Balak Ram vs Kaushalya

T.P.S. Chawla, J.

(1) This is an appeal by the husband u/s 28 of the Hindu Marriage Act, 1955. He filed a petition for judicial separation u/s 10 of that Act on the ground of desertion by his wife. In the order under appeal, the Additional District Judge has held that he has no jurisdiction to try that petitionas the parties did not last reside together'' in Delhi, which was the basis on which the jurisdiction of the court was sought to be founded u/s 19 of the Act. Consequently, the judge has ordered THE petition to be returned for presentation to the proper court. The question canvassed in appeal is whether the judge was right in holding that the husband and wife had not last resided together'' in Delhi.

(2) In one respect the history of this marriage is rather extraordinary.Although this husband and wife have been married for over 16 years,they have lived together very little. Yet, somehow, the marriage hasdrifted on for all these years. They were married on 8/03/1962at Jullundur. It was an arranged marriage brought about through the good offices of a Mr. Kashmiri Lal. The husband, Dewan Balak Ram,was at that time 47 years of age. He was an officer in the Indian Navy and was posted as the Staff Officer (Navy), Cabinet Secretariat,Military Wing, New Delhi. The wife, Dr. Kaushalya, was 38 years ofage, and was a member of the Provincial Medical Service in Punjab.At the time of the marriage she was posted as a Medical Officer in the Civil Hospital at Hoshiarpur.

(3) It is common ground that after the marriage was celebrated,the husband and wife came to Delhi and lived together. But there''s controversy about the duration of the wife''s stay in Delhi on that occasion .According to the written statement of the wife, she took long leave and lived with the husband in Delhi for ''about two months''.This is denied by the husband in his replication. He says that shestayed with him in Delhi ''only for a few days and definitely for less than 15 days''. The evidence does not resolve the issue and enable any precise conclusion to be reached. However, this much at least ascertain that, immediately after the marriage, the husband and wife resided together in Delhi for a substantial period, probably not less than two weeks.

(4) Thereafter, the wife admittedly went back to Hoshiarpur.According to the husband, before leaving she told him that she would resign from service and return to settle with him permanently at Delhi. The wife denies ever having indicated that she would give up her job or her profession. In May 1962, the wife was transferred to Faridabad. The husband has alleged in his petition that this transfer to a place near Delhi was secured as a result of the joint efforts of the parties. Though this was denied by the wife in her written statement, she conceded it in her examination-in-chief.

(5) It appears that wife remained posted in Faridabad till about September 1962. Both parties affirm that during the time that the wife was posted at Faridabad, they often met and lived together. But the husband says that they lived together only at Delhi, though he usedto go to Faridabad to fetch the wife or escort her back. He firmlymaintains that there was ''cohabitation'' only at Delhi, and never atFaridabad. He mentions that the wife took a week''s leave from 1 6/08/1962 to 22nd August 1962 and statayed with him at Delhi.He says that the last time that he ''cohabited'' with the wife was ''inAugust 1962 at Delhi''. On the other hand, the wife asserts that the husband lived with her at Faridabad, and they came to Delhi only''occasionally''. I think the truth probably lies somewhere in the middle,and that they lived together at either place depending on what wasconvenient. The evidence of Kewal Mohan, a witness called by thewife, is to this effect. Since it is nobody''s case that the parties last resided together'' in Faridabad, this condusion is material only in sofar as it finds that they ''resided together'' at Delhi.

(6) Almost from the start the marriage seems to have gone awry.Already by May 1962, the relations between the parties were under;strain and antagonism was beginning to develop. I am not presentlyconcerned with the reasons why that happened, and am merely recounting the fact, I think, there is no doubt, although the husbanddoes not admit it, that the wife was pregnant in August 1962. Shewas admitted to the Military Hospital in Delhi on 27/08/1962for threatened abortion''. This is established by an entry in the hospitalregister, a copy of which has been proved on record. On 1/09/1962 she aborted and had to undergo an operation. After being discharged from hospital on 4/09/1962, she went straight to herparent''s house at Jullundur because, she says. the husband had beenutterly indifferent towards her whilst she was unwell, and had madeit plain that she would not be welcome if she tried to return to him.

