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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').

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.

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 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-

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."