S.K. Mal Lodha, J.
1. This appeal under Section 28 of the Hindu Marriage Act (No. XXV of 1955) (hereinafter referred to as 'the Act') is directed against the decree dated February 12, 1979 passed by the learned Additional District Judge No. 2, Jodhpur in Civil Misc. Case No. 5-A/76, by which, he dismissed the petition for divorce filed by the appellant under Section 13 read with Section 10 of the Act.
2. The husband-appellant filed a petition for divorce under Section 13 read with Section 10 of the Act before the District Judge, Jodhpur on July 11, 1974. The wife-respondent filed her reply on October 9, 1977. Thereafter, the petition was amended by the husband and the amended petition was filed on May 15, 1978. The reply to the amended petition was filed on July 5, 1978. The petition was, however, transferred to the Court of Additional District Judge No. 2, Jodhpur for disposal.
3. The facts giving rise to this appeal as stated hereinunder will be those as are borne out from the amended pleadings of the parties.
4. The appellant was married to the respondent in May, 1944 at Ramsar Village, District Ajmer according to the Hindu customs. According to the respondent, the marriage was solemnsed in the Year 1942 or 1944. After solemnisation of the marriage, the appellant lived with the respondent periodically and also cohabited with her occasionally, at Srinagar, District Ajmer from 1944 to 1950, 1951, 1953, 1955, 1957 to 1962, 1963 to 1967. As a result of that, they have nine issues (seven sons and two daughters). The appellant has stated that at intervals, the respondent in 1946, 1948, 1952, 1956 and 1968 made several accusations and as a result of that he had to lead life alone. He has further stated that the respondent treated him with cruelty, by abusing, using filthy language and hurling all sort of defamatory accusations and thus made his life miserable both in private and public. Such instances, according to the appellant, took place at Ajmer in 1946, 1948, 1952 and at Jodhpur in the Year 1963, 1964, 1965 and 1967. It was also stated that the wife (respondent) has deserted him without any reasonable cause. In para 4 'of the petition, it was averred that since May, 1969, the respondent though living in the house of the appellant treated him with cruelty more than often in his house at Ajmer and at the places of his relatives S.K. Rabbi, at his parent's residence at, Srinagar and else where dengrating his public and private image, making the life of the appellant a curse on the earth. Para 5 of the petition runs as under:
5. That since May, 1970, the respondent had threatened the petitioner with dire consequences and has forcely occupied the house of the petitioner ousted him and whenever he visits she practices cruelty.
About cruelty, various instances have been narrated by the appellant in the petition. The appellant has sought the decree of divorce on the ground of cruelty. It needs to be mentioned here that in para 12 of the petition the appellant has stated that Jodhpur is the place where they last resided together in the Year 1966-67. Para 14 of the petition deals with cause of action, it is stated therein 'that the cause of action arose in June, 1967 at Jodhpur where the respondent abandoned and deserted the appellant and on all other days when the appellant was treated with cruelty by the respondent and the cause of action is continuous and lastly it accrued in May, 1974 when the respondent visited Jodhpur and hurled abuses and blamed the appellant as stated in para 13(ii) above. The petition was contested by the respondent. She controverted the allegations made against her by the appellant. It was stated that after the marriage, they resided permanently as husband and wife at Srinagar, District Ajmer, and that, after joining the service by the appellant they temporarily resided at the places of the posting. She has further stated that at one time, the appellant was posted at Sri Ganganagar where she resided with him on account of their union, a son Prashant by name was born and that from 1971 and onwards, they have been residing at Ajmer. She has given instances when the husband on, various occasions visited their permanent residence at Ajmer during his posting at other places. In regard to para 12 of the petition, it was stated that it is wrong that they resided together in 1966-67 at Jodhpur. It was pleaded that the courts at Jodhpur had no jurisdiction to hear the petition. In the additional pleas, it was also contended that the court of Additional District Judge No. 2, Jodhpur had no jurisdiction to entertain the petition.
