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T.J. Poonen Vs. Rathi Varghese - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 199 of 1966
Judge
Reported inAIR1967Ker1
ActsCode of Civil Procedure (CPC) , 1908 - Sections 107 and 115 - Order 14, Rule 2 - Order 41, Rule 25; Divorce Act, 1869 - Sections 3(3)
AppellantT.J. Poonen
RespondentRathi Varghese
Advocates: Manuel T. Paikaday and; Leelamma Paikaday, Advs.
DispositionPetition dismissed
Excerpt:
family - interpretation - section 3 of divorce act, 1869 - meaning of 'last resided together' - mere stay in particular place does not amount to having residence at particular place - residence cannotes something more than stay - party should remain in place and not merely pay casual visits going from one place to another - meaning of last resided together implies such type of residence. - vaidialingam, j. 1. in this civil revision petition on behalf of the petitioner mr. m t. paikada learned counsel challenges the order of the learned district judge of trivandrum, dated 15th january 1966 overruling the objections raised by the petitioner to entertain o.p. no. 1 (indian divorce act) of 1965, filed by the respondent herein before that court. 2. the marriage between the revision petitioner and the respondent took place on 2-4-1964 the respondent filed the original petition in question before the district court, trivandrum, under section 18 of the indian divorce act, 1869 (central act 4 of 1869), hereinafter to be referred to as the act, for a declaration that the marriage that took place between her and the revision petitioner on 2-4-1984 is null and void. it is not necessary.....
Judgment:

Vaidialingam, J.

1. In this civil revision petition on behalf of the petitioner Mr. M T. Paikada learned counsel challenges the order of the learned District Judge of Trivandrum, dated 15th January 1966 overruling the objections raised by the petitioner to entertain O.P. No. 1 (Indian Divorce Act) of 1965, filed by the respondent herein before that Court.

2. The marriage between the revision petitioner and the respondent took place on 2-4-1964 The respondent filed the Original Petition in question before the District Court, Trivandrum, under Section 18 of the Indian Divorce Act, 1869 (Central Act 4 of 1869), hereinafter to be referred to as the Act, for a declaration that the marriage that took place between her and the revision petitioner on 2-4-1984 is null and void. It is not necessary for us at this stage, to refer to the various averments made in the Original Petition or in the written statement filed by the revision petitioner, regarding the grounds, on the basis of which the Original Petition had been filed; because the short controversy that arises for consideration, at the hands of this Court at this stage, is regarding the correctness or otherwise of the order of the learned District Judge, Trivandrum, holding that the said Court has got jurisdiction to entertain the Original Petition.

3. It is necessary to briefly advert to the averments contained in the Original Petition, as well as in the written statement filed therein, In so far as they are necessary for the present purpose. The respondent has stated in the said Original Petition that she is a resident of Ernakulam and that her parents are residing in Thrikkakara. The revision petitioner, who was employed as an Engineer in the Posts and Telegraphs Department, was working at the material time, in Bombay and he has also his parents' house in Trivandrum The respondent further states that her marriage took place at St. Thomas Jacobite Syrian Church, Kakkanad, within the jurisdiction of the Ernakulam District Court, on 2-4-1964. It is further stated that from the date of the marriage, till about the end of April 1964, the respondent lived with the revision petitioner at the residence of the revision petitioner a parents, in Trivandrum, excepting for 3 days when they lived together at the residence of the respondent's parents at Thrikkakara There is a further statement in paragraph 4 of the Original Petition to the effect, that the permanent place of residence of the revision petitioner is at Trivandrum The respondent further states in paragraph 7 of the Original Petition--the material part of which relates to present controversy--that at the time of the marriage and till about the end of 1964, the revision petitioner was employed in Bombay, and was staying there In paragraph 9 of the Original Petition, the respondent categorically states that the revision petitioner and the respondent last resided together at Trivandrum, within the jurisdiction of the District Court, Trivandrum. Ultimately the respondent praya for the reliefs referred to in the Original Petition, referred to above.

4. Therefore, it will be seen that according to the respondent, the permanent place of residence of the revision petitioner is at Trivandrum; and her further averment is that both of them last resided together at Trivandrum, within the jurisdiction of the District Court, Trivandrum.

5. The revision petitioner has filed a fairly detailed written statement, controverting the various allegations made by the respondent in the Original Petition, both regarding the Jurisdiction of the District Court, Trivandrum, to entertain the Original Petition, as well as on merits. The revision petitioner has stated in paragraph 4 of the written statement that the allegation of the respondent in the Original Petition that the permanent place of residence of the revision petitioner is at Trivandrum is denied. The revision petitioner also states that he had not any permanent place of residence at the time of the marriage, nor 'had he any thereafter al any relevant time Then he gives the details about the various places in India from time to time, where, according to him, he has stayed for the last nearly 20 years. He has also stated that he has been staying most of the time in hostels attached to educational institutions and in Hotels and Boarding Houses and occasionally with his parents who were living in various rented houses in Trivandrum. More recently, the petitioner states, the avocation or occupation that he was having, itself required considerable travel and shifts. In this connection, he states that he staved in Jabalpore for 28 weeks from October 15, 1962, in Ahamedabad for the next 8 weeks, in Bombay for the next 8 weeks, later in Bangalore for 2 weeks, then in Delhi for 2 weeks, and next in Bombay till about the end of March 1964. He has also stated that he has spent about 3 weeks in Trivandrum, and the first week of May in Bangalore. Then he winds up paragraph 4 of the written statement by stating that later on, he has been in Bombay till the middle of October 1964, then in Madras till the middle of March 1965, then again in Jabalpore till July 3rd, and then back again in Madras where he is at the time of filing the written statement

(5-A) It will be seen from the averments made by the revision petitioner in paragraph 4 of his written statement, that so far as we could see, he has not stated that Bombay is his permanent place of residence; nor is there any suggestion, when he refers to his stay in Bangalore, that he intended Bangalore to be a place of abode or residence. He also admits that he was staying for about 3 weeks in April 1964 in Trivandrum. No doubt we are aware of the contention of Mr. Paikaday, learned counsel for the revision petitioner that these averments are enough to establish that his client has no permanent place of residence. That is an aspect which we will have to deal with, in considering the contentions of learned counsel for both sides, on the merits, regarding the order of the learned District Judge that is under attack.

6. In paragraph 7 of the written statement, in so far as it is material for the present purpose, the petitioner has stated that he is a person having very high educational qualifications, and he has also passed the Competitive Examination of the Indian Railway Engineering Services, the T. E. S. Class I Examination of the All Indian Telegraph Engineering Service, Class I. After referring to these aspects, the revision petitioner states that he wanted also the respondent, his wife, to be given a very sound education so that she may be a vary good companion in his career; and for that purpose, even at the time of marriage, it was arranged and agreed that the respondent was to shift from Ernakulam and stay at Trivandrum with his parents and prosecute her studies in the Women's College, Trivandrum. The petitioner further states that in pursuance of this agreement, the respondent was transferred from her Ernakulam College, from the beginning of the academic year 1964. In paragraph 13 of the written statement, the revision petitioner has stated that in paragraph 9 of the Original Petition, wherein, as we have already pointed out, the respondent has categorically stated that the place where they last resided was Trivandrum within the jurisdiction of the District Court, Trivandrum, is false and is denied. Then the revision petitioner states that "the petitioner and the respondent "last resided together" not in Trivandrum but at Bangalore, from May 1st, to 7th, 1964, in a P. and T. Bungalow."

