DORA INA EATES Vs. ERIC NEVEL EATES

JUDGEMENT

(1.) This is a wife's petition under the Divorce Act for the dissolution of her marriage on the ground of her husband's adultery and desertion.

(2.) I am satisfied that the parties are domiciled in India, and that the petitioner professes the Christian religion. The petitioner and her husband last resided together in Dhanbad in Bengal, and the preliminary question which arises in this case is whether the fact-and I find it to be so-that both the petitioner and the respondent reside in Allahabad, but not together, is sufficient to give this Court jurisdiction to hear this petition. There is no reported decision of this Court on the point, but my attention has been drawn to the case in (Matrimonial Suit No. 8 of 1937) (loaded by Harries J., as he then was, in the year 1937. In that suit, which was undefended, the parties had last lived together in Calcutta but at the time of filing the petition both were living in Allahabad. The learned Judge, without stating his reasons, held that the Court had jurisdiction. I agree, if I may say so with respect, with that decision. 2a. The matter turns upon the correct interpretation of the words "where the husband and the wife reside or last resided together" in Sub-section (i) (j) of Section 3 of the Act, and the question is whether the word "together" governs the word "reside" as well as the words "last resided." Considered grammatically, the phrase is, I think, open to both interpretations, but in my opinion the more reasonable construction is to restrict the operation of the word "together" to the immediately preceding words "last resided" for, as was pointed by Marten J. in D. A, Borgouha V/s. W. C. Borgouha A.I.R. (7) 1920 Bom. 245: one very cogent reason for not making the word "together" govern the word "reside" is that one can hardly imagine any case in which the husband and wife would be residing together at the date of the presentation of the divorce petition. For one thing, to do so would almost inevitably raise the strongest suspicion of collusion or connivance, and lead to the petition being dismissed. For instance, a wife's petition must depend on adultery plus either desertion or cruelty. Obviously in no petition founded on desertion could the parties be living together at the date of the petition.

(3.) In the earlier case of N. Durand V/s. K. Durand 14 W.R. 416-a decisional the Calcutta High Court-the same construction was placed on the words in question although no reasons wore given for the decision, and D. A, Borgouha V/s. W.C. Borgouha A.I.R. (7) 1920 Bom. 246 has since been followed by the chief Courts of the Punjab and Oudh: Gale V/s. Gale 10 I.C. 487 and Leadon V/s. Leadon A.I.R. (13) 1926 Oudh 319. I hold, therefore, that as both the petitioner and Iter husband resided in this province at the date upon which the petition was filed, this Court has Jurisdiction to dispose of this petition.