(7) The parties then seem to have gone totally out of contact, and,for many years, there does not appear to have been any communicationbetween them. In November 1963, the husband retired from serviceand went to Calcutta to try his hand at business. The wife says thatshe visited Calcutta in March 1965 with the object of effecting areconciliation, but the husband turned her out and slammed the door.The husband impliedly denies that there was any such incident whenhe repudiates the suggestion that she persuaded him to give up thebusiness so as to be able to live with her. He says, that he himselfsoon realised that business was not his ''cup of tea'' and decided insteadto join the legal profession. Thus, he returned to Delhi and becamean Advocate-on-record of the Supreme Court.

(8) In July 1967, the wife filed a petition in the court of the District Judge at Jullundur seeking a decree for judicial separation. Shealleged that the husband had deserted her and was guilty of cruelty.The husband resisted the petition and filed his written statement in January 1968. On 27/05/1968, counsel for the wife told the court that he had no instructions, and, consequently, the petition was dismissed. No application for having the petition restored was ever moved by the wife. She says that the petition was deliberately allowed to be dismissed as the husband had given her an assurance that he would live with her and set up a matrimonial home. This is denied by the husband ,and according to him the wife had the petition dismissed as she knew that her case could not succeed. But, I need not dwell on this matter as it is not material for the present purpose.

(9) From 1968 onwards the wife has been posted in Karnal. She pleaded in her written statement that the husband used to go and stay with her there ''at long intervals''. It is her case that they last resided together at Kamal in October 1973. In her examination-in-chief she improved upon her plea and said the husband stayed with herat Karnal ''quite often and sometimes for days''. She added that she,too, had been coming to Delhi and staying with the husband, and,in particular, she mentioned one such occasion in ''January 1972''.In cross-examination she denied the suggestion that they had never''cohabited as husband and wife'' after 1962, and reiterated that they had stayed together in Karnal, and also in Delhi on an occasion which,she now said, was ''in September 1972''. She conceded that there was no documentary evidence to show that there had been cohabitation after 1962.

(10) The husband, in his replication, completely denied that he had''resided and/or cohabited'' with the wife at Karnal at any time, or'' at any place after 1962''. He said he had gone to Karnal only six times between December 1971 and October 1973 and specified the exact dates .His purpose in going there was to ''settle matters'' and persuade the wife to resign from service and live with him at Delhi. On all these occasions, he said, he met the wife for 2 or 3 hours in various restaurants in Karnal, and always during the day. He repeated these statements in his examination-in-chief. He denied, in cross-examination,that he had been residing with the wife in Karnal ''for days together''between the years 1971 and 1973. It was suggested to him that aDr. P. N. Kapila, a colleague of the wife, had persuaded him to live with the wife at Karnal. The suggestion was repudiated. Dr. Kapila,who was called as a witness by the wife, has not said anything to that effect .Rather, he made the statement having opposite trend, that when he met the husband once or twice in Karnal and asked him how long he would be staying, the husband gave no ''specific reply''.

(11) Now, on this evidence, the Additional District Judge has held that the parties last resided together'' at Karnal in 1972-73. I think he had the right approach when he said, that, since both the parties were employed and had no ''permanent place of residence'' because they were ''obliged to live in different parts of the country'', the ''Visit''of one spouse to the other, even though of ''short duration'', would constitute ''residing together'' for the purpose of giving jurisdiction to the court. But to deduce from the admission by the husband ''thathe (had) been going to Karnal in the year 1972-73'' that the'' parties lived together'' at that place is drawing too much of an inference.Conversation in a restaurant can by no stretch of language amount to''residing together''. The Additional District Judge does not sift theevidence and say that he disbelieves the husband or believes the wife.He merely relies on the ''admission'' of the husband, forgetting the rest of what the husband said about the nature, duration and purpose of those ''visits''.

(12) For my part, I think, the evidence is much too slender for holding that the parties last resided together'' in Karnal. Neither party was effectively or exhaustively cross examined so as to make it possible to know on which side the truth lay. The state of the evidence presentsno more than allegations and denials on both sides. Since it was thewife''s allegation that the parties last resided together in Karnal. the burden of proving that to be fact was on her; just as the burden ofproving that they last resided together in Delhi was on the husband.Indeed, the issue framed by the court was: ''Whether this court hasno jurisdiction to try the petition'', which clearly placed the onus onthe wife. Hence, as the unsatisfactory evidence on each side is evenlybalanced by the other, and no definite conclusion is possible, the wifemust fail on her part of the issue. I would also add that the wife''sadmission that the husband came to Karnal ''at long intervals'' doestend to show that there was no reconciliation ; which, in turn, makes theresumption of cohabitation unlikely. For these reasons, I do not thinkit is possible to uphold the finding of the Additional District Judge thatthe parties last resided together'' in Karnal.