He also states that the statement contained in paragraph 9 of the Original Petition is false, and it has been made deliberately so as to enable the respondent to file the Original Petition in the District Court, Trivandrum, He also expresses the inconvenience and hardship that will be caused to him. If the proceedings are conducted in the said Court. But the point to be noted is that he categorically states that, according to him, the place where they last resided together is not Trivandrum, but Bangalore; and the date of that last residence is also given as 1-5-64 to 7-5-64 Again, in paragraph 14 of the written statement the revision petitioner has stated that the place where the parties last resided together having been Bangalore, the District Court. Trivandrum, has no jurisdiction in respect of the Original Petition filed by the Respondent, and therefore, a request was made by the revision petitioner that the said question may be heard and decided as a preliminary issue. Finally, in paragraph 17 of the written statement the revision petitioner, after categorically stating that the various statements made by the respondent in the Original Petition are alt false and not true, has also taken up the position that the Original Petition has been filed in a Court having no territorial jurisdiction over its subject-matter; and he therefore prays for a dismissal of the Original Petition filed by the respondent herein.

7. In this connection, it is necessary to refer to some of the provisions contained in the Act. Section 4, occurring in Ch. II dealing with jurisdiction, provides for the District Courts "subject to the provisions in this Act contained" to exercise the jurisdiction which was being then exercised by the High Courts in respect of divorce. The expression 'District Court' has been defined in Section 3, Clause (3) as follows:

"(3) "District Court" means, in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act, the husband and wife reside or last resided together:"

It will be seen that to order to enable a District Court to have jurisdiction over matters, covered by the Act, it is necessary that the husband and wife should reside or should have last resided together within the local limits of the jurisdiction of that Court. In this case it is not necessary for us to consider the question as to whether the revision petitioner and the respondent reside within the jurisdiction of the District Court, Trivandrum. The controversy really is as to where exactly, it has to be stated in this case, that they last resided together'. While, according to the revision petitioner, they last resided together in Bangalore, according to the respondent they last resided together in Trivandrum. It is needless to state that unless the respondent, who has invoked the jurisdiction of the District Court, Trivandrum, by filing the Original Petition in question, is able to satisfy that Court that the revision petitioner and the respondent last resided together within the local limits of the jurisdiction of the District Court, Trivandrum, that Court will have no jurisdiction to entertain the Original Petition.

8. We have already referred to the fact that the revision petitioner has raised the question that the District Court, Trivandrum, has no jurisdiction to entertain the Original Petition and that was on the ground that both of them last resided together, not In Trivandrum as alleged by the respondent, but in Bangalore. For this purpose the revision petitioner filed I. A. No. 1435/65, requesting the learned District Judge to try issue No. 3 in the Original Petition, which related to jurisdiction of that Court to entertain the Original Petition, as preliminary issue. The revision petitioner has stated in the said application that inasmuch as issue No. 3 relates to the very jurisdiction of the District Court to conduct the proceedings, it is essential that it should be heard and disposed of as a preliminary issue. It is further stated that if the said issue is decided in his favour, there will be no necessity for proceeding with the trial of the proceedings on merits.

9. That application was opposed by the respondent. In her counter-affidavit she has stated that the permanent residence of the revision petitioner is at Trivandrum at the time of marriage and filing of the Original Petition. She has also referred to the fact that the revision petitioner has expressly admitted in a letter sent to her dated 30-7-1964, a copy of which has been filed in these proceedings, that the place of last residence of both of them is Trivandrum. The letter referred to is Ext. P-2, to which we have to advert a little later. The respondent further states that the place where both of them last resided was the house in Trivandrum within the jurisdiction of the District Court, Trivandrum and that the revision petitioner and his parents were and are permanent residents of Trivandrum for more than 20 years or more. She has also averred that the revision petitioner studied in the Engineering College. Trivandrum for the full period of the course and took his degree from there. She again reiterates that the permanent residence of the revision petitioner at the time of his marriage was in the house owned by his parents in the C. I. T. Colony, Trivandrum, and continues to be so. She further states that the revision petitioner has no other house elsewhere either in Kerala or outside, and that it was in that house that the settlement of marriage took place and the petitioner and the respondent last resided together, as mentioned in the Original Petition, at Triyandrum. She also refers to the fact that the halt in Bangalore was on the way to Bombay, and it was not a residence at all.

10. The revision petitioner filed a rejoinder to the counter-affidavit filed by the respondent in I. A. 1435/1965. In that rejoinder statement, the revision petitioner has referred to the fact that he is very strenuously controverting the claim of the respondent that they last resided together in Trivandrum According to him the place where they last resided together was at Bangalore. He again refers to the material averments contained in the written statement filed by him in the Original Petition disputing the jurisdiction of the Trivandrum District Court to entertain the Original Petition. Then there is a further averment to the effect that the assertion made by the respondent regarding their last place of residence, is a matter for argument and proof. The revision petitioner further states that the assertion of the respondent that he is a permanent resident of Trivandrum is not based upon any averment that he owns or even has permanent right of residence in any place or building in Trivandrum: but that his parents lived mostly in Trivandrum and as their child he also has lived with them for considerable periods That, according to him will not constitute residence as required by the statute. Then again, the revision petitioner meets the averments of the respondent on merits, by stating that even his parents do not have any permanent residence in Trivandrum, in the sense of owning a building there, and it was only recently, i.e. in 1964, that his mother acquired a living house there, and it has since been let out to third parties.

Ultimately the revision petitioner refers to the fact that the claim made by the respondent that their stay at Bangalore during the period 1-5-1964 to 7-5-1964--however short it be--was a halt on the way to Bombay, and not a residence, is not correct According to him, their stay at Bangalore constitutes the place where they last resided together; and therefore. It is only the Bangalore Court that will have jurisdiction to entertain the Original Petition. Then again he refers to his transfer from Madras since the filing of his written statement, and is at Coimbatore at the material time. He further states that with regard to their last residing together at Bangalore. It it necessary to note that the respondent wax not on her way to Bombay or anywhere, but returned to Trivandrum from Bangalore; and the revision petitioner himself went in the first instance to Hubli and later to Bombay. Therefore the revision petitioner again reiterates his request for treating issue No. 8 as a preliminary issue.

11. The learned District Judge declined to grant the request of the revision petitioner and rejected it, by order dated 16-12-1965. In fact the order passed by the learned District Judge was to the effect that the parties will get ready for trial by adducing evidence on all the issues. Accordingly the proceedings were adjourned to 4-1-1966. It is seen that the revision petitioner challenged the said order of the learned District Judge in this Court in C. R. P. No. 1329/ 65. The grievance of the revision petitioner was that inasmuch as the question of jurisdiction is essentially to be decided as a preliminary issue, the order of the learned District Judge postponing decision on that issue along with the other issues would work serious hardship and injustice to him; and the claim of the revision petitioner was that if he is able to succeed in his contention that the District Court, Trivandrum has no jurisdiction to entertain the Original Petition, then it would become unnecessary to lake any further proceedings before that Court. Therefore, the petitioner moved this Court in the C. R. P. referred to above for giving directions to the lower Court to take up issue No. 3 and dispose of it before evidence is adduced on merits. This Court, by its order dated 13th December 1965, set aside the order of the learned District Judge dated 11-11-65, and ultimately directed the learned District Judge to take up issue No. 3 in the first instance and adjudicate upon the same on or before 10-1-1966. It was also indicated in the order of this Court that such a short time was being fixed in order to have an expeditious disposal of this matter.

12. It is now seen that the learned District Judge, after the directions referred to above were given by this Court in its order in C. R. P. 1329/65, posted the matter by his order dated 16-12-1966, directing the parties to get ready with their evidence, and posted the matter to 4-1-1966. On that day it is seen, that the parties adduced evidence and also produced necessary documentary and oral evidence relied on by them; and on 15-1-1966 the learned Judge passed the order which is under attack By that order the learned Judge has ultimately overruled the objection raised by the revision petitioner to the jurisdiction of the Trivandrum District Court to entertain the Original Petition, and negatived the claim of the revision petitioner that the place where they last resided together was Bangalore. On the other hand, the view of the learned District Judge is that the place where the revision petitioner and the respondent last resided together was Trivandrum, in which case, under Section 3, Clause (3) of the Act the Trivandrum District Court has got jurisdiction to entertain the Original Petition filed by the respondent, in that connection the learned District Judge has also referred to several decisions, to which his attention was drawn, and also to the materials placed before him by the parties. Ultimately, as we have already indicated, the finding of the learned District Judge on issue No. 8 is against the revision petitioner.

