- Bookmark
- Share
- CaseIQ
M.M Robey v. A.V Robey .
Factual and Procedural Background
This is an application by the petitioner for alimony pendente lite in a petition for dissolution of marriage on grounds of cruelty and adultery. At a prior hearing the respondent's counsel informed the Court that he would take the point that the Court had no jurisdiction to entertain the dissolution petition. With the petitioner's consent the Court heard, on the return date, the issue whether the Court had jurisdiction given the parties' residence circumstances on the date the petition was presented (2 August 1929). The parties last resided together in Delhi; the petitioner had left the husband on 8 April 1929 and had lived at several addresses before residing in Calcutta since 15 June. The respondent lived in Delhi at 40 Asoke Road since marriage (1926), was employed by the Public Works Department (liable to transfer), and had been in Calcutta temporarily to initiate criminal proceedings relating to alleged adultery.
Legal Issues Presented
- Whether the High Court had jurisdiction under the Divorce Act to entertain the petition for dissolution of marriage given the parties' places of residence.
- Whether each party (in particular the respondent) resided within the local limits of the Court's jurisdiction on 2 August 1929 for purposes of Section 3 of the Divorce Act.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Borgonna v. Borgonna . [1920] 44 Bom. 924 | That the word “together” in the definition only qualifies the words “last resided” and not the word “reside.” | The Court used this interpretation to require a determination whether both parties were residing within the local limits specified on 2 August 1929 when the petition was presented. |
Court's Reasoning and Analysis
The Court began by identifying the jurisdictional test in the Divorce Act (definition of the High Court) and applied the interpretation from Borgonna v. Borgonna that “together” qualifies “last resided” only. The Court therefore proceeded to decide whether, on the evidence, both parties were residing within the Court's local limits on 2 August 1929.
On the petitioner's residence the Court noted her separation date (8 April 1929) and subsequent moves (a week with a sister at Tundla, then with Mrs. King at Howrah, and from 15 June an address in Calcutta where she said she came to look for work). Although the Court expressed uncertainty about whether she strictly satisfied the Act's residence requirement, it assumed for present purposes that she was residing within the jurisdiction.
On the respondent's residence the Court examined his longstanding tenancy and employment in Delhi (tenant at 40 Asoke Road since 1926; employed by the Public Works Department since 1922 and liable to transfer), and his movements to Calcutta which were for the limited purpose of initiating and pursuing criminal proceedings relating to alleged adultery. The respondent stayed with a brother in Kidderpore and intended to leave Calcutta around 1 August; he required leave from his Department to be absent. The Court found these circumstances showed a temporary presence only.
Applying the statutory test, the Court found as a fact that the respondent did not reside within the jurisdiction within the meaning of Section 3 of the Divorce Act and thus that the Court lacked jurisdiction to grant the relief sought in the alimony application.
Holding and Implications
DISMISSED
Direct effect: The application for alimony pendente lite was dismissed because the respondent was found not to reside within the Court's jurisdiction under Section 3 of the Divorce Act. The Court noted that the petitioner may take such steps with regard to the main petition as she may be advised.
No broader implications or new precedent are discussed in the opinion; the decision applies the existing statutory definition and the cited precedent to the facts of this case.
1. This is an application on the part of the petitioner for alimony pendente lite. The application was in the list yesterday and Mr. Westmacott for the respondent then informed me that he intended to take the point that this Court had no jurisdiction to entertain the petition which is one for dissolution of marriage on account of cruelty and adultery, and with the consent of the petitioner the case was set down to-day for trial of the issue whether the Court has jurisdiction in view of the circumstances of the case.
2. Under the Divorce Act the High Court is defined in the case of any petition presented under the Act as that High Court within the local limits of whose ordinary appellate jurisdiction or whose jurisdiction under the Act the husband and wife riside or last resided together. It is conceded that the parties last resided together in Delhi. It appears from the judgment of Marten, J., in Borgonna v. Borgonna . [1920] 44 Bom. 924 that the word “together” in the definition which I have read only qualifies the words “last resided” and not the word “reside,” Therefore I have to decide whether on the evidence both parties were residing within the local limits above specified on 2nd August 1929 when the petition for dissolution was presented. With regard to the petitioner were it important to decide the point I am not all all sure that I should be satisfied that she resides within the jurisdiction in the sense required by the Divorce Act. It appears that the husband and wife parted on 8th April 1929 and she thereafter went for a week to live with her sister at Tundla, at the expiration of which time she lived with certain Mrs. King at Howrah which is within the local jurisdiction, Since 15th June she has been living at an address in Calcutta. She says she came here to look for work.
3. Whether she obtained any work or what her future intentions are I do not know: but I will assume that she is now residing within the jurisdiction. When we come to the respondent's case I cannot imagine less substantial grounds than those upon which I have been asked to hold that he resides within the jurisdiction. He is a tenant of a house at 40 Asoke Road in Delhi where he has lived ever since his marriage from 1926. Prior to that he was living in Delhi and he had been employed on certain electrical work in connexion with Viceregal Lodge in Delhi since 1922. He is employed by the Public Works Department and although he is not a gazetted officer he is liable to be transferred if the Department wishes it. The reason he came to Calcutta is that he desired to initiate criminal proceedings against a certain person on a charge of committing adultery with the petitioner. In connexion with those proceedings he came to Calcutta on 27th June and took the first step in the proceedings on 29th and then left for Delhi, and he returned to Calcutta when proceedings were resumed and he was intending to leave about 1st August when the Magistrate's Court pronounced the judgment in the criminal proceedings. I should add that whenever he wishes to leave Delhi he has to obtain leave from the Department. During his stay in Calcutta he has been living with a brother in Kidderpore who is employed by one of the Railways in their offices here and who is liable to be transferred if his employers see fit to order it. I can hardly imagine a case where the presence of a respondent in the jurisdiction is so obviously of a temporary nature. That being so, I find as a fact that the respondent in this case does not reside within the jurisdiction within the meaning of Section 3 of the Divorce Act and I therefore dismiss this application for alimony. With regard to the petition itself I presume the petitioner will take such steps as she may be advised.
M.N/R.K
4. Application dismissed.
Alert