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1977 Supreme(All) 229
Allahbad High Court
YASHODANANDAN
Ashok Ranjan Saxena - Appellant
Versus
Smt. Vishwa Bharti - Respondent
Decided On : 08/30/1977
Keshori Nath Tripathi, K.N. Dwivedi and Jitendra Kumar, for Appellant; S.K. Mookerjee, for Respondent.
The expression "resided together" in Section 19 of the Hindu Marriage Act, 1955, requires some unity between the husband and wife, which may be evidenced by factors such as intention to reside together, duration of stay, and purpose of stay.
Headnote:
JURISDICTION - HINDU MARRIAGE ACT, 1955 - SECTION 19 - RESIDENCE TOGETHER - INTERPRETATION - FLYING VISITS BY HUSBAND TO WIFE'S FATHER'S HOUSE FOR RECONCILIATION DO NOT CONSTITUTE RESIDENCE TOGETHER - COURT AT WIFE'S FATHER'S PLACE HAS NO JURISDICTION TO ENTERTAIN PETITION UNDER SECTION 10 OF THE ACT.
Fact of the Case:
Wife filed a petition under Section 10 of the Hindu Marriage Act, 1955, seeking judicial separation, permanent alimony, and return of ornaments and clothes. The petition was filed in Bareilly, where the wife's father resided, alleging that the husband had committed various acts of cruelty and that the parties last resided together in Bareilly. The husband challenged the jurisdiction of the Bareilly court, arguing that the parties had never resided together in Bareilly and that the court at Allahabad, where the marriage was solemnized, had jurisdiction.
Finding of the Court:
The court held that the husband's visits to Bareilly were mere flying visits with a limited object of reconciliation and that the parties could not be said to have resided together at any time in Bareilly. The court further held that the expression "resided together" in Section 19 of the Act requires some unity between the husband and wife, which was absent in the present case.
Issues: Whether the court at Bareilly had jurisdiction to entertain the wife's petition under Section 10 of the Hindu Marriage Act, 1955.
Ratio Decidendi: The court interpreted the expression "resided together" in Section 19 of the Hindu Marriage Act, 1955, to mean that there must be an intention on the part of the husband and wife to reside together for some length of time, even though it might be short. The court held that the husband's visits to Bareilly were not intended to be permanent or temporary residence, but were merely attempts to persuade the wife to return to the matrimonial home in Allahabad. Therefore, the court held that the parties had not resided together in Bareilly and that the court at Bareilly did not have jurisdiction to entertain the wife's petition.
Final Decision: The court allowed the husband's revision petition and set aside the orders of the courts below. The case was remanded back to the trial court for redecision of the preliminary issue on jurisdiction.
2. Undisputably the applicant and the opposite party were Hindus within the meaning of S. 2 of the Act and were married according to the Hindu rites and customs at Allahabad on the 25th June, 1974. After their marriage they lived as husband and wife at Allahabad till December 1974 and during this period, it is alleged by the wife that various forms of physical and mental cruelty, were practised on her by the applicant and the members of his family. Ultimately on the 6th Dec. 1974, the opposite-party s mother came to Allahabad and she accompanied her to Bareilly to her father s house. It is alleged that on the 18th Dec. 1974 the applicant went to Bareilly to the house of the father of the opposite-party and resided there with her. According to the petition he tried to persuade the opposite party and her parents but she refused to go back with the applicant to Allahabad and to live with him as his wife. It is disclosed in the petition that the applicant requested the opposite party to have sexual intercourse with him at Bareilly but she plainly refused to do so. The husband remained in Bareilly at the house of his wife s father for three days but they slept in separate rooms and the wife did not permit him to have access to her. Reluctantly, it is stated, the applicant returned back to Allahabad. According to the petition, in the months of February and March 1975 the applicant again went to Bareilly and resided with her at her father s house. The wife alleges that again he pressed for a compromise and requested her to return with him to Allahabad but she declined to accompany him. In para 29 of the petition, it is alleged that, the cause of action for this petition arose when the respondent committed various acts of cruelty upon the petitioner and also when the respondent came to Bareilly within the jurisdiction of this Hon ble Court where the parties last resided together, and this Hon ble Court has jurisdiction to try this petition."
3. No written statement was filed on behalf of the applicant. An affidavit was filed wherein it was admitted that the applicant and the opposite party were married at Allahabad where they resided together as husband and wife till the 6th Dec. 1974, when the opposite party left Allahabad at the instigation of her mother and sister and since then did not return to the matrimonial home and never lived thereafter with him as his wife. The stand was taken in the affidavit that the applicant had received legal advice that the court at Bareilly where the petition had been lodged had no jurisdiction to entertain and hear it.
4. The learned Civil Judge, Bareilly, before whom the petition under S. 10 of the Act was pending, framed a preliminary issue as follows :-
" Whether this court has jurisdiction to try the suit" .
On the preliminary issue the opposite party examined herself as a witness to establish that she and the applicant had resided together last at Bareilly and she was cross-examined. She also produced and proved certain letters sent to her and her sister by the applicant from Bareilly itself. The applicant did not examine himself but filed certain documents to prove that during the period that he was alleged to be at Bareilly he was either at Allahabad or Lucknow. The learned Civil judge held that,
" All this reasonably leads to the inference that the respondent had come to Bareilly from Allahabad firstly on 18-12-1974, and then in February and March 1975 and had stayed in her parents house where the petitioner was