13. Before we consider the points that have been raised by Mr. Manuel T. Palkaday, learned counsel for the revision petitioner, it is necessary to briefly refer to the evidence that was available before the learned District Judge, on the basis of which he has recorded the finding in question. On behalf of the respondent, Exts. P-1 and P-2 were marked, and the oral evidence of P. Ws. 1 to 3 was also adduced. It may be stated that P. W. 3 is the respondent herself. On the side of the revision petitioner, it is seen that he did not adduce any oral evidence either of himself or of anybody else. On the other hand he has produced four items of documentary evidence, namely Exts. D-1 to D-4. At this stage it may be mentioned that we are well aware of the fact that the order under attack, is in proceedings brought up to this Court under Section 115, C. P. C. We are also well aware of the various decisions of the Supreme Court, including the latest decision reported in Rathilal v. Ranchhodbhai, AIR 1966 SC 439, regarding the ambit and limitations of the jurisdiction exercised by this Court under Section 115 of the Code.

While conscious of the scope of the limitation in the exercise of power by this Court under Section 116, C. P. C., we are dealing with the matter a little more elaborately for this reason, because the proceedings in question were Initiated before the District Court under the Act, and one of the questions that has been adjudicated by the District Court and which arises for consideration in these proceedings Is the question of jurisdiction of the District Court to entertain the Original Petition filed by the respondent. In fact, this Full Bench Itself has been constituted, in view of the fact that any final order that may be passed by the District Court and which will have to come up to this Court for confirmation, can be dealt with only by a Bench of three Judges, Therefore, inasmuch as this Court is practically exercising its jurisdiction under the Act, we are rather elaborately adverting to the materials that have been placed by the parties as well as the various principles laid down in the decisions which have been referred to by learned counsel on both sides, to satisfy ourselves as to whether the finding recorded by the learned District Judge is correct or not.

14. Ext. P-l dated 1-4-1964 is a Desakuri; and that has been issued by the Parish at Trivandrum to the Vicar of Kakkanad Church at Thirikkakara, wherein admittedly the marriage was solemnised, on 2-4-1964. There is a statement in Ext. P-l to the effect No doubt that is referred to in describing the person in whose favour it was issued, namely the revision petitioner; and that has been interpreted by the learned District Judge, and also supported by Mr. T.N. Subramania Iyer learned counsel for the respondent, as showing that the revision petitioner was a resident of Trivandrum. That is an aspect, which we will have to consider a little later. Ext. P-2 is a letter dated 30-7-1964 written by the revision petitioner, from Bombay, to the respondent who was at Trivandrum. It is not necessary for us to refer to the several matters that are adverted to therein, excepting to note that the petitioner categorically states that ".....till I get enough income of my own to keep ourselves in comfort. In the meantime, my parents' house is mine also, and in staying there, you are staying with me. You cannot continue your education also if you stay elsewhere....." It is not necessary to advert to the other matters referred to in this letter. This again, though not specifically adverted to by the learned District Judge in his order, has operated in his mind, to come to the conclusion that even according to the revision petitioner, the house where his parents are living and to which place the respondent has also been transferred for the purpose of her education, must be considered to be the place where the revision petitioner has got residence. And it is in that view, that the learned District Judge has considered the claim made by the parties concerned, as to where exactly they could be considered to have "last resided together".

15. P. W. 3, as we have already mentioned, is the respondent herself. Her oral evidence has been accepted by the lower Court. P.W.1 merely proves Ext. P-1. P. W. 2 is a person who claims to be a neighbour of the parents of the revision petitioner. He has spoken to the fact that the revision petitioner's parents have been staying at Trivandrum for a number of years. He has also spoken to the revision petitioner having stayed there very often and also to having had his education there. But, in our opinion. P. W 2's evidence will only show that the revision petitioner's parents were living at Trivandrum for a long number of years, that the revision petitioner had his education at Trivandrum, and that he was also staying with his parents very often, and also at the time of the marriage and afterwards with his wife. But, in our opinion, that evidence, along with the other evidence, will have to be taken into account for considering the question as to whether the claim of the Respondent that the place where they last resided together is Trivandrum, can be accepted or not That will again depend upon the further question as to what in law is necessary to constitute "residence" P. W. 3 has spoken to the fact that she was married on 2-4-1964 to the revision petitioner at Kakkanad Church, and after the marriage they came over to Trivandrum for about 3 days, and after staying at Trivandrum for 2 or 3 days they came over to her parents' house at Thrikkakkara. She further says that after 2 or 3 days' stay in Thrikkakkara they went back to Trivandrum and stayed there till the end of April 1964. In particular, she says that she stayed in Trivandrum for about 22 days and that during that period, she was staying at the revision petitioner's house with the revision petitioner. She has also stated that along with them, the parents of the revision petitioner were also staying in the same house.

The respondent has further stated that the revision petitioner mentioned to her that that house at Trivandrum belonged to them. But she does not know in whose name the house actually stood. Then she has stated that after their stay in Trivandrum, the revision petitioner and the respondent left for Bombay, and on their way they stopped at Bangalore for 5 or 6 days. She has further stated that while at Bangalore they lived at the P. & T. Bungalow. She further refers to the fact that along with them, there were some other guests also living in other rooms. In cross-examination, the respondent has stated that the revision petitioner told her that he has got a house in Trivandrum, She also states that after living for 22 days in Trivandrum, she had no occasion at all, to live with the respondent, in Trivandrum again. In further cross-examination she has referred to the fact that she did not go to Bombay, because the revision petitioner told that he was going en route to Bombay; and she returned to Trivandrum from Bangalore She has also stated that her mother-in-law, the mother of the revision petitioner, also accompanied them and was staying with them in Bangalore. From Bangalore, the respondent states, that the revision petitioner went to Hubli and then from there to Bombay. She no doubt states that she lived from 1-5-1964 to 7-5-1984 at Bangalore. But no doubt she later on states that she is not sure about the dates. Then she refers to Ext. D-1, which is a letter written by the revision petitioner to her on 16-8-1964 from Hubli. She also refers to the fact that before marriage, she had lived for a few days in Trivandrum. Then she admits that she has no house of her own in Trivandrum. Then she refers to the fact that she met the revision petitioner 2 months before marriage, for the first time, at her house at Thrikkakara.

16. On the side of the revision petitioner, as we have already indicated, there is no oral evidence adduced: the evidence consists of Exts. D-1 to D-4. Ext. D-1 is a letter written by the revision petitioner to the respondent on 10-5-1664: and it was written from Bombay where the revision petitioner was then staving, to his wife who was staying in Trivandrum. In that letter, he has referred to the fact that Bangalore has been constituted into a Telephone District, and so he expects to be able to stay in Bangalore at least for the next four years if he is posted there in a vacancy in October 1964. Ext. D-2 is a communication addressed by the revision petitioner to the S. S. P., Bangalore City Division, dated 9-4-1964, requesting for accommodation in the Inspection Bungalow. Bangalore, from 1-5-1964 to 7-5-1984 In that communication he states that his wife also will be accompanying him and therefore he wants the entire small suite to be reserved for their accommodation Ext D-3 is a communication issued from the office of the S. S. P. Bangalore, which refers to the reservations made for the periods in question, not only for the revision petitioner, out also for certain others Ext. D-4 is an extract from the Visitors' Register of P. A T. Inspection quarters at Shoolay, Bangalore, from 1-5-1964 to 7-6-1964.

