MADHYA PRADESH HIGH COURT
Bench: JUSTICE D.M. Dharmadhikari
Pushpa Datt Mishra
Smt. Archana Mishra alias Premvati Choubey On 08 May 1991
CASE NO.F.A. No. 15 of 1990
This interest is by a father underneath Section 28 of a Hindu Marriage Act, 1955 (the Act) opposite a visualisation dt. 22-12-1989 of a Court of we Additional Judge to a Court of District Judge, Durg, whereby nonetheless on merits, a father was reason entitled to a direct of divorce on a belligerent of purported cruelty on a partial of a wife, yet a use has been refused on a belligerent that Court during Durg had no office to perform a petition. The Court, on a above conclusion, returned a petition to a father for display before a correct Court.
Both father and mother are employed in Govt. use and during a time of matrimony and also on a date of petition were posted during dual opposite places. It is also approved that a matrimony between a parties took place during encampment Chandok in Sagar District. The husband’s parental chateau is during encampment Buxwaha in Chhatarpur District. On a date of a petition filed in a hearing Court find ing a direct of divorce, a mother was posted during Sagar and a father was posted during Durg. The father filed a petition for divorce in a justice during Durg pleading that a parties final resided together during Balod, within a office of a Court. The usually pleading with courtesy to a place of office of a Court is that a parties final resided together in Aug., 1982 during Balod in District Durg. The father claimed a direct of divorce on a belligerent that a mother was intimately insufficient . The hearing Court did not accept a belligerent urged by a father of impotency , given no medical justification in support thereof was led and a other verbal justification led was not found sufficient in explanation of a purported ground. The hearing Court, however, accessible a anticipating that a father was entitled to a direct of divorce given a wife, in respond to a petition of divorce, took a forward defence of a father being heading an unfaithful life, that she was incompetent to clear by reasoning and arguable evidence. The hearing Court placed faith on decisions of several Courts contained in para 14 of a visualisation to reason that such an insane and fake indictment by a mother opposite a father is enclosed within a matrimonial corruption of “cruelty” within a clarification of Section 13(l)(ia) of a Act, entitling a father to a direct of divorce on that ground. As has been staid above, a hearing Court returned a petition to a father on a belligerent of miss of office in it.
The initial question, therefore, needs to be motionless is either a Court during Durg had office to perform a petition? The mother in her created matter denied to have ever left to stay with a father during Balod in District Durg, where he was admittedly during a germane time posted. Her box was that they final resided together in Nov., 1985 in Buxwaha, District Chhatarpur, that is a parental chateau of a father and where they used to accommodate as and when they had opportunities of meeting. The father in his matter before a Court in para 17 gave a minute chronicle with courtesy to their stay during Balod. According to him, he was during Balod given July, 1981 and he wrote a minute to a hermit of a mother to move her to Balod. On a basement of a above letter, according to a husband, a mother came to Balod on 20th July, 1982 and lived with him for a generation of 20 days. She left Balod after quarrelling with him, given he was insisting that she should get herself eliminated to Durg District. According to a husband, they afterward never resided together.
The mother in her deposition as N AW-2 in para 5 denied that she ever lived with her father during Balod. According to her, they final met in Nov., 1985 during a parental chateau of a father during Buxwaha, District Chhatarpur. In a state of above evidence, a schooled reduce Court in para 8 of a visualisation reason that even if a box of a father is supposed that they lived together in Aug., 1982 during Balod, that can't be pronounced to be a place where they “last resided together”, because, they again met and lived together in encampment Buxwaha in Chhatarpur District. Latter would be a place-where they had final resided together for consultation office in a Court during Chhatarpur and a Court during Durg will have no jurisdiction.
The doubt of office has to be motionless on a basement of a supplies contained in Section 19 of a Act, that reads as under:–
Every petition underneath this Act shall be presented to a District Court within a internal boundary of whose typical strange polite jurisdiction-
(i) a matrimony was solemnized, or
(ii) a respondent, during a time of a display of a petition, resides, or
(iii) a parties to a matrimony final resided together, or
(iv) a postulant is staying during a time of a display of a petition, in a box where a respondent is, during that time, staying outward a territories to that this Act extends, or has not been listened of as being alive for a generation of 7 years or some-more by those persons who would naturally have listened of him, if he were alive.”
In a commentaries of Mulla on Hindu Law, 16th Edition during pages 699 and 700, a countenance ‘last resided together as construed by several Courts has been discussed. According to a schooled commentator, in box of persons who do not have any bound home or staid headquarters during any sold place after their marriage, a doubt either they can be pronounced to have resided together where they final lived together has to be supposed in a extended and some what effervescent sense, yet even in this extended clarity reserved to a expressions “last resided together”, there contingency be some component of a home or abode, given a chateau of a chairman is by import a home of that person. Mere infrequent or proxy revisit to a place or proxy tarry in a place would not prove a requirement of a section. There contingency be an component of continuation yet a grade of continuation is not means of accurate definition.
