Paster J.S. Singh vs Smt. Jyotsana Singh And Anr. on 15 September, 1981

    Paster J.S. Singh vs Smt. Jyotsana Singh And Anr. on 15/9/1981

JUDGMENT

   C.P. Sen, J.

   1. This matter comes up before us under Section 17 of the Divorce Act, 1869,
for confirmation of the decree nisi for divorce granted in favour of the
petitioner, Paster J. S. Singh and against his wife Smt. Jyotsana Singh
(respondent No. 1) by the District Judge, Jabalpur, on 7-3-1981.

   2. Before the District Judge, the petitioner filed a suit under Section 10 of
the Di-vorce Act seeking dissolution of his marriage with respondent No. 1, Smt.
Jyotsana Singh. The marriage between them was performed on 27-12-1972 in the
Methodist Church, Khursipar Baihar, district Balaghat. As a result of this
marriage, they have three children. They lived peacefully up to the year 1976.
Both of them are teachers. While respondent No. 1 continued serving at Baihar,
the petitioner was transferred to Jabalpur and then to Narsimhapur for about a
month and again retransferred to Jabalpur. As a result of the transfer, the
petitioner resided at Jabalpur, while his wife, respondent No. 1 continued to
live at Baihar up to December 1976 when she was transferred to Kaipur. The
petitioner's case is that when he resided at Jabalpur, the respondent No. 1
would often visit him during the holidays. They resided together at Jabalpur
under the same roof and also cohabited. This went on up to December 1976. The
further allegation is that after respondent No. 1 was transferred to Raipur, she
did not permit the petitioner any access to her.

   The petitioner noticed that at Raipur she came in contact with respondent No.
2, H. K. Sharma who was often found at the residence of respondent No. 1 and the
two respondents started living together practically as husband and wife. It is
also alleged that she conceived from respondent No. 2 and according to the
petitioner she even has married him. The allegation, therefore, is that the
respondent No. 1 had started living in adultery entitling the petitioner to a
decree for divorce. After the filing of the suit, certain allegations were added
in paragraph 4 of the original plaint. By the amendment, the plea introduced is
that the petitioner and the respondent No. 1 last resided together at Jabalpur
and, therefore, the District Judge, Jabalpur, has jurisdiction to try the suit
in view of S 3(3) of the Act. Both the respondents remained absent and filed no
written statement although they were duly served. The District Judge, therefore,
proceeded in their absence, recorded the statement of the petitioner and relying
upon it, has passed a decree nisi for divorce which is now sought to be
confirmed by this Court.

   3. Although the jurisdiction of the District Judge, Jabalpur was not
questioned before that Court, the question of jurisdiction is of paramount
importance and since we had our own doubts in that behalf, we required the
learned counsel for the petitioner to satisfy us on that count. It may be
mentioned that the respondents also did not appear before us. The learned
counsel for the petitioner submitted that from the deposition of the petitioner
himself, it is clear that the respondent No. 1 visited him at his place at
Jabalpur and lived with him up to December 1977 and, therefore, they 'last
resided together' within the jurisdiction of the District Judge, Jabalpur and
hence the District Judge, Jabalpur had jurisdiction to try the suit under
Section 3(3) of the Act. 'District Court' means, in the case of any petition
under the Act, the Court of the District Judge within the local limits of whose
ordinary jurisdiction under the Act, the husband and wife reside or last resided
together. The question, therefore, is as to the meaning of the words 'reside' or
'last resided together' as are used in this section.

   The word 'residence' signifies a man's abode or continuance in a place and
where there is nothing to show that it is used in a more extensive sense, it
denotes the place where an individual eats, drinks and sleeps or where his
family or his servants eat, drink and sleep. The word 'residence' has a variety
of meaning according to the statute in which it is used. The term is flexible
and must be construed according to the object and intent of the particular
legislation where it may be found. Primarily, 'residence' or 'place of abode'
means the dwelling and home where a man is supposed usually to live and sleep;
they may also include a man's business abode, the place where he is to be found
daily. (See Stroud's Judicial Dictionary (Sweet & Maxwell Ltd.), Fourth Edition,
Volume 4, pages 2358-9). The 'residence' to which the Divorce Act points, must
be something more than occupation during occasional usual visits within the
local limits of the Court, more specially where there is residence outside those
limits marked with a considerable measure of continuance. A mere casual visit to
a place with no intention of dwelling there by a husband and wife who have a
fixed place of residence elsewhere will not amount to residence in that place
within the meaning of Section 3 of the Divorce Act so as to give jurisdiction
under the Act to the Court within the local limits of whose jurisdiction such
place is situated. See Devid v. Esther Dennis, AIR 1951 Nag 248.