17. This was the evidence that was available before the learned District Judge on the basis of which, he ultimately came to the conclusion that it must be held that the revision petitioner is a resident of Trivandrum and that the place where the revision petitioner and the respondent last resided together must be considered to be Trivandrum, which is within the jurisdiction of the District Court, Trivandrum. Regarding the claim made by the revision petitioner that the place where they last resided together was at Bangalore, the view of the learned District Judge is that the stay at Bangalore is merely a casual or flying visit; and having due regard to the decisions referred to by the learned Judge, he held that it cannot certainly be stated that they intended to have residence at Bangalore for an indefinite period. Therefore ultimately the learned District Judge came to the conclusion that going by the recitals in Ext. P-1, which, according to the learned Judge, will show that the revision petitioner is a person residing within the jurisdiction of the Trivandrum Parish, and also by what the learned Judge says are the admissions made by the revision petitioner in Ext. P-2 it must be held that the place where they last reside-ed together is Trivandrum. Therefore on issue 3 a finding has been recorded by the learned District Judge as against the revision petitioner.

18. Before we refer to the contentions of the learned counsel, it is again necessary to refer to some of the salient features of the evidence given by the respondent, namely the wife, as P. W 3. So far as we could sec, there is no effective cross-examination of that party regarding the answer given by her that the revision petitioner had mentioned to her that they had got a house in Trivandrum. No doubt the respondent has stated that she does not know as to whom exactly the house belonged. Excepting that suggestion, there is no counter-evidence adduced by the petitioner himself by way of rebuttal. There is one other aspect that has to be adverted to, namely when the respondent stated that en route to Bombay, they stopped in Bangalore, there is no suggestion put to her as to the object of their visit to Bangalore; nor is there any suggestion made to her that by going to Bangalore and staying there, they intended to make it their abode or place of residence. As to what effect these matters have in considering the main controversy in the present case, is a totally different point.

There is also one other aspect to be noted, namely that there is no suggestion put to the respondent in cross-examination that by going to Bangalore and staying there they intended to make Bangalore their residence. No doubt a point which has been very much stressed before us by the learned counsel for the petitioner, namely that they must have gone to Bangalore, as part of a honeymoon trip has not even been suggested to the respondent. Even if it is such a trip, it will not make any difference.

19. The learned counsel for the revision petitioner raised two contentions. The first contention is that the judgment delivered by the learned District Judge on 16-1-1966, contrary to the directions given by this Court in its order in C. R. p. 1329/66 dated 13-12-1965, is absolutely null and void and has no validity in law. That is, according to the learned counsel, the order must be considered to be a nullity. The second contention urged by the learned counsel for the petitioner is really as against the opinion expressed on merits by the learned District Judge on issue No. 3. According to the learned counsel, the revision petitioner must be considered to have no permanent place of residence, in which case the last stay at any place--for however short a period--must be considered to be the place where the revision petitioner and the respondent "last resided together" under Section 3 (3) of the Act. In which case, such last residence, being in Bangalore from 1-5-1964 to 7-6-1964, the District Court, Trivandrum, has no Jurisdiction to entertain the Original Petition. Alternatively the learned counsel, under this head, also urged that even if the place of residence of the revision, petitioner is Bombay, namely where he is having his official career temporarily, and which is his place of employment, a stay, after the marriage, in Ernakulam in the first instance or in Trivandrum for a little longer period, or in Bangalore in the first week of May 1964, are all of the same quality, and none of them can be called different from the stay in the other place. In which case, the learned counsel points out, that Bangalore is the place, where even according to the admission of the respondent, they last stayed; and therefore that place must be considered to be one where they last resided together and therefore the District Court, Trivandrum has no jurisdiction to entertain the Original Petition

20. Both the contentions taken by the learned counsel for the petitioner, are controverted by Mr. T N. Subramania Iyer learned counsel for the respondent. Mr. Subramania Iyer pointed out that no doubt there was a direction given by this Court in its order in C. R. P. 1329/65, to dispose of issue No 3 as a preliminary issue and to adjudicate upon it on or before 10-1-1966 According to the learned counsel, the actual recording of the evidence and other proceedings were over by 4-1-1966; but the learned District Judge delivered his judgment only on 16-1-1966. The learned counsel also pointed out that the District Court, Trivandrum has got jurisdiction to entertain the Original Petition under the Divorce Act, and it is perfectly within the jurisdiction of that Court to consider also any objection to its jurisdiction to entertain the same. The adjudication of that aspect is also part of the jurisdiction conferred on that Court. It is not as if, the learned counsel pointed out that by virtue of the directions given by this Court in C. R. P. 1320/65, for the first time and under certain conditions, a limited jurisdiction was conferred on the District Court, in which case, the position may be different. On the other hand, according to the learned counsel, even assuming that there has been a technical violation of the directions given by this Court committed by the learned District Judge, by adjudicating upon the matter only on 16-1-1966, and not within the time directed by this Court, the order passed by that Court cannot be treated as a nullity.

21. In this connection Mr. Subramania Iyer, learned counsel for respondent, drew our attention to the decision of the Supreme Court reported in Ittyavira Mathal v. Varkey Varkey, AIR 1964 SC 907. The contention that was taken before the Supreme Court in that case was that in view of the provisions of Section 3 of the Limitation Act, a Court whether objection regarding the plea of limitation was raised or not, was hound to consider whether the suit is barred by limitation or not. On the other hand, it was ultimately seen that a claim which was barred by limitation, was decreed by the trial Court; and therefore, a contention was taken before the Supreme Court that the said decree must be treated as a nullity absolutely void and having no validity whatsoever. In dealing with that contention, their Lordships of the Supreme Court proceed to state that if a Court having jurisdiction over the subject-matter and the party, passes a decree, it cannot certainly be treated as a nullity and ignored in subsequent litigation, even if the suit was one barred by time; and if the suit was barred by time and yet the Court decreed it, the decree can only be an illegality, and therefore, the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. Their Lordships also observe that if a Court had jurisdiction over the subject-matter and had also jurisdiction over the party, merely because it made an error in deciding a vital issue, arising for decision in the suit, the decision rendered by that Court cannot be considered to be beyond its jurisdiction. Their Lordships further observe that Courts have jurisdiction to decide right or to decide wrong; and even though they decide wrong, the decrees rendered by them cannot be treated as nullity.

The Supreme Court also adverts to the fact that under Section 3 of the Limitation Act, which is a peremptory provision, it is the duty of the Court to take notice of this provision and give effect to it, even though the point of limitation is not referred to in the pleadings Even under those circumstances, the Supreme Court points out, if the Court fails to perform its duty, it does not act without jurisdiction, but merely commits an error of law; and an error of law ran be corrected only In the manner laid down in the Code of Civil Procedure, namely the aggrieved party taking up the matter appeal, before the appropriate appellate Court: and so long as such a decree, however erroneous it may be, has not been challenged, that erroneous decree will hold good and will not be open to challenge on the ground of being a nullity.

22. We are only referring to the decision of the Supreme Court referred to above, for the limited purpose of showing, that the contention of the learned counsel for the petitioner, that the order, in this case, must be treated as a nullity, cannot be accepted, No doubt this Court has given directions in C. R. P. 1329/65 to the effect that the District Court must adjudicate upon issue 3 on or before 10-1-1066. It la rather regrettable that, by the learned District Judge not having complied with the directions given by this Court, it has given room for the learned counsel for the petitioner to urge the contention referred to above. If it felt that it was not possible for it to pronounce the decision on this aspect, within the time fixed by this Court, in its order in C. R. P. 1829/66, the proper procedure for that Court was to have applied to this Court for grant of an extension of time. Therefore, though the conduct of the learned District Judge may be Improper, the question is whether the order passed by him is to be treated as a nullity, i.e. whether it has to be ignored as not existing at alt. That contention, in our opinion, cannot certainly be accepted. At the most, it can only be said that the learned District Judge has committed an irregularity; and certainly that will not enable the learned counsel for the petitioner to establish that the order itself should be treated as nullity. Notwithstanding the mandatory provisions contained in Section 8 of the Limitation Act, and notwithstanding that the Supreme Court is of the view that a decision rendered ignoring those provisions amounts to an illegality, nevertheless their Lordships of the Supreme Court, in the decision, referred to above, were not prepared to hold that such a decision rendered by a Court is a nullity: on the other hand, their Lordships emphasise that it is at the most only an erroneous decision which will hold good, if not set aside, by invoking the appropriate remedy available to the partly aggrieved by such decision.

