Actual residence must be established for jurisdiction under the Hindu Marriage Act, not merely temporary accommodations.

O R D E R

The marital discord among the petitioner-husband and the respondent-wife resulted in the respondent filing O.P.1223 of 2017 for divorce and M.C.No.123 of 2019 for maintenance before the Family Court, Irinjalakuda. Thereafter, the respondent filed, O.P.880 of 2019 before the Family Court, Thalassery seeking past maintenance and M.C.No.61 of 2019 before the Judicial First Class Magistrate Court, Thalassery under the Protection of Women from Domestic Violence Act. This transfer petition is filed by the husband seeking to transfer O.P.No.880 of 2019 from the Family Court, Thalassery to the Family Court, Irinjalakuda.

2. Heard Sri.Manoj C.N., learned counsel for the petitioner and Sri.C.K.Lohithakshan, learned counsel for the respondent.

3. Learned counsel for the petitioner put forth the following contentions;

The respondent is a permanent resident of Pariyaram in Chalkkudy Taluk, the marriage was solemnized at Pariyaram and the parties had resided together at Porathussery, all within the jurisdictional limits of the Family Court, Irinjalakkuda. Accordingly, the respondent has filed the original petition for divorce and the maintenance case before the Irinjalakuda Family Court. She has filed O.P.No.880 of 2019 before the Family Court, Thalassery with the sole intention of harassing the petitioner. The allegation that the respondent had to shift her residence from Irinjalakuda to Thalassery due to harassment and threat from the petitioner is patently false. The parents of the petitioner are unnecessarily arrayed as parties to the M.C case filed before the JFCM Court, Thalassery. As a result, the aged parents, who are suffering from various ailments, are compelled to travel from Porathussery to Thalassery. Even now the notices issued to the respondent are being served in her pariyaram address. Hence, O.P.No.888 of 2019 is liable to be transferred to the Family Court, Irinjalakuda.

4. Learned counsel for the respondent refuted the contentions and submitted that the respondent is compelled to stay away from her parental house by reason of the petitioner’s harassment and threat. The fact that the respondent had earlier filed cases before the Family Court, Irinjalakkuda will not estop her from filing cases in another Family Court, based on her residence.

5. From the arguments advanced, the question arising for consideration is whether her present residence entitles the respondent to institute proceedings before the Family Court, Thalassery. In this context, it will be apposite to have a look at Section 19 of the Hindu Marriage Act .

“19 Court to which petition shall be presented.

-Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction-

(i) the marriage was solemnised, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.”

6. Going by Section 19 (iii-a), the wife can present her petition before the Family Court within the limits of whose jurisdiction she is residing on the date of presentation. Even going by the averments in Annexure A original petition, the respondent has shifted her residence to a relative's house in Mattannur Municipality for the time being, apprehending hurt at the hands of the petitioner. Even the original petition filed before the Thalassery Family Court, the cause of action is stated to have arisen at Porathussery. According to the learned counsel for the petitioner, the respondent is even now