(13) That leaves the question whether the parties last residedtogether at Delhi. The Additional District Judge holds that they didnot, for two reasons. One was that, he found, they had last residedtogether in Karnal. I have already tried to explain that the evidence isnot cogent enough to sustain that conclusion, and need not elaboratefurther. The other reason given by the judge was that ''The plea ofthe (husband) that they last resided together in May 1962 at Delhiis controverter by his own statement when he stated that he cohabitedwith the (wife) in August 1962 at Delhi''. This observation, it appears,is the result of a misapprehension as to what the husband had saidin his petition and evidence.

(14) The relevant paragraph in the petition begins with the statement ''That in or about May 1962'' the husband ''contributed hisefforts in getting'' the wife posted at Faridabad. Then, after referringto other matters, it is narrated that he used to go to Faridabad andbring the wife to Delhi ''where the parties would spend a few days''.The paragraph ends with the sentence : ''These few days at New Delhiin 1962 were the last the parties resided and cohabited together''.

(15) It is perfectly obvious that the husband never pleaded, that''these few days'' were in May 1962. He had only said that efforts tohave the wife transferred to Faridabad were made in that month. Thepossibility of bringing her from Faridabad to Delhi could only havearisen after she was transferred, that is, sometime after May 1962.Admittedly, she remained posted in Faridabad till about September1962. So, there was no contradiction with what he had pleaded, whenhe said in examination-in-chief : ''The last time, I cohabited with herwas in August 1962 at Delhi''. As I have already mentioned, eventhe wife admits they used to come to Delhi ''occasionally'' during the time that she was posted at Faridabad. Thus, the other reason given by the Additional District Judge is, also, not correct.

(16) The only solid fact in the whole case is that the parties did live together at Delhi immediately after the marriage. Both of them agree on this. The admitted duration of their joint residence on that occasion was, roughly, about two weeks, though the wife says it was''about two months''. After the wife was transferred to Faridabad in May 1962, they again, admittedly, stayed together in Delhi on some occasions ;though the dates and duration are not clear. Kewal Mohan,a witness called by the wife, says that ''she used to come to Delhi from Faridabad whenever she was off and then used to go back toFaridabad on the following day''. And, the husband''s statement thatthe wife took leave from 16th to 22/08/1962 and stayed with him at Delhi has not been controverter. I can see no reason to disbelieve it.

(17) But, it has been argued, that simply because the husband and wife lived'' or ''stayed'' together at Delhi for brief spells in 1962, doesnot mean that they ''resided'' together in the sense in which that wordis used in section 19 of the Hindu Marriage Act. So, it becomes necessary to explore the meaning of that word. It has been used in manystatutes in different contexts. For the question under consideration, Ithink, the best guide is Jagir Kaur and Another Vs. Jaswant Singh, , not only because it is the most authoritative,but, also, because it interprets the words last resided'' occurring in section 488 of the Criminal Procedure Code 1898, which section isconcerned with providing maintenance for a woman or child, a subject not too far removed from divorce.

(18) A number of propositions can be extracted from the judgment of the Supreme Court. The dictionary meaning of the word''resides'', it was noted, was capable of including ''both a permanentdwelling as well as a temporary living in a place''. However, it wouldnot include a ''casual stay'' or a ''flying visit''. In the ultimate analysis'',it was said, the meaning would ''depend upon the context and the purpose of a particular statute''. The context and purpose of section 488,it was held, did not necessitate the ''importation of the concept ofdomicile in its technical sense''. On the contrary, ''The purpose of thestatute would be better served if the word "resides" was understood toinclude temporary residence''.

(19) After some further discussion, the result is summed up in apassage, vital from the present point of view, as follows :

"THEdecisions on the subject are legion and it would be futileto survey the entire field. Generally stated no decisiongoes so far as to hold that "resides" in the sub-sectionmeans only domicile in the technical sense of that word.There is also a broad unanimity that it means somethingmore than a flying visit to or casual stay in a particularplace. They agree that there shall be animus manendi oran intention to stay for a period, the length of the perioddepending upon the circumstances of each case. Havingregard to the object sought to be achieved, the meaningimplicit in the words used, and the construction placedby decided cases thereon, we would defined the word "resides" thus : a person resides in a place if he through choicemakes it his abode permanently or even temporarily ;whether a person has chosen to make a particular placehis abode depends upon the facts of each case.''

