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Sushma Dewan Vs. Ajit Kumar Dewan - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 61-M of 1972
Judge
Reported inAIR1973P& H256
ActsHindu Marriage Act - Sections 10 and 19; Divorce Act 1869 - Sections 3(1); Code of Criminal Procedure (CrPC) , 1973 - Sections 488 and 488(8)
AppellantSushma Dewan
RespondentAjit Kumar Dewan
Cases ReferredIn Mst. Jagir Kaur v. Jaswant Singh
Excerpt:
.....article 227 of the constitution. - probata is well under the hindu marriage act with equal force. on a consideration of these findings, i am clearly of the view that the jurisdiction of the courts at chandigarh is not barred......according to the admitted case of the parties the marriage was solemnised there. the second place of jurisdiction is not perhaps available to either of the parties because the wife is residing at delhi and the husband, being an army officer, is residing at his place of posting. the court at chandigarh would have jurisdiction only if it can be said that the parties last resided together at chandigarh within the meaning of this section.7. the phrase 'last resided together' is not to be interpreted in a pedantic manner. in the broad sense, it means a place where the parties resided even in the course of a short or causal visit. this cannot be the intention of the statute for, in that case the question of jurisdiction would remain in a fluid state causing great inconvenience to both.....
Judgment:

1. This is an appeal against the judgment dated March 22, 1972, delivered by the learned Sub Judge First Class, Chandigarh, exercising the powers of the District Court under the Hindu Marriage Act (hereinafter called the Act).

2. The respondent filed a petition under Section 10 of the Act for the grant of a decree for judicial separation in the lower Court. In the petition, it was stated that the parties last resided together at Chandigarh at the parental house of respondent from May 13, 1967 to May 17, 1967. It is also stated that they would have continued to reside there but for the fact that they thought of having their honeymoon at Ootacomand. The marriage of the parties was solemnised at Delhi on May 12, 1967. The appellant set up the plea that the Court at Chandigarh had no jurisdiction and the petition could be tried only at Delhi where the marriage of the parties was solemnised. On the pleadings of the parties, the learned trial Court framed the following preliminary issue:--

'Whether this Court has the jurisdiction to try this application.'

3. In support of this issue, the respondent appeared as his own witness. The appellant entered the witness box to controvert the allegations herself and also produced her father Dr. S. L. Kapur R. W. 2 as her witness. The learned trial Court, after consideration of the entire evidence, came to the conclusion that the jurisdiction of Chandigarh Courts was not barred. The appellant did not mention in the written statement that the parties had decided to stay at Delhi till the respondent was able to get some married accommodation at the place of his posting. However, when she appeared as a witness she for the first time raised this plea.

4. So far as the main facts of the case are concerned, there is not much controversy between the parties. It is admitted that their marriage was solemnised at Delhi on May 12, 1967. From there the marriage-party proceeded to Chandigarh, which is the parental home place of the respondent. They stayed there from May 13, 1967. to May 17, 1967, when they left for Ootacamand for honeymoon. It is also admitted that they stayed there up to June 2, 1967. According to the case set up by the respondent, on their way back the appellant expressed her desire to meet her parents at Delhi. They stayed at Delhi from June 10, 1967, to June 17, 1967. When the respondent wanted to proceed to Chandigarh, the appellant just refused to accompany him to this place. The inference, which can be drawn from the statement of the respondent is that the stay of the parties at Delhi was of casual nature. On the other hand, if the pleas set up by the appellant in her statement are admitted, then it could be inferred that the parties had decided to make Delhi their place of residence so long as the respondent could not make arrangements for married accommodation at the place of his posting.

5. The learned trial Court did not accept the plea set up by the appellant on the ground that the acceptance of this plea would tantamount to allowing the appellant to vary the proof and depart from the case set up in the written statement. The learned counsel for the appellant has submitted that the learned trial Court was not entitled to do so. According to him, the lower Court had refused to consider this piece of evidence which has vitiated its judgment. In my opinion, there is no force in this contention. The principle of law embodied in the maxim secundum allegata etc. probata is well under the Hindu Marriage Act with equal force. Had there been such substance in the allegations which the appellant made in her statement as a witness, then she would have certainly mentioned them in the written statement. The question which falls for determination is whether the jurisdiction of Courts at Chandigarh, in the circumstances of the present case is ousted under S. 19 of the Act which runs as under:--

'19 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 side or last resided together.'

6. A plain reading of this section shows that it gives a choice either to the husband or to the wife to institute proceedings at three places, namely, where the marriage was solemnised. or where the husband and the wife both reside at the time of the presentation of the petition or where both of them last resided together. It cannot be disputed that Courts at Delhi would have jurisdiction because according to the admitted case of the parties the marriage was solemnised there. The second place of jurisdiction is not perhaps available to either of the parties because the wife is residing at Delhi and the husband, being an Army Officer, is residing at his place of posting. The Court at Chandigarh would have jurisdiction only if it can be said that the parties last resided together at Chandigarh within the meaning of this section.

