9911796707
TMI Blog1966 (3) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... s, on the basis of which the Original Petition had been filed; because the short controversy that arises for consideration, at the hands of this Court at this stage, is regarding the correctness or otherwise of the order of the learned District Judge, Trivandrum, holding that the said Court has got jurisdiction to entertain the Original Petition. 3. It is necessary to briefly advert to the averments contained in the Original Petition, as well as in the written statement filed therein, In so far as they are necessary for the present purpose. The respondent has stated in the said Original Petition that she is a resident of Ernakulam and that her parents are residing in Thrikkakara. The revision petitioner, who was employed as an Engineer in the Posts and Telegraphs Department, was working at the material time, in Bombay and he has also his parents' house in Trivandrum The respondent further states that her marriage took place at St. Thomas Jacobite Syrian Church, Kakkanad, within the jurisdiction of the Ernakulam District Court, on 2-4-1964. It is further stated that from the date of the marriage, till about the end of April 1964, the respondent lived with the revision petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble travel and shifts. In this connection, he states that he staved in Jabalpore for 28 weeks from October 15, 1962, in Ahamedabad for the next 8 weeks, in Bombay for the next 8 weeks, later in Bangalore for 2 weeks, then in Delhi for 2 weeks, and next in Bombay till about the end of March 1964. He has also stated that he has spent about 3 weeks in Trivandrum, and the first week of May in Bangalore. Then he winds up paragraph 4 of the written statement by stating that later on, he has been in Bombay till the middle of October 1964, then in Madras till the middle of March 1965, then again in Jabalpore till July 3rd, and then back again in Madras where he is at the time of filing the written statement (5-A) It will be seen from the averments made by the revision petitioner in paragraph 4 of his written statement, that so far as we could see, he has not stated that Bombay is his permanent place of residence; nor is there any suggestion, when he refers to his stay in Bangalore, that he intended Bangalore to be a place of abode or residence. He also admits that he was staying for about 3 weeks in April 1964 in Trivandrum. No doubt we are aware of the contention of Mr. Paikaday, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that last residence is also given as 1-5-64 to 7-5-64 Again, in paragraph 14 of the written statement the revision petitioner has stated that the place where the parties last resided together having been Bangalore, the District Court. Trivandrum, has no jurisdiction in respect of the Original Petition filed by the Respondent, and therefore, a request was made by the revision petitioner that the said question may be heard and decided as a preliminary issue. Finally, in paragraph 17 of the written statement the revision petitioner, after categorically stating that the various statements made by the respondent in the Original Petition are alt false and not true, has also taken up the position that the Original Petition has been filed in a Court having no territorial jurisdiction over its subject-matter; and he therefore prays for a dismissal of the Original Petition filed by the respondent herein. 7. In this connection, it is necessary to refer to some of the provisions contained in the Act. Section 4, occurring in Ch. II dealing with jurisdiction, provides for the District Courts "subject to the provisions in this Act contained" to exercise the jurisdiction which was being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is further stated that if the said issue is decided in his favour, there will be no necessity for proceeding with the trial of the proceedings on merits. 9. That application was opposed by the respondent. In her counter-affidavit she has stated that the permanent residence of the revision petitioner is at Trivandrum at the time of marriage and filing of the Original Petition. She has also referred to the fact that the revision petitioner has expressly admitted in a letter sent to her dated 30-7-1964, a copy of which has been filed in these proceedings, that the place of last residence of both of them is Trivandrum. The letter referred to is Ext. P-2, to which we have to advert a little later. The respondent further states that the place where both of them last resided was the house in Trivandrum within the jurisdiction of the District Court, Trivandrum and that the revision petitioner and his parents were and are permanent residents of Trivandrum for more than 20 years or more. She has also averred that the revision petitioner studied in the Engineering College. Trivandrum for the full period of the course and took his degree from there. She again reiterates that the permanent res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir stay at Bangalore constitutes the place where they last resided together; and therefore. It is only the Bangalore Court that will have jurisdiction to entertain the Original Petition. Then again he refers to his transfer from Madras since the filing of his written statement, and is at Coimbatore at the material time. He further states that with regard to their last residing together at Bangalore. It it necessary to note that the respondent wax not on her way to Bombay or anywhere, but returned to Trivandrum from Bangalore; and the revision petitioner himself went in the first instance to Hubli and later to Bombay. Therefore the revision petitioner again reiterates his request for treating issue No. 8 as a preliminary issue. 