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Case Number
Advocates
  • Sanjeev Gupta
  • G.S. Tulsi
Judges
  • G.C Mital, J.
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Sanjeev Gupta
  • G.S. Tulsi
Judges
  • G.C Mital, J.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The parties were married in Delhi on 24 February 1976. At the time of marriage the wife was employed as an Assistant Scientist in the Department of Botany at the Haryana Agricultural University, Hissar, and the husband was engaged in business in Delhi (the husband later stated he worked at Kanpur and began business in Delhi from 1978). A daughter was born on 3 January 1979. On 16 September 1982 the wife filed a petition for dissolution of marriage in the District Court at Hissar primarily on the ground of cruelty.

The husband contested the petition and raised a preliminary objection to jurisdiction: he argued that Hissar Court had no jurisdiction because the marriage was not solemnized at Hissar, the wife did not reside there when the petition was presented, and the parties did not last reside together at Hissar. The wife's petition contained allegations (paras 11 and 15) that the last meeting between the parties was at Hissar on 5 September 1982 and that the parties last resided together on that date at Hissar. The husband did not dispute that the wife lived in a university-allotted flat at Hissar.

The trial court (Additional District Judge) framed a preliminary issue which assumed the truth of the allegations in paras 11 and 15 and asked whether, on that assumption, the parties "resided" together at Hissar such that the Court had territorial jurisdiction (onus on petitioners). The trial court, by order dated 31 January 1983, relying on the judgment in Ashok Ranjan Saxena v. Smt. Vishwa Bharti (AIR 1978 All 18), held that the husband's stay with his wife at Hissar on 5 September 1982 could not be equated with "last resided together" and therefore the Hissar Court had no jurisdiction; the trial court ordered the petition returned for presentation to a court of competent jurisdiction.

The wife appealed against that order to the appellate court. After hearing counsel and perusing the record, the appellate court allowed the appeal, set aside the trial court's order, held that the parties last resided together at Hissar on 5 September 1982 within the meaning of Section 19(iii) of the Hindu Marriage Act, 1955, and remitted the case to the trial court for decision on merits. The wife was awarded costs of the appeal and the parties were directed to appear before the trial court on 20 February 1984.

Legal Issues Presented

  1. Assuming the allegations in paragraphs 11 and 15 of the petition are correct, whether the allegations make out a case that the parties "resided" together at Hissar and whether the Hissar Court has territorial jurisdiction under Section 19(iii) of the Hindu Marriage Act, 1955 (onus on petitioners).

Arguments of the Parties

Appellant's (Wife's) Arguments

  • Alleged that the last meeting between the parties was at Hissar on 5 September 1982 and that on that date she was saved from the respondent by intervention of her sister (paras 11 and 15).
  • Pleaded that she was living at Hissar and serving as an Assistant Scientist at Haryana Agricultural University, Hissar, and had a flat allotted by the University where she resided (para 3 and para 2 of petition).
  • Implicit argument (from the petition particulars) that the husband's visit on 5 September 1982 constituted residence together such that Hissar Court had jurisdiction under Section 19(iii).

Respondent's (Husband's) Arguments

  • Contended by preliminary objection that Hissar Court had no jurisdiction because the marriage was not solemnized there, the wife did not reside there when the petition was presented, and the parties did not last reside together at Hissar.
  • In written statement denied that the parties ever resided together at Hissar "with a view to live here" and categorically stated (in preliminary objection No.1) that he was not present at Hissar on 5 September 1982.
  • More generally, emphasized that the spouses worked and lived at different places (husband in Delhi, wife in Hissar) and suggested any visits were not of such a character as to amount to "residing together" (trial court relied on Ashok Ranjan Saxena for this line).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ashok Ranjan Saxena v. Smt. Vishwa Bharti, AIR 1978 All 18 The decision held that a husband's casual or flying visits to the wife's place (staying as an unwanted guest at father-in-law's house during attempts at reconciliation) did not amount to the parties "last resided together" at that place and therefore did not confer jurisdiction on that court. The trial court relied on this case to hold that the husband's stay at Hissar on 5 September 1982 did not constitute "last resided together" and that Hissar Court lacked jurisdiction. The appellate court distinguished its facts from the present case and held the reliance misplaced because in Saxena visits were casual, reconciliation attempts failed, and there was no effective communication between parties during visits.
Mst. Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521 Holds that temporary visits by a spouse to the other's residence may fall within the meaning of the words "resides" and "resided". The appellate court cited this Supreme Court authority to support the view that temporary visits where spouses live together (eat, drink, sleep together) can amount to residing together and therefore be within Section 19(iii)'s scope. This authority was used to reverse the trial court's conclusion.
Smt. S. Saroja v. P.G. Emmanual, AIR 1965 Mysore 12 Addresses spouses employed and obliged to live at different places; holds that visits during vacations or available time for the purpose of spending it together constitute residence with the husband/wife during that period irrespective of short duration or lack of permanence. The appellate court described this case as "identical" and relied on its reasoning (quoted at length) to conclude that visits by a spouse for the purpose of spending time together amount to residing together; this supported the holding that the Hissar visit on 5 September 1982 constituted last residence together for jurisdictional purposes.

