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2010 DIGILAW 804 (CAL)

Ivy Sarkar (Majumdar) v. Sandip Majumdar

2010-07-14

JYOTIRMAY BHATTACHARYA

body2010
Judgment : The opposite party (husband) filed a suit for divorce against his wife on the ground of cruelty and desertion in the Court of the learned District Judge at Howrah. The said suit was initially transferred to the court of the Learned Fifth Additional District Judge at Howrah and thereafter the same was again transferred to the court of the learned Third Additional District Judge at Howrah. The said suit which was registered as Matrimonial Suit No. 280 of 2007 is now pending for disposal before the court of the learned Third Additional District Judge at Howrah. The defendant (wife) is contesting the said suit by filing written statement denying the allegations made out by the plaintiff in the plaint. In fact, the maintainability of the said suit was challenged on the ground of lack of territorial jurisdiction of the Court to entertain and/or to try the said suit at Howrah. Even the defendant/petitioner (wife) also filed an application challenging the maintainability of the said suit on the ground of lack of territorial jurisdiction of the said Court either to entertain the said suit or even to try the same in the said Court. It is contended therein that the marriage between the parties was solemnized at Konnagar beyond the territorial jurisdiction of the Court of the learned District Judge at Howrah. It was further contended therein that the petitioner (wife) is also residing at Konnagar beyond the territorial jurisdiction of the said Court. It was further stated therein that even the parties last resided together in their matrimonial home at Konnagar. The petitioner, thus, contended that since neither the marriage was solemnized within the jurisdiction of the Court of learned District Judge at Howrah nor the respondent resided within the jurisdiction of the said Court nor the parties last resided together within the jurisdiction of the said Court, the said suit ought not to have been entertained by the learned District Judge at Howrah. According to the petitioner the Court of the learned District Judge at Chisurah, Hooghly has the territorial jurisdiction to entertain the said suit as not only the marriage between the parties was solemnized within the jurisdiction of the said Court but also the parties last resided together within the jurisdiction of the said Court. According to the petitioner the Court of the learned District Judge at Chisurah, Hooghly has the territorial jurisdiction to entertain the said suit as not only the marriage between the parties was solemnized within the jurisdiction of the said Court but also the parties last resided together within the jurisdiction of the said Court. The petitioner’s said application was rejected by the learned Trial Judge by holding inter alia that the said court has jurisdiction to entertain the said suit as the parties last resided together as husband and wife at premises No. 14 Sri Arabinda Road, Salkia, P.S. Mali Panchghara, Howrah, on 23rd October, 2004. The petitioner is aggrieved by the said order being No. 31 dated 16th April, 2010 passed by the learned Third Additional District Judge at Howrah in matrimonial suit No. 280 of 2007. Hence the petitioner has come before this Court with this application under Article 227 of the Constitution of India. Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case. Heard the learned Advocates of the parties consider the materials on record including the impugned order. Let me, first of all, mention the basic pleading which was pleaded by the plaintiff in the plaint for invoking the jurisdiction of the Court of learned District at Howrah for filing the said suit there. The plaintiff stated in the plaint that the marriage between the parties was solemnized at Malirbagan, Hatirpul Bus Stop, Konnagar Hooghly, beyond the territorial limits of the Court of learned District Judge at Howrah. The plaintiff however stated therein that the parties last resided together as husband and wife at premises No. 14 Sri Arabinda Road, Salkia, P.S. Mali Pachagrara, Howrah 711106 on 23rd October, 2004. In fact, the plaintiff stated that his wife ultimately deserted him on 23rd May, 2004 from the said premises at Salkia which is within the territorial jurisdiction of the Court of the learned District at Howrah. Thus, on the basis of such statement, the plaintiff invoked the jurisdiction of the court of learned District Judge at Howrah for filing the said suit there. The defendant/petitioner herein stated in her application that the address at Salkia, Howrah wherefrom the defendant allegedly deserted her husband was not the matrimonial home of the parties as they never decided to settle there permanently. The defendant/petitioner herein stated in her application that the address at Salkia, Howrah wherefrom the defendant allegedly deserted her husband was not the matrimonial home of the parties as they never decided to settle there permanently. The defendant claimed that even it would appear from the averments made in the plaint that the parties decided to settle them permanently at Konnagar as the defendant who was a school teacher in a school at Konnagar felt inconvenience in attending the school at Konnagar from the place of plaintiff’s father residence at Salkia. As such, the defendants purchased a flat at Konnagar and both the parties settled themselves there with an intention to live there as husband and wife permanently. In fact, the plaintiff also admitted in the plaint that both the parties resided in the said flat at Salkia as husband and wife since the time of their marriage excepting for 28 days at intervals when they stayed casually at the residential address of the plaintiff’s father at Salkia. Keeping in mind the aforesaid pleading of the plaintiff, this Court is required to consider as to whether any of the conditions as mentioned in Section 19 of the Hindu Marriage Act of 1955 is satisfied in the instant case or not. Section 19 of the said Act deals