Back
2017 Supreme(Ori) 974
IN THE HIGH COURT OF ORISSA, CUTTACK
I. MAHANTY, K.R. MOHAPATRA, JJ.
Smt. Priyadarshani Mohapatra - Appellant
Versus
Sri Lalmohan Mohapatra - Respondent
MATA No. 7 of 2017
Decided On : 21-09-2017
Advocate Appeared:
For the Appellant : M/s. L. Samantaray, R.L. Pradhan, G. Das & J. Samantaray
For the Respondent: M/s. K.K. Mishra & G. Agarwal
Headnote:1. HINDU MARRIAGE ACT, 1955 - Sec. 13 (1), 19 - The phrase ‘last resided together’ should not be liberally construed - It has to be read in a manner to give it a meaningful interpretation - It has to be read in the context of the facts and circumstances of each case - It can by no stretch of imagination be treated to be a temporary place of stay - Term ‘residence’ should be given a purposeful interpretation to mean, something more than a ‘temporary stay’ - It cannot certainly be a place of outing, a pleasure trip, visit for health check up or business or temporary stay for a change. (Para - 7)
2. HINDU MARRIAGE ACT, 1955 - Sec. 19 - ‘Residence’ in its ordinary meaning is something, more or less, of a permanent character, and it is something more than a temporary stay - A place where the couple had casual or temporary visit, including the place where the couple had resided either for a health check up or business or for a change, cannot be treated to be a place of residence and it cannot be said that the couple had ‘last resided together’ at that place within the meaning of the section - Court having territorial jurisdiction over such places cannot be treated to be a competent Court of law for the purpose of a proceeding under the provisions of the Act, 1955. (Para - 7)
3. CIVIL PROCEDURE CODE, 1908 - Order 5 Rule 20 - Before proceeding to issue a direction to publish the notice under Order 5 Rule 20, CPC, the Court has to record a finding that he has reason to believe that the respondent (before the Court below), is keeping out of the way for the purpose of avoiding service of notice or that for any other reason the summons cannot be served in ordinary way. (Para - 8)
JUDGMENT :
K.R. MOHAPATRA, J.
1. This is an Appeal under Section 19 of the Family Courts Act, 1984 (for short, ‘Act 1984’) filed by Smt. Priyadarshani Mohapatra (for short ‘the wife’) assailing ex parte judgment dated 17.11.2017 passed by learned Judge, Family Court, Bhubaneswar in C.P. No.726 of 2015 filed by Sri Lalmohan Mohapatra (for short, ‘the husband’) under Section 13 of the Hindu Marriage Act, 1955 (for short, ‘the Act, 1955’).
2. The husband filed a petition under Section 13 of the Act, 1955 (C.P. No.726 of 2015) before the learned Judge, Family Court, Bhubaneswar contending inter alia that the marriage between the parties to the said petition was solemnized on 06.07.2014 as per Hindu rites and custom. As there was age difference of 12 years between the couple, the wife did not cooperate with the husband to lead a conjugal life. To bring a change in the mind of the wife, the husband on 23.08.2014 took a house on rent at Manipallem in Visakhapatnam, where the husband was posted and took his wife with hope to lead a happy conjugal life. However, on 28.09.2014, when the husband returned from work at about 7.00 PM, he found that the door of his residence was locked. Subsequently, he ascertained from his house owner that his wife had left the house with her mother. On being contacted over phone, she expressed her unwillingness to join the company of her husband. However, an attempt was made by the relations of the husband to conciliate the matter and persuade the wife to lead a happy conjugal life with the husband. Accordingly, on the request of their relatives, the husband came to the house of one of his relations (cousin sister) at Bhubaneswar and the wife joined him on 03.05.2015. But on 05.05.2015, she quarreled with her husband and left for her parental home. Subsequent discussions and persuasion of the family members to persuade the wife to lead happy conjugal life having failed, the husband filed proceeding as aforesaid for dissolving the marriage by a decree of divorce.
3. Registered notices were sent in the address of his wife returned back being undelivered. Hence, the husband filed a petition under Order 5 Rule 20 CPC to take out substituted notice by publication in newspaper. By order of the Family Court, substituted notice was published in Odia Daily “The Samaj” on 16.04.2016 and learned Judge, Family Court proceeded with the matter ex parte and the impugned judgment and order was passed dissolving the marriage between the parties by a decree of divorce. Assailing the same, the present appeal has been filed.
4. Heard learned counsel for the parties and perused the record. On consent of learned counsel for the parties, the matter was taken up for final disposal.
Learned counsel for the appellant (wife) submitted that the learned Judge, Family Court, Bhubaneswar had no territorial jurisdiction to entertain and adjudicate the proceeding under Section 13 of the Act, 1955 filed by the respondent (husband). The couple had last resided together at Manipallem, Visakhapatnam, where the respondent (husband) was posted. Even for the sake of argument, it is assumed that the wife had joined the husband at Bhubaneswar in latter’s relation’s house at Jagamara, Bhubaneswar, it cannot be said that they had last resided together at Bhubaneswar. He further contended that the husband has played fraud on learned Judge, Family Court by suppressing the service of notice. The substituted notice was published in Bhubaneswar edition of the Odia daily “The Samaj” on 16.04.2016, which has no circulation either at Visakhapatnam or at Parlakhemundi, where the wife has been residing. Hence, he prayed for setting aside the impugned ex-parte judgment and decree holding it to be without jurisdiction.
5. Learned counsel for the respondent (husband), on the other hand, refuting the submissions of learned counsel for the appellant (wife), submitted that both the parties had last resided together at Jagamara, Bhubaneswar. Thus, the Court at Bhubaneswa