Court's Reasoning and Analysis

The appellate court proceeded step-by-step as follows:

  1. Framed factual findings from the record: since 1978 the husband lived in Delhi conducting business; the wife lived at Hissar before marriage and continued to serve at the Haryana Agricultural University living in a university-allotted flat. The wife did not allege that she ever went to live with the husband in Delhi during holidays, nor did the husband allege he habitually came to Hissar during off days.
  2. Interpreted the petition: a combined reading of paras 7 to 10 together with paras 11 and 15 allowed a reasonable inference that the husband used to visit the wife at Hissar and that 5 September 1982 was the last such visit when he stayed with her. The wife's allegation that the husband stayed with her on that date was not denied in the replies to paras 11 and 15.
  3. Examined the husband's written statement: although the husband had initially asserted he was not at Hissar on 5 September 1982 (preliminary objection No.1), the appellate court observed that in the framing of the preliminary issue the husband proceeded on the assumption that the allegations in paras 11 and 15 were correct; the written statement otherwise contained language ("never resided together at Hissar with a view to live here") which implied he had been visiting Hissar but not with the intention of permanent residence.
  4. Identified the central legal question: whether the husband's visit and stay at the wife's residence at Hissar on 5 September 1982 falls within the meaning of "last resided together" under Section 19(iii) of the Hindu Marriage Act, 1955, which determines territorial jurisdiction.
  5. Evaluated precedent relied upon by the trial court (Ashok Ranjan Saxena): the appellate court distinguished that case on its facts — there the husband stayed at his father-in-law's house in failed reconciliation attempts, visits were casual/flying, there was no effective communication between spouses during visits and reconciliation did not occur — and concluded those facts were materially different from the present case.
  6. Applied authorities favourable to the wife (Jagir Kaur and Saroja): the appellate court accepted the principle that when spouses live and work at different places and make visits to spend available time together, such visits are for the purpose of residence during that period and should be treated as residing together even if short or temporary. The appellate court expressly endorsed this reasoning and stated it was "in respectful agreement" with that view.
  7. Concluded that on 5 September 1982 both spouses lived together at Hissar in the wife's house and that such residence falls within the expression "resided together"; because that was the last visit, Hissar Court had jurisdiction under Section 19(iii).

Holding and Implications

Holding: The appeal is ALLOWED. The appellate court held that the parties last resided together at Hissar on 5 September 1982 and that the Hissar Court has territorial jurisdiction under Section 19(iii) of the Hindu Marriage Act, 1955. The order of the Court below (which had held no jurisdiction) is set aside.

Implications and direct effects:

  • The case is remitted to the trial Court at Hissar for decision on merits.
  • The wife is awarded the costs of this appeal to be paid by the husband.
  • The parties, through their counsel, were directed to appear before the trial Court on 20 February 1984.
  • No broader or new precedent is explicitly claimed to be established by the decision; the court relied upon and applied existing precedents (as cited) to the facts before it. The immediate consequence is the conferral of jurisdiction on the Hissar Court and the return of the matter for substantive adjudication.
Appeal allowed.
Show full summary ...

    Mrs. Pritma Sharma v. Mohinder S. Bhardwaj .

    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 last 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 Ranj an Saxena v. Smt. Vishwa Bharti, 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 (according to the wife's allegations) the husband's attitude towards her was not good and was worst and that he had abused and had given beatings to her a number of times. Once he wanted to throw acid on her face, due to which she was compelled to lodge the complaint with the city Police Station, Hissar and that he made a laughing stock of her in the locality where she was living as well as in her office by falsely accusing her character. On a reading of the contents of aforesaid paras along with Paras 11 and 15 of the petition, a reasonable inference can be drawn that the husband used to visit her at Hissar and 5th September, 1982 was the last visit when he had stayed with her.