7. The phrase 'last resided together' is not to be interpreted in a pedantic manner. In the broad sense, it means a place where the parties resided even in the course of a short or causal visit. This cannot be the intention of the statute for, in that case the question of jurisdiction would remain in a fluid state causing great inconvenience to both the parties. In the narrow sense, it means a place to which the element of home or abode can be attributed. This is a more reasonable way of interpreting this phrase because this makes the forum in which the parties can ventilate their grievances more certain. Under Hindu Law, a wife is supposed to live either with the husband or at the place which can be regarded as the home or the permanent abode of the husband. When a husband does possess a home or a permanent abode, then the wife cannot present a petition under any of the section of the Act at a place which the parties may have visited in a casual manner. In J. W. Carol v. Mrs. J. W. Carol, AIR 1933 All 39, a case arising under Section 3(1) of the Divorce Act 1869, it was decided that mere causal or temporary visits do not constitute 'residence' within the meaning of the Act. In Janak Dulari v. Narain Dass, AIR 1959 Punj 50, it was held that, where after the marriage of the parties they lived at Amritsar, where the husband was employed, for about three months and a half, when the wife left her husband and went to live with her sister's husband at Gurdaspur and the husband paid brief and flying visits to Grudaspur to bring about reconciliation, the Courts at Amritsar had jurisdiction to hear the application filed by the husband for restitution of conjugal rights. In some cases in which the husband did not have any home or permanent abode, it was held that the place at which the parties resided even for a short while would entitle the parties to file a petition in the Courts situated there. Reference in this behalf may be had to G. G. Ritchson v. W. L. D. Ritchson, AIR 1934 Cal 570.

8. In the light of the above observations, it is now to be seen whether the jurisdiction of Chandigarh Courts stand ousted or not. It is proved on record that the parties lived at Chandigarh from May 13, 1967, to May 17, 1967, in the parental home of the respondent after their marriage. The husband has stated that he would have continued to live here but for their visit to Ootacomand in connection with their honey-moon. The parties are Hindus and the appellant is expected to live at Chandigarh if her husband, being an Army Officer cannot get married accommodation. On a consideration of these findings, I am clearly of the view that the jurisdiction of the Courts at Chandigarh is not barred.

9. The plea of the appellant that the parties decided to stay at Delhi till such time as the husband could not get married accommodation at Udhampur has been rightly rejected. The respondent stated that they visited Delhi because the appellant desired to see her parents. In the very nature of things their visit to Delhi was of casual nature. It cannot be said that the parties last resided together at Delhi. The Court at Delhi would of course have jurisdiction because the marriage was solemnised there. But the jurisdiction of the Court at the place where the parties last resided cannot be ousted on this score.

10. The learned counsel for the appellant has relied on Rifaqatullah Khan v. Emperor, AIR 1947 All 4. This was a case under Section 488 of the Code of Criminal Procedure, but in that case also the Court held that the word 'reside' as used in that section denoted a dwelling place or an abode. Such a dwelling place need not be treated as equivalent to something in the nature of having a domicile in a particular place or the place where the person's family used to live. In that case the wife had filed a petition for the grant of maintenance-allowance in a court at Shahjahanpur. The husband was living at Peshawar and there was no evidence that he ever lived at Shahjahandpur, though his family originally did come from that place. On these facts, it was held that the Court at Shahjahanpur had no jurisdiction to entertain the petition. It may also be noticed that the pharseology used in Section 488 of the Code of Criminal Procedure is entirely different Section 488(8) of the said Code runs as follows:

'488(8): Proceedings under this Section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or as the case may be the mother of the illegitimate child.'

In Mst. Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521, the Supreme Court had an occasion to interpret this provision as follows:--

'The crucial words of the sub-section are 'resides'. 'is' and 'where he last resided with his wife'. Under the Code of 1882 the Magistrate of the District where the husband or father as the case may be, resided only had jurisdiction. Now the jurisdiction is wider. it gives three alternative forums. This in our view has been designedly done by the Legislature to enable a discarded wife or helpless child to get much needed and urgent relief in one or other of the three forums convenient to them. The proceedings under this Section are in the nature of civil proceedings, the remedy is a summary one and the person seeking that remedy as we have pointed out is ordinarily a helpless person. So the words should deliberately construed without doing any violence to the language.'

The proceedings under the Hindu Marriage Act stand on a totally different footing. Section 19 of this Act does not provide that an application at the instance of a wife would lie at a place the husband alone is.

11. The learned counsel for the appellant also sought to derive support from Janak Dulari's case AIR 1959 Punj 50 (supra) decided by this Court. He has stated that just as the jurisdiction of Gurdaspur Court was barred even though the husband visited that place for three days for the purpose of bringing about reconciliation the jurisdiction of the Courts at Chandigarh should also be barred because the parties stayed there for about 4 days between May 13 and May 17, 1967. I am afraid, this is not the correct approach. In that case the Court held that the visit of the husband to Gurdaspur was of casual nature. In the instant case., Chandigarh was the home and normal abode of the respondent. The appellant as a Hindu wife was expected to live with him. In any case, if she were to file a petition under the Act at Chandigarh, the respondent could not set up any valid objection against the jurisdiction of Courts at Chandigarh.

12. For the reasons mentioned above, this appeal fails and is dismissed.

13. Appeal dismissed.


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