The words I have uderlined are important. They establish thateven an intention to stay temporarily is enough, and there are norigid ideas about duration. In the case before the Supreme Court itwas proved that the husband had once resided for five months with the wife at the place where she had commenced proceedings for maintenance.It was held that they had last resided'' at that place, and, Therefore, the court had jurisdiction.

(20) A particular service done by this case is that it erases from the mind any obsessions derived from the legal concept of domicile, especially as regards the element of permanance. It is now beyond question that the word ''resides'' will encompass even a temporary abode .However, the abode must be one of ''choice'' in the sense that it is voluntary. Although the duration of the stay, and its continuousness, are relevant matters for consideration, the decided cases indicate that the measure in which these are required varies with the facts of a particular case.

(21) In general, where the parties have had a permanent matrimonial home, the courts are less inclined to accord ''residence'' at a place where they have lived temporarily. This attitude is illustratedby Janak Dulari Vs. Narain Dass, , and Sushma Dewan Vs. Ajit Kumar Dewan, , in both of which a permanent matrimonial home was attributed to the place where the husband was posted, and brief visits by him to another place where the wife was or went with him were held not to constitute ''residence''.

(22) But, if there was no permanent matrimonial home, the approach to a temporary place of stay is much more liberal. Thus, for example,in John Baptist D''Souza Vs. Lizzie Jane Lobo, , the Judge said:The only principle that I can discover from the decisions is 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.The latter part of this sentence would seem to imply that, if a person has ''no fixed place of residence'' then he can be said to ''reside'' even at a place ''where he spent only a day or two''. This was a case under the Indian Divorce Act, 1869, which defines a ''District Court'' in a manner as to confer jurisdiction at the place where ''the husband and wife reside or last resided together''.

(23) The same point is expressed in different words in Sampoornam Vs. N. Sundaresan, , which was a case u/s 488 of the Criminal Procedure Code. A sentence in thehead-note of that case reads as follows:

IN those cases where the parties had no home of any sortand have been moving about from place to place, eachplace where they do live would be their home for the time being.''

Likewise, in M. Clarance S/o Murugesh v. Raicheal d/o MariPrakasham and another, Air 1964 Mysore 67 (6), whilst deliveringthe leading judgment of the Full Bench, Sreenivasa Rau, C.J., said:

''............THEcourts have interpreted the term "residence"liberally and applied it to cases where the husband and wife have stayed together even for a very brief periodif they have not resided together in a more permanentway elsewhere.''

The case before the court was nothing less than a freak, and posedthe problem in the most extreme form conceivable. On the verynight of the marriage, the wife told the husband that she was inlove with someone else. The marriage was not consummated, andthey parted the next morning never to live together again. Nevertheless, the Full Bench held that the husband and wife had last residedtogether'' at the place where they spent that one and only night inmisery. It is patent from the judgments that the decision in this casewas conditioned by the anomaly in the Indian Divorce Act that itdoes not confer jurisdiction on the court at the place where the partiesare married. Understandably, the court was oppressed with the thought that unless it held that the husband and wife had last resided'' at the only place where they had ever been together, there would be no court in which they could seek relief. Proceeding on the analogy of the legal approach to questions of domicile and nationality, the Chief Justice said that ''the courts find a residence and do not allow themselves to proceed on the footing that there is no residence at all''.

(24) Undeniably, this case was very peculiar. Even the Chief Justice recognized that they were ''straining the meaning, of ''residing together''.Yet, the principles on which the decision was rested are unexceptionable and corroborated by the other cases to which I have referred.

(25) In the present case, it is manifest from the evidence of both the husband and wife that they did not at any time establish a permanentmatrimonial home. However, according to common sense and ordinary.English usage, it would be absurd to say, on the facts proved, that they had never resided together. The only place at which it is possible to hold with certainty that they ''resided together'' is Delhi since their residing together at Karnal is highly doubtful, it has to be held that Delhi was the place at which they last resided''.

