Judgment:
ORDER
Alok Aradhe, J.
1. Invoking the jurisdiction of this Court under Section 115 of the Code of Civil Procedure, the applicant-wife has called in question the legality and validity of the order dated 15-5-2009 by which the objection to maintainability of the proceeding under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act') on the ground of lack of territorial jurisdiction has been turned down.
2. In order to appreciate the challenge made to impugned order reference to few facts is necessary. Admittedly, applicant and non-applicant got married as per Hindu rites on 9-6-2006 at Bhopal. The non-applicant/husband has filed a petition under Section 13 of the Act seeking dissolution of marriage in the Court of Additional Judge to the Court of First Additional District Judge, Sehore. On receipt of notice of proceedings, the applicant-wife entered appearance and raised an objection with regard to the maintainability of the proceeding on the ground of lack of territorial jurisdiction. In the objection it was inter alia stated that from perusal of Paragraph 2 of the petition under Section 13 of the Act, it is apparent that the parties had last resided together in Bhopal. In Paragraph 8, it was stated that the non-applicant stayed in Hotel Crescent for a period of three days, i.e., from 22nd July to 24th July, 2007. An objection was raised that the Court at Sehore has no territorial jurisdiction to entertain the proceeding under Section 13 of the Act. Trial Court vide order dated 15-5-2009 held that from perusal of Paragraph 13 of the petition under Section 13 of the Act, it is apparent that the parties resided together on 26-7-2007 at Sehore. The applicant-wife no where in her application stated that where she resided lastly with non- applicant. It was further held that the question of jurisdiction is a mixed question of law and fact and can be decided only by recording evidence. Accordingly, the application was rejected and it was observed that in case the applicant-wife in her written statement makes an averment with regard to jurisdiction of the Court, the same shall be tried as preliminary issue.
3. Mr. A.K. Choubey, learned Counsel for the applicant, assailing the order passed by the Trial Court has submitted that from perusal of Paragraphs 8 and 9 of the petition under Section 13 of the Act, it is apparent that the parties have resided together for a brief spell of five days, i.e., from 22nd July to 26th July, 2007 at Sehore. The learned Counsel for the applicant placing reliance on the decision of the Supreme Court in Smt. Jeewanti Pandey v. Kishan Chandra Pandey : AIR 1982 SC 3, has contended that in order to give jurisdiction on the ground of residence something more than temporary stay is required. Therefore, the Court at Sehore has no territorial jurisdiction to entertain the petition.
4. Mr. Satyam Agrawal, learned Counsel for the non-applicant, on the other hand, has argued that from perusal of Paragraphs 8 and 9 of the petition, it is apparent that the husband resided in a hotel only on account of non-availability of accommodation for a period from 22nd July, 2007 to 24th July, 2007. It is further stated by him that the averments made in Paragraphs 8 and 9 of the petition reveal that on 24th July, 2007 the non-applicant/husband arranged for an accommodation on rent and started residing with the applicant. However, the applicant went away. It is argued by him that the period of actual stay is not relevant but the intention of the parties has to be seen. The learned Counsel for the non-applicant has also placed reliance on the decision in Smt. Jeewanti Pandey (supra) and Smt. Santosh Kumari v. Om Prasad Chopra AIR 1977 All 1997 and the decision of this Court in Pushpa Datt Mishra v. Smt. Archana Mishra AIR 1992 MP 260, in support of his contentions.
5. Section 19 of the Hindu Marriage Act, 1955, which is relevant for the purpose of the controversy involved in the instant case is reproduced below for facility of reference:
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
(iii-a) 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)
From perusal of Section 19, it is apparent that the petition under the provisions of the Act can be presented to the District Court within the local limit of whose original civil jurisdiction the parties to marriage last resided together.
6. The expression 'resided' has not been defined in the Act. It is therefore, permissible to refer to dictionary to find out the general sense in which the word is understood in common parlance. [See Principles of Statutory Interpretation by Justice G.P. Singh, 11th Edition, Page 338].
7. In Black's Law Dictionary, 6th Edition, expression 'reside' means to settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place.
8. In Webster Dictionary 'to reside' has been defined to mean 'to dwell permanently or for any length of time' and words like dwelling house or abode are held to be synonymous.
9. In Y. Narsimha Rao and Ors. v. Y. Venkata Lakshmi and Anr. (1991) 1 SCC 451, the Apex Court in the context of Section 19 of the Act quoted with approval earlier decision of the Apex Court in Smt. Satya v. Teja Singh : (1975) 1 SCC 120 : AIR 1975 SC 105, and held that residence does not mean the temporary residence for the purpose of obtaining divorce but habitual residence or residence which is intended to be permanent for future as well.
