Judgment:
1. Heard further argument and the judgment is as follows.
2. The appellant has filed Civil Proceeding No. 228 of 2005 in the Court of the Judge, Family Court, Cuttack claiming the relief under Section 13 of the Hindu Marriage Act, 1955 (in short, the Act). Respondent is the opposite party in that proceeding. Admittedly, they are related as husband and wife.
3. A fall out in the matrimonial relationship while both the parties were in the United States of America brought them back to Orissa and admittedly appellant belongs to Cuttack and that is the matrimonial home of the respondent. As per the averments in the application under Section 13 of the Act, both the parties resided together for two days at matrimonial house at Cuttack after returning from America and accordingly, the husband filed the application under Section 13 of the Act in the Family Court. In course of pendency of the proceeding, the off suit relating to interim maintenance, litigation expenses etc. were contested between the parties not only in the Family Court but also in the High Court and the respondent-opposite party has been awarded with interim maintenance of Rs. 10,000/- per month and litigation expenses of Rs. 1,000/- per day. While disposing of the earlier writ petition, this Court targeted the Civir Proceeding for disposal and as it appears from the impugned order, evidence has been admitted from the parties by accepting affidavit-evidence. At such stage, application filed by the respondent to decide the issue of jurisdiction as preliminary issue was considered and decided in favour of the respondent and accordingly, the appellant was directed to take return of the petition under Section 13 of the Act to be presented before appropriate Court.
4. Learned Counsel for the appellant argues that the Family Court went wrong in taking up the preliminary issue in the midst of hearing of a targeted proceeding. His further submission is that from the pleadings of the parties, the fact having been admitted about the respondent's staying with the appellant at Cuttack after their return from America, that should be construed as 'last reside together' and in that view of the matter, the Family Court has jurisdiction and to that extent, the factual finding of the Family Court is wrong. He also argue8 that it is appropriate to resolve that controversy between the parties, relating to Jurisdiction together with the other issues, in a full-fledged hearing and the issue of jurisdiction should not have been disposed of as preliminary issue in the. midst of the hearing. Learned Counsel for the appellant relies on the ratio in the case of Smt. Kishori Barl v. Arun Kumar Varma : AIR1998MP154 .
5. Learned Counsel for the respondent, on the other hand, states that admission in the written statement about the staying with the appellant for two days at Cuttack does not amount to 'resided together' and therefore the finding recorded by the Family Court is correct in view of the ratio in the case of Smt. Jeewanti Pandey v. Kishan Chandra Pandey : [1982]1SCR1003 . She argues that when the Family Court does not have jurisdiction to decide the dispute, there is nothing wrong if the issue of jurisdiction is decided as preliminary issue.
6. Section 19 of the Hindu Marriage Act, 1955 provides about the Court to which petition shall be presented and Clause II states
19. Court to which the 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.
Admittedly, in this case appellant is invoking the jurisdiction of the Family Court relying on above quoted Clause-Ill of Section 19, whereas the respondent disputes to that contention of residing together and accordingly relying on Clause (II), so that the matrimonial proceeding be decided at Bhubaneswar i.e. the place where she is presently residing.
7. Learned Single Judge of Madhya Pradesh High Court in the case of Kishori Bari (supra) quoted with the approval of the view of another Bench of the same High Court to say that the place of husband for all practical purpose is matrimonial home of the wife and in the absence of contrary to prove on record while considering the question of last resided together, the place of residence of the husband is to be accepted as last resided together. In the case of Jeewanti (supra), the fact available in that case was relating to the marriage between the parties solemnized at Delhi and jointly and separately both the parties reside there at Delhi, but the husband after facing proceeding under Section 9 of the Act at Delhi, instituted a proceeding under Section. 13 of the Act in his native district in Uttar Pradesh. In that respect, the challenge to the jurisdiction negatived by the High Court was considered by the Supreme Court and their Lordships propounded that:
12. 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. In Webster's Dictionary, 'to reside' has been defined as meaning 'to dwell permanently or for any length of time', and words like 'dwelling place or 'abode' are held to be synonymous. 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.
8. From the above quoted ratio, it is apparent that to constitute the fact of last reside together, relevant evidence is necessary in a case where such a dispute can be resolved by recording and appreciating evidence adduced by the parties. In view of the provision under Order XIV, Rule 2, C.P.C., in such matter evidence may be accepted on all issues.
9. Under such circumstance, without going to the merit of the case on the question of jurisdiction, we set aside the impugned order with a direction to the Family Court to decide afresh on the issue of jurisdiction the basis of evidence available on record together with other issues but strictly in accordance with Order XIV, Rule 2, C.P.C. Learned Judge, Family Court, Cuttack should bear in mind that we have not interfered with his finding and order, on the ground of factual inaccuracy but because of the fact that the issue of jurisdiction in this case has become mixed question of fact and law and that should not have been decided in this case as a preliminary issue. Since the proceeding was previously targeted and it was disposed of on the ground of jurisdiction, now therefore, we direct the Family Court, Cuttack to take up hearing and decide the case on all issues, including the issue of jurisdiction within a period of three months from the date of receipt of a copy of this order. We direct both the parties to appear in the Family Court, Cuttack on 9th April, 2009 and the period of three months will commence from that date. The Family Court shall fix the date of further hearing and conclude the trial and report compliance. Because of this order, the respondent is not precluded to raise the issue of want of jurisdiction at the time of hearing.
The interim maintenance be paid in accordance with the earlier order.
The MATA petition is accordingly disposed of.