PATEL MANILAL HARJIVANDAS Vs. GANGABEN GANESHBHAI

JUDGEMENT

(1.) The parties to this Second Appeal were married in village Sander District Mehsana according to Hindu riles some time in the year 1961. The husband contends that they last resided together in Bhavnagar in the month of December 1970 and thereafter his wife deserted him and refused to resume cohabitation. On this ground he filed a petition No. 39/71 in the court of the learned Civil Judge Senior Division Bhavnagar under sec. 9 of the Hindu Marriage Act 1955 hereinafter called the Act for restitution of conjugal rights. The respondent wife though served with the summons of the said petition did not enter appearance and allowed it to be disposed of ex parte. The learned Judge framed issues at ex. 6 and came to the conclusion that the respondent wife had without reasonable excuse withdrawn from the society of the husband. He therefore granted a decree for restitution of conjugal rights under sec. 9 of the Act on 23rd August 1971 The certified copy of the judgment in the said petition is at ex. 29. After the said decree was passed in favour of the husband the respondent wife was served with a a notice dated 1st February 1971 informing her of the decree for restitution of conjugal rights in his favour and calling upon her to resume conhabitation and fulfil her marital obligations. The respondent wife did not answer this notice nor did she return to the house of her husband in compliance with the decree passed in his favour. On the expiry of the statutory period the husband therefore filed a petition No. 36/73 in the court of the learned Civil Judge Senior Division Bhavnagar claiming divorce under clause (ix) of sub-sec. (1) of sec. 13 of the Act. The respondent wife entered appearance and resisted the petition for divorce by her written statement Ex. 10. The learned trial Judge framed appropriate issues at Ex. 12. and came to the conclusion that the respondent wife had not complied with the decree for restitution of conjugal rights. The question of jurisdiction of the court was specifically raised in the written statement and the learned trial Judge raised an issue in this behalf and held that in view of the previous decree for restitution of conjugal rights having been passed by the Bhavnagar court it was not open to the respondent wife to reiterate the question of territorial jurisdiction of the court in the subsequent petition and accordingly granted a decree for divorce on 18th February 1975

(2.) The respondent wife preferred an appeal No. 41/75 in the court of the learned District Judge Bhavnagar challenging the decree for divorce granted by the trial court. The main contention which was urged before the learned District Judge was regarding the territorial jurisdiction of the Bhavnagar court to try and dispose of the petition for divorce. The learned District Judge came to the conclusion that the evidence on record disclosed that the parties did not last reside together at Bhavnagar as contended by the petitioner and hence the Bhavnagar court had no jurisdiction to entertain try and dispose of the divorce petition. He also came to the conclusion that the decree for restitution of conjugal rights was a nullity inasmuch as the Bhavnagar court had no jurisdiction to entertain any petition under the Act between the parties as they did not last reside together in Bhavnagar. In that view that he took he allowed the appeal and dismissed the husbands petition for divorce. It is against this order passed by the learned District Judge that the petitioner husband has preferred this Second Appeal.

(3.) The first question which this court must answer is whether the Bhavnagar court had jurisdiction to entertain try and dispose of the divorce petition of the husband founded on the earlier decree for restitution of conjugal rights granted in his favour by the Bhavnagar court in petition No. 39/71. Sec. 19 of the Act as it then stood reads as under: Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together. The submission made on behalf of the wife before the learned trial Judge was that the decree for restitution of conjugal rights obtained by the husband was a nullity inasmuch as the Bhavnagar court had no jurisdiction to entertain the said petition. This objection it may be clarified related to the territorial jurisdiction of the Bhavnagar court in that according to the respondent wife she and her husband did not last reside together in Bhavnagar as alleged by the latter. The trial court rejected this contention on two grounds namely (i) such a contention is not open in collateral proceedings as the court is not entitled to go beyond the decree made in the earlier petition unless it is set aside in a subsequent suit brought for that purpose; and (ii) even on the evidence on record it was obvious that the couple last resided together in Bhavnagar. In appeal the learned District Judge held on merits that the brief or temporary visit of the wife to Bhavnagar around January 1971 did not amount to she having last resided with her husband and hence the couple could not be said to have last resided together in Bhavnagar within the meaning of sec. 19 of the Act. In that view that the learned District Judge took he not only allowed the appeal dismissing the petition for divorce but took the additional step of holding that the decree for restitution of conjugal rights obtained by the husband was a nullity as the Bhavnagar court had no jurisdiction to grant such a decree. This view of the learned District Judge is seriously challenged before me by Mr. Shah the learned advocate for the petitioner husband.