Orissa High Court
Smt Priyadarshani Mohapatra vs Sri Lalmohan Mohapatra on 21 September, 2017
Equivalent citations: AIR 2018 ORISSA 31, (2018) 2 CIVILCOURTC 280, (2017) 2 ORISSA LR 983, (2019) 1 HINDULR 551, (2018) 1 DMC 118
Author: K.R. Mohapatra
Bench: I. Mahanty, K.R. Mohapatra
ORISSA HIGH COURT: CUTTACK.
MATA No. 7 of 2017
From the judgment and order dated 17.11.2016 passed by learned
Judge, Family Court, Bhubaneswar, in C.P. No.726 of 2015 under
Section 19 of the Family Court Act, 1984.
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Smt. Priyadarshani Mohapatra ...... Appellant
-Versus-
Sri Lalmohan Mohapatra ...... Respondent
For Appellant : M/s. L. Samantaray, R.L. Pradhan
G. Das & J. Samantaray
For Respondent : M/s. K.K. Mishra & G. Agarwal
PRESENT:
THE HONOURABLE SHRI JUSTICE I. MAHANTY
AND
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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Date of Judgment: 21.09.2017
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K.R. MOHAPATRA, J.This is an Appeal under Section 19 of the Family Courts Act, 1984 (for short, 'Act 1984') filed by Smt. Priyadarshani Mohapatra (for short 'the wife') assailing ex parte judgment dated 17.11.2017 passed by learned Judge, Family Court, Bhubaneswar in C.P. No.726 of 2015 filed by Sri Lalmohan Mohapatra (for short, 'the husband') under Section 13 of the Hindu Marriage Act, 1955 (for short, 'the Act, 1955'). 2
2. The husband filed a petition under Section 13 of the Act, 1955 (C.P. No.726 of 2015) before the learned Judge, Family Court, Bhubaneswar contending inter alia that the marriage between the parties to the said petition was solemnized on 06.07.2014 as per Hindu rites and custom. As there was age difference of 12 years between the couple, the wife did not cooperate with the husband to lead a conjugal life. To bring a change in the mind of the wife, the husband on 23.08.2014 took a house on rent at Manipallem in Visakhapatnam, where the husband was posted and took his wife with hope to lead a happy conjugal life. However, on 28.09.2014, when the husband returned from work at about 7.00 PM, he found that the door of his residence was locked. Subsequently, he ascertained from his house owner that his wife had left the house with her mother. On being contacted over phone, she expressed her unwillingness to join the company of her husband. However, an attempt was made by the relations of the husband to conciliate the matter and persuade the wife to lead a happy conjugal life with the husband. Accordingly, on the request of their relatives, the husband came to the house of one of his relations (cousin sister) at Bhubaneswar and the wife joined him on 03.05.2015. But on 05.05.2015, she quarreled with her husband and left for her parental home. Subsequent discussions and persuasion of the family members to persuade the wife to lead happy conjugal life having failed, the husband filed proceeding as aforesaid for dissolving the marriage by a decree of divorce.
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3. Registered notices were sent in the address of his wife returned back being undelivered. Hence, the husband filed a petition under Order 5 Rule 20 CPC to take out substituted notice by publication in newspaper. By order of the Family Court, substituted notice was published in Odia Daily "The Samaj" on 16.04.2016 and learned Judge, Family Court proceeded with the matter ex parte and the impugned judgment and order was passed dissolving the marriage between the parties by a decree of divorce. Assailing the same, the present appeal has been filed.
4. Heard learned counsel for the parties and perused the record. On consent of learned counsel for the parties, the matter was taken up for final disposal.
Learned counsel for the appellant (wife) submitted that the learned Judge, Family Court, Bhubaneswar had no territorial jurisdiction to entertain and adjudicate the proceeding under Section 13 of the Act, 1955 filed by the respondent (husband). The couple had last resided together at Manipallem, Visakhapatnam, where the respondent (husband) was posted. Even for the sake of argument, it is assumed that the wife had joined the husband at Bhubaneswar in latter's relation's house at Jagamara, Bhubaneswar, it cannot be said that they had last resided together at Bhubaneswar. He further contended that the husband has played fraud on learned Judge, Family Court by suppressing the service of notice. The substituted notice was published in Bhubaneswar edition of 4 the Odia daily "The Samaj" on 16.04.2016, which has no circulation either at Visakhapatnam or at Parlakhemundi, where the wife has been residing. Hence, he prayed for setting aside the impugned ex parte judgment and decree holding it to be without jurisdiction.
5. Learned counsel for the respondent (husband), on the other hand, refuting the submissions of learned counsel for the appellant (wife), submitted that both the parties had last resided together at Jagamara, Bhubaneswar. Thus, the Court at Bhubaneswar had territorial jurisdiction to entertain the proceeding under Section 13(1) of the Act, 1955 filed by the respondent (husband). He further submitted that registered notice sent in the address of the respondent having been returned undelivered, the husband had filed a petition under Order 5 Rule 20 CPC on 30.03.2016 to take out substituted notice by publishing the same in the local newspaper having wide circulation. The notice was published in local Odia Daily 'The Samaj' on 16.04.2016. In support of sufficiency of service of notice, the husband had also filed a petition along with affidavit on 18.05.2016 to treat the service of notice on wife to be sufficient. Learned Judge, Family Court, taking into consideration the affidavit filed vide his order dated 18.05.2016, held the service of notice on wife to be sufficient, set the wife ex parte and proceeded with the matter. The wife having sufficient knowledge of the proceeding, preferred not to contest the same and no application was filed before the learned Judge, 5 Family Court to set aside the ex parte decree. As such, the appeal under Section 19 is not maintainable and the same is liable to be dismissed.
