KAMLABAI Vs. DEVRAM SONA BODGUJAR

JUDGEMENT

(1.) This appeal raises a short question under Section 5, Sub-section (3), Bombay Hindu Divorce Act, 22 of 1947. The plaintiff, who is a Hindu wife, brought a suit against her husband and prayed that the marriage between her and the defendant should be dissolved on the ground that she had been deserted by her husband continuously for a period exceeding four years before the date of the suit and that on or about 18-3-1952, the defendant had married again another wife with whom he was living.

(2.) It appears that the father of the plaintiff originally belonged to Madhya Pradesh, but he came to the State of Bombay for maintenance and has been residing within the State of Bombay for several years before the institution of this suit. His place of residence during this period has been Amalner, where he is working as a millhand in a local mill. The marriage between the plaintiff and the defendant took place in Madhya Pradesh at Fopnar in or about 1945. The defendant has always been a resident of the village of Fopnar. Unfortunately, this marriage has turned out to be a failure right up from the start. It appears that, when the plaintiff was married to the defendant, the defendant's sister was married to the plaintiff's brother. Soon after the marriage the defendant's sister died. Either because of this mishap or because of circumstances which are not apparent on the record, the plaintiff has never gone to the defendant and the defendant has never cared to persuade the plaintiff to join him. On 18-3-1952, the defendant has married another wife, and it is the plaintiff's case that she is entitled to claim divorce and alimony from the defendant because she has been deserted by her husband for the period prescribed by the statute and that she is entitled to the same relief also on the ground that her husband has married a second wife. When the plaintiff applied to the learned District Judge at Dhulia under Section 5, Sub-section (3) for leave to sue her husband before the learned District Judge, her request was rejected. The learned District Judge held that in the present case he would have no jurisdiction to grant any relief to the plaintiff and so it would not be competent to him to grant her relief to sue her husband in his Court. It is this order which is challenged before us by Mr. Kotwal on behalf of the plaintiff, and that is the genesis of the short question which arises before us under Section 5, Sub-section (3).

(3.) Mr. Kotwal contends that the order passed by the learned District Judge refusing leave to the plaintiff to sue the defendant in his Court is plainly inconsistent with the provisions of the said sub-section. Section 5 of the Act deals with Courts in which suits under the Act can be instituted. Sub-section (1) provides that every suit under this Act shall be instituted in the Court within the limits of whoso jurisdiction the defendant resides at the time of the institution of the suit. Sub-section (2) provides that, where the defendant shall at such time have left the State or his whereabouts are unknown, such suit shall be instituted in the Court at the place where the plaintiff and the defendant last resided together. It would be noticed that under Sub-section (1) it would be open to the plaintiff to sue in the Court within whose jurisdiction the defendant resides. That would he the normal procedure to adopt in filing such suits. Where the defendant has left the State or his whereabouts are unknown, liberty is given to the plaintiff to sue in the Court at the place where the husband and wife last resided together. The present case does not fall under either of these two sub-sections. Sub-section (3) provides that, in any case, whether the defendant resides in the State or not, such suit may be brought in the Court at the place where the plaintiff resides or at the place where the plaintiff and the defendant last resided together, if such Court, after recording its reasons, grants leave so to do. This sub-section is clearly intended to provide facilities for the institution of a suit under this Act to the plaintiff and the granting of such facilities is left to the discretion of the Court. The plaintiff may sue either at the place where the plaintiff himself or herself resides, or at the place where the husband and wife last resided together, and the fortum can thus be chosen by the plaintiff whether or not the defendant resides in the State, provided of course that while granting leave the Court records its reasons for so doing. Mr. Kotwal argues that, if this sub-section is literally construed, it would clearly justify the claim for relief which the plaintiff had made before the learned District Judge. When a claim is made for leave under Section 5, Sub-section (3), it is no answer to the claim, says Mr. Kotwal, that the defendant did not reside or never resided in the State. Leave can be granted even where the defendant does not reside in the State, and so Mr. Kotwal's contention is that the learned Judge was in error in not granting leave to the plaintiff solely on the ground that he would not be able to give relief to the plaintiff on the merits.