Holding

The term "resides" in section 19(2) means actual, permanent residence, and since both parties were residing in Delhi, the District Court of Almora lacked jurisdiction to entertain the nullity petition.

Summary

The wife (appellant) and husband (respondent) were married in Delhi and subsequently lived there, although both originally hailed from Bagyan, Uttar Pradesh. The husband filed a petition for nullity of marriage under section 12 of the Hindu Marriage Act in the District Court of Almora, claiming the parties were residents of Bagyan, while the wife challenged the court's jurisdiction. The High Court upheld the lower court's view that the petition could be tried in Almora, but the Supreme Court examined the meaning of "resides" under clause (ii