6. Section 19 of the Hindu Marriage Act, 1955 provides the Court to which the petition under the Act should be presented. It reads as follows:-
"19. Court to which petition shall be presented.-- 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, or (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive."
(emphasis supplied)
7. The husband in para-29 of his petition under Section 13(1) of the Act, 1955, pleaded that the couple had last resided together at Bhubaneswar and thus, the Family Court at Bhubaneswar had territorial jurisdiction to entertain the proceeding. Paragraph-29 of the petition reads as follows:-
"29. That, on 3.5.2015 both the parties being invited by Julismita Pattnaik cousin sister of the petitioner they came & stayed at their house at B-86, Krishna garden, phase-ii, Jagamara, Khandagiri, Bhubaneswar & on 5.5.2015 the respondent left the house without 6 consent of the petitioner. Hence both the parties last resided in the house of their relation which comes under the Jurisdiction of the Hon'ble Court."
(emphasis supplied) The phrase 'last resided together' should not be liberally construed. It has to be read in a manner to give it a meaningful interpretation. It has to be read in the contest of the facts and circumstances of each case. It can by no stretch of imagination be treated to be a temporary place of stay. The term 'residence' should be given a purposeful interpretation to mean something more than a 'temporary stay'. It cannot certainly be a place of outing, a pleasure trip, visit for health check up or business or temporary stay for a change.
Hon'ble Supreme Court in the case of Jeewanti Pandey Vs. Kishan Chandra Pandey, reported in (1981) 4 SCC 517 has interpreted the word 'residence' as provided under Section 19 of the Act, 1955. Paragraphs-12 and 13 of the said judgment is relevant for our consideration, which is quoted hereunder:
"12. 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 7 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.
13. 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 to entertain and try the petition for annulment of marriage filed by the respondent under s.12 of the Act."
On perusal of the above case law, it can be safely said that the 'residence' in its ordinary meaning is something, more or less, of a permanent character and it is something more than a temporary stay. Thus, a place where the couple had casual or temporary visit, including the place where the couple had resided either for a health check up or business or for a change, cannot be treated to be a place of residence and it cannot be said that the couple had 'last resided together' at that place 8 within the meaning of Section 19 of the Act, 1955. Thus, the Court having territorial jurisdiction over such places cannot be treated to be a competent Court of law for the purpose of a proceeding under the provisions of the Act, 1955.
8. So far as second contention of the appellant with regard to sufficiency of the notice, it appears from the order sheet of the learned Judge, Family Court that pursuant to order dated 24.11.2015, notices were directed to be issued on the wife and the case was posted to 27.01.2016 for appearance of the wife. On 27.01.2016, both the parties were absent. The case was then posted to 30.03.2016 for appearance of the wife (respondent in the Court below). Surprisingly on 30.03.2016 without recording any finding with regard to sufficiency of notice on the wife, learned Judge, Family Court entertained an application under Order 5 Rule 20 CPC filed by the husband and allowed the same. Before proceeding to issue a direction to publish the notice under Order 5 Rule 20 C.P.C., the Court has to record a finding that he has reason to believe that the respondent (before the Court below) is keeping out of the way for the purpose of avoiding service of notice or that for any other reason, the summons cannot be served in ordinary way. In absence of such a finding, the Court could not have resorted to the provisions of Order 5 Rule 20 C.P.C. However, substituted notice was published in the Odia daily 'The Samaj' on 16.04.2016. A copy of the said newspaper along with the money receipt has been enclosed to the case record of the learned Family Court. 9 It reveals that, Rs.5,120/- was paid by the husband at the Cuttack Office of 'The Samaj'. Further, copy of the paper publication reveals that the notice was published in the Bhubaneswar edition of the said newspaper. There is no evidence on record to come to a conclusion that the Bhubaneswar edition of 'The Samaj' had any circulation in the locality where the appellant (the wife) voluntarily resides. The purpose of publication of substituted notice is to bring to the notice of the respondent about the pendency of the proceeding against her. Thus, it should have been published in a newspaper having wide circulation in the locality, where the appellant-wife (respondent in the Court below) voluntarily resides, as per the requirement of Order 5 Rule 20 (1-A) C.P.C. Learned Judge, Family Court, without considering the same, most mechanically held the service of notice on the wife to be sufficient, only basing upon the petition supported by affidavit filed by the husband, which is patently illegal and de hors the law.
9. Taking into consideration the discussions made above, we have no hesitation to hold that the learned Judge, Family Court, Bhubaneswar lacks the necessary territorial jurisdiction to entertain the proceeding in CP No.726 of 2015 and that service of notice on the appellant-wife was not sufficient. Accordingly, the impugned judgment and order being without jurisdiction is hereby set aside. Parties are at liberty to take recourse of law for redressal of their grievances. 10
10. The Matrimonial Appeal is allowed, but in the circumstances there shall be no order as to costs.
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K.R. Mohapatra, J.
I. Mahanty, J. I agree.
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I. Mahantry,J.
Orissa High Court, Cuttack,
Dated the 21ST September/ss/bct