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PETITIONER: JEEWANTI PANDEY

       Vs.

RESPONDENT: KISHAN CHANDRA PANDEY

DATE OF JUDGMENT20/10/1981

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) VARADARAJAN, A. (J)

CITATION:  1982 AIR    3            1982 SCR  (1)1003  1981 SCC  (4) 517        1981 SCALE  (3)1641

ACT:      Family  Law-Jurisdiction   of  the  District  Court  to entertain a  petition for  mullity of marriage under section 12 of the Hindu Marriage Act, 1955,      Words and  Phrases-Meaning  of  the  word  "residence"- Section 19(ii) of the Hindu Marriage Act, 1955 clarified.

HEADNOTE:      The appellant  is the  wife, and  the respondent is the husband. The  parties originally belonged to village Bagyan, District Pithoragrh in the State of Uttar Pradesh. They fell in love and the appellant became encients, as the respondent had access  to her  during the  period of  courtship. As her father was  opposed  to  her  marriage,  the  appellant  was brought in a advance stage of pregnancy to Delhi and through the intervention  of her  uncle Basant  Kumar their marriage was solemnised according to Arya Samaj rites at New Delhi. A few  days  after  the  marriage,  the  respondent  left  the residence of  Basant Kumar  on the  pretext of  fetching his belongings from the residence of his uncle who also lives at Delhi  and  never  returned.  He  served  a  notice  on  the appellant alleging  that the  marriage was  a nullity as she got  pregnant  through  someone  else  and  that  fraud  was practised on  him by  her uncle  and that  he had coerced to marry against  his will.  The appellant  after  denying  the allegations filed  a petition  for restitution  of  conjugal rights  under   section  9  of  the  Act  in  the  Court  of Subordinate Judge,  Class-l, Delhi  which was decreed in her favour and  the said  decree had become final. Later on, the respondent filed  a petition  under section 12 of the Act in the Court  of the  District Judge, Almora, alleging that the parties were  residents of  village Bagyan  while in fact at all material  times both resided at Delhi. A few days after, the appellant  delivered a dead child at Delhi. Later on, by her written statement she challenged the jurisdiction of the District Judge,  Almora to  try the suit. The district Judge answered  the  preliminary  issue  as  to  the  jurisdiction against the  appellant. The  High Court,  in appeal,  by its judgment affirmed  the order.  Hence this  appeal by special leave.      Allowing the appeal, the Court ^

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    HELD; 1:1. In the context of clause (ii) of the section 19 of  the Hindu Marriage Act, 1955, the word "resides" must mean actual  residence  and  not  a  legal  or  constructive residence; it  certainly  does  not  connote  the  place  of origin. In  order to  give jurisdiction  on  the  ground  of "residence’, something  more than  a mere  temporary stay is required. It must be more or less of a permanent 1004 character, and  of such a nature that the court in which the respondent is  sued, is  his natural  forum. In  the instant case, at  the  commencement  of  the  proceedings  both  the parties admittedly  resided at  Delhi  and,  therefore,  the District  Judge,   Almora  did   not  have  jurisdiction  to entertain the suit. [1008 F-H, 1009A]      1:2 The word "residence" is a flexible one and has many shades of  meaning but  it must  take its colour and content from the  context in  which it appears and cannot be read in isolation. It is capable of being understood in its ordinary sense of  having one’s  own dwelling permanently, as well as in its  extended sense. In its ordinary sense "residence" is more or  less of  ca  permanent  character.  The  expression "resides" means to make an abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time. It is the place where a person has a fixed home or  abode. Where there is such fixed home or such abode at one  place the  person cannot  be said  to reside  at any other place  where he  had gone  on a  casual  or  temporary visit, for  example, for health or business or for a change. If  a  person  lives  with  his  wife  and  children  in  an established home, his legal and actual place of residence is the same.  If a  person  has  no  established  home  and  is compelled ta  live in  hotels, boarding  houses or houses of others, his  actual and  physical habitation  is  the  place where he actually or personally resides. [1008 B-C, E-F]      [The Court  allowed the  appeal and  directed that  the petition for  nullity of  marriage filed  by the  respondent under s. 12 of the Hindu Marriage Act, 1955, be returned for presentation to  the proper  court, i.e.,  the court  of the District Judge, Delhi.]

