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Pritma Sharma Vs. Mohinder S. Bhardwaj - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 76 of 1983
Judge
Reported inAIR1984P& H305
ActsHindu Marriage Act, 1955 - Sections 19
AppellantPritma Sharma
RespondentMohinder S. Bhardwaj
Cases ReferredDr. Ashok Ranjan Saxena v. Smt. Vishwa Bharti
Excerpt:
.....of the said order. - vishwa bharti, air 1978 all 18, that the stay of the husband with his wife at hissar on 5th september, 1982 cannot be held to mean 'last resided together' and, therefore, the hissar court bad no jurisdiction to try the petition. once he wanted to throw acid on her face, due to which she was compelled to lodge the complaint with the city police station, hissar and that he made a laughing stock of her in the locality where she was living as well as in her office by falsely accusing her character. moreover, the sentence 'the parties never resided together at hissar with a view to live here contained in para 15 of the written statement clearly goes to suggest that he had been going to hissar but it was not with a view to live there. the facts o the aforesaid case..........visiting hissar. in reply to paras 11 and 15 of the petition, he did not state that he did not visit hissar on 5th september, 1982 and, therefore, the question of residing together at hissar on that date did not arise. moreover, the sentence 'the parties never resided together at hissar with a view to live here contained in para 15 of the written statement clearly goes to suggest that he had been going to hissar but it was not with a view to live there. it is true that in preliminary objection no. 1, the husband had categorically stated that he was not present at hissar on 5th september, 1982 and, therefore, the question of parties having resided together there on the said day did not arise. but in view of the issue framed, it appears that the husband gave up this part of the case.....
Judgment:

1. The parties were married at Delhi on 24th. February, 1976; At that time the wife was employed as Assistant Scientist, Department of Botany, College of Basic Sciences, Haryana Agricultural University, Hissar and the husband was doing business at Delhi, according to the wife; where as according to the husband he was, working et Kanpur and on insistence of his wife, he started ;doing business in Delhi from 1978 onwards. Out of the wed-tock on 3rd June., 1979 a female child. was born.. On 16th September, 1982, the wife presented. a petition for dissolution of marriage District Court at Hissar, primarily on till ground of cruelty. The husband contested the petition and in his written statement took. a preliminary objection; that Hissar Court had so jurisdiction to try the petition as neither the marriage was solemnized at Hissar nor she resided there at the time of presentation of petition nor the parties last resided together at Hissar. In the divorce petition, the wife had pleaded in paras 11 and 15 as follows.

'That the last meeting between the parties was on date 5-9-1982 at Hissar and on that very date the petitioner was saved from the respondent by the intervention of the petitioner's sister.'

'That the petitioner and. respondent last resided together on date 5-9-1982 at Hissar. Hence this Hon'ble Court has the jurisdiction.'

On a reading of the aforesaid two paragraphs the inference, which can reasonably be drawn is that on 5th September, 1982 the husband was with his wife at Hissar. In para 3 of the petition, the wife had pleaded that she was living at Hissar and was serving as an Assistant Scientist in Haryana Agricultural University, Hissar, and a reading of para 2 of the petition shows that she was having a flat allotted to her in the University to where she was living. The plea contained in para 3 of the petition was not denied by the husband. In reply to para 2 of the written statement the husband did not dispute that the wife was living in a flat allotted to her. by the University.

2. On the pleadings of the parties, the learned Additional District Judge, framed the following preliminary issue:

1. Assuming that the allegations contained in paras Nos. 11 and 15 of the petition are correct whether the allegations made make out a case that the parties 'resided' together at Hissar and whether this Court has got territorial jurisdiction? Onus petitioners.

3. A reading of the aforesaid issue would show that the jurisdiction of the Court had to be found out on the assumption that the allegations contained in paras 11 and 15 of the petition am correct. Accordingly no evidence was to be led on the preliminary issue. The trial Court by order dated 31st January, 1983, came to the conclusion on the basis of judgment reported as Dr. Ashok Ranjan Saxena v. Smt. Vishwa Bharti, AIR 1978 All 18, that the stay of the husband with his wife at Hissar on 5th September, 1982 cannot be held to mean 'last resided together' and, therefore, the Hissar Court bad no jurisdiction to try the petition. Consequently it was ordered that the petition be returned for presentation to the Court of competent jurisdiction.

4. Against the aforesaid order, the wife has come to this Court in this appeal.

5. After hearing the learned counsel for the parties and on perusal of the record, I am of the view that this appeal deserves to succeed.

