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Dr. Smt. Supriya Vs. Dr. Vasudev Dang - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1102 of 1971
Judge
Reported inAIR1973All94
ActsHindu Marriage Act, 1955 - Sections 19
AppellantDr. Smt. Supriya
RespondentDr. Vasudev Dang
Appellant AdvocateR.K. Jain, Adv.
Respondent AdvocateN.C. Rajvanshi, Adv.
DispositionRevision allowed
Excerpt:
.....1955 - opposite party filed suit alleging that parties last stayed at dehradun as husband and wife - dehradun court had jurisdiction to try petition filed under section 13 - respondent claimed she had gone to dehradun with intention of separation and to get back her belongings - held, petitioner must prove that parties last resided as husband and wife with such intention to reside as husband and wife. - - the purpose of the statute would be better served if the word 'resides' was understood to include temporary residence. ' 10. thus all these decisions clearly go to show that a casual visit or a temporary visit with an intention other than to reside would not confer a jurisdiction under section 19 of the hindu marriage act to entertain the petition. the allegation in paragraph 9..........of whose ordinary original civil jurisdiction the marriage was solemnised or the husband and the wife reside or last resided together.'4. the words 'reside' and 'last resided together' have, therefore, to be interpreted for finding out as to whether this stay of three days of the respondent at dehradun would come under the terms 'reside' or 'last resided together'. before these two words, we find the words 'husband and wife'. this means that in order to confer jurisdiction to a court, a petitioner must prove that the parties 'reside' or 'last resided together' as husband and wife. if a wife went to the husband's place only to get rid of the husband or to quarrel with him, it would not be proper to say that the parties last resided as husband and wife. the word 'resided' therefore, had.....
Judgment:
ORDER

K.N. Shrivastava, J.

1. This is an application in revision against the judgment and orderpassed by the District Judge, Dehradun, upsetting the order of the Civil Judge regarding return of the plaint and holding that Dehradun Court had jurisdiction to hear the petition filed by the respondent under Section 13 of the Hindu Marriage Act.

2. The petitioner filed this petition with the allegation that the parties last stayed at Dehradun as husband and wife and, therefore, Dehradun Court had jurisdiction to try the petition. This contention of the petitioner was denied by the respondent who stated that she had not gone to Dehradun to stay with the petitioner but had gone with the intention of totally separating herself from the petitioner and to bring back her certain articles from there.

3. The learned Civil Judge relied on paragraph 9 of the petition and held as a fact that the respondent had not gone to Dehradun to settle with the petitioner but to settle her disputes with him. The learned District Judge did not take into consideration as to what was the intention and as to Why the respondent went to Dehradun and came to the conclusion that for at least three days, the respondent stayed with the petitioner and this stay was enough to give jurisdiction to Dehradun Court. It is Section 19 of the Hindu Marriage Act which gives jurisdiction for a petition for dissolution of marriage. This section reads as below:

'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 solemnised or the husband and the wife reside or last resided together.'

4. The words 'reside' and 'last resided together' have, therefore, to be interpreted for finding out as to whether this stay of three days of the respondent at Dehradun would come under the terms 'reside' or 'last resided together'. Before these two words, we find the words 'husband and wife'. This means that in order to confer jurisdiction to a Court, a petitioner must prove that the parties 'reside' or 'last resided together' as husband and wife. If a wife went to the husband's place only to get rid of the husband or to quarrel with him, it would not be proper to say that the parties last resided as husband and wife. The word 'resided' therefore, had to be given a special meaning in connection with the relationship of wife and husband. A man residing at a particular place may go with his wife for sight-seeing at a certain place and stay there for a couple of days. That would not amount to saying that at the place of the sight-seeing, they last resided. Similarly, if a husband goes and stays at a hotel with his wife for a couple of days, it would not be correct to say that they last resided at the place where the hotel was situated.

5. A number of decisions have been quoted by the parties' counsel in connectionwith the interpretation of the words 'reside' and 'last resided together'. These cases are under different statutes and not under the Hindu Marriage Act. In the Indian Divorce Act, there is a provision that the petition for divorce can be filed where the husband and wife reside or last resided together. Therefore, we have to look into these decisions because they would be of help in deciding as to what is meant by the words 'reside' and 'last resided together' occurring in Section 19 of the Hindu Marriage Act.