Understanding a difference “last resided together”, in a context of matrimony relationship, one has to keep in mind that a Hindu wife, after a marriage, is approaching to live with a father during a place of a husband. The normal visualisation of a Hindu mother is ^^vuqxkfefu**. The verbatim clarification is that she has always to be in association of a father and to follow him wherever he goes. In a complicated society, however, father and mother both might find service, benefit practice and work during opposite places divided from any other, yet even in such cases, a marital home would be a place where a father lives. The place where a mother is posted in use can't be pronounced to be her marital home. The place where a father is posted can be, in my opinion, taken to be a marital home of a parties and a revisit of a mother to that place can be taken to be a place of their residence. It is loyal that in this case, a mother is staid to have lived with a father during Balod, when he was posted there for a brief generation of 20 days. But, it is not a doubt of generation of that stay. The doubt is either a place where a father lives, can be pronounced to be a place where they are approaching to live together? If that is a place where they final resided together, that would be sufficient to consult office on a Court of that place. The place where a relatives of a father live or a place from that a father hails can't be pronounced to be their matrimonial home or their place of residence. Even if a chronicle of a mother is supposed that both of them lived together final during Buxwaha in a parental chateau of a father in Nov., 1985, it can't be a place where they can be pronounced to have, in law, final resided, within a clarification of Section 19(iii) of a Act. The Court has not totally disbelieved a father that a mother had lived with him in July, 1982 during Balod. But a reduce Court has treated a spouses to have final resided together in a parental home during Buxwaha in Chhatarpur District. we also do not find any justification to take a discordant perspective and mistrust a father that a mother had come to live with him when he was posted during Balod in Aug., 1982.
In this appeal, an focus underneath Order 41 Rule 27 C.P.C. has also been filed by a father in that accede is sought to take on record dual letters. In one of them D/ – 5-9-1982 created by a mother to a husband, she has done a discuss of her revisit to Balod in a year 1982. There is another minute created by-one of a family of a wife, namely, Kusum Naik to a father and mother jointly D/-8-11-1982 in that there is a anxiety to a revisit of mother to Balod in new past in a year 1982. These letters are relied on in support of a chronicle of a father of a wife’s revisit to Balod in 1982. The focus has been opposite on interest of a mother on a belligerent that these letters could have been constructed in a Court subsequent and needing their prolongation in interest would obligate a remand and retrial on a basement thereof. On a basement of a objection, we reject a focus to take a above papers on record of interest so as to equivocate remand of a case. Even incompatible these additional papers filed in this Court, we am not prepared to accept a chronicle of a mother that she never visited and lived with a husband, while his posting during Balod. The reduce Court has also not found her unconditionally guileless declare given she was found to have done forward claim opposite a father of adultery. Therefore, a chronicle of a mother and her rejection of her corner vital with a father during Balod are disbelieved. The outcome of a above contention on justification is that a father and mother final resided together within a clarification of Section 19(iii) of a Act during Balod and a Court during Durg had a office to perform a petition.
The subsequent doubt is either a father is entitled to a direct of divorce? It could not be argued with any force by a warn for a father that any box of divorce formed on purported passionate impotency of a mother is valid in a case. The hearing Court, however, according to me, committed no blunder in holding that a forward claim of a mother in her pleadings and in her testimony before a Court alleging adultery opposite a father furnishes a belligerent to extend a direct of divorce in foster of a father on a belligerent of cruelty. The schooled reduce Court has placed faith on several decisions of Courts mentioned in para 14 of a judgment, that clear extend of such a direct of divorce and we say a same.
A cross-objection has been filed underneath Order 41, Rule 22, C.P.C. by a mother severe a commentary reached by a hearing Court opposite her on a purported belligerent of adultery taken by her. It was sought to be argued that she was posted during a place divided from a father and whatever best justification was accessible was put onward in explanation of adultery. In my deliberate opinion, stupidity of procuring justification is no excuse. The defence of adultery was taken by a mother and a weight lay on her to liberate a same by majority of luck that a father was heading an unfaithful life.
The final submission, that is in fact of a rough nature, needs usually a mention. The schooled warn appearing for a mother submitted that a visualisation of a hearing Court returning a petition for display to correct Court can't be deemed to be a direct and was not as such appealable underneath S. 28 of a Act. According to him, opposite a impugned sequence returning a petition for representation, a pill of a father was usually to record a diverse interest underneath a supplies of Order 43, Rule 1, C.P.C. or a rider underneath Section 115 of a Code. In my opinion, a perspective is probable to take that a petition likely of for whatever reason, refusing to extend a direct of divorce should consecrate a direct within a clarification of Section 88 of a Act so as to give a right to a depressed celebration to interest opposite a same. The supplies of Civil P. C. are not unconditionally germane and are germane usually to a border probable for controlling a procession and theme to other supplies contained in a Act and a Rules done by a High Court. Assuming for a consequence of evidence that a impugned visualisation was not a direct interest means underneath Section 28 of a Act, a diverse interest or a rider would also He before a singular Judge of this Court and, therefore, a rough conflict has no element outcome on a doubt of tenability of a appeal.
Consequently, a interest succeeds and is allowed. A direct of divorce is postulated in foster of a father and opposite a wife. The appellant shall also get costs of a appeal. Counsel’s fee, Rs. 500/-, if certified.