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Dr. Ashok Ranjan Saxena Vs. Smt. Vishwa Bharti - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 2081 of 1976
Judge
Reported inAIR1978All18
ActsHindu Marriage Act, 1955 - Sections 19
AppellantDr. Ashok Ranjan Saxena
RespondentSmt. Vishwa Bharti
Appellant AdvocateKeshori Nath Tripathi, ;K.N. Dwivedi and ;Jitendra Kumar, Advs.
Respondent AdvocateS.K. Mookerjee, Adv.
DispositionRevision allowed
Excerpt:
.....husband did not have access to wife ( whether it can be said that parties stayed as husband and wife in bareilly in order to determine territorial jurisdiction - intention on part of the parties to reside together as husband and wife is most important to determine place of residence - permanent or temporary nature of residence and fact whether parties have had marital intercourse are irrelevant - held, visit made by husband were mere flying visit with limited object and they cannot be said to have resided together as husband and wife in bareilly- the court there does not have the jurisdiction to entertain petition filed by wife. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h...........the relevant period has little impact for the purpose of deciding as to whether the husband and wife resided together at a particular place or not. it may also be readily accepted that the permanent or temporary nature of the residence of the husband and wife is not material for the purpose of deciding as to whether they last resided at a particular place or not. the purpose of the stay together also, it may be conceded for the purposes of this revision, is not material. there can, however, in my opinion, be no escape from the conclusion that there must be an intention on the part of the two to reside together for some length of time even though it might be short.8. the facts and circumstances which emerge from the petition and the evidence of the wife have already been set out above......
Judgment:
ORDER

Yashoda Nandan, J.

1. This is a revision by the husband and arises out of a petition filed by his wife (opposite party) under Section 10 of the Hindu Marriage Act, 1955 hereinafter referred to as the Act for a decree for judicial separation, payment of permanent alimony and maintenance at the rate of Rs. 500/- per month and return of ornaments, clothes, certificates acid degrees detailed at the foot of the petition. The claim for judicial separation was found on allegations of mental and physical cruelty.

2. Undisputably the applicant and the opposite party were Hindus within the meaning of Section 2 of the Act and were married according to the Hindu rites and customs at Allahabad on the 25th June, 1974, After their marriage they lived as husband and wife at Allahabad till December 1974 and during this period, it is alleged by the wife that various forms of physical and mental cruelty, were practised on her by the applicant and the members of his family. Ultimately on the 6th Dec. 1974, the opposite-party's mother came to Allahabad and she accompanied her to Bareilly to her father's house. It Is alleged that on the 18th Dec. 1974 the applicant went to Bareilly to the house of the father of the opposite-party and resided there with her. According to the petition he tried to persuade the opposite party and her parents but she refused to go back with the applicant to Allahabad and to live with him as his wife. It is disclosed in the petition that the applicant requested the opposite party to have sexual intercourse with him at Bareilly but she plainly refused to do so. The husband remained in Bareilly at the house of his wife's father for three days but they slept in separate rooms and the wife did not permit him to have access to her, Reluctantly, it is stated, the applicant returned back to Allahabad. According tothe petition, in the months of February and March 1975 the applicant again went to Bareilly and resided with her at her father's house. The wife alleges that again he pressed for a compromise and requested her to return with him to Allahabad but she declined to accompany him. In para 29 of the petition, it is alleged that,

'the cause of action for this petition arose when the respondent committed various acts of cruelty upon the petitioner and also when the respondent came to Bereilly within the jurisdiction of this Hon'ble Court where the parties last resided together, and this Hon'ble Court has jurisdiction to try this petition.'

3. No written statement was filed on bahalf of the applicant. An affidavit was filed wherein it was admitted that the applicant and the opposite party were married at Allahabad where they resided together as husband and wife till the 6th Dec. 1674, when the opposite party left Allahabad at the instigation of her mother and sister and since then did not return to the matrimonial home and never lived thereafter with him as his wife. The stand was taken in the affidavit that the applicant had received legal advice that the court at Bareilly where the petition had been lodged had no jurisdiction to entertain and hear it.

4. The learned Civil Judge, Bareilly, before whom the petition under Section 10 of the Act was pending, framed a preliminary issue as follows :--

'Whether this court has jurisdiction to try the suit'.

