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2001 DIGILAW 667 (KER)

Sunny Rebeiro v. Querobin Rebeiro

2001-11-20

R.RAJENDRA BABU

body2001
JUDGMENT R. Rajedra Badu, J. 1. Sunny Rebeiro (petitioner) filed this petition under S.18 and 19 of the Indian Divorce Act for declaring the marriage with his wife, the respondent, as null and void. 2. The allegations in the petition briefly are the following: The marriage between the petitioner and the respondent was held on 12th August 1979 at the St. Antony's Church, Santacruz, Bombay, as per the Christian religious rites. After the marriage the petitioner and the respondent resided at Bombay and a child was born cut of that wedlock on 4th July 1980. On 31st July 1980 the petitioner left for Gulf taking job abroad leaving the petitioner and the child at Bombay and thereafter he used to come on leave once in two years. In 1996 he returned to India and shifted their residence to Nazareth, Cochin, his place of birth, and they settled there. Soon the respondent started demanding to go back to Bombay and in 1997 the respondent left the petitioner and went to Bombay. Thereafter the petitioner and the respondent were living separately and all bis attempts to bring back the respondent to Cochin were in vain. The petitioner thereafter started enquiries about the reasons why the respondent had gone back to Bombay and it revealed that the respondent had given birth to a son before the marriage and the above fact was not disclosed to the petitioner. Had the respondent disclosed the above fact prior to the marriage, he ought not have consented for the marriage and the above fact came to his knowledge only during July, 2000. As the petitioner and the respondent lived together lastly at Cochin, this Court has jurisdiction to entertain this petition and thus the petitioner has prayed for declaring the marriage as null and void. 3. The respondent filed a counter admitting the marriage between them on 12th August 1979. She admitted that after the marriage they resided at Bombay and a child was born out of that wedlock. She contended that she had disclosed the fact to the respondent even prior to the marriage that she had a son and the petitioner was fully aware of the same and the petitioner made a casual remark that "to err is human" when it was disclosed to him and he consented for the marriage fully knowing the same. She contended that she had disclosed the fact to the respondent even prior to the marriage that she had a son and the petitioner was fully aware of the same and the petitioner made a casual remark that "to err is human" when it was disclosed to him and he consented for the marriage fully knowing the same. It was further contended that they last resided together at Bombay and as such this court has no jurisdiction to entertain this petition and hence the petitioner is not entitled to any reliefs and the petition is liable to be dismissed. 4. The petitioner was examined as P.W. 1 and Ext. A-l was marked. The learned Counsel for the petitioner and the respondent were heard. 5. The petitioner husband filed this petition for declaring the marriage between himself and the respondent as null and void on the ground that his consent for the marriage was obtained by fraud as the respondent did not disclose that she had a son born to her prior to the marriage with the petitioner. The evidence let in by P.W. 1 would disclose the following facts: The petitioner was a native of Cochin and the respondent a native of Goa and both were residing at Bombay during 1.979. Both of them belonged to the Anglo Indian Community. P.W. 1 admitted that the marriage between himself and the respondent was a love marriage and not an arranged one and they were acquainted for a period of nearly more than 5-8 months before the marriage. P.W. 1 admitted that his date of birth was 7th June 1951 and as such at the time of giving the evidence on 21st August 2001 he was aged 50. The counter affidavit filed by the respondent would disclose that her age also was 50 at the time of filling the counter. Admittedly the marriage was on 12th August 1979 and at the time of the marriage both parties were aged 29. In the ordinary course, the petitioner should have been aware as to why the respondent did not marry till the age of 29. Being a love marriage, there was every occasion for each of them to discuss about their past and future during the period of 5-8 months while they were carrying the love affair. In the ordinary course, the petitioner should have been aware as to why the respondent did not marry till the age of 29. Being a love marriage, there was every occasion for each of them to discuss about their past and future during the period of 5-8 months while they were carrying the love affair. The respondent had a definite case that she had mentioned about her child born prior to the marriage and he consented for the marriage fully knowing that she had a son prior to the above marriage. It was not an arranged marriage and as such there was no chance of the petitioner being deceived as he voluntarily consented for the marriage out of his love affair with the respondent. The evidence of P. W. 1 was that in July 2000 he had gone to Bombay for arranging a visa to go abroad again and at that time he went to the house of the respondent, then only he saw the son of the respondent born to her earlier to their marriage for the first time and he was about 8 years older to their son. P.W. 1 stated that he resided in that house for two days and when he was returning, he invited the respondent and their son to Cochin. The above version of P.W. 1 that even after seeing the elder son of the respondent, he invited his wife and their son to say with him at Cochin again would clearly indicate that he was fully aware of the earlier son born to the respondent prior to the marriage and he was prepared to accept her fully knowing the same. The available evidence and circumstances would clearly indicate that he married the respondent fully knowing that the wife had a son even prior to their marriage and as such I do not think that his consent was obtained by any fraud or by deceiving him. 6. The learned counsel for the respondent submitted that even if the respondent did not disclose that she was having a son born to her prior to the marriage, it did not amount to a misrepresentation of facts or the consent being obtained by fraud, as it was not an arranged marriage, but it was a love marriage. 