11. The learned District Judge declined to grant the request of the revision petitioner and rejected it, by order dated 16-12-1965. In fact the order passed by the learned District Judge was to the effect that the parties will get ready for trial by adducing evidence on all the issues. Accordingly the proceedings were adjourned to 4-1-1966. It is seen that the revision petitioner challenged the said order of the learned District Judge in this Court in C. R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l decisions, to which his attention was drawn, and also to the materials placed before him by the parties. Ultimately, as we have already indicated, the finding of the learned District Judge on issue No. 8 is against the revision petitioner. 13. Before we consider the points that have been raised by Mr. Manuel T. Palkaday, learned counsel for the revision petitioner, it is necessary to briefly refer to the evidence that was available before the learned District Judge, on the basis of which he has recorded the finding in question. On behalf of the respondent, Exts. P-1 and P-2 were marked, and the oral evidence of P. Ws. 1 to 3 was also adduced. It may be stated that P. W. 3 is the respondent herself. On the side of the revision petitioner, it is seen that he did not adduce any oral evidence either of himself or of anybody else. On the other hand he has produced four items of documentary evidence, namely Exts. D-1 to D-4. At this stage it may be mentioned that we are well aware of the fact that the order under attack, is in proceedings brought up to this Court under Section 115, C. P. C. We are also well aware of the various decisions of the Supreme Court, including the latest deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is mine also, and in staying there, you are staying with me. You cannot continue your education also if you stay elsewhere....." It is not necessary to advert to the other matters referred to in this letter. This again, though not specifically adverted to by the learned District Judge in his order, has operated in his mind, to come to the conclusion that even according to the revision petitioner, the house where his parents are living and to which place the respondent has also been transferred for the purpose of her education, must be considered to be the place where the revision petitioner has got residence. And it is in that view, that the learned District Judge has considered the claim made by the parties concerned, as to where exactly they could be considered to have "last resided together". 15. P. W. 3, as we have already mentioned, is the respondent herself. Her oral evidence has been accepted by the lower Court. P.W.1 merely proves Ext. P-1. P. W. 2 is a person who claims to be a neighbour of the parents of the revision petitioner. He has spoken to the fact that the revision petitioner's parents have been staying at Trivandrum for a number of years. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cross-examination she has referred to the fact that she did not go to Bombay, because the revision petitioner told that he was going en route to Bombay; and she returned to Trivandrum from Bangalore She has also stated that her mother-in-law, the mother of the revision petitioner, also accompanied them and was staying with them in Bangalore. From Bangalore, the respondent states, that the revision petitioner went to Hubli and then from there to Bombay. She no doubt states that she lived from 1-5-1964 to 7-5-1984 at Bangalore. But no doubt she later on states that she is not sure about the dates. Then she refers to Ext. D-1, which is a letter written by the revision petitioner to her on 16-8-1964 from Hubli. She also refers to the fact that before marriage, she had lived for a few days in Trivandrum. Then she admits that she has no house of her own in Trivandrum. Then she refers to the fact that she met the revision petitioner 2 months before marriage, for the first time, at her house at Thrikkakara. 16. On the side of the revision petitioner, as we have already indicated, there is no oral evidence adduced: the evidence consists of Exts. D-1 to D-4. Ext. D-1 is a letter written b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is Trivandrum. Therefore on issue 3 a finding has been recorded by the learned District Judge as against the revision petitioner. 