   Under Section 488 of the Criminal P. C. 1898, proceedings for maintenance
could be taken against any person in any district where he resided or where he
last resid- ed with his wife or as the case may be the mother of the
illegitimate child. Interpreting the word 'resides' as appearing in Section
488(8) of the Code, the Supreme Court in Jagir Kaur v. Jaswant Singh, AIR 1963
SC 1521 held that the term 're-sides' does not mean only domicile in the
technical sense of that word. It was observed that the term means something more
than a flying visit to or a casual stay in a particular place. The Supreme Court
ruled that there shall be animus manendi or an intention to stay for a period,
the length of the period depending upon the circumstances of each case. Their
Lordships said that 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. What is
important, therefore, to see in a given case is whether by choice a particular
place is made an abode permanently or even temporarily, the casual residence
excluded. If there is an animus revertendi, his temporary stay at another place,
however long, will not have the effect of changing one's own permanent residence
at the original place.

   4. In the present case, the unquestioned testimony of the petitioner
establishes that while he was living at Jabalpur and had his Home there, his
wife (respondent No. 1) who stayed at Baihar in connection with her service,
often came and stayed with the petitioner at his home under the same roof. They
so lived at Jabalpur up to December 1976. It is no doubt true that the
respondent No. 1 also had a place of residence at Baihar where she was serving.
In our opinion, from those facts, it can well be inferred that the petitioner
and the respondent No. 1 last resided together at Jabalpur where the petitioner
lived. The house of the petitioner was the residence of the spouses where they
last resided together.

   Under somewhat similar circumstances, Somnath Iyer J. in S. Saroja v. B. G.
Emmanual, AIR 1965 Mys 12 held that where the wife and the husband were serving
in two different districts and the wife visited the husband's place for short
intervals during her vacation, the husband's place where she stayed even for
short intervals would be the place where they will said to have last resided
together within the meaning of Section 3(3) of the Act. The learned Judge
observed that where both the husband and the wife hold employments in different
districts and the wife visits the husband's place or vice versa the purpose
obviously is that each of the spouses should have the company of the other and
the husband and wife should eat, drink, and sleep together.

   It was further observed that nothing more is necessary to support the view
that during that period of the visit the husband and the wife intended to reside
together and the fact that the visit was for a short duration or did not have
any appreciable degree of permanence cannot alter the situation. We are in
respectful agreement with the view expressed by Somnath Iyer, J. in S. Saroja's
case (supra). We accordingly hold that the visits made by respondent No. 1
during vacations to the petitioner at Jabalpur and their residing together
during that period at Jabalpur would mean that they resided together at
Jabalpur. The suit was, therefore, well within the cognizance of the District
Judge, Jabalpur, who had jurisdiction to try it.

   5. Coming to the merits of the case, we find that the evidence given by the
petitioner is quite cogent and convincing. The refusal of the wife (respondent
No. 1) for any access to the petitioner after she had gone to Raipur showed her
inclination. She was seen in the company of respondent No. 2 who even stayed at
her place. She used to live there alone while the petitioner lived at Jabalpur.
She had thus ample opportunity. Her conduct as deposed to by the petitioner also
leads to an inference that she had committed adultery. There is also evidence.
The petitioner as P.W. 1 has deposed that when he visited Raipur/Gariaband where
respondent No. 1 was serving, he found respondent No. 2 visiting her. He also
noticed that respondent No. 1 was inclined towards respondent No. 2. He also
came to know that the two respondents were practically living as husband and
wife and that is how they were known in that region. Neither of the two
respondents has come forward to controvert these allegations. The evidence given
by the petitioner could well have been controverted by the sworn testimony of
respondent 1 and of the respondent No. 2 as was done in the case of England v.
England, (1952) 2 All ER 784. That, however, was not done in the instant case.
In our opinion, under these circumstances, an inference can legitimately be
drawn that respondent No. 1 (wife) has since the solemnization of the marriage
been guilty of adultery.

   6. For the aforesaid reasons, the decree nisi of divorce passed by the
District Judge in Civil Suit No. 34-A of 1980 is made absolute. Since the
respondents have not appeared before this Court, we make no order as to costs.