23. We are not referring to the contention of the learned counsel for the petitioner, find the decisions cited by him, regarding the effect of orders passed by subordinate Courts, after receipt of orders of stay or injunction passed by superior Court. In our opinion, those decisions have no bearing at all in considering the question that has been adverted to earlier. In respect of those circumstances pointed out by the learned counsel for the petitioner, namely when an order of stay has been communicated to the subordinate Court from the superior Court, and the subordinate Court does an act contrary to the directions in the stay order; or when an order of injunction has been passed by a superior Court restraining the subordinate Court from proceeding with certain matters; the effect of those proceedings are so totally different; and the principles applicable for considering those grounds of attack have no application to the particular contention that has been taken by the learned counsel for the revision petitioner before us, on which we have already expressed our opinion in the earlier part of this order. Therefore, the 1st contention will have to be negatived.

24. The second contention urged by learned counsel for the revision petitioner, as we have already pointed out. Is that his client has no permanent place of residence, in which case the place where the revision petitioner and the respondent last resided together was Bangalore in the last instance from 1-5-1964 to 7-5-1964; or alternatively, that the place of residence of the petitioner, where he was having his employment at the material time, was Bombay, in which case also the stay after marriage, in Ernakulam, Trivandrum and Bangalore are all of the same character, and the last stay being in Bangalore, the Trivandrum Court has no jurisdiction to entertain this Original Petition. So far as this aspect is concerned, here again the learned counsel for the respondent has controverted the stand taken by the learned counsel for the petitioner. The learned counsel points out that the object of the visit to Bangalore has not been put to P.w. 3, the respondent, when she was in the witness box. The learned counsel also pointed out that it is clear from the evidence referred to by the learned District Judge, particularly Exts. P-1 and P-2, that even according to the revision petitioner, his place of residence is Trivandrum; and if that is so, the place where the revision petitioner and the respondent last resided together is Trivandrum and the stay at Bangalore is only a casual visit or a flying visit The learned counsel also pointed out that the stay at Bangalore will not constitute the place where the parties last resided together, as the expression 'reside' has been interpreted by various decisions, to which we will have to refer to later.

26. Several authorities have been referred to us by both the learned counsel for the revision petitioner, as well as by the learned counsel for the respondent but it is necessary, before we refer to some of those authorities to refer to the broad principles that have been laid down in certain decisions. In Manning v. Manning, (1871) 24 LT 196 Lord Penzance, has held that "the residence of the petitioner must be bona fide and not casual or as a traveller" Again in N. P. Wadia v. E. Wadia, AIR 1914 Bom 211 (2), Scott, C J., and Chandavarkar, J., have held that "the residence of the petitioner, within the meaning of Section 3, must be bona fide, and not casual or as a traveller" Again, in a Full Bench decision of the Bombay High Court, reported in Edith Walsh v. Edward Welsh. 29 Bom LR 308:( AIR 1927 Bom 230), it has been held that to constitute 'residence', it is not essential that the parties should have a house of their own. In Jogendranath Banerjee v. Elizabeth Banerjee. (1899) 3 Cal WN 250, Jenkins, J., has expressed the view that the expression "resides" conveys the idea, if not of permanence, of some degree of continuance, especially when there is a residence outside those limits.

26. With regard to the first series of decisions dealt with below, they are rendered under the Act, in respect of persons who have do permanent residence; and in those cases it has been held that a place, where there has been a stay even for a few days or weeks, is the place, where the husband and wife "last resided, as defined in Section 3 (8) of the Act.

27. In Bright v. Bright, (1909) II.R 36 Cal 964, Fletcher, J., had to deal with a case where the parties were married in Karachi, and the husband was employed as a Railway Engineer having no permanent place of residence. He was serving in various places in the Bombay Presidency, and ultimately came over to Calcutta in December 1901, where he and his wife lived in the "Grand Hotel" for about a fortnight. While living there they separated and later an application for judicial separation was filed in the Calcutta High Court; and it was held by the learned Judge, though with hesitation, that the Calcutta High Court has got jurisdiction, inasmuch as the husband was a person, who had no permanent place of residence and therefore, the husband and wife must be considered to have "last resided together" in a hotel in Calcutta in December 1901. And notwithstanding the fact that the said stay was only for a short time, the learned Judge has held that the Calcutta High Court had jurisdiction. In G.G. Ritchson v. W.L.D. Ritchson, AIR 1934 Cal 670, Ameer Ali, J., had to consider the question as to whether the Calcutta High Court had jurisdiction to entertain an application filed by the parties, for judicial separation. The parties in that case, were married in Calcutta; and the husband was employed as an Engineer in the then East Indian Railway and had no permanent place of residence. In or about August 1932, it is seen that he was under orders of transfer from Bihar, and he took leave and came to Calcutta to spend that leave with his wife who was staying with her parents, expecting to stay there for about a month. But after & stay of about 6 days, they quarreled and separated. The wife filed an application for judicial separation in the Calcutta High Court, the learned Judge has held, that in the particular circumstances of that case, it must be held that under Section 3 (3) of the Act, the place where the parties "last resided together", was Calcutta, and therefore, the application filed in the Calcutta High Court was field to be maintainable.

In Mabel Flora Murphy v. James Lloyd Murphy, AIR 1921 Bom 211, Marten, J., had again to deal with the case of a husband who was employed in the Indian Army And having no permanent residence. In that case, it is seen that when he had come on leave, he and his wife stayed at the Taj Mahal in Bombay, for about a month, and then they separated. The learned Judge has held that Bombay should be considered to be the place where the husband and wife last resided together, within the meaning of the Act and that therefore, the Bombay High Court had got jurisdiction.

28. In Clarance v. Raicheal, AIR 1904 Mys 67 a Special Bench of the Mysore High Court, had to consider the question as to whether an application filed by the husband, in the District Court at Bangalore for judicial separation under the Act was maintainable. On this decision, it may be stated, that the learned counsel for the revision petitioner before us, has placed considerable reliance. In our opinion, that is a rather extreme case, as will be seen from the facts to be stated presently. Though it was not very clear as to the place of residence of the husband or the wife, it is seen that the learned Judges have stated in the judgment that the husband was a native of Vaniambadi in North Arcot District, Madras State, and the wife belonged to Robertsonpet, Kolar Gold Helds, which was within the jurisdiction of the District Court at Bangalore. The husband had come to the Muskam Church of South India, at Kolar Goldflelds, which was within the jurisdiction of the District Court, Bangalore, and the marriage was solemnised in that Church. Immediately after the marriage, within a few hours, it is seen that the wife mentioned to the husband that she had had sexual connections with the co-respondent; and on hearing that, the husband immediately took her to her parent's house in Kolar Goldflelds and left her there, and he returned to Vaniambadi. Later on, the husband filed an application in the District Court, Bangalore, for judicial separation.