JUDGMENT:      CIVIL. APPELLATE JURISDICTION: Civil Appeal No. 2754 of 1981.      Appeal by  special leave  from the  judgment and  order dated the  6th August,  1979 of  the Allahabad High Court in Civil Revision No. 1904 of 1978.      M. K Garg for the Appellant.      K K Mahrotra for the Respondent.      The Judgment of the Court was delivered by      SEN, J.  The short  point involved  in this  appeal  by special leave  from a  judgment of the Allahabad High Court, is whether  the Court  of the  District  Judge,  Almora  had jurisdiction  to  entertain  the  petition  for  nullity  of marriage filed  by the  respondent under  s. 12 of the Hindu Marriage Act, 1955 (hereinafter referred to as ’the Act’).      To bring  out the point, it is necessary to state a few facts. It  appears that  the parties  originally belonged to village Bagyan, 1005 District Pithoragarh,  in the  State of  Uttar Pradesh.  The appellant’s A  case is that they fell in love and she became enceinte, as  the respondent  had access  to her  during the period of  courtship. Her  case is  that she wanted to marry

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the respondent,  but her  father was opposed to the alliance as her  elder brother  and sister  were unmarried.  She  was therefore brought in an advanced stage of pregnancy to Delhi and through  the intervention of her uncle Basant Kumar, the marriage was  solemnised on  January 24,  1976 according  to Arya Samaj rites at the Arya Samaj Mandir, Hanuman Road, New Delhi. Three  days after  the marriage,  i.e. On January 27, 1976, the  respondent left  the residence of Basant Kumar on the pretext  that he  had to  fetch his  belongings from the residence of  his uncle  Dharm Nand  Pant who  also lives at Delhi, and  never returned. On February 6, 1976, he served a notice on  the appellant  alleging that  the marriage  was a nullity as she got pregnant through someone else, that fraud was practised  on him  by her uncle Basant Kumar and that he had been  coerced to marry her against his will. On February 17, 1976  she sent  a reply  denying  the  allegations  made therein.  On   March  2,  1976  she  filed  a  petition  for restitution of  conjugal rights under s. 9 of the Act in the Court of Subordinate Judge, Class I, Delhi.      It may  here be stated that although the appellant is a resident of  Delhi as  she lives with her uncle Basant Kumar at Lajwanti  Garden, and  the respondent was also a resident of Delhi  being employed,  at all  material times, as Radio- Technician in the Ministry of Home Affairs, Rail Bhavan, New Delhi, he  started the  present proceedings not at Delhi but at Almora.      On March  18, 1976  the respondent filed a petition for nullity of  marriage under  s. 12 of the Act in the Court of the District  Judge, Almora  alleging that  the parties were residents of  village  Bagyan,  District  Pithoragarh,  i.e. within the territorial jurisdiction of the Court of District Judge, Almora.  On March  23, 1976 i.e. just after five days of the  filing of  the petition  under s.  12 of the Act the appellant delivered a dead child at Delhi.      On February  25, 1977  the Subordinate  Judge, Class 1, Delhi  decreed  the  appellant’s  suit  for  restitution  of conjugal rights under s 9 of the Act. In decreeing her claim for restitution  of conjugal rights, the learned Subordinate Judge observed:           "That  to   sum  up,   the  evidence   adduced  by      petitioner proves  that the  petitioner and  respondent      were known to 1006      each other  and had  developed sexual  intimacy. It  is      further  proved   that  the   respondent  married   the      petitioner at  Delhi on 24.1.1976 of his own sweet free      will according to Hindu rites. The petitioner delivered      a dead  child on  23.3.1976 would show that on the date      of marriage, the petitioner was running in 7th month of      pregnancy. Such  advanced stage  of pregnancy could not      be hidden  from the  vision of  any person. The plea of      respondent that  he did  not know on 24.1.1976 that the      petitioner  was   pregnant  cannot   be  believed.  The      respondent thus  knew at  the time of marriage that the      petitioner was  pregnant. The very fact that he married      her of  his own  free will would justify the conclusion      corroborated  by   other  evidence   and  circumstances      discussed above  that the petitioner had conceived from      the respondent  and the  respondent thus married her of      his own free will." The judgment  of the learned Subordinate Judge decreeing the appellant’s claim  for restitution  of conjugal rights under s. 9  of the  Act was  not appealed from and has, therefore, become final.      Upon these facts, it is quite evident that the Court of