5. On the basis of the pleadings of the parties, the following issue were framed by the learned Additional District Judge on July 29, 1978:
1. Whether Non-Petitioner has throughout her marital career with the petitioner acted in a manner which caused him such mental agony which amounted to cruety? (P)
2. Whether the conduct of the Non-Petitioner with the Petitioner during their married life has been such as occasioned the Petitioner physical and mental ill-health? (P)
3. Whether the Petitioner is entitled to divorce? (P)
4. Whether the Court has jurisdiction to hear the petition? (P)
5. Whether the application has not been filed bonafide and the petitioner is taking benefit of his own wrong?
6. Whether the petitioner has condoned the wrong of the non-petitioner upto 1968?
7. Relief.
The appellant examined himself as P.W. 1, Suraj Narain Rathi, (P.W. 2) Girdharsingh, (P.W. 3) Om Prakash, (P.W. 4) and Roodmal Joshi (P.W. 5). The respondent neither examined herself nor produced any evidence in support of her case. The learned Additional District Judge decided issues No. 1, 2 and 6 in favour of the appellant and against the respondent. He, however, decided issue No. 4 against the appellant and in favour of the respondent. Issue No. 5 was also decided against the respondent. In view of the finding recorded against the appelant in respect of issue No. 4, the learned Additional District Judge dismissed the petition for divorce holding that he has no jurisdiction to entertain and decide the petition. Hence, this appeal by the appellant as aforesaid.
6. I have heard Mr. G.N. Gaur, learned Counsel appearing for the husband-appellant. No body has appeared on behalf of the wife-respondent despite service of notice.
7. Learned Counsel appearing for the appellant has assailed the finding of the learned Additional District Judge in respect of issue No. 4. The learned Additional District Judge, as stated above, held that the court at Jodhpur has no jurisdiction to hear the petition. Learned Counsel for the appellant pressed for my consideration that the appellant has been successful in establishing that they last resided together in 1966-67 at. Jodhpur and, therefore, under Section 19 of the Act, the District Judge at Jodhpur or for that matter, the Additional District Judge at Jodhpur has jurisdiction to hear the petition. He invited my attention to the following extracts occurring in the statement of the appellant as P.W. 1: Learned Counsel also submitted that in the absence of any evidence in rebuttal, from the above extract of the statement of the appellant, it is amply provided that this is sufficient under Section 19 of the Act to entertain and hear the petition for divorce. In support of his contention, he placed reliance on Kershaw v. Kershw AIR 1930 Lahore 916, Charan Das v. Surasti Bai AIR 1940 Lahore 448, D'Souza v. Lobo AIR 1942 Mad 584, Jagir Kaur v. Jaswant Singh : [1964]2SCR73 , Clarance v. Raicheal AIR 1964 Mys 167, Poonon v. Rathi Varghese AIR 1967 Kerl and Ashok v. Vishwa Bharti : AIR1978All18 .
8. I have bestowed my most anxious and thouhtful consideration to the contentions raised by the learned Counsel for the husband-appellant.
9. It will be relevant here to refer Section 19 of the Act as it stood at the relevant time. It reads as under:
19. Court to which petition should be made; 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.
It may be mentioned that the Marriage Laws (Amendment) Act, 1976 has recasted Section 19. In this appeal, I am only concerned with Clause (iii) of Section 19 of the Act viz. 'the parties to the marriage last resided together'. Section 3(3) of the Indian Divorce Act (No. IV of 1869) runs as under:
3(3) 'District Court' means in the case of any petition under this Act, the Court of the District Judge within the local limits of whose ordinary jurisdiction or of whose jurisdiction under Act, the husband and wife reside or last resided together.
Section 488(8) of the Code of Criminal Procedure, 1898 was as follows:
488(8) Proceedings under this Section may be taken aga'nst any person in any district where he resides or is, or where he lost resided with his wife, as the case may be, the mother of the illegitimate child.
The expression 'last resided' as used in the aforesaid two enactments came up for interpretation before some of the High Courts in India.
10. It was held in Jogendra Nath Barterjee v. Elizabeth Banerjee (1898-99) C.W.N. 250 that the meaning of the word 'reside' must in each case be decided with reference to its own circumstance and that it conveys the idea, if not permanence of some degree of continuance.
11. A Full Bench of the Allahbad High Court in Arthus Flowers v. Mimmie Flowers (1910) 32 ILR All. 302 held that a mere temporary sojourn in a place, there being no intention of remaining there, will not amount to residence in that place within the meaning of Section 3 of the Indian Divorce Act, so as to give jurisdiction under that Act to the Court within the local limits of whose jurisdiction such place is situated.
12. In Mabel Flora Murphy v. James Lloyd Murphy (1921) ILR 45 Bom. 547 on the basis of the following facts, the Court found that there was a sufficient residence within the meaning of the Indian Divorce Act to give the court jurisdiction to entertain the petition: (1) that the husband and wife had no permanent residence they having lived at several places since their marriage, (2) that they last lived together at Hotel in Bombay for a greater portion of a month, the husband being then on 'leave from war service in Mesopotamia and (3) that both the parties were within the jurisdiction when the petition was filed and served on the respondent.