6. The learned counsel for the respondent submitted that even if the respondent did not disclose that she was having a son born to her prior to the marriage, it did not amount to a misrepresentation of facts or the consent being obtained by fraud, as it was not an arranged marriage, but it was a love marriage. Obtaining consent from the bridegroom on misrepresentation or false representation regarding the moral character or virginity of the bride cannot be treated as fraud within the meaning of S.19 of the Indian Divorce Act David @ Ealasaheb v. Kalpana @ Mai 1974 Bombay L.R. 35'. Taking into consideration the peculiar nature and circumstances of the above case, even if the respondent had not disclosed the same, it cannot be held that she had deceived the petitioner and his consent for the marriage was obtained by deception or fraud. 7. The main argument advanced by the learned counsel for the respondent was that this court had no jurisdiction to entertain this petition as the parties last resided together at Bombay. Admittedly, the petitioner was staying in Cochin from 1.996 onwards and from 1997 onwards, the respondent and the son were staying at Bombay. In Para.7 of the petition it was stated "finally in the year 1997 the respondent left the petitioner and went to Bombay. Since then the petitioner and the respondent are living separately". The evidence of P.W. 1 would reveal that during July 2000 he went to the residence of the respondent at Bombay, stayed there for two days and when he was returning he invited the respondent and their son to come to Cochin and stay with him. The learned counsel for the respondent submitted that as the petitioner stayed with the respondent lastly at Bombay, this court has no jurisdiction to entertain this petition and the Bombay High Court alone has jurisdiction for entertaining this petition. A Full Bench of this Court in Ponnan v. Rathi Varghese 1996 KLT 454 had considered as to what constitute 'reside or last resided together" to come within the meaning of clause (3) of S.3 of the Indian Divorce Act. A Full Bench of this Court in Ponnan v. Rathi Varghese 1996 KLT 454 had considered as to what constitute 'reside or last resided together" to come within the meaning of clause (3) of S.3 of the Indian Divorce Act. There it was held: "The main factors to be considered in deciding the question where the parties 'last resided together' are (1) to constitute 'residence', it is not necessary that the party or parties must have his or their own house; (2) to constitute 'residence' the stay need not be permanent; it can also be temporary, so long as there is animus manendi or an intention to stay For an indefinite period; (3) 'residence' will not take in a casual stay in, or a flying visit to a particular place; a mere casual residence in a place for a temporary purpose, with no intention of remaining, is not covered by the word 'reside'; (4) 'residence' connotes something mere than stay; it implies some intention to remain at a place, and not merely to pay it a casual visit; (5) by staying in a particular place, in order to constitute 'residence', the intention must be to make it his or their abode or residence, either permanent or temporary; (6) the expression 'last resided' also means the place where the person had his last abode or residence, permanent or temporary; (7) where there has been residence together of a more permanent character, and a casual or brief residence together it is only the former that can be considered as 'residence together' for determining the jurisdiction; (8) the question as to whether a particular person has chosen to make a particular place his abode, is to be gathered from the particular circumstances of each case." An identical question had been considered by the Madhya Pradesh High Court in Paster J. S. Singh v. Jyotsana Singh AIR 1982 M.P. 122 . That was a case where the husband was living in Jabalpur and the wife was residing in another place and the wife used to meet the husband and reside with him at Jabalpur. There the Full Bench of the High Court of Madhya Pradesh held that the Jabalpur Court had jurisdiction where they last resided together. That was a case where the husband was living in Jabalpur and the wife was residing in another place and the wife used to meet the husband and reside with him at Jabalpur. There the Full Bench of the High Court of Madhya Pradesh held that the Jabalpur Court had jurisdiction where they last resided together. The evidence let in by P.W. 1 would clearly reveal that they were staying at Bombay even at the time of marriage, stayed together at Bombay, the child was born at Bombay and the wife and child continued their residence at Bombay while he had gone abroad seeking employment. In 1996 he returned and constructed a house at Cochin and they stayed for a short while and she returned to Bombay with the son and continued her residence at Bombay. Later in July 2000 the petitioner went to Bombay and resided there with the wife and son for two days and while he was returning he invited her and the son to come and stay with him at Cochin. The residence with the respondent at Bombay was not a casual stay during his visit to Bombay. The evidence and circumstances would indicate that the petitioner had gone there not on a casual visit, but had gone there with the intention to stay with his wife and son who were residing there permanently and as such his residence at Bombay was their last residence together and as such the Bombay courts alone had jurisdiction. Hence this court had no jurisdiction to entertain this petition and on that ground also the petitioner is not entitled to any reliefs and this petition has only to be dismissed. In the result this petition is dismissed. The respondent is entitled to her costs.