18. Before we refer to the contentions of the learned counsel, it is again necessary to refer to some of the salient features of the evidence given by the respondent, namely the wife, as P. W 3. So far as we could sec, there is no effective cross-examination of that party regarding the answer given by her that the revision petitioner had mentioned to her that they had got a house in Trivandrum. No doubt the respondent has stated that she does not know as to whom exactly the house belonged. Excepting that suggestion, there is no counter-evidence adduced by the petitioner himself by way of rebuttal. There is one other aspect that has to be adverted to, namely when the respondent stated that en route to Bombay, they stopped in Bangalore, there is no suggestion put to her as to the object of their visit to Bangalore; nor is there any suggestion made to her that by going to Bangalore and staying there, they intended to make it their abode or place of residence. As to what effect these matters have in considering the main controversy in the present case, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no jurisdiction to entertain the Original Petition 20. Both the contentions taken by the learned counsel for the petitioner, are controverted by Mr. T N. Subramania Iyer learned counsel for the respondent. Mr. Subramania Iyer pointed out that no doubt there was a direction given by this Court in its order in C. R. P. 1329/65, to dispose of issue No 3 as a preliminary issue and to adjudicate upon it on or before 10-1-1966 According to the learned counsel, the actual recording of the evidence and other proceedings were over by 4-1-1966; but the learned District Judge delivered his judgment only on 16-1-1966. The learned counsel also pointed out that the District Court, Trivandrum has got jurisdiction to entertain the Original Petition under the Divorce Act, and it is perfectly within the jurisdiction of that Court to consider also any objection to its jurisdiction to entertain the same. The adjudication of that aspect is also part of the jurisdiction conferred on that Court. It is not as if, the learned counsel pointed out that by virtue of the directions given by this Court in C. R. P. 1320/65, for the first time and under certain conditions, a limited jurisdiction was conferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give effect to it, even though the point of limitation is not referred to in the pleadings Even under those circumstances, the Supreme Court points out, if the Court fails to perform its duty, it does not act without jurisdiction, but merely commits an error of law; and an error of law ran be corrected only In the manner laid down in the Code of Civil Procedure, namely the aggrieved party taking up the matter appeal, before the appropriate appellate Court: and so long as such a decree, however erroneous it may be, has not been challenged, that erroneous decree will hold good and will not be open to challenge on the ground of being a nullity. 22. We are only referring to the decision of the Supreme Court referred to above, for the limited purpose of showing, that the contention of the learned counsel for the petitioner, that the order, in this case, must be treated as a nullity, cannot be accepted, No doubt this Court has given directions in C. R. P. 1329/65 to the effect that the District Court must adjudicate upon issue 3 on or before 10-1-1066. It la rather regrettable that, by the learned District Judge not having complied with the directions given by this Court, it has given r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to the particular contention that has been taken by the learned counsel for the revision petitioner before us, on which we have already expressed our opinion in the earlier part of this order. Therefore, the 1st contention will have to be negatived. 24. The second contention urged by learned counsel for the revision petitioner, as we have already pointed out. Is that his client has no permanent place of residence, in which case the place where the revision petitioner and the respondent last resided together was Bangalore in the last instance from 1-5-1964 to 7-5-1964; or alternatively, that the place of residence of the petitioner, where he was having his employment at the material time, was Bombay, in which case also the stay after marriage, in Ernakulam, Trivandrum and Bangalore are all of the same character, and the last stay being in Bangalore, the Trivandrum Court has no jurisdiction to entertain this Original Petition. So far as this aspect is concerned, here again the learned counsel for the respondent has controverted the stand taken by the learned counsel for the petitioner. The learned counsel points out that the object of the visit to Bangalore has not been put to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to deal with a case where the parties were married in Karachi, and the husband was employed as a Railway Engineer having no permanent place of residence. He was serving in various places in the Bombay Presidency, and ultimately came over to Calcutta in December 1901, where he and his wife lived in the "Grand Hotel" for about a fortnight. While living there they separated and later an application for judicial separation was filed in the Calcutta High Court; and it was held by the learned Judge, though with hesitation, that the Calcutta High Court has got jurisdiction, inasmuch as the husband was a person, who had no permanent place of residence and therefore, the husband and wife must be considered to have "last resided together" in a hotel in Calcutta in December 1901. And notwithstanding the fact that the said stay was only for a short time, the learned Judge has held that the Calcutta High Court had jurisdiction. In G.G. Ritchson v. W.L.D. Ritchson, AIR 1934 Cal 670, Ameer Ali, J., had to consider the question as to whether the Calcutta High Court had jurisdiction to entertain an application filed by the parties, for judicial separation. The parties in that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the marriage was solemnised in that Church. Immediately after the marriage, within a few hours, it is seen that the wife mentioned to the husband that she had had sexual connections with the co-respondent; and on hearing that, the husband immediately took her to her parent's house in Kolar Goldflelds and left her there, and he returned to Vaniambadi. Later on, the husband filed an application in the District Court, Bangalore, for judicial separation. 