(26) In my opinion, the case before me is on all fours with Smt. S.Saroja v. P. G. Emmanual Air 1965 Mys 12 . There, also,both the husband and the wife were employed and posted at different places -They had no permanent home. During her vacations the wife who was a teacher, went to the place where the husband was posted as Inspector of Police and resided with him. It was held that this was their matrimonial home ''for the time being'' as they intended to reside together ,and, ''the fact that the visit was of a short duration or did not have any appreciable degree of permanence cannot alter the situation .Accordingly, it was ruled, that the court at the place where they had last resided together ''though for short intervals during the vacations ''had jurisdiction to try the husband''s petition under the Indian Divorce Act. On the same grounds I have reached a similar conclusion .

(27) Counsel for the wife maintained that the critical requirement for holding that a husband and wife had ''resided together'' at a particular place, was their common intention to establish a'' permanent matrimonial home'' at that'' place. In the present case, he argued, the wife did not intend to stay in Delhi ''permanently'' and could notpossibly have done so as she was permanently employed in Punjab,and had never entertained the idea of resigning. Therefore, he contended, as the necessary intention on her part was lacking, it could notlegally be held that the parties had ''resided together'' at Delhi.

(28) I do not accept this proposition to be sound. The cases towhich I have already referred make it clear that an intention to reside''permanently'' is not necessary. Nor is the proposition warranted by Dr. Smt. Supriya Vs. Dr. Vasudev Dang, the case on which counsel for the wife relied. What that case emphasises is that the parties must have lived together at the place inquestion ''as husband and wife'', and not as strangers. The marriage,in that case, had been broken a long time. In that State of affairs,the wife went to Dehra Dun, where the husband resided, and stayedfor two days. She went with the avowed ''intention of totally separating''from him, and getting back some articles which belonged to her. Thecourt rightly held that they had not ''resided together'' at Dehra Dun,for the matrimonial relationship had, in reality, long come to an end.

(29) Similarly, in Dr. Ashok Ranjan Saxena Vs. Smt. Vishwa Bharti, , the husband went three time asan ''unwanted guest'' to Bareilly in order to seek a reconciliation withthe wife, but failed. It was held, for the same reasons as in theprevious case, that the parties had not ''resided together'' within thejurisdiction of the court at Bareilly.

(30) Now, in the present case, the wife came to Delhi of her ownvolition in 1962. She came to live with the husband and the marriagewas consummated. Her intention was to live with the husband as hiswife, and that is how they lived. At that stage, they had not begunto pull in opposite directions or become estranged. That was a laterdevelopment. They did live together in Delhi ''as husband and wife'',and intended to do so ''for the time being''. That is enough to hold that they ''resided together'' in Delhi.

(31) In his petition the husband has pleaded that it was ''specifically agreed'' before the marriage that the wife would ''resign herjob as a Doctor'' and live ''as a normal house wife'' at Delhi. On theother hand, the wife says the husband had assured her that afterretirement he would live with her wherever she was posted. Thereis also controversy about the purpose turn which a sum of Rs. 10,000was sent by the wife to the husband in or about, May 1962. According to the husband it was meant to be used for buying a plot in Delhi on which a Nursing Home would be constructed to enable the wife to practice. But, in a notice dated 19/03/1965 sent by the wife''s lawyer demanding the return of that money, it is said, that the hubsand was ''in need of money for the purchase of some building site''. And, in cross-examination it was suggested to the wife that she had sent it on behalf of her brother ''who wanted to purchasea plot in Panchsheel Colony''.

(32) Although I listened to elaborate arguments on these matters.,I now find them to be irrelevant. They might have been relevant hadI reached the conclusion that, in law, for the purpose of establishing jurisdiction ,it was necessary to prove a common intention that the husband and wife would reside ''permanently'' in Delhi. As I have reached a different conclusion, and, also, because they bear considerably on the merits which have yet to be determined, I refrain from going into these matters.

(33) In the course of the hearing of the appeal, an application was moved by the husband for leave to produce, as additional evidence, alter ,dated 20/09/1962 purporting to have been written by the wife. The purpose stated in the application is to show'' when and under what circumstances'' the wife ''changed her mind to resign''and ''not settle down in Delhi''. Since I have held these matters to be irrelevant ,the application is dismissed.

(34) For the reasons I have given, I hold that the parties last resided together at Delhi, and the Additional District Judge had Jurisdiction to try the husband''s petition. The appeal is allowed, and the order dated 23/05/1977 made by the Additional District Judgedirecting the petition to be returned is set aside. The AdditionalDistrict Judge will now proceed to decide the case on merits. Havingregard to all the circumstances of the case, I make no order as tocosts.