29. Mr. Paikaday, learned counsel for the revision petitioner, urges for our acceptance the principles laid down by the learned Judges in the Mysore decision referred to above. That is according to the learned counsel, notwithstanding the fact that the stay of the couple was only for a few hours, the learned Judges have come to the conclusion that the place where they last resided together, within the meaning of Section 3 (3) of the Act, was within Bangalore, and sustained the jurisdiction of the Bangalore District Court to entertain the application. It will be seen that in the said Mysore decision itself, the learned Judges have expressed the view that the word 'reside connotes some degree of continuity of stay in a place The learned Judges have also stated that in cases where there has been residence together of a more permanent character, and a casual or brief residence together, the Courts have taken the view that it is only the former that can be considered as "residence together , for determining the jurisdiction. Therefore, it will be seen that the learned Judges of the Mysore High Court, in the decision referred to above, were making a distinction between the nature of the residence in particular cases. Having due regard to the fact that where the parties have got a residence of a more permanent character, under those circumstances the learned Judges are of the view that a casual or brief residence in some other place will not constitute stay at the latter place, as the place where the parties last resided together, so as to give jurisdiction under Section 8 (3) of the Act. If will also be seen that the learned Judges of the Mysore High Court were constrained to find jurisdiction under the Act, and it was on that basis ultimately that the learned Judges have, held that even in the extreme case that they had to deal with where the two parties had necessarily come together at the time of marriage, though for a short time, there was no reason why it should not be held that they were residing together, so as to give jurisdiction to the Bangalore Court.

30. In our opinion, the decision of the Mysore High Court will have to be restricted to the particular facts of the case which the learned Judges had to deal with. On the other hand, we have already emphasised that the learned Judges themselves have stressed the fact that if there has been a residence together of a more permanent character and a casual brief residence together in some place, the latter will not constitute the place where the parties last resided together. These observations, in our opinion, will have to be borne in mind in considering the question in the present case, as to whether the parties had a more permanent residence, on the basis of which it is possible to come to a conclusion that the stay at Bangalore is only of a casual or flying visit.

31. In D'Souza v. Lobo, AIR 1940 Mad 684, Pandrang Row. J., had to deal with an instance of parties, who had no permanent place of residence The learned Judge, on the facts of that case, ultimately held that the couple must be deemed to have last resided together in Mangalore. There again, the learned Judge, if we may say so with respect, is guarded when he observes that "a person cannot be said to reside at a place where he spent only a day or two when he has got a fixed place of residence elsewhere" This again is an observation which points to the fact that the nature of the residence that the parties have elsewhere, will have to be adverted to for the purpose of considering, as to whether the place where they staved together last, is to be considered as the place, where they "last resided together" within the meaning of Section 3 (3) of the Act.

32. Similarly, there is another line of cases where Courts have held that a mere temporary sojourn in a place, there being no intention of remaining there, will not amount to residence in that place much less the place where they last resided together within the meaning of Section 3 of the Act In the Pull Bench decision of the Allahabad High Court reported in Arthur Flowers y Minnie Flowers. ILK 32 All 203, the learned Judges had to deal with a case where the husband was having his official residence in Hyderabad (Sind) and his wife also was staving with him Later on. It will be seen, the husband had to pay very short visits to Meerut in connection with a meeting of a lodge of free-masons, and also in connection with official work. Inasmuch as Hyderabad (Sind) was not a healthy place, the wife requested the husband to take her also along with him to Meerut; and acceding to her request, both of them came to Meerut, it is seen that the husband then discovered that with the friend with whom they were staying, his wife was in illicit intimacy. The application for judicial separation was filed by the husband in the Meerut Court. Objection was taken that that Court had no jurisdiction, under Section 3 (3) of the Act. In considering that contention, the learned Judges of the Allahabad High Court observe that inasmuch as the trip to Meerut was in connection with a meeting of a lodge of free-masons and also in connection with official work, it must be held that it was a casual or a flying visit. The learned Judges are also of the view that the last residence of the husband and wife in that case must be considered to be, not in Meerut, but only in Hyderabad (Sind). The learned Judges also observed that "the temporary sojourn for a day or two in Meerut did not constitute residence". In that connection the learned Judges also take note of the fact that the husband merely paid a flying visit to Meerut for a temporary purpose, and not with any intention of remaining. They also emphasise that

"a mere casual residence in a place for a temporary purpose with no intention of remaining is not "dwelling", and where a party has fixed residence out of the jurisdiction, an occasional visit within the jurisdiction will not suffice to confer jurisdiction by reason of residence"

Therefore, it will be seen that the learned Judges of the Allahabad High Court were emphasising the several aspects to come to a conclusion that Meerut, where the husband and wife stayed last in that case, cannot be considered to be the place where they "last resided together", under Section 3 (8) of the Act. The learned Judges of the Full Bench are of the view that the stay al Meerut was only for a temporary purpose, and not with any intention of remaining; and if there was no intention of remaining, it will not be "dwelling" so as to attract Section 3 (3) of the Act. We are particularly referring to this decision of the Full Bench of the Allahabad High Court, because the observations in that decision, have been referred to by their Lordships of the Supreme Court in the decision reported in Jagir Kaur v. Jaswanl Singh. AIR 1963 SC 1521.

33. In S. Saroja v. P. G. Emmanuel, AIR 1965 Mys 12, a learned Single Judge of the Mysore High Court, has again held that where the husband and wife have no joint permanent home where they can reside together (which might happen in a case where both are holding employments in different districts), the wife visits the husband's place for short intervals during her vacations. The husband's place where they last resided, though for short Intervals, is the place where they "resided together" for the purpose of giving jurisdiction under Section 8 (3).

34. Before winding up the discussion on this aspect, we will refer to one or two decisions rendered under Section 488 (8) of the Code of Criminal Procedure. We are not elaborately referring to the other decisions rendered under this provision, because, in our opinion, the Supreme Court has very exhaustively laid down the law on the subject in considering the question as to what constitutes "residence" and "last resided together" Occurring in Section 488 (8) of the Code of Criminal Procedure. But we will refer only to one or two decisions rendered under this section. The Madras and the Lahore decisions have been referred to by the Supreme Court in the decision reported in AIR 1963 SC 1521.

35. In Charan Das v. Mt. Surash Bat, AIR 1940 Lah 449, Young, C. J., and Ram Lal, J., have laid down that the sole test on the question of residence is whether a parly has animus manendi, or an intention to stay for an indefinite period, at one place; and if he has such an intention, then alone can he be said to "reside" there In particular, the learned Judges also observe that in the case of persons, who have a fixed residence, a visit to another place for however long a period, so long as it is casual, will not confer jurisdiction on the Court These observations of the Lahore High Court regarding the test laid down by them, have been adverted to by the Supreme Court in the decision referred to earlier. In Balakrishna Naidu v. Mrs. B. Sakuntala Bai, AIR 1942 Mad 666, Horwill, J., distinguishes the expression "reside" from the expression "stay" The learned Judge observes that the expression "reside" in Section 488 (8), Cri P. C., implies something more than "stay"; it implies some intention to remain at a place, and not merely to pay it a casual visit, intending shortly to move on to one's permanent residence. It only remains to refer to a Bench decision of this Court, rendered under Section 488 (8), Crl. P. C. by Smt. Anna Chandy and Govinda Menon, JJ., reported in Radhakrishna Mennen v. Kamalakshi, 1965 Ker LT 957 In that case the learned Judges had occasion to deal with the case of a husband who was employed as an officer in Palghat and who was paying week-end visits to the place where his wife was staying Under those circumstances the learned Judges have held that the visits by the husband regularly and periodically to his wife's house constituted the wife's house as 'residence' under Section 488. Cr P. C. The learned Judges also observe that even though the husband could slay with her only for a few days at a time, it is clear that these were not casual visits: he did not casually drop in at her house during his peregrinations, nor did he visit her as he would have Visited a friend or relation; he went to her house to live or reside with her, even though the duration of his stay would have to be brief.