6. The undisputed facts are that from 1978 onwards, the husband is living at Delhi where he is carrying on his business; whereas since before marriage the wife is living at Hissar, where she is serving in the Haryana Agricultural University, Hissar, as an Assistant Scientist, where she has a flat for her residence. In the divorce petition there is no averment that she ever went to Delhi and lived with her husband during her holidays. Similarly, there is no averment that her husband used to come to Hissar during his off days. However, from a combined reading of paras 7 to 10 of the petition, it can be seen that till 1980 (according to the wife's allegations) the husband's attitude towards her was not good and was worst and that he had abused and had given beatings to her a number of times. Once he wanted to throw acid on her face, due to which she was compelled to lodge the complaint with the city Police Station, Hissar and that he made a laughing stock of her in the locality where she was living as well as in her office by falsely accusing her character. On a reading of the contents o aforesaid paras along with Paras 11 and 15 of the petition, a reasonable inference can be drawn that the husband used to visit her at Hissar and 5th September, 1982 was the last, visit when he had stayed with her.

7. Adverting to the written statement, the grievance of the husband is that his wife does not want to join him in the matrimonial home at Delhi, in spite of the fact that he is so desirous and capable of providing. to her all the comforts according to the status of the spouses, He too has not stated that his wife ever came to Delhi during holidays and lived with him, nor he has stated that he has been visiting Hissar during his off days. But all the same, it can be inferred from the written statement that he has been visiting Hissar. In reply to Paras 11 and 15 of the petition, he did not state that he did not visit Hissar on 5th September, 1982 and, therefore, the question of residing together at Hissar on that date did not arise. Moreover, the sentence 'the parties never resided together at Hissar with a view to live here contained in Para 15 of the written statement clearly goes to suggest that he had been going to Hissar but it was not with a view to live there. It is true that in preliminary objection No. 1, the husband had categorically stated that he was not present at Hissar on 5th September, 1982 and, therefore, the question of parties having resided together there on the said day did not arise. But in view of the issue framed, it appears that the husband gave up this part of the case and wanted determination on the point of jurisdiction on the assumption that he had visited Hissar on 5th September, 1982.

8. From the facts noticed above, the question of law which arises for consideration is whether it can be said that the visit of the husband on 5th September, 1982 to the wife's residence at Hissar, would give jurisdiction to the Matrimonial Court at Hissar, under Section 19(iii) of the Hindu Marriage Act, 1955. Clause (iii) of Section 19 of the Act, gives the jurisdiction to the Court where the parties to the marriage last resided together. Therefore, it has to be seen whether the residence of the husband with his wife at Hissar on 5th September, 1982 would come within the ambit of the words 'last resided together'. The Court below placed reliance on Dr. Ashok Ranjan Saxena v. Smt. Vishwa Bharti, AIR 1978 All 18. The facts of that case were that the parties were married at Allahabad in June, 1974 and lived there as husband and wife till December, 1974. In early part of Dec., 1974 the wife left the matrimonial home at Allahabad for her father's place at Bareilly and never returned to. Allahabad. Her husband visited Bareilly thrice in an attempt to bring her back and stayed as an unwanted guest at his father-in-law's house and the attempts proved futile and her turned to Allahabad disappointed. On those facts the three visits to Bareilly and staying with his father-in-law were not considered to give jurisdiction to Bareilly Court, as. according to the learned Judge, it could not be held that the parties last resided together at Bareilly. The facts o the aforesaid case are clearly distinguishable from the facts of the present case. There, the husband had stayed with his father-in-law and the number of the visits were casual or flying i. e. for re-conciliation and to bring her. back. No reconciliation took place. On the evidence, it was held that there was no communication between the parties even during the brief visits of the husband to Bareilly and the husband had to rely on communications through postal system. In the present case, when both the parties are working at two different places having their separate residential houses, both places would be fit for the residence of the spouses. If the wife would go to Delhi, to visit her husband; she can be deemed to be residing wit him there and if she husband would go to the wife's place at Hissar, he would be deemed to be residing with his wife at Hissar. Such visits of the wife or of the husband cannot be termed as casual or flying. On the other hand, such visits may be termed as temporary visits by both the spouses and such temporary visits have been held to come within the meaning of the word `resides' and the word 'resided'. See in this behalf. Mst. Jagir Kaur v. .Jaswant Singh, AIR 1963 SC 1521.

9. Smt. S. Saroja v, P. G. Emmanual, AIR 1965 Mysore 12, is another identical case because that also relates to such spouses, who were serving and living at two different places and the husband used to visit wife's place during vacations and the wife used 4o visit husband a place similarly. No other case of working spouses has been brought to my notice except this one. The following rule was laid in the aforesaid decision:

'If both the husband and wife are holding employment's and therefore are obliged to live in different parts of the world or their own country and if the wife during her vacations 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 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 where in 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. It the purpose obviously is that each of the spouses a 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.'

I am in respectful agreement with the aforesaid view. Accordingly, while reversing the decision of the Court below I hold that on 5th September, 1982, both the spouses lived together at Hissar as husband and wife in the house belonging to the wife and this residence clearly falls within the term of 'resided together' and since this was the last visit the Hissar Court has jurisdiction to try the petition.

10. For the reasons recorded above, this appeal is allowed, the order of the Court below is set aside and the matter is remitted to the trial Court for decision of the case on merits. The wife will have her costs of this appeal from the husband. The parties through their counsel are directed to appear before the trial Court on 20th February, 1984.

11. Appeal allowed.


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