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1984 Supreme(P&H) 76
PUNJAB & HARYANA HIGH COURT
G.C.Mittal, J.
Pritma Sharma
Versus
Mohinder S.Bhardwaj
First Appeal First Order No. 76 of 1983,
Decided On : JANUARY 24, 1984
Visit of husband to wife's residence, even if temporary, can constitute residence together for the purpose of determining jurisdiction under Section 19(iii) of the Hindu Marriage Act, 1955.
Headnote:
JURISDICTION - HINDU MARRIAGE ACT, 1955 - SECTION 19(III) - LAST RESIDED TOGETHER - INTERPRETATION - VISIT OF HUSBAND TO WIFE'S RESIDENCE - WHETHER CONSTITUTES RESIDENCE TOGETHER - HELD, YES.
Fact of the Case:
The wife filed a petition for dissolution of marriage in the District Court at Hissar, alleging cruelty. The husband contested the petition and raised a preliminary objection that the Hissar Court had no jurisdiction to try the petition as neither the marriage was solemnized at Hissar nor she resided there at the time of presentation of the petition nor the parties last resided together at Hissar. The wife claimed that the last meeting between the parties was on 5th September, 1982 at Hissar and that they resided together on that date. The trial court held that the husband's stay with his wife at Hissar on 5th September, 1982 cannot be held to mean last resided together and, therefore, the Hissar Court had no jurisdiction to try the petition.
Finding of the Court:
The High Court held that the visit of the husband to the wife's residence at Hissar on 5th September, 1982 would give jurisdiction to the Matrimonial Court at Hissar, under Section 19 (iii) of the Hindu Marriage Act, 1955. The court held that when both the husband and wife are working at two different places having their separate residential houses, both places would be fit for the residence of the spouses. If the wife would go to Delhi, to visit her husband, she can be deemed to be residing with him there and if the husband would go to the wife's place at Hissar, he would be deemed to be residing with his wife at Hissar. Such visits of the wife or of the husband cannot be termed as casual or flying. On the other hand, such visits may be termed as temporary visits by both the spouses and such temporary visits have been held to come within the meaning of the word `resides and the word resided .
Issues: Whether the visit of the husband to the wife's residence at Hissar on 5th September, 1982 would give jurisdiction to the Matrimonial Court at Hissar, under Section 19 (iii) of the Hindu Marriage Act, 1955.
Ratio Decidendi: The court held that the visit of the husband to the wife's residence at Hissar on 5th September, 1982 would give jurisdiction to the Matrimonial Court at Hissar, under Section 19 (iii) of the Hindu Marriage Act, 1955. The court held that when both the husband and wife are working at two different places having their separate residential houses, both places would be fit for the residence of the spouses. If the wife would go to Delhi, to visit her husband, she can be deemed to be residing with him there and if the husband would go to the wife's place at Hissar, he would be deemed to be residing with his wife at Hissar. Such visits of the wife or of the husband cannot be termed as casual or flying. On the other hand, such visits may be termed as temporary visits by both the spouses and such temporary visits have been held to come within the meaning of the word `resides and the word resided .
Final Decision: The High Court allowed the appeal, set aside the order of the trial court, and remitted the matter to the trial court for decision of the case on merits.
1. The parties were married at Delhi on 24th February, 1976, At that time the wife was employed as Assistant Scientist, Department of Botany, College of Basic Sciences, Haryana Agricultural University, Hissar and the husband was doing business at Delhi, according to the wife; whereas according to the husband he was working at Kanpur and on insistence of his wife, he started doing business in Delhi. from 1978 onwards. Out of the wed-lock on 3rd Jan., 1979 a female child was born. On 16th September, 1982, the wife presented a petition for dissolution of marriage in District Court at Hissar, primarily on the ground of cruelty. The husband contested the petition and in his written statement took a preliminary objection that Hissar Court had no jurisdiction to try the petition as neither the marriage, was solemnized at Hissar nor she resided there at the time of presentation of petition nor the parties last resided together at Hissar. In the divorce petition, the wife had pleaded in paras 11 and 15 as follows:
"That the last meeting between the parties was on date 5-9-1982 at Hissar and on that very date the petitioner was saved from the respondent by the intervention of the petitioner s sister."
"That the petitioner and respondent resided together on date 5-9-1982 at Hissar. Hence this Hon ble Court has the jurisdiction."
On a reading of the aforesaid two paragraphs the inference, which can reasonably be drawn is that on 5th September, 1982 the husband was with his wife at Hissar. In para 3 of the petition, the Wife had pleaded that she was living at Hissar and was serving as an Assistant Scientist in Haryana Agricultural University, Hissar, and a reading of para 2 of the petition shows that she was having a flat allotted to her in the University, where she was living. The plea contained in para 3 of the petition was not denied by the husband. In reply to para 2 of the written statement the husband did not dispute that the wife was living in a flat allotted to her by the University.
2. On the pleadings of the parties, the learned Additional District Judge, framed the following preliminary issue:
1. Assuming that the allegations contained in paras Nos. 11 and 15 of the petition are correct whether the allegations made make out a case that the parties "resided" together at Hissar and whether this Court has got territorial jurisdiction? Onus petitioners.
3. A reading of the aforesaid issue would show that the jurisdiction of the Court had to be found out on the assumption that the allegations contained in paras 11 and 15 of the petition are correct. Accordingly no evidence was to be led on the preliminary issue. The trial Court by order dated 31st January, 1983, came to the conclusion on the basis of judgment reported as Dr. Ashok Ranjan Saxena V/s. Smt. Vishwa Bharhti AIR, 1978 All 18, that the stay of the husband with his wife at Hissar on 5th September, 1982 cannot be held to mean last resided together and, therefore, the Hissar Court had no jurisdiction to try the petition. Consequently it was ordered that the petition be returned for presentation to the Court of competent jurisdiction.
4. Against the aforesaid order, the wife has come to this Court in this appeal.
5. After hearing the learned counsel for the parties and on perusal of the record, I am of the view that this appeal deserves to succeed.
6. The undisputed facts are that from 1978 onwards, the husband is living at Delhi where he is carrying on his business; whereas since before marriage the wife is living at Hissar, where she is serving in the Haryana Agricultural University, Hissar, as an Assistant Scientist, where she has a flat for her residence. In the divorce petition there is no averment that she ever went to Delhi and lived with her husband during her holidays. Similarly, there is no averment that her husband used to come to Hissar during his off days. However, from a combined reading of paras 7 to 10 of the petition, it can be seen that till 1980 (acco