36. This closes more or less the discussion of some of the cases rendered under the Act or under Section 488 (R). Crl P C But before we sum up the position, that emerges from a consideration of those decisions, it is necessary to refer to the decision of the Supreme Court in AIR 1968 SC 1521, referred to above. No doubt that was a declation rendered by that Supreme Court under Section 488 (8) of the Code of Criminal Procedure. The Supreme Court in that case had to consider the question regarding the exact connotation of the expressions "reside" and "last resided with his wife" occurring in Section 488 (8), Crl. P. C. We are emboldened to refer to the decision of the Supreme Court rendered under Section 488 (8), Crl. P. C., as well as to the other decisions rendered under the same provision, and applying the principles laid down in those decisions, in interpreting the expression "reside" and "last resided together" occurring in Section 3 (3) of the Act, because a reference to the decision of the Supreme Court, will clearly show that, among the varloue decisions of the High Courts referred to by the Supreme Court, is the Full Bench decision of the Allahabad High Court in (1910) ILR 32 All 203 which was rendered under the Act. Therefore, in our opinion, the principles applicable for interpreting the expressions "reside" or "last resided with his wife" occurring in Section 488 (8). Crl. P. C. can also be applied for Interpreting the expressions "reside' or "last resided together" occurring in Section 3 (3) of the Act.

37. The Supreme Court in the said decision first considers the connotation of the expression "resides", at page 1524 of the report In that connection, Subba Rao, J., speaking on behalf of the Court, refers to the definition of the expression "reside" occurring In the Oxford Dictionary as: "dwell permanently or for a considerable time, to have one's settled or usual abode; to live in or at a particular place". The learned Judge emphasises that the said meaning given in the Oxford Dictionary, takes in both a permanent dwelling, as well as a temporary living in a place; and there-fore, it is capable of different meanings. Including domicile in the strictest and the most technical sense and also a temporary residence. But his Lordship observes 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". Then his Lordship refers to the decisions of the other High Courts rendered under Section 488 (8), Crl. P. C. and also the one rendered by the Allahabad High Court, reported in ILR 32 All 203, under Section 3 (3) of the Act. After referring to the principles laid down in those decisions, the Supreme Court observes that "the decisions on the subject are legion, and it would be futile to survey the entire field" But the Supreme Court takes note of the fact that none of the decisions has gone so far as to hold that "resides" in the subsection means only domicile in the technical sense of that word. The Supreme Court also takes note of the fact that there is broad unanimity that the expression "resides" means something more than a flying visit to or a casual stay in a particular place. The Supreme Court also emphasises that there is agreement among all the High Courts in the decisions referred to by them, that there shall be animus manendi, or an intention to stay for a period, the length of the period depending upon the circumstances of each case. The Supreme Court again states that

"having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases thereon, we would define the word "resides" thus: a person resides in a place, if he through choice makes it his abode permanently or even temporarily, whether a person has chosen to make a particular place his abode, depends upon the facts of each case".

The Supreme Court then gives four illustrations, and ultimately states that in respect of illustrations 1 and 2 it must be held that the party referred to therein makes only a flying visit, and he has no intention to live either permanently or temporarily in the places he visits, and therefore, under those circumstances. It cannot be stated that he "resides" in the places he visits. But adverting to illustrations 3 and 4, the Supreme Court, after taking note of the fact that though the party referred to therein has a permanent house elsewhere, he has a clear intention or animus manendi to make the places, where he has gone for medical relief in one and studies in the other, his temporary abode or residence. The emphasis, if we may say so with respect, laid by the Supreme Court is that the intention of going and staying in a particular place, must be to treat it as his abode or residence. In fact the Supreme Court has emphasised in the earlier part of the judgment that there shall be animus manendi or an intention to stay for a period, the length of the period, no doubt, depending upon the particular circumstances of each case. But the point that has to he noted is that according to the Supreme Court a person can be laid to "reside" in a place only if he makes it his abode, permanently or even temporarily. That idea again, is reiterated, when winding up the discussion regarding the illustrations given by the Supreme Court, when their Lordships say that in illustrations 3 and 4 it can be said that the party has made the place referred to by them as his temporary abode or residence

38. Therefore, in order to constitute the place where the parties must he considered to have "last resided together", applying the principles laid down by the various decisions of the High Courts, as well as by the decision of the Supreme Court referred to above, in our opinion, it has to be held that in staying in the particular place, the parties must have Intended to make it their abode or residence; and that is the animus manendi emphasised by the Supreme Court in more places than one After adverting to the expression "resides" and interpreting it in the manner referred to above, the Supreme Court refers to the expression "last resided" occurring in Section 488 (8) Crl. P. C. and expresseg the view that that expression also, must bear the same meaning which has been given to the expression "resides" in the earlier part of the judgment. Ultimately the Supreme Court held that in the particular circumstances of that case the place where the husband and wife last resided was Ludhiana, as early as 1943. In fact It is also seen that notwithstanding the fact that the husband paid another visit to India and stayed with his wife for a few days, that visit was considered to be only a flying visit for the purpose of taking the wife to Africa, and therefore, it cannot be treated as the place where they last resided together in India. The Supreme Court also states that even though the residence may be temporary, if there is animus manendi, even that temporary residence will amount to 'residence' within the meaning of Section 488 (8), Crl. P. C.

39. It is having due regard to the various principles emerging from the decision of the Supreme Court, in particular, and also the principles laid down, in the various decisions of the High Courts, adverted to by us, in the earlier part of this order, that the contention of the learned counsel for the revision petitioner in the present case, that the parties must be considered to have "last resided together" in Bangalore, has to be considered. From the various decisions referred to above, in our opinion, the following propositions emerge:

(1) to constitute 'residence' it is not, necessary that the party or parties must have his or their own house;

(2) to constitute 'residence', the stay need not be permanent; it can also be temporary, so long as there is animus manendi or an intention to stay for an indefinite period;

(3) "Residence" will not take in a casual stay in, or a flying visit to a particular place; a mere casual residence in a place for a temporary purpose, with no intention of remaining, is not covered by the word 'reside';

(4) "Residence" connotes something more than stay"; It implies some intention to remain at a place, and not merely to pay it a casual visit;

(5) as emphasised by the Supreme Court, by staying in a particular place, in order to constitute "residence", the intention must be to make it his or their abode or residence, either permanent or temporary;

(6) the expression "last resided" also means the place where the person had his last abode or residence, permanent or temporary;

(7) Where there has been residence together of a more permanent character, and a casual or brief residence together, Courts have taken the view that it is only the former that can be considered as "residence together" for determining the jurisdiction;

(8) the question as to whether a particular person has chosen to make a particular place his abode, is to be gathered from the particular circumstances of each case.

40. Having due regard to these principles, the question naturally arises in this case, as to whether the finding recorded by the learned District Judge requires any interference at the hands of this Court. No doubt Mr. Palkaday learned counsel for the petitioner very strenuously urged that the revision petitioner must be considered to be a person who hai no permanent residence; and therefore the stay after marriage in Ernakulam, Trivandrum and Bangalore are all of the same character and quality; and inasmuch as admittedly the parties stayed last from 1-5-64 to 7-5-1964 at Bangalore, that is the place where it must be held that they "last resided together" within the meaning of Section 3 (3) of the Act, and in consequence the Trivandrum District Court has no jurisdiction at all. We find considerable difficulty in accepting this contention of the learned counsel for the revision petitioner. In Ext. P-1, we have already referred to the fact, that the Parish authorities in Trivandrum refer to the petitioner as being within their jurisdiction. Obviously that means, within the jurisdiction of those authorities, namely, Trivandrum. It was perfectly open to the revision petitioner, if he wanted to offer an explanation, regarding the circumstances under which Ext. P-1 was obtained, to have gone into the witness box and given evidence as to his version regarding Ext. P-1.