13. In Tarasingh v. Jaipalsingh (1946) I ILR Cal. 604, a Full Bench of the Calcutta High Court ruled on a petition for divorce that where the husband and wife had no permanent residence during their married life, but lived at various places, some-times for short periods and last-resided together at Darjeeling for a week, the District Court of Darjeeling was competent to entertain the petition under Section 3(3) of the Indian Divorce Act.
14. In Kershaw's case, a Division Bench of the Lahore High Court while construing the words 'reside' used in Section 10 of the Indian Divorce Act held that a person who has an abode elsewhere, but who comes to place for a short period and with a fixed purpose for being within the Jurisdiction of a Court cannot be said to 'reside' there. In that decision, Jogendra Nath Banerjee's case (1898-99) C.W.N. 250, Arthur Flowers's case (1910) 32 ILR All. 302 were relied on,
15. The provisions contained in Section 488(8) Cr. P.C. came up for examination in Charan Das's case AIR 1940 Lahore 448 where a Division Bench of the Lahore, High Court while overruling Allah Ditta v. Mt. Sakina Bibi AIR 1928 Lahore 853 observed as follows:
The principle deducible from these authorities appears to be that in the case of persons who have a fixed residence, a visit to another place for however long a period, so long as it is casual, will not confer jurisdiction, A person who works and has a permanent home in Lahore cannot, by this visits during period of casual leave, confer jurisdiction on the Sargodha Courts. Where however, the parties have no home of any sort and are moving about from place to place, each place where they so live, would be their home for the time being. The sole test on the question of residence appears to us to be, whether a party has animun mandendi, or an intention to stay for an indefinite period, at one place, and if he has such an intention, then alone can be said to 'reside' there. In this view of the matter, we hold that the court at Sargodha has no jurisdiction to entertain the application of the wife. (emphasis supplied)
In D'Souza's case AIR 1942 Mad 584, a learned Single Judge of the Madras High Court while considering the provisions of Sections 7, 18 and 19 of the Indian Divorce Act held that a person cannot be said to reside at a place where he spent only a day or two when he has got a fixed place of residence elsewhere, but where a person has no fixed place of residence, the place where he actually lives must be taken to be the place where he resides.
16. In Clarance's case AIR 1964 Mys 167, the words 'reside' and the expression 'resting together' used in Section 3(3) of the Indian Divorce Act were examined by a Special Bench of the Mysore High Court where in D'Souza's case AIR 1942 Mad 584 were relied upon. Iqbal Husain, J. in his separate judgment in para 31 of the report observed as under:
The only place where they resided together was Kilar Gold Fields though it may be for a short time. In the absence of any place of permanent residence, the former shoud be regarded as the place where they last resided together.
The words 'reside' or the expression 'last resided together' were interpreted by a Full Bench of the Kerala High Court in Poonen' case : AIR1967Ker1 , in which Clarance's case AIR 1964 Mys 167 was explained and Charandas's case AIR 1940 Lahore 448, Arthur Flowers's case (1910) 32 ILR All. 302, Jogendra Nath Baneried's case (1898-99) C.W.N. 250 and Jagir Kaur's case : [1964]2SCR73 were noticed. From the various decisions referred to the Full Bench, it deduced 8 propositions in para 39 of the report. The material propositions are Nos. 4, 5 and 6 which are as under:
(4) 'Residence' connotes something more than stay, it implies some intention to remain at a place and not merely to pay it a casual visit;
(5) as emphasised by the Supreme Court, 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.
The expression 'last resided together' used in Section 19 of the Act also came up for consideration before the Allahbad High Court in Ashok's case AIR 1978 All 18, wherein it was held in the circumstances of that case, that it could not be held that the husband and the wife 'resided together' for any length of time at Bareilly, that the visits of the husband to Bareily could not be characterised as casual and flying visits, and that as the parties could not be said to have resided together at any time at Bareilly the Court there had no Jurisdiction to entertain the petition filed by the Wife under Section 10 of the Act.