    7. Adverting to the written statement, the grievance of the husband is that his wife does not want to join him in the matrimonial home at Delhi, in spite of the fact that he is so desirous and capable of providing to her all the comforts according to the status of the spouses. He too has not stated that his wife ever came to Delhi during holidays and lived with him, nor he has stated that he has been visiting Hissar during his off days. But all the same, it can be inferred from the written statement that he has been visiting Hissar. In reply to Paras 11 and 15 of the petition, he did not state that he did not visit Hissar on 5th September, 1982 and, therefore, the question of residing together at Hissar on that date did not arise. Moreover, the sentence ‘the parties never resided together at Hissar with a view to live here’ contained in Para 15 of the written statement clearly goes to suggest that he had been going to Hissar but it was not with a view to live there. It is true that in preliminary objection No. 1, the husband had categorically stated that he was not present at Hissar on 5th September, 1982 and, therefore, the question of parties having resided together there on the said day did not arise. But in view of the issue framed, it appears that the husband gave up this part of the case and wanted determination on the point of jurisdiction on the assumption that he had visited Hissar on 5th September, 1982.

    8. From the facts noticed above, the question of law which arises for consideration is whether it can be said that the visit of the husband on 5th September, 1982 to the wife's residence at Hissar, would give jurisdiction to the Matrimonial Court at Hissar, under Section 19 (iii) of the Hindu Marriage Act, 1955. Clause (iii) of Section 19 of the Act, gives the jurisdiction to the Court where the parties to the marriage last resided together. Therefore, it has to be seen whether the residence of the husband with his wife at Hissar on 5th September, 1982 would come within the ambit of the words ‘last resided together’. The Court below placed reliance on Dr. Ashok Ranjan Saxena v. Smt. Vishwa Bharti, AIR 1978 All 18. The facts of that case were that the parties were married at Allahabad in June, 1974 and lived there as husband and wife till Deccember, 1974. In early part of Dec, 1974, the wife left the matrimonial home at Allahabad for her father's place at Bareilly and never returned to Allahabad. Her husband visited Bareilly thrice in an attempt to bring her back and stayed as an unwanted guest at his father-in-law's house and the attempts proved futile and he returned to Allahabad disappointed. On those facts the three visits to Bareilly and staying with his father-in-law were not considered to give jurisdiction to Bareilly Court, as according to the learned Judge, it could not be held that the parties last resided together at Bareilly. The facts of the aforesaid case are clearly distinguishable from the facts of the present case. There, the husband had stayed with his father-in-law and the number of the visits were casual or flying i.e for re-conciliation and to bring her back. No reconciliation took place. On the evidence, it was held that there was no communication between the parties even during the brief visits of the husband to Bareilly and the husband had to rely on communications through postal system. In the present case, when both the parties 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’. See in this behalf Mst. Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521.

    9. Smt. S. Saroja v. P.G Emmanual, AIR 1965 Mysore 12, is another identical case because that also relates to such spouses, who were serving and living at two different places and the husband used to visit wife's place during vacations and the wife used to visit husband's place similarly. No other case of working spouses has been brought to my notice except this one. The following rule was laid in the aforesaid decision:

    “If both the husband and wife are holding employments and therefore are obliged to live in different parts of the world or their own country and if the wife during her vacantions or during the period when she finds it possible to do so proceeds to the place where her husband lives so that she may spend the available time with him, that visit can have no purpose other than residence with her husband during that per-; iod. The object of the visit is that she should reside with her husband and whatever may be the duration of the visit the object would be the same. The position would not be different where in a similar situation the husband visits his wife and when he does so what he desires to do is to reside with his wife during the time available to him.

    It would be unmeaning to suggest that when those visits are made the husband and wife do not reside together. If the purpose obviously is that each of the spouses should have the company of the other and that the husband and wife should eat, drink and sleep together, nothing more is necessary to support the view that during the period of the visit the husband and wife intended to reside together, and the fact that the visit was of a short duration or did not have any appreciable degree of permanence cannot alter the situation.”

    I am in respectful agreement with the aforesaid view. Accordingly, while reversing the decision of the Court below I hold that on 5th September, 1982, both the spouses lived together at Hissar as husband and wife in the house belonging to the wife and this residence clearly falls within the term of ‘resided together’ and since this was the last visit the Hissar Court has jurisdiction to try the petition.

    10. For the reasons recorded above, this appeal is allowed; the order of the Court below is set aside and the matter is remitted to the trial Court for decision of he case on merits. The wife will have her costs of this appeal from the husband. The parties through their counsel are directed to appear before the trial Court on 20th February, 1984.

    Appeal allowed.

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    Comments

    Mrs. Pritma Sharma v. Mohinder S. Bhardwaj .
    (Jan 24, 1984)