The revision petitioner, as we have already pointed out, has not gone into the witness box; and Ext. P-l, as it stands at present, is proved by the Vicar of the Church, as Pw. 1. So far as Ext. P-2 is concerned, in our opinion, the learned District Judge was perfectly justified in drawing the inference that even according to the revision petitioner, his place of residence is Trivandrum. For example, we have already adverted to the fact that even according to the revision petitioner, the arrangement at the time of the marriage was, that the respondent should prove to be a very good companion for him in his career in life; and for that purpose it was intended that she must be given sound higher education, which, according to him was not available in Erankulam. Therefore, the averment was to the effect that the respondent was transferred, for the purpose of her higher education, to Trivandrum. We have also indicated earlier that to constitute 'residence', it is not necessary that the party by himself should own a house or residential building in any particular place. In this case no doubt, it is very clear from the evidence on record, that the parents of the revision petitioner were staying in Trivandrum, though it has been stated by the revision petitioner, in the rejoinder filed by him in I. A. 1436/65, that his parents were living in a rented house and that his mother has purchased a house in Trivandrum only in 1964, which again has been let out to third parties. That does not, in our opinion, make any difference in the approach that we have to make, in deciding the present controversy. For example. If the revision petitioner, in pursuance of the arrangement which he himself has set up had taken his wife to Trivandrum and instead of stepping into his parents' house, had taken up a separate residence or started a separate establishment for the purpose of keeping the wife in Trivandrum for the purpose of higher education and stayed together In that establishment, in our opinion, the position will be well established that the revision petitioner must be considered to be having a residence In Trivandrum.

41. Then the question is as to whether, even assuming that the revision petitioner by himself, does not have a residence of his own, and that he was staying with his parents, along with his wife and allowed his wife also to take up her residence in that house for the purpose of higher education, which was admittedly intended to be given to her, it will constitute "residence". In our opinion, the statements made by the petitioner in Ext. P-2 will have considerable significance. Ext. P-2 is a letter, as we have already pointed, dated 30-7-1964, written by the revision petitioner from Bombay, to his wife, who was in Trivandrum. In that letter he has categorically stated that his parents' house is his, and his wife staying in that house is as good as her staying with the husband himself. That shows that instead of the revision petitioner taking up a separate residence and starting a separate establishment for keeping his wife in Trivandrum, inasmuch as his parents had undertaken or agreed, so to say, to provide those amenities, it became unnecessary for the revision petitioner to start a separate establishment. And that is why he states that his parents' house is his and the stay of the respondent in that house is as good as her stay with him. It is in this context, in our opinion, that we have to consider the nature of their residence at Trivandrum, after the marriage.

42. It is common case that the revision petitioner and the respondent, after their marriage which took place on 2-4-1964 at Ernakulam, went to Trivandrum, and after staying in Trivandrum for 2 or 3 days they "came over to her parents' house at Thrikakkara, where they stayed for 2 or 3 days, and then again they left for Trivandrum where they stayed till the end of April 1964. As to whether from Trivandrum, the wife also intended to accompany the revision petitioner to Bombay, is not quite clear from the records. At any rate, she has given evidence to the effect that the stay in Bangalore was en route to Bombay. If the stay at Trivandrum, after marriage, of both the petitioner and the respondent, though no doubt in the house of the revision petitioner's parents, in the circumstances referred to above, can constitute residence in law--and in our opinion, that will constitute such residence, having due regard to the principles referred to above--then, in our opinion, the revision petitioner and his wife, the respondent, must be considered to have "last resided together", within the jurisdiction of the Trivandrum District Court. That is our prima facie view, because the petitioner's parents house, has been treated by them as their abode.

43. Then the question is as to what exactly is the nature of their stay in Bangalore; because it is very vehemently stressed for our acceptance by the learned counsel for the petitioner that the Bangalore trip was part of me honeymoon trip of the couple and it was In that context that the nature of the stay in Bangalore must be considered. That is, according to the learned counsel, both the parties, namely the revision petitioner and the respondent, planned a stay in Bangalore, and they had also made necessary arrangements for accommodation in connection with that stay. The learned counsel for the petitioner also pointed out that they wanted to live there as husband and wife and their object was to achieve that purpose. This contention of the learned counsel for the petitioner does not appeal to us. After marriage wherever the husband and wife are, they cannot be considered to live in any other capacity. The point that is urged before us is that it is a honeymoon visit, i.e., their visit to Ernakuiam in the first instance, the later stay in Trivandrum, and the further stay at Bangalore, are all part of the honeymoon trip. This matter was not put to P. W. 3, the respondent, while she was in the witness box. She has categorically stated that the object of their going to Bangalore and staying there was en route to Bombay. No doubt the revision petitioner had written a communication to the authorities concerned even earlier, to arrange necessary accommodation at Bangalore for both of them from 1-5-1964 to 7-6-1964. That by itself leads us nowhere. The point to be considered is as to whether, when the revision petitioner and the respondent stayed at Bangalore, they had, as pointed out by the Supreme Court, an intention of making it an abode, permanent or temporary: that is, whether they had animus manendi, or intention of staying for an indefinite period, at that particular place.

44. So far as that is concerned, in our opinion, evidence is absolutely lacking. The revision petitioner could have given evidence regarding the circumstances under which the stay in Bangalore was planned. That opportunity he did not avail of. He had also another opportunity of eliciting from P. W 3, the respondent, when she was in the witness box, regarding the object of the said visit So far as we could see, there is no averment either in the pleadings, or in the application filed by the revision petitioner to try issue No. 3 as a preliminary issue, to indicate that his stand was, that the stay at Bangalore was, with animus manendi or with the Intention of making it a temporary abode for the time being. According to the decision of the Supreme Court, in order to constitute residence, it is absolutely necessary that there must be animus manendi, namely an intention to stay for an indefinite period at a particular place, with the intention of making it an abode or residence, either permanently or temporarily. That such an intention could not have been present in this case, is very clear from the fact that the object of allowing the respondent to be in Trivandrum was for the purpose of enabling her to continue her education there. The petitioner also could not stay at Bangalore, because his work took him away from that place. It is also in evidence that immediately after 7-6-1964 the petitioner left for Bombay via Hubli, and the respondent came back to Trivandrum. No doubt the learned counsel for the respondent emphasised that along with the revision petitioner and the respondent, the mother of the petitioner also accompanied them to Bangalore. In our opinion that circumstance is totally irrelevant for considering this aspect. But the conclusion arrived at by the learned District Judge, that the visit or stay at Bangalore is nothing but a casual or flying visit, is, in our opinion, perfectly Justified in the circumstances of this case, especially when we have already come to the conclusion that in the particular circumstances it must be held that the permanent place of residence has been treated by the petitioner as his parents' house at Trivandrum. And considering it from that point of view also, in our opinion, the stay at Bangalore for the period referred to above, is nothing but a casual or a flying one.

The various decisions, that have considered that even such a casual stay in a particular place, when the parties have no other residence, and held that the place where they "last resided" must be considered to be the last place where they last resided together, will have no application to the facts of the present case. We have already indicated the various principles to be borne in mind and to which we have already referred, namely that a mere stay in a particular place does not also amount to having a residence in the particular place. Residence connotes something more than stay, namely that the party expects to remain in a place, and not merely pay casual visits going from one place to another. In this case, the evidence discloses that from Bangalore, the husband moved to Bombay and the wife came to Trivandrum, where an establishment, so to say, had been set up, though not at the expense of the revision petitioner, but really at the expense of his parents, which the petitioner has stated is equivalent to his setting up the establishment for this purpose. If that is so, in our opinion, the finding recorded by the learned District Judge does not require any interference in revision. It therefore follows that the District Court, Trivandrum has got jurisdiction to entertain O. P. 1/1965 inasmuch as the place where the parties "last resided together" within the meaning of Section 3 (3) of the Act is Trivandrum and not Bangalore.

45. The Revision Petition therefore falls and will stand dismissed. But parties will bear their own costs.

ORDER (C. M. P. 1397/66)

46. As the main C. R. P. itself has been disposed of, this petition is dismissed.


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