10. In the context of aforementioned legal position, I may advert to the averments made in the petition under Section 13 of the Act. It is well settled in law that while dealing with a prayer for rejection of a petition, at the threshold, the scope of scrutiny is extremely limited. Only averments made in the plaint or petition have to seen. [See : Saleem Bhai and Ors. v. State of Maharashtra, : (2003) 1 SCC 557]. From perusal of Paragraphs 1 and 2 of the petition, it is apparent that after the marriage of applicant and non-applicant was solemnized on 9-5- 2006, they resided at Bhopal. From perusal of averments of Paragraph 8, it is clear that since the non-applicant did not have the accommodation of his own therefore, he stayed in a hotel for a period from 22nd July, 07 to 24th July, 07. he arranged an accommodation on rent at Diwanbag, Sehore on monthly rent of Rs. 2,000/- and resided with the applicant up to 26th July, 2007. In the instant case, from perusal of the averments made in Paragraph 8 of the petition it is apparent that non-applicant/husband took an accommodation on rent at Diwanbag, Sehore at a monthly rent of Rs. 2000/- per month. In other words, from the action of the non-applicant/husband in arranging for an accommodation on rent, an inference can be drawn that he is intended to reside with the applicant permanently in the accommodation for future as well. In other words, it was not a temporary residence.
11. Reference to decision of the Supreme Court in Smt. Jeewanti Pandey (supra), is necessary. Both the parties have relied on the aforesaid judgment. Learned Counsel for the applicant has relied on Paragraph 12 whereas learned Counsel for the non-applicant has relied on Paragraph 13 of the aforesaid judgment. In the aforesaid case, the parties originally belonged to a village situate within the territorial jurisdiction of District Judge, Almora and got married at New Delhi. Admittedly, husband and wife both last resided together in Delhi. Husband filed the petition in the Court of District Judge, Almora on the ground that the parties were resident of a village within the territorial jurisdiction of the District Court at Almora. The Supreme Court in the factual matrix referred to supra held that the District Judge, Almora and no jurisdiction to entertain a petition for dissolution of marriage. It has been held by the Supreme Court in Paragraph 12 of the judgment that in order to give jurisdiction on the ground of residence something more than temporary stay is required. It must be more or less of a permanent character and of such a nature that the Court in which respondent is sued is his natural forum. It has been further held that the word 'reside' is not free from ambiguity and is capable of variety of meaning according to circumstances to which it is applicable. It is further held that expression reside in the context of Section 19 of the Act must mean actual place of residence and not a legal or constructive residence. Word 'residence' is a flexible one and has many shades of meaning and must take its colour from the context for which it appears and must not be read in isolation.
12. From perusal of decision in Y. Narsimha Rao (supra), the principle of law which can be deduced is that for the purpose of jurisdiction under Section 19 of the Act the expression 'residence', does not mean temporary residence but the habitual residence or a residence which is intended to be permanent for future as well. Therefore, apart from the actual period of stay, intention of parties is also required to be seen.
13. This Court in Pushpa Datt Mishra (supra), where the wife resided with the husband for a brief period of twenty days at a place where the husband was posted, has held that duration of stay is not material. The wife is expected to live at a place where the husband lives and if that is the place where the parties last resided together, it would be sufficient to confer jurisdiction on the Court of that place.
14. From perusal of the averments made in the petition by non-applicant/husband in Paragraphs 8 and 9 of the petition, it is apparent that he had taken an accommodation on rent. Whether that accommodation was intended to be permanent for future as well, is a question of fact which can be determined only by recording evidence. Therefore, in the instant case, the issue relating to maintainability of the proceeding on the ground of lack of territorial jurisdiction is a mixed question of law and fact and can be decided only after recording evidence. The Full Bench of this Court in M/s. Ramdayal Umraomal v. Pannalal Jagannathji : AIR 1979 MP 153, has held that an issue relating to jurisdiction can be tried as preliminary issue if it can be disposed of without recording any evidence which is not the case here. Therefore, issue relating to maintainability of the proceeding on the ground of lack of territorial jurisdiction cannot be dealt with as preliminary issue.
15. In view of my preceding analysis, I hold that on the basis of averments in the petition under Section 19 of the Hindu Marriage Act, it cannot be held at this stage that the Court at Sehore has no territorial jurisdiction. The issue relating to territorial jurisdiction of the Court at Sehore to entertain the proceeding under Section 19 of the Hindu Marriage Act can only be decided after recording evidence. Therefore, it is observed that if the applicant files a written statement in which a plea with regard to maintainability of the proceeding before the Court at Sehore on the ground of lack of territorial jurisdiction is raised, Trial Court shall frame an issue and decide the same after recording evidence without being influenced by the observations made in this order.
16. Accordingly, the impugned order is modified to the extent mentioned above. With the aforesaid direction, the revision petition filed by the applicant stands disposed of. However, there shall be no order as to costs.