On the preliminary issue the opposite party examined herself as a witness to establish that she and the applicant had resided together last at Bareilly and she was cross-examined. She also produced and proved certain letters sent to her and her sister by the applicant from Bareilly itself. The applicant did not examine himself but filed certain documents to prove that during the period that he was alleged to be at Bareilly he was either at Allahabad or Lucknow. The learned Civil Judge held that,

''All this reasonably leads to the inference that the respondent had come to Bareilly from Allahabad firstly on 18-12-1974. and then in February and March 1875 and had stayed in her parents' house where the petitioner was at that rime residing. The purpose of all such visits was to bring the petitioner back to Allahabad.'

He accepted the legal proposition that the word 'reside' implies more than mere brief or flying visits on the allegations contained in the petition and the statement of the applicant, the learned Civil Judge came to the conclusion that the husband and wife 'resided together' last at Bareilly and consequently he had jurisdiction to entertain the petition. On a revision filed by the applicant, the learned V Additional District and Sessions Judge, Bareilly upheld the conclusions arrived at by the trial court and dismissed the revision.

5. Aggrieved by the decisions taken by the courts below on the preliminary issue, the husband Dr. Ashok Ranjan Saxena has invoked the jurisdiction of this Court under Section 115 of the Civil P. C.

6. The admitted case of the parties is that the opposite party left the matrimonial home at Allahabad for her father's place at Bareilly early in December 1974 and never returned back to Allahabad. If the allegations made in the petition and the evidence of the opposite party is believed, thrice her husband visited Bareilly, and stayed as an unwanted guest at her father's house, in an attempt to bring about reconciliation and persuade her to return back. During the short visits, which according to the opposite party herself never lasted beyond three days attempts made by the applicant for reconciliation proved futile and he had to return back to Allahabad disappointed. From the post-cards produced by the opposite party it is apparent that communication between the parties even dur-ing the brief visits of the husband to Bareilly was so difficult that he had to rely for the same on the postal system.

7. It may be readily conceded that the fact that the husband and wife had or did not have sexual intercourse during the relevant period has little impact for the purpose of deciding as to whether the husband and wife resided together at a particular place or not. It may also be readily accepted that the permanent or temporary nature of the residence of the husband and wife is not material for the purpose of deciding as to whether they last resided at a particular place or not. The purpose of the stay together also, it may be conceded for the purposes of this revision, is not material. There can, however, in my opinion, be no escape from the conclusion that there must be an intention on the part of the two to reside together for some length of time even though it might be short.

8. The facts and circumstances which emerge from the petition and the evidence of the wife have already been set out above. Under the circumstances, the I conclusion is inescapable that on all the three occasions on which the applicant is alleged to have visited the house of the father of the opposite party, his unwant- ed presence there was limited to an endeavour to persuade his unwilling wife to return back with him to Allahabad. The husband and wife had no access to each other except in the presence of the parents and relations of the wife. On his attempts to bring about reconciliation being spurned by his spouse and her parents, the husband on each occasion immediately, returned back to Allahabad. Under the circumstances, it appears to me that it is not possible to hold that the husband and wife 'resided together' for any length of time at Bareilly. The husband's visits to Bareilly were not only shortlived but confined to the purpose of meeting his wife for reconciliation. There is nothing in the petition or the statement of the wife suggesting that the husband had any intention whatsoever to reside with her at Bareilly for any length of time, except to stay there for such period as might be necessitated by his endeavour to persuade the wife to rejoin him at the matrimonial home at Allahabad.

9. In Satwant Singh v. Smt. Jaswant Kaur (1956 All LJ 134) the scope of Section 488 (8) of the Cr. P. C. came up for consideration before a learned Judge of this Court. Sub-section (8) of Section 488 of Cr. P. C. laid down that proceedings order the section may be taken against any person in any district where he resides or is, or where he last resided with his wife. It was held by the learned Judge that flying or casual visits cannot amount to residence and that 'if a husband went to his father-in-law's place in course of his attempt to persuade' his wife to go back to his house, it could not be said that the husband had been residing in his father-in-law's House'.

10. No decision has been brought to my notice which has taken a contrary view, and in the instant case the visits of the husband to Bareilly, in the circumstances of the case, cannot but be characterised as casual and flying visits.

