JUDGMENT :

A. Pasayat, J. - A question regarding maintainability of the proceeding Original Suit No. 1 of 1996 which has been purportedly filed u/s 22 read with Sections 23 and 27 of the Indian Divorce Act, 1869 (in short, the 'Act') has been raised by the respondent.

2. The essential facts need to be noted for adjudication of the controversy.

Plaintiff Subhra Raul has filed this proceeding praying for a decree of judicial separation to be passed against respondent Nathan Raul. Further prayer is for a decree for payment such gross sum by way of alimony, or annual sum of money as may be quantified. According to respondent, who has raised question of maintain- ability, petition u/s 22 of the Act is required to be filed before the High Court under whose jurisdiction the husband and wife last resided together. According to him, the admitted position being that plaintiff was staying at Mumbai during the period from 1992 to 1995, whereafter she has filed the present suit, this Court has no jurisdiction to entertain or try the suit. According to the plaintiff, she was residing at Cuttack on the date of presentation of petition and respondent has permanent home at Bhubaneswar and therefore, this Court has jurisdiction to entertain the petition.

3. It is highlighted by the respondent, plaintiff had filed Civil Petition No. 305 of 1995 in the Court of learned Judge, Family Court, Cuttack for a decree of judicial separation and for alimony. Respondent entered appearance persuant to notice and filed a petition to decide the question of maintainability, in view of Sub-section (3) of Section 3 of the Act. By order dated 5.8.1996, learned Judge, Family Court held that unless written statement is filed, question of maintainability cannot be decided. Challenging the said order of learned Judge, Family Court, respondent filed O.J.C. No. 3594 of 1996 before this Court on the ground that finding of the Family Court was not only illegal, but also contrary to the provisions of Section 3(3) of the Act. On 26.8.1996, this Court issued notice and stayed further proceeding before the learned Judge, Family Court. Ultimately, plaintiff appeared in the case and submitted that she would withdraw the case pending before the Family Court. On the self-same ground, according to the respondent, the present suit has been filed and therefore, is misconceived.

4. Admittedly, the parties are Christians and governed by the Protestant School of Indian Christians. It is relevant to take note of Sections 3,22 and 23 of the Act which are relevant, and read as follows :

"3. Interpretation clause-In this Act, unless there be something repugnant in the subject or context-

"High Court".

(1) "High Court" means with reference to any area-

(a) in a State, the High Court for that State;

(b) in Delhi, the High Court at Delhi;

(c) in Manipur and Tripura, the High Court of Assam;

(d) in the Andaman and Nicobar Islands, the High Court at Calcutta;

(e) in the (Lakshadweep) the High Court of Kerala;

(ee) in Chandigarh, the High Court of Punjab and Haryana,

and in the case of any petition under this Act, "High Court" means the High Court for the area where the husband and wife reside or last resided together :

(2) xxx xxx xxx

(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 riside or last resided together;"

"22. Bar to decree for divorce a mensa etthoro; but judicial separation obtainable by husband or wife-No decree shall hereafter be made for a divorce a mensa et thoro, but the husband or wife may obtain a decree of judicial separation on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of a divorce a mensa et thoro, under the existing law, and such other legal effect as hereinafter mentioned."

"23. Application for separation made by petition