29. Mr. Paikaday, learned counsel for the revision petitioner, urges for our acceptance the principles laid down by the learned Judges in the Mysore decision referred to above. That is according to the learned counsel, notwithstanding the fact that the stay of the couple was only for a few hours, the learned Judges have come to the conclusion that the place where they last resided together, within the meaning of Section 3 (3) of the Act, was within Bangalore, and sustained the jurisdiction of the Bangalore District Court to entertain the application. It will be seen that in the said Mysore decision itself, the learned Judges have expressed the view that the word 'reside connotes some degree of continuity of stay in a place T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... together in Mangalore. There again, the learned Judge, if we may say so with respect, is guarded when he observes that "a person cannot be said to reside at a place where he spent only a day or two when he has got a fixed place of residence elsewhere" This again is an observation which points to the fact that the nature of the residence that the parties have elsewhere, will have to be adverted to for the purpose of considering, as to whether the place where they staved together last, is to be considered as the place, where they "last resided together" within the meaning of Section 3 (3) of the Act. 32. Similarly, there is another line of cases where Courts have held that a mere temporary sojourn in a place, there being no intention of remaining there, will not amount to residence in that place much less the place where they last resided together within the meaning of Section 3 of the Act In the Pull Bench decision of the Allahabad High Court reported in Arthur Flowers y Minnie Flowers. ILK 32 All 203, the learned Judges had to deal with a case where the husband was having his official residence in Hyderabad (Sind) and his wife also was staving with him Later on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Full Bench of the Allahabad High Court, because the observations in that decision, have been referred to by their Lordships of the Supreme Court in the decision reported in Jagir Kaur v. Jaswanl Singh. AIR 1963 SC 1521. 33. In S. Saroja v. P. G. Emmanuel, AIR 1965 Mys 12, a learned Single Judge of the Mysore High Court, has again held that where the husband and wife have no joint permanent home where they can reside together (which might happen in a case where both are holding employments in different districts), the wife visits the husband's place for short intervals during her vacations. The husband's place where they last resided, though for short Intervals, is the place where they "resided together" for the purpose of giving jurisdiction under Section 8 (3). 34. Before winding up the discussion on this aspect, we will refer to one or two decisions rendered under Section 488 (8) of the Code of Criminal Procedure. We are not elaborately referring to the other decisions rendered under this provision, because, in our opinion, the Supreme Court has very exhaustively laid down the law on the subject in considering the question as to what constitutes "reside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riend or relation; he went to her house to live or reside with her, even though the duration of his stay would have to be brief. 36. This closes more or less the discussion of some of the cases rendered under the Act or under Section 488 (R). Crl P C But before we sum up the position, that emerges from a consideration of those decisions, it is necessary to refer to the decision of the Supreme Court in AIR 1968 SC 1521, referred to above. No doubt that was a declation rendered by that Supreme Court under Section 488 (8) of the Code of Criminal Procedure. The Supreme Court in that case had to consider the question regarding the exact connotation of the expressions "reside" and "last resided with his wife" occurring in Section 488 (8), Crl. P. C. We are emboldened to refer to the decision of the Supreme Court rendered under Section 488 (8), Crl. P. C., as well as to the other decisions rendered under the same provision, and applying the principles laid down in those decisions, in interpreting the expression "reside" and "last resided together" occurring in Section 3 (3) of the Act, because a reference to the decision of the Supreme Court, will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Courts in the decisions referred to by them, that there shall be animus manendi, or an intention to stay for a period, the length of the period depending upon the circumstances of each case. The Supreme Court again states that "having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases thereon, we would define the word "resides" thus: a person resides in a place, if he through choice makes it his abode permanently or even temporarily, whether a person has chosen to make a particular place his abode, depends upon the facts of each case". The Supreme Court then gives four illustrations, and ultimately