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Mrs. Myrtle Stephenson Vs. Robert Stephenson and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberDivorce Suit No. 26 of 1974
Judge
Reported inAIR1983Cal31,(1983)1CompLJ69(Cal),86CWN924
ActsDivorce Act, 1869 - Sections 3(3), 10 and 17; ;Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 10
AppellantMrs. Myrtle Stephenson
RespondentRobert Stephenson and anr.
Appellant AdvocateBhabesh Chandra Roy, Adv.
Respondent AdvocateSharda Parmar, Adv.
Excerpt:
- .....the marriage of the petitioner mrs. myrtle stephenson. any petition under section 10 of the indian divorce act may be presented to the 'district court' which according to section 3 means the court of the district judge within the local limits of whose ordinary jurisdiction under this act the husband and wife reside or last resided together. in the instant case the petitioner-wife neither pleaded nor proved that she and the respondent no. 1 either reside or had last resided together within the local limits of the jurisdiction of the learned district judge, 24 parganas.2. the petitioner in para i of her petition averred, no doubt, that the marriage between the parlies was registered at the church of christ king at 5, syed amir ah avenue, p. s. beniapukur, district 24 parganas within.....
Judgment:

Chittatosh Mookerjee, J.

1. After perusing the records we are unable to confirm under Section 17 of the Indian Divorce Act the decree for divorce granted by the learned District Judge dissolving the marriage of the petitioner Mrs. Myrtle Stephenson. Any petition under Section 10 of the Indian Divorce Act may be presented to the 'District Court' which according to Section 3 means the Court of the District Judge within the local limits of whose ordinary jurisdiction under this Act the husband and wife reside or last resided together. In the instant case the petitioner-wife neither pleaded nor proved that she and the respondent No. 1 either reside or had last resided together within the local limits of the jurisdiction of the learned District Judge, 24 Parganas.

2. The petitioner in para i of her petition averred, no doubt, that the marriage between the parlies was registered at the Church of Christ King at 5, Syed Amir AH Avenue, P. S. Beniapukur, District 24 Parganas within the jurisdiction of the District Judge's Court at 24 Parganas. But she pleaded in para 2 that a few days after marriage the respondent had taken her to her temporary place of service at Railway Quarter, Block No 89, Warangal-3, Kazipet, Andhra Pradesh. Her further case was that immediately thereafter the respondent had began to treat her in the most cruel way and also at Warangal the respondent had allegedly committed acts of adultery with the co-respondent No. 2. The petitioner farther pleaded that she had information that the respondent was still living in adultery with the corespondent at Block 89, Warangal-3, Kazipet, Andhra Pradesh. She averred in para 5 that she had escaped from the clutches of the respondent No. 1 on 27th Sept., 1973 and had somehow managed to reach Calcutta and took shelter at her father's residence at 147/1 Karaya Road, Beniapukur, District-24 Parganas. Inpara 10 of the petition she sought to invoke the jurisdiction of the learned District Judge, 24 Parganas by pleading that the cause of action for the proceedings arose on 8th Aug., 1973 and thereafter from day to day at 5, Syed Amir Ali Avenue, P. S. Beniapukur, District 24 Parganas where the marriage of the petitioner and the respondent was solemnised within the jurisdiction of the District Judge.

3. We have already pointed out in view of the definition of District Court in Section 3 of the Indian Divorce Act the place where the marriage was solemnised would not be a criterion for conferring jurisdiction upon the District Judge, 24 Parganas to entertain the petition under Section 10 of the Indian Divorce Act. In order to invoke territorial jurisdiction of the District Court to entertain the instant petition, it must be established that either the parties still reside or had last resided together within the limits of territorial jurisdiction of the said Court We have already pointed out that the peti-tioner herself had pleaded that matrimonial home of the parties was at Warangal-3, Kazi-pet, Andhra Pradesh and at the said place they had last resided together. It is not necessary to quote the oral evidence given by the petitioner-wife in view of the fact that at the time of the trial she had stuck to her case that matrimonial offences were committed by the respondent at Warangal-3, Kazipet and at the said place she had last resided with her husband till she had escaped and reached Calcutta in Sept., 1973.

4. Section 45 of the Indian Divorce Act makes Civil P. C., 1908 applicable to proceedings under the said Act. Therefore, we propose to direct under Order 7, Rule 10 of the Code return of the petition under Section 10 for presentation to the proper Court.

5. We accordingly reject the Reference made by the learned District Judge, set aside his judgment and decree and direct the said Court to return the petition under Section 10 of the Indian Divorce Act for presentation in the Court in which it should have been instituted. We make it clear that the findings and observations made on merits of the cases of the respective parties will not be binding upon the parties in future proceedings, if any, between the parries. There will be no order as to costs.

6. Let the records be sent down expedi-tiously.

Sharma, J.

7. I agree.

Amitabha Dutta, J.

8. I agree.


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