MADHVI SIROTHIA Vs. N N SIROTHIA

JUDGEMENT

(1.) THIS revision has been filed against the order of the Court be low holding that it has jurisdiction to deal with the petition filed under Sec tion 9 of the Hindu Marriage Act for the relief of restitution of conjugal rights and for other reliefs in the alternative. The Court below has held that the hus band and wife last resided together in Allahabad and hence Allahabad Court has jurisdiction. Section 19 of the Hindu Marriage Act provides that a petition under the Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the hus band and wife reside or had last resided together. Admittedly, neither marriage was solemnized in Allahabad nor hus band and wife resided on the date of in stitution of the petition in Allahabad. The question to be determined was whe ther husband and wife had last resided together in Allahabad.

(2.) S . 19 does not deal with the length of residence, even a short resi dence may be sufficient to give the Court jurisdiction to entertain the petition. The Court below impliedly appears to have thought that residing together must refer to residing together for the purpose of enjoying the marital relationship as husband and wife. Section 19 does not say any such thing. It only refers to their joint residence. If the husband and wife had lived together in the same residence then they must be deemed to have re sided together. The enjoyment of marital relationship is not a relevant factor in determining if the husband and wife had resided together. It is the factum of re sidence and not the purpose of residence that is material. The Court below thus fell into error and misdirected itself in not considering the other circumstances mentioned in the petition.

(3.) THE Court below apparently considered only paragraph 4 of the peti tion and on that basis held that the Al lahabad Court had jurisdiction. It also appears to have been led by the bare statement made in paragraph 3 of the petition to the effect that they had co habited together from 20-5-1964 to 10-6- 1964, October 1964 to November 1964 and December 1964 to April 15, 1965. The Court below has held that visit to Delhi did not amount to residing together. But it has failed to consider the effect of al legations made in paragraphs 7 and 8 of the petition which deal with the facts relevant for considering if they had "resided together" from May to August 1966. As the allegations about living to gether mentioned in paragraphs 7 and 8 come after those mentioned in earlier paragraphs, residence as mentioned in the earlier paras will be irrelevant and the only relevant consideration would be of facts alleged in paragraphs 7 and 8 of the petition- Paragraph 8 also does not in fact talk about residence together. It is paragraph 7 alone which deals with it. Paragraph 7 of the petition runs as under: