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John Baptist D'Souza Vs. Lizzie Jane Lobo (15.12.1939 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1940Mad584; (1940)1MLJ651
AppellantJohn Baptist D'Souza
RespondentLizzie Jane Lobo
Excerpt:
.....clear that this was the period during which the two last resided together, because, thereafter, the husband went away to rangoon and the wife remained behind at mangalore till the petition was filed in july, 1938. the learned district judge after taking evidence was satisfied that the husband and the wife did last reside together in mangalore till the respondent left mangalore for rangoon on 5th aprils 1938, and that therefore he had jurisdiction to entertain and deal with the application. a number of rulings have been quoted but it is not possible to say that the facts of the present case are clearly covered by any one of them. as observed already, the petitioner has failed to show that during this period he can be reasonably regarded as having resided in rangoon or in any place other..........employed for many years in the telegraph department in burmah and has been residing most of the time at rangoon. the petition was however put in in 1938 in the district court of south kanara on the ground that both the parties had last resided together at mangalore in south kanara in the respondent's own house at jeppu. this fact, namely, that the husband and the wife lived together from at least february, 1938, to the beginning of april, 1938, in the respondent's house at jeppu is not denied, and it is further clear that this was the period during which the two last resided together, because, thereafter, the husband went away to rangoon and the wife remained behind at mangalore till the petition was filed in july, 1938. the learned district judge after taking evidence was satisfied.....
Judgment:

Pandrang Row, J.

1. This petition raises a question of jurisdiction, namely, whether the District Court of South Kanara had jurisdiction to entertain the application presented to it by the respondent in the present petition under Sections 7, 18 and 19 of the Indian Divorce Act for a declaration that the marriage of the petitioner with the respondent is null and void and for maintenance, etc. The petition was by the wife against her husband. Both of them are natives of South Kanara and as would appear from the entry in the Marriage Register relating to their marriage in 1932, both are parishioners of the same parish in Mangalore. It appears however from the evidence that the respondent, that is the husband, has been employed for many years in the Telegraph Department in Burmah and has been residing most of the time at Rangoon. The petition was however put in in 1938 in the District Court of South Kanara on the ground that both the parties had last resided together at Mangalore in South Kanara in the respondent's own house at Jeppu. This fact, namely, that the husband and the wife lived together from at least February, 1938, to the beginning of April, 1938, in the respondent's house at Jeppu is not denied, and it is further clear that this was the period during which the two last resided together, because, thereafter, the husband went away to Rangoon and the wife remained behind at Mangalore till the petition was filed in July, 1938. The learned District Judge after taking evidence was satisfied that the husband and the wife did last reside together in Mangalore till the respondent left Mangalore for Rangoon on 5th Aprils 1938, and that therefore he had jurisdiction to entertain and deal with the application.

2. The only question that is argued in this petition is that the finding of the District Judge is wrong on the admitted facts of the case. As observed already, the admitted facts of the case show that the parties not only belong to Mangalore but were married in Mangalore and were living in Mangalore on more than one occasion. They lived together on two occasions after the marriage in Mangalore, once in 1934 and a second time from the end of 1937 till April, 1938 and on the latter occasion they lived together in the respondent's own house at Jeppu. A number of rulings have been quoted but it is not possible to say that the facts of the present case are clearly covered by any one of them. While it is obvious that a person who has no fixed residence elsewhere can be regarded as residing in any place in which he is actually found, nevertheless, where there is a fixed place of residence, a temporary sojourn in another place for a few days would not make him a resident of that place and give jurisdiction to the Court having jurisdiction over that place to entertain applications under the Act. In the present case, however, it is not established that the present petitioner (that is, the husband) had a fixed residence in Rangoon at the time when he was actually living together with his wife in Mangalore from February, 1938 to April, 1938. It is not established that he had any house of his own or a rented house or flat in Rangoon during this period. In fact, the evidence contained in his own letter to his wife would show that he had wound up the establishment and left his 'chokra' at the house of a friend and perhaps a few belongings also and it is clear that even for some time before he actually left Rangoon, he was getting his food from outside. It would seem therefore that during this period when he was living with his wife in Mangalore in his own house, he had no place in Rangoon, which he could call his residence. In these circumstances, can it be said that merely because he had a lien, so to say, on his post in the Telegraph Office during his leave, he must be regarded as a resident of Rangoon even during the time when he was spending his leave at Mangalore with his wife in his own house? I am of opinion that the answer to this must be in the negative. It is possible to regard a person as residing in a place where he is physically not present when he has got a permanent place of residence, but where he has no permanent place of residence or any place of residence which he can call his own available to him at all times, it is impossible to adopt the idea of a fictional residence at a place where he is not. In other words, where there is a residence, it is possible to regard a person as residing there though he is not actually present in the flesh at that place. But where there is no place of residence, this fiction is not available, and the person must be deemed to be residing in the place where he actually lives. It is impossible to allow the contention that during this particular period the respondent did not reside anywhere at all. He actually lived in Mangalore during this period and this was the period during which the couple lived together for the last time. Unless it is shown that the respondent must be deemed to have resided in a different place in the eye of the law, the actual facts established in the case - and in fact admitted - are more than sufficient to show that the couple resided together in Mangalore for the last time during the period in question. As observed already, the petitioner has failed to show that during this period he can be reasonably regarded as having resided in Rangoon or in any place other than Mangalore. In the view I have taken, it is unnecessary to deal with the different sets of facts which arose in the various cases that were quoted to me. The only principle that I can discover from the decisions is that 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; but where a person has no fixed place of residence, the place where he actually lives must be taken to be the place where he resides. This general principle which can be gathered from the cases that were quoted to me is sufficient to cover the present case because it has not been shown that, during the period when the couple lived together at Mangalore in the petitioner's own house for the last time, the petitioner can be regarded as having resided elsewhere.

3. The petition therefore fails and it is dismissed with costs.


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