T A MENON Vs. KPPARVATHI AMMAL

JUDGEMENT

(1.) This revision petition raises among others, an important question of jurisdiction for a petition under Section 6, of the Madras Marumakkattayam Act (XXII of 1933). The petitioner is the husband. The respondent is the wife. They are persons governed by the Marumakkattayam law of inheritance. They were married on the 22nd March, 1941. The marriage was celebrated at Behala, in West Bengal. The husband is a member of the Indian Civil Service permanently employed in West Bengal. The parties entered into a deed of dissolution of marriage on the 10 October, 1947, the validity of which is however not admitted by the petitioner. On the 6 January, 1948, the husband filed Title Suit No. 10 of 1948 on the file of the Third Court of Munsif of Alipore, 24 Parganas, against his wife and mother-in-law for restitution of conjugal rights and for a decree declaring that the deed of dissolution of marriage dated 10 October, 1947, was obtained fraudulently and was not binding on the parties to it. The wife filed a suit in the Madras City Civil Court, O.S. No. 61 of 1948, for a declaration that the deed of dissolution was valid and binding on her husband, the petitioner. She filed an application in the High Court of Calcutta for transfer of the Title Suit No. 10 of 1948, from the Third Court of Munsif, Alipore, 24 Parganas, to the City Civil Court, Madras, and by an order of the High Court, dated 14 July, 1948, the said application was dismissed. The wife filed O.P. No. 111 of 1947, in the District Munsif's Court of Palghat under Section 6 of the Madras Marumakkattayam Act for dissolution, of the marriage and the husband applied to the District Munsif of Alipore for an injunction restraining the wife from proceeding with O.P. No. 111 of 1947. An order of injunction was passed by the Munsif of Alipore restraining the wife from proceeding with her petition for dissolution in the Court of the District Munsif of Palghat. This order of injunction was received by the District Munsif of Palghat with a request not to proceed with the trial of O.P. No. 111 of 1947. This was received by the District Munsif on the 30 August, 1948. The learned District Munsif proceeded with the trial. on the wife's petition for dissolution and passed an order on the 8 September, 1948, dissolving the marriage.

(2.) The main contention of the learned Counsel for the petitioner-husband is that the District Munsif of Palghat had no jurisdiction to entertain the petition. The wife alleges in her petition that the marriage was solemnised at Calcutta but that the husband had a permanent dwelling in Ellapully village within the jurisdiction of the District Munsif's Court of Palghat. If in fact he had a permanent dwelling within the jurisdiction of the Madras District Munsif's Court, then certainly the petition is maintainable. Section 7(1)(i) of the Act reads as follows: A husband or wife may present a petition for dissolution of the marriage if the place where the marriage was contracted or the respondent has a permanent dwelling or actually and voluntarily resides or carries on business or personally works for gain, at the time the petition is presented, is situated within the local limits of the jurisdiction of the Court of a District Munsif in such Court.

(3.) The question of the place of marriage does not arise here as it is admittedly outside the jurisdiction of the District Munsif's Court of Palghat. But the relevant portion of the section for consideration would be whether the husband had a permanent dwelling or actually and voluntarily resided within the jurisdiction of the Court. There is no decision that has been placed before me interpreting the meaning of these words with reference to this Act but the jurisdictional provisions in other enactments have been cited before me where the same words or similar words occur. Section 20 of the Civil Procedure Code gives jurisdiction to the Court to try a suit under Clause (a) if the defendant or each of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain. Explanation I says that where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. Under Clause 12 of the Letters Patent, jurisdiction is vested in the High Court if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for gain, within such limits. In Mahomad Shuffi V/s. Laldin Abdulla (1878) I.L.R. 3 Bom. 227., it is stated that the meaning to be given to the word residence in legislative enactments depends upon the intention of the Legislature in framing the particular provision in which the word is used and residence intended in Section 380 of the Civil Procedure Code (Act X of 1877) is residence under such circumstances as would afford a reasonable probability that the plaintiff would be forthcoming when the suit was decided. It is observed by Sargent, J., that an attempt has occasionally been made to draw a distinction between the meaning of the words " dwell " and " reside " but they appear to me to express the same idea, the only difference being that they are, perhaps, in ordinary usage, applied to different classes of society. Neither expression, however, necessarily implies a permanent state of things.