1. This petition was filed in January 1932 for the relief of judicial separation and for permanent alimony. The parties were married in Calcutta, but the husband's employment is on the E.I Railway in connection with the permanent way and as such he has no permanent place of residence. In point of fact his last period of duty appears to have been in Bihar. In August 1932 he was under orders for transfer, he took leave and came to Calcutta and spent that leave with the parents of his wife, the petitioner. The parties had previously done so on several occasions. Although the parties had intended to spend the whole month's leave as stated the parties separated, the husband leaving the house after five days.
2. The point arises whether this Court has Jurisdiction under Section 3 of the Divorce Act. Mr. Barwell appearing for the petitioner has called evidence and has put before me the reported cases and also an unreported case of this court Boss-Hurst v. Boss-Hurst, the other cases being Bright v. Bright . 1909 36 Cal 964, Murphy v. Murphy . AIR 1921 Bom 211 and the case on the other side Arthur Flowers…(Petitioner); v. Minnie Flowers…(). . 1910 32 All 203.
3. I am satisfied that the last case Arthur Flowers…(Petitioner); v. Minnie Flowers…()., is distinguishable upon the facts from the present case and hold that upon the circumstances disclosed in the evidence the parties did last side in Calcutta within the meaning the section. In Arthur Flowers…(Petitioner); v. Minnie Flowers…()., there was a permanent home or a fixed home in Hyderabad, Sind, to which the parties intended to return. In the present case the parties have no fixed home.
4. In addition to the facts in support of the jurisdiction of this Court Mr. Barwell has called evidence of adultery which I accept. Mr. Barwell has also called my attention to the fact that there was an informal deed of separation between the parties dated 17th August 1932 but the facts relied upon by the petitioner are subsequent to that date and the form of the deed is not such as to prevent the parties from relying upon subsequent matrimonial offences.
5. Mr. Barwell asks for alimony at the rate of Rs. 100 a month on the materials contained in the answer to the petition for alimony pendente lite. I make that order and the plaintiff will be entitled to a judicial separation.
6. The alimony decree is for permanent alimony at the rate mentioned and for costs on scale No. 2. All sums already paid or deposited would be taken into account and any sums deposited may be withdrawn by the petitioner.
K.S
7. Order accordingly.