in Allahabad and hence Allahabad Court has jurisdiction. Section 19 of the Hindu Marriage Act provides that a petition under the Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or had last resided together. Admittedly, neither marriage was solemnized in Allahabad nor husband and wife resided on the date of institution of the petition in Allahabad. The question to be determined was whether husband and wife had last resided together in Allahabad.

2. Section 19 does not deal with the length of residence, even a short residence may be sufficient to give the Court jurisdiction to entertain the petition. The Court below impliedly appears to have thought that residing together must refer to residing together for the purpose of enjoying the marital relationship as husband and wife. Section 19 does not say any such thing. It only refers to their joint residence. If the husband and wife had lived together in the same residence then they must be deemed to have resided together. The enjoyment of marital relationship is not a relevant factor in determining if the husband and wife had resided together. It is the factum of residence and not the purpose of residence that is material. The Court below thus fell into error and mis-directed itself in not considering the other circumstances mentioned in the petition.

3. The petitioner in paragraph 4 of the writ petition had mentioned that the wife had withdrawn herself from the society of the petitioner from 16th April. 1965 and had gone to her father's place at Kanpur. In this paragraph he does not mention at what place they had lived together. In paragraph 6 of the petition it was stated that both of them had visited Delhi on or about April 28, 1966. In paragraph 7 to the petition it was stated that the respondent visited the petitioner intermittently from May to August 1966. It is further alleged that when she visited him the petitioner treated her with love and affection and gave her best care and comforts, but the respondent although she lived under the same roof kept herself secluded in different room and refused him access to her bed. In paragraph 8 of the petition it was alleged that the wife left the petitioner alone at Allahabad.

4. The Court below apparently considered only paragraph 4 of the petition and on that basis held that the Allahabad Court had jurisdiction. It also appears to have been led by the bare statement made in paragraph 3 of the petition to the effect that they had cohabited together from 20-5-1964 to 10-6-1964. October 1964 to November 1P64 and December 1964 to April 15. 1965. The Court below has held that visit to Delhi did not amount to residing together. But it has failed to consider the effect of allegations made in paragraphs 7 and 8 of the petition which deal with the facts relevant for considering if they had 'resided together' from May to August 1966. As the allegations about living together mentioned in paragraphs 7 and 8 come after those mentioned in earlier paragraphs, residence as mentioned in the earlier paras will be irrelevant and the only relevant consideration would be of facts alleged in paragraphs 7 and 8 of the petition. Paragraph 8 also does not in fact talk about residence together. It is paragraph 7 alone which deals with it. Paragraph 7 of the petition runs as under:

'that thereafter the respondent visited the petitioner intermittently from May to August 1966. The petitioner always treated her with all the love and affection and gave her the best of care and comforts within the means of the petitioner, but the respondent although living under the same roof kept herself secluded in different room and refused access to her bed. On some pretext or the other she avoided cohabitation and no cohabitation has taken place between the petitioner and the respondent in the period beginning from 28th April till August. 1966.'

The entire facts alleged in paragraph 7 if taken together meant that the husband and wife had resided together during the periods mentioned therein. As the Court below has not considered the relevant jurisdictional fact its order is liable to be set aside.

5. It is not possible, however, in the state of pleadings as they exist, to decide where the two had last resided together as paragraph 7 is silent about the place where the wife visited the husband and lived with him under the same roof. Hence in the interest of justice it is necessary that better statement of particulars be got from the petitioner as provided under Order 6, Rule 5 of the Code of Civil Procedure.

6. In the result the revision is allowed. The order of the Court below is set aside and it is directed to order the petitioner Sri. N. N. Sirothia to furnish better particulars about the facts mentioned in paragraph 7 including the district in which, according to him, the wife visited him and lived under the same roof in which he lived as mentioned by him in paragraph 7 of the petition. Parties will bear their own costs.

7. The record of the case shall be sent back to the Court below so that the matter may be decided expeditiously.


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