states that in respect of illustrations 1 and 2 it must be held that the party referred to therein makes only a flying visit, and he has no intention to live either permanently or temporarily in the places he visits, and therefore, under those circumstances. It cannot be stated that he "resides" in the places he visits. But adverting to illustrations 3 and 4, the Supreme Court, after taking note of the fact that though the party referred to therein has a permanent house elsewher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as the place where they last resided together in India. The Supreme Court also states that even though the residence may be temporary, if there is animus manendi, even that temporary residence will amount to 'residence' within the meaning of Section 488 (8), Crl. P. C. 39. It is having due regard to the various principles emerging from the decision of the Supreme Court, in particular, and also the principles laid down, in the various decisions of the High Courts, adverted to by us, in the earlier part of this order, that the contention of the learned counsel for the revision petitioner in the present case, that the parties must be considered to have "last resided together" in Bangalore, has to be considered. From the various decisions referred to above, in our opinion, the following propositions emerge: (1) to constitute 'residence' it is not, necessary that the party or parties must have his or their own house; (2) to constitute 'residence', the stay need not be permanent; it can also be temporary, so long as there is animus manendi or an intention to stay for an indefinite period; (3) "Residence" will not take in a casual stay in, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which Ext. P-1 was obtained, to have gone into the witness box and given evidence as to his version regarding Ext. P-1. The revision petitioner, as we have already pointed out, has not gone into the witness box; and Ext. P-l, as it stands at present, is proved by the Vicar of the Church, as Pw. 1. So far as Ext. P-2 is concerned, in our opinion, the learned District Judge was perfectly justified in drawing the inference that even according to the revision petitioner, his place of residence is Trivandrum. For example, we have already adverted to the fact that even according to the revision petitioner, the arrangement at the time of the marriage was, that the respondent should prove to be a very good companion for him in his career in life; and for that purpose it was intended that she must be given sound higher education, which, according to him was not available in Erankulam. Therefore, the averment was to the effect that the respondent was transferred, for the purpose of her higher education, to Trivandrum. We have also indicated earlier that to constitute 'residence', it is not necessary that the party by himself should own a house or residential building in any particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to consider the nature of their residence at Trivandrum, after the marriage. 42. It is common case that the revision petitioner and the respondent, after their marriage which took place on 2-4-1964 at Ernakulam, went to Trivandrum, and after staying in Trivandrum for 2 or 3 days they "came over to her parents' house at Thrikakkara, where they stayed for 2 or 3 days, and then again they left for Trivandrum where they stayed till the end of April 1964. As to whether from Trivandrum, the wife also intended to accompany the revision petitioner to Bombay, is not quite clear from the records. At any rate, she has given evidence to the effect that the stay in Bangalore was en route to Bombay. If the stay at Trivandrum, after marriage, of both the petitioner and the respondent, though no doubt in the house of the revision petitioner's parents, in the circumstances referred to above, can constitute residence in law--and in our opinion, that will constitute such residence, having due regard to the principles referred to above--then, in our opinion, the revision petitioner and his wife, the respondent, must be considered to have "last resided together", within the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the witness box, regarding the object of the said visit So far as we could see, there is no averment either in the pleadings, or in the application filed by the revision petitioner to try issue No. 3 as a preliminary issue, to indicate that his stand was, that the stay at Bangalore was, with animus manendi or with the Intention of making it a temporary abode for the time being. According to the decision of the Supreme Court, in order to constitute residence, it is absolutely necessary that there must be animus manendi, namely an intention to stay for an indefinite period at a particular place, with the intention of making it an abode or residence, either permanently or temporarily. That such an intention could not have been present in this case, is very clear from the fact that the object of allowing the respondent to be in Trivandrum was for the purpose of enabling her to continue her education there. The petitioner also could not stay at Bangalore, because his work took him away from that place. It is also in evidence that immediately after 7-6-1964 the petitioner left for Bombay via Hubli, and the respondent came back to Trivandrum. No doubt the learned counsel for the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