17. The authority that remains now to be considered is Jagir Kaur's case : [1964]2SCR73 wherein the provisions of Section 488(8) Cr. P.C. were examined. In that decision, Arthur, Flowers's case (1910) 32 ILR All. 302 was relied upon. In para 8 of the report, it was observed as under:
Resides' in the Sub-section does not mean only domicile in the technical sense of that word. It however means something more than a flying visit to or a casual stay in a particular palce. There shall be animum manendi or an intention to stay for a, period, the length of the period depending upon the circumstances of each case. A person resides in a place if he through choice makes it his abode permanently or even temporarily; whether a person has chosen to make a particular, place his abode depends upon the facts of each case.
Having regard to the facts and circumstances of that case, it was held that the said Magistrate had jurisdiction to entertain the petition under Section 488(8) Cr. P.C.
18. The expresstion 'last resided together'' in Section 19 of the Act means the place where the husband and wife had their last abode or residence permanent or temporary. What is required is animum manendi or an intention to stay at the place to make it abode or residence either permanent or temporary. This, however, depends upon the facts of each case. Keeping in view these principles, I proceed to examine whether the finding recorded by the learned Additional District Judge requires any interference at the hands of this Court.
19. The burden of issue No. 4 was on the husband-appellant. The husband-appelant as P.W. 1 has stated in the cross-examination that from 1965 to May, 1967, he was posted at Jodhpur and thereafter, upto December, 1968, he remained at Jaipur. He remained at Sri Ganganagar in 1969. In 1970-71, he was at Jaipur. From July 1971, he was posted at Bhilwara and thereafter, in December 1975, he was retired from sendee. It is admitted by him that on the date of his deposition on October 21, 1978, the age of his last issue Prashant was 9 years and 6 months. He was born at Sri Ganganagar where he remained for 6 months and the wife also remained there for one and half months. The learned Additional District Judge was, in my opinion, right when he held that there was co-habitation between the parties in 1968 at Jaipur as a result of which, the last issue Prashant was born in 1969. The parties lived at various places some times for short periods and last resided together in 1968 at Jaipur where there was co-habitation. It is not unreasonable to infer that the intention of the parties during their stay at Jaipur was to make it their residence, may it be temporary. From the reading of the statement of the husband-appellant as P.W. 1, the inference drawn by the learned Additional District Judge that the parties last resided together in 1969 at Jaipur is justified. I am tempted here to refer even at the risk of repetition that in para 4 of the petition, the husband-appellant has stated that since May, 1969, the wife-respondent though living in the house of the appellant, treated him with cruelty more than often in his house at Ajmer and at the places of his relatives S.K. Rathi, at his parent's residence at Srinagar and elsewhere denigrating his public and private image, making the life of the appellant, a curse on the earth From the statement of the appellant, it is difficult to hold that the parties last resided at Jodhpur in 1966-67 and that thereafter they did not reside together. It is clear that they last resided if not at Sri Ganganagar in 1969 then at any rate in Jaipur in 1968. Even assuming for the sake of argument, the extract of the statement of the husband-appellant as P.W. 1 to be ex facie correct, still the parties last resided together at Jaipur in 1968 if not at Sri Ganganagar in 1969. It was admitted by him that he was posted as Vice-Principal in Commercial Taxes Training School, Jaipur and that afterwards in 1967 and 1968, the wife-respondent came to the Training School, Jaipur. (Extract in Hindi)
For all these reasons, the court at Jodhpur could not entertain and hear the petition for divorce filed by the husband-appelant. The conclusion of the learned Additional District Judge that the court had no jurisdiction to hear the petition for divorce filed by the husband-appellant is not erroneous and issue No. 4 was correctly decided by him.
20. It may be mentioned that in the petition itself in regard to jurisdiction, Clause (iii) of Section 19 of the Act was relied on, namely, the place where the parties 'last resided together'. Before the Additional District Judge as well as in this Court, on the question of jurisdiction it was submitted that the court at Jodhpur has jurisdiction as the husband and wife last resided together in the year 1966-67 at Jodhpur. It was also admitted by the learned Counsel for the appellant that barring aside the statement of the husband as PW. 1, there is no other evidence produced on his behalf bearing on the question of jurisdiction and from the statement of the husband-appellant as stated above, the parties had already resided together at Jaipur in 1968 if not at SriGanganagar in 1969 and in any case not in Jodhpur as alleged. The finding of issue No. 4 calls for no interference in this appeal.
21. No other point survives for consideration in this appeal.
22. The petition for divorce was rightly dismissed by the learned Additional District Judge as he had no jurisdiction to hear it.
23. The result is that this appeal has no force and it is accordingly dismissed. There will be no order as costs of this appeal.