with the jurisdiction of the Court to which such petition can be presented. Section 19 of the said Act runs 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 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 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.” The plaintiff in fact wanted to invoke the jurisdiction of the said Court by referring to Clause (iii) of Section 19 of the said Act. The expression “resides” used in the context of the said Act was explained by the Hon’ble Supreme Court in the following decisions:- i) In the case of Smt. Jeewanti Pande vs. Kishan Chandra Pande reported in (1981) 4 SCC 517 ; ii) In the case of Y. Narasimha Rao and ors. vs. Y. Venkata Lakshmi and anr. reported in (1991) 3 SCC 451 . It was uniformly held by the Hon’ble Supreme Court in the aforesaid decision that in order to give jurisdiction, on the ground of residence, something more than a temporary stay is required. It was further held that it must be more or less of a permanent character and of such a nature that the Court in which the defendant is sued, is his natural forum. It was also held therein that 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. The Hon’ble Supreme Court thus, held that the word “resides” in the context of Section 19 denotes the actual place of residence of the concerned parties at the commencement of the proceeding and not the place of origin. Thus, occasional stay in the premises or casual visit of the parties in a premises jointly on one day or for a temporary period cannot satisfy the requirement of the residence as contemplated under Section 19 of the said Act. Thus, even for stay of 90 days by the parties as husband and wife at a place, was not accepted by the Hon’ble Supreme Court, as the permanent residence of the parties in the case of Y. Narasimha Rao and ors. vs. Y. Venkata Lakshmi and anr. (supra). If the aforesaid principles which were laid down by the Hon’ble Supreme Court are taken to be the law of the land then this Court has no hesitation to hold that the temporary stay of the parties at the address at Salkia cannot be accepted as a residence of the parties where the parties last resided together as husband and wife. In fact, the parties decided to settle themselves at the address at Konnagar and they admittedly settled there permanently and resided there as husband and wife all throughout and enjoyed their conjugal right therein since the time of their marriage excepting for 28 days at intervals when they had casual stay at the address at Salkia. As such the address at Salkia cannot be the permanent residential address of the parties. In my view, the address at Konnagar is the matrimonial home where the parties settled themselves permanently and enjoyed their conjugal rights therein since the time of their marriage. As such, this Court holds that the Court of the learned District Judge at Howrah has no territorial jurisdiction to entertain the said suit there. It is the Court of the learned District Judge at Chinsurah, Hooghly which has jurisdiction to entertain the said suit as not only the marriage between the parties was solemnized within the jurisdiction of said Court but also the parties lastly resided together within the jurisdiction of the said Court. Thus, this Court holds that the Court at Howrah, has no jurisdiction to try the said suit. Mr. Basu, learned Advocate, appearing for the opposite party, submitted that since the defendant has already taken part in the proceeding at Howrah, the said suit should not be transferred to the Court of the District Judge at Hooghly at this stage of the trial of the suit when the plaintiff has already delivered his evidence in chief on affidavit before the learned Trial Judge. This Court finds that the objection with regard to the incompetency of the Court for want of territorial jurisdiction, was taken by the defendant in the written statement. As such the Court cannot avoid adjudication of the said dispute even at the trial stage. Mr. Ghosh, learned Advocate, appearing for the petitioner, submitted that apart from filing the said written statement, his client also filed an application challenging the jurisdiction of the said Court to entertain the said suit for want of jurisdiction sometime in 2008 i.e. immediately after his client entered her appearance in the said suit. He however submitted that since the said application could not be traced out from the record, his client subsequently filed the instant application once again. Though, Mr. He however submitted that since the said application could not be traced out from the record, his client subsequently filed the instant application once again. Though, Mr. Basu, learned Advocate disputed such contention of the petitioner but this Court, even without entering into such conflicting claims of the parties, holds that since the cross-examination of the witness of the plaintiff, has not yet commenced, even the plaintiff will not suffer any loss if the suit is transferred to the Court having jurisdiction as ultimately the Court even at the trial stage cannot avoid consideration of the said issue regarding the Court’s jurisdiction to entertain the said suit in view of the objection raised by the defendant in the written statement. Accordingly the impugned order stands set aside. The learned Trial Judge is thus directed to transmit the records relating to the said suit to the Court of the learned District Judge at Chinsurah, Hooghly and the learned District Judge, Chinsurah, Hooghly is thus directed to try the said Matrimonial Suit either himself or he may transfer the same to any other Court of the Additional District Judge in the said District for expeditious disposal of the same. It is thus made clear that the learned transferee Court will commence the trial of the said suit from the stage at which it was transferred. The revisional application is thus allowed. Let the copy of this application be transmitted to the Court of the learned Third Additional District Judge, Howrah by the registry immediately. Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.