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the District  Judge, Almora  had no  jurisdiction to try the petition for the nullity of marriage filed by the respondent under s.  12 of  the  Act.  The  appellant  by  her  written statement  filed   on  August   23,  1976   challenged   the jurisdiction of  the District Judge, Almora to try the suit. The learned District Judge, accordingly framed a preliminary issue as  to jurisdiction.  By his order dated April 8, 1978 he negatived  the objection  raised by the appellant holding that since  the parties  were originally resident of village Bagyan, District  Pithoragarh, that  is, a  place within the territorial jurisdiction of the Court of the District Judge, Almora, he I was competent to entertain and try the suit.      The appellant  being aggrieved  by  the  order  of  the learned District  Judge preferred  an appeal before the High Court. The  High Court  by its judgment dated August 6, 1979 upheld the finding of the learned District Judge observing:           "The allegations  made in the written statement do      unmistakably show  that the  respondent was  ordinarily      residing at  village Bagyan which was within the limits      of the terri- 1007      torial jurisdiction  of the  Court or  District  Judge,      Almora. A  Even if  she happened  to be in Delhi on the      date when  the petition  was presented,  she must  have      gone to  Delhi only  on a temporary visit as she had no      place of  residence at  Delhi and  the respondent could      not be  said to  have been  residing at  Delhi when the      petition was presented in the District Court."      In arriving  at that  conclusion, the  High  Court  was obviously influenced  by the fact that the parties never had any permanent  residence. While  it is true that mere casual or temporary visits do not constitute ’residence’ within the meaning of  cl. (ii)  of s. 19 of the Act, it cannot be said that the  parties came to Delhi on a temporary sojourn for a day or  two. The  appellant’s case  is that she had left her parental home  at village  Bagyan  as  her  father  did  not consent to  the marriage.  If that  be so,  the irresistible conclusion is that she came to reside with the respondent at Delhi. It was frankly conceded before us that the finding of the High  Court that she should be so regarded as having her residence  at   village  Bagyan   in  1)   the  District  of Pithoragarh is  based on  no evidence.  It is  agreed on all hands that  ever since  the marriage, the appellant has been residing with her uncle Basant Kumar at Lajwanti Garden. New Delhi.      Section 19  of the  Act, insofar  as material, reads as follows:           "19.  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..."      It is common ground that the marriage was solemnised on January 26,  1976 at  New Delhi.  The fact  that the parties last resided  together at  the residence  of the appellant’s uncle Basant  kumar at  Lajwanti Garden, New Delhi is not in dispute. It  is, therefore,  clear that  the conditions laid down in  cls. (i)  and (iii)  of s.  19 of  the Act  are not present to invest the Court of the District Judge, Almora to entertain the  petition for  annulment of  marriage filed by the respondent under s, 12 of Act, 1008

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    The  question   that  arises  is  whether  the  learned District Judge  was invested  with jurisdiction by reason of cl. (ii)  of s.  19 of the Act, i.e. whether, at the time of presentation of  the petition,  the appellant was a resident of village Bagyan within the territorial jurisdiction of the Court of District Judge.      In  order   to  give  jurisdiction  on  the  ground  of ’residence’,  something   more  than  a  temporary  stay  is required. It  must be more or less of a permanent character, and of  such a nature that the court in which the respondent is sued,  is his  natural forum.  The word ’reside’ is by no means free from all ambiguity and is capable of a variety of meanings according  to the circumstances to which it is made applicable and  the context  in which  it is  found.  It  is capable of  being understood in its ordinary sense of having one’s own  dwelling permanently,  as well as in its extended sense. In  its ordinary sense ’residence’ is more or less of a permanent  character. The  expression ’resides’  means  to make an  abode for a considerable time; to dwell permanently or for a length of time; to have a settled abode for a time. It is the place where a person has a fixed home or abode. In Webster’s  Dictionary,  ’to  reside’  has  been  defined  as meaning ’to  dwell permanently  or for  any length at time’, and words  like ’dwelling  place’ or  ’abode’ are held to be synonymous. Where  there is such fixed home or such abode at one place  the person  cannot be said to reside at any other place where he had gone on a casual or temporary visit, e.g. for health  or business  or for  a change. If a person lives with his  life and  children, in  an established  home,  his legal and actual place of residence is the same. If a person has no  established home and is compelled to live in hotels, boarding houses or houses or others, his actual and physical habitation is  the place  where he  actually  or  personally resides.      It is  plain in the context of cl. (ii) of s. 19 of the Act, that  the word  ’resides’ must mean the actual place of residence and  not a  legal or  constructive  residence;  it certainly does  not connote  the place  of origin.  The word ’resides’ is  a flexible one and has many shades of meaning, but it  must take its colour and content from the context in which it appears and cannot be read in isolation. It follows that it  was the  actual residence  of the appellant, at the commencement of  the proceedings,  that had to be considered for determining  whether the  District  Judge,  Almora,  had jurisdiction or  not. That  being so,  the  High  Court  was clearly in  error in  uphold in  the finding  of the learned District Judge that he had jurisdiction 1009 to entertain  and try the petition for annulment of marriage filed by the respondent under s. 12 of the Act.      In the  result, the  judgment of  the High Court is set aside and  the District Judge, Almora, is directed to return to the  respondent the  petition filed by him for nullity of marriage under  s. 12  of the  Hindu Marriage  Act, 1955 for presentation to  the proper  court, i.e.  the Court  of  the District Judge, Delhi. There shall be Do order as to costs. S.R.                                  Appeal allowed. 1010