Jammu & Kashmir High Court
Sarita Thapper vs Balbir Thapper on 9 July, 1987
Equivalent citations: AIR1988J&K60, AIR 1988 JAMMU AND KASHMIR 60, 1988 (2) DMC 411, (1987) 6 REPORTS 449, 1987 KASH LJ 583, (1988) 1 DMC 498, (1988) 1 HINDULR 233
ORDER M.L. Bhat, J.
1. An issue regarding territorial jurisdiction to hear the petition under Section 13 of the Hindu Marriage Act brought by the respondent herein against the petitioner was decided by the District Judge against the petitioner herein and District Judge assumed the jurisdiction to try the petition. The burden of proving this issue was on the respondent, who is petitioner in the trial Court. He has not produced any evidence with regard to the issue burden whereof was on him. Petitioner, who is respondent before the trial Court has adduced evidence. After discussing the evidence the learned District Judge has been of the opinion that since there was an admission on the part of the petitioner herein that she along with the respondent remained in Jammu for ten days in the year 1974, therefore that would amount to their last residing together at Jammu, and the Court at.
Jammu had the jurisdiction. This finding was seriously contested by Mr. T. S. Thakur appearing for the petitioner herein. He has drawn my attention to Section 21 of the Hindu Marriage Act which reads as under : --
"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 solemnized, 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
(iv) the petitioner is residing at the time of the presentation of the petition, in a case whether 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."
2. Hindu Marriage Act applicable to the rest of the country has also a provision in Section 19 about the territorial jurisdiction of the Court. However, in this petition, we are concerned only with the findings of the learned District Judge as regards parties having last resided together at Jammu or not.
3. In the pleadings the respondent has tried to confer jurisdiction on the District Court at Jammu and he has pleaded vide para 10 of the plaint as under : --
"That the marriage was solemnized at the parental house of the respondent, but the petitioner and the respondent last resided and cohabited as husband and wife at Veer Marg, Jammu in a house located therein from 20th Sept., 1974 to 30th Sept., 1974, within the territorial limits of this Hon'ble Court when the respondent deserted the petitioner and subsequent thereto never came back to the fold of the petitioner, therefore this Hon'ble Court has jurisdiction to entertain the petition and grant the relief sought for by the petitioner."
4. From the reading of the aforesaid para it will be clear that respondent herein had invoked Section 21(iii) of the Hindu Marriage Act with a view to confer jurisdiction on the District Court. His positive case was that he had cohabited with his wife at Veer Marg in a house located therein from 20th Sept. to 30th Sept., 1974 within the territorial jurisdiction of District Court Jammu and from there petitioner is said to have deserted the respondent. Therefore this assertion was to be positively proved by the respondent herein and in the absence of proof on his part he will not be said to have proved the pleas raised in para 10 of his plaint. The issue framed by the District Judge is to be judged in the contest of the pleas raised in para 10 of the plaint. So the pleas raised in the para 10 are to be co-related to two important things. It must have correlation with the issue and it must have cor-relation with the evidence produced in support of the issue.
5. Mr. R. P. Bakshi wanted this Court to hold that District Court could hear the petition under Section 21(iv) of the Hindu Marriage Act. I am afraid that this contention cannot be entertained in this revision because that was not his case before the trial Court. In this revision I am called upon to examine the propriety and legality of the trial Court's order. I cannot extend the scope of para 10 of the plaint. The respondent herein has restricted his assertion to Section 21(iii) of the Hindu Marriage Act.
6. Mr. T. S. Thakur also wanted me to apply Section 19 of the Hindu Marriage Act as applicable to the rest of the country and interpret the word 'domicile' with a view to find out as to whether on the basis of that expression respondent can be held to be domicile of the State or of a territory outside the State. I do not also want to undertake that exercise because that will be going beyond the pleadings of the parties.
7. The short question that falls for determination is whether the parties can be said to have last resided at Jammu within the meaning of Section 21(iii) of the Hindu Marriage Act and if so, District Judge was right in assuming the jurisdiction.
8. Respondent has not adduced any evidence. He has only pleaded a fact which was vehemently denied by the other side. That would mean that the respondent had not discharged the burden which lay on him. The basis of the District Judge's finding is the statement of the petitioner herein. It is true that the petitioner has admitted that in connection with some marriage ceremony she and respondent had visited Jammu and stayed in the house of some relation for a short period. Whether that would constitute that the parties had last resided at Jammu. It was not denied by the petitioner herein that they had visited Jammu in connection with some marriage ceremony and they had stayed in the house of some relation.
9. In Smt. Jeewanti Pandey v. Kishan Chandra Pandey, AIR 1982 SC 3, Supreme Court had the occasion to consider the meaning of expression 'residence' for the purposes of Hindu Marriage Act. It was said by the Court as under :
"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. 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 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 to live in hotels, boarding houses or houses of others, his actual and physical habitation is the place where he actually or personally resides."
10. Having regard to the law laid down by the Supreme Court it is to be held that the petitioner and respondent did not last reside together at Jammu. If they had come to attend some marriage ceremony and stayed in the house as guests, that would not be construed to mean that they have last resided at Jammu, Therefore the finding of the District Judge on the basis of the evidence of the petitioner herein that parties last resided at Jammu does not seem to be correct. The District Judge has not been correct in interpreting the statement of the petitioner. The entire statement should have been interpreted, then conclusions drawn. However, a temporary residence for ten days cannot be said to be sufficient to infer that the parties have last resided together at Jammu.
11. The other defect which I have marked in the judgment of the trial Court is that it has not said anything as to why the respondent herein did not adduce any evidence to show that the parties in fact had last resided together at Jammu. Respondent had raised the plea which was denied by the other side. Therefore, it was imperative for him to come to the witness box as his own witness and explain Para 10 of the plaint which was not admitted. If a plea was raised and it was denied, that cannot be said to be proved on the basis of the evidence of the other side which does not at all help the respondent. The findings of the trial Court therefore are not correct as they run counter to the observations made by the Supreme Court in AIR 1982 SC 3 (supra). Therefore the District Judge's findings are to be set aside and it is to be held that respondent has not discharged the burden with regard to the jurisdiction of the District Court, Jammu to entertain the petition and the parties have not last resided together at Jammu within the meaning of Section 21(iii) of the Hindu Marriage Act.
12. The revision petition is accordingly allowed and the findings of the trial Court are set aside. The petition shall be returned to the respondent as the trial Court has no jurisdiction to entertain it.