11. The observations contained in the decision Smt. Madhvi Sirothia v. N. N. Sirothia (AIR 1974 All 36) do not in any fashion militate against the views expressed by me above.

12. In an earlier Full Bench decision of this Court in Arthur Flowers v. Minnie Flowers ((1910) 7 All LJ 193) (FB) the question which came up for consideration was as to what the word 'dwelling' meant. The following observations contained in that decision can be read with advantage in construing the scope of the words 'last resided together' :

'The petitioner merely paid a flying visit to Meerut for a temporary purpose and not with any intention of remaining. Mere casual residence in a place for a temporary purpose with no intention of remaining is not 'dwelling'.'

In Mst. Jagir Kaur v. Jaswant Singh (AIR 1963 SC 1521) the question came up for decision as to what the word 'resides' and the words 'where he last resided with his wife' under Section 488 (8) of the Cr. P. C. meant. In this decision, the Supreme Court observed as follows :--

'A makes only a flying visit and he has no intention to live either permanently or temporarily in the places he visits. It cannot, therefore, be said that he 're-sides' in the places he visits'.

Though these decisions dealt with different provisions of law, the observations made therein are helpful for construing the scope of the expression 'resided together' occurring in Section 19 of the Act. I consequently unhesitatingly hold that the three visits, attributed to the applicant, to Bareilly to the father's house of the opposite party to achieve reconciliation between the husband and wife were mere flying visits with a limited object and the parties cannot be said to have resided together at any time at Bareilly and the court there had no jurisdiction to entertain the petition.

13. There is yet another aspect of the case which leads me to the same conclusion. Section 19 of the Act runs in the following terms :--

'Every petition under this 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 last resided together'.

According to this provision, a petition can be presented to the district court firstly, within the local limits of whose ordinary original civil jurisdiction the marriage between the parties was solemnized. In the alternative, a petition can be presented to the district court within the local limits of whose ordinary original civil jurisdiction the husband and the wife both happen to reside at the time of the presentation of the petition though not living together. . If a husband and wife happen to be residing within the local limits of the same district court, though living separately at the time the petition was presented such a district court has jurisdiction to entertain the petition. (See Henrietta Alexandra Gale v. James Frank Oanduras Gale, (1911) 10 Ind Cas 487 (Lah)) in which a Full Bench of the Punjab Chief Court was concerned with the interpretation of Section 3(1) of the Divorce Act (IV of 1860). Though the above decision dealt with a different law, the provision under consideration was very similar to the one with which we are concerned. The third class of cases contemplated by Section 19 are those where the husband and wife have 'last resided together' within the ordinary original civil jurisdiction of a particular district court. In the third category of cases residing 'together of the husband and wife is essential to attract the jurisdiction of the court concerned. The expression 'together' is synonymous with the words 'conjointly' simultaneously', 'concurrently,' 'contemporaneously', 'concertedly' 'unitedly' and is the antonym of the word 'separately' (see The Nuttal Dictionary of English Synonyms and Antonyms page 275).

A case is conceivable where a wife at a particular time is residing in a lodging house as a tenant or paying guest. If the husband happens to visit on business or for pleasure the town where the lodging house is situate and stays there for any length of time in the same building as a tenant or a paying guest but has no re-lationship whatsoever with his wife of any character apart from sleeping under the same roof, it appears unreasonable to hold that the husband and wife were 'residing together' in the same house. It has been held in a series of decisions that sexual intercourse between husband and wife is not necessary for residence together and no exception can be taken to this view. A husband and wife may have reached the stage when sexual intercourse is not physically possible but that would not mean that they cannot reside together. There are other factors apart from sex between husband and wife which constitute their relationship as husband and wife and bring about some unity between them. It may be emphasised here that though the husband and wife in the instant case shared the same roof unwillingly for a while there was nothing in common between them as would appear from the petition under Section 10 of the Act and the statement of the wife. They can be more appropriately described as living separtely under the same roof, with the husband there as an unwelcome guest who had forced himself at the house of his father-in-law.

14. For the reasons given, I allow this revision and set aside the orders of the courts below. The case will now go back to the trial court for redecision of the preliminary issue in accordance with law and the observations contained in this Judgment. Parties shall bear their own costs. Interim Order, if any, stands vacated.


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