6. In Janak Dulari v. Narain Dass, AIR 1959 Punj 50, the question of interpretation of the words 'reside' and 'last resided together' came up for consideration. In this case, it was held that the word 'reside' implies something more than a mere brief or flying visit.

7. In a Full Bench decision of this Court Arthur Flowers v. Minnie Flowers, (1910) 7 All LJ 193, the question which came up for decision was as to what the word 'dwelling' meant. The following observation in this case can be read with advantage in interpreting the words 'reside' and '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'.'

8. 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 Code of Civil Procedure meant. While dealing with this case, the Supreme Court observed as below:

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

9. It was also observed earlier in the judgment that:

'Whichever meaning is given to it, one thing is obvious and it is that it does not include a casual stay in, or a flying visit to a particular place. In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense. The purpose of the statute would be better served if the word 'resides' was understood to include temporary residence.'

10. Thus all these decisions clearly go to show that a casual visit or a temporary visit with an intention other than to reside would not confer a jurisdiction under Section 19 of the Hindu Marriage Act to entertain the petition.

11. As against this, certain cases were referred by the learned counsel for thepetitioner. One of these cases has been referred by the lower appellate Court in its judgment. It is M. Clarance v. M. Raicheal, AIR 1964 Mys 67. In this case, the facts were altogether different and soon after the divorce, the parties had separated. They had no permanent residence, but it was a fact that they stayed as husband and wife after the marriage for some time at the place where the marriage was solemnised. In the instant case, I shall presently show that the respondent did not go to Dehradun with the intention to stay with the petitioner howsoever temporarily as husband and wife.

12. The other case cited on behalf of the petitioner was T. J. Poonen v. Rathi Varghese, AIR 1967 Ker 1. In this case, the parties' stay was of some permanent character and also of casual brief stay together. The stay of permanent character was taken for the purpose of jurisdiction. The other two cases cited are Smt. S. Saroja v. P. G. Emmanual, AIR 1965 Mys 12 and Smt Lalithamma v. V. R. Kannan, AIR 1966 Mys 178, These cases are also distinguishable from the facts of the present case.

13. Applying the above principle, it has now to be seen as to whether the residence of the respondent at Dehradun, howsoever temporary, was with the intention of residing there as husband and wife. The allegation in paragraph 9 of the petition clearly goes to show that the respondent had gone to Dehradun to trouble the petitioner and to get certain articles from there. The relevant portions of the paragraph are as follows:

'9. That the difference between the parties grew to such an extent that it did not appear to live with him together as the respondent was found to live with her father at Hoshiarpur and was not willing to leave her life in adultery. However, the respondent came to Dehradun and stayed with the petitioner in the second week of July, 1967. She made the life of the petitioner hell and she quarrelled without any reason and she wanted to get rid of the petitioner.'

14. All this shows that the respondent did not go to Dehradun to live with the petitioner as husband and wife but, according to the admission of the petitioner himself, she had gone to pick up quarrel with the petitioner and to get the relations finally broken. It was on this allegation in the petition that the Additional Civil Judge recorded a finding that the respondent had not gone to Dehradun to reside with the petitioner but had gone with the idea of getting a complete separation.

15. This allegation in paragraph 9 of the petition has also to be judged in relation with the past history of the parties. Both the parties are said to be doctors. They were not pulling on well since long. They were quarrelling with each other with the result that the petitioner had started doubting the chastity of the respondent. There isnothing on the record to show that there was any reconciliation on account of which the respondent came to stay with the petitioner. Thus the respondent's coming to Dehradun for two days could not be with the intention to reside with the petitioner as his wife for howsoever a temporary period. These aspects of the case were not considered by the lower appellate Court and the lower appellate Court did not even upset the finding of the trial Court that the respondent did not go to Dehradun with the intention to reside with the petitioner. Therefore, this finding by the trial Court stands. In view of this finding which is based on evidence, the trial Court, therefore, rightly held that it had no jurisdiction to try the suit and ordered for the return of the plaint 16. In this view of the matter, the revision application succeeds. It is hereby allowed with costs. The judgment and order passed by the lower appellate Court are set aside and the one passed by the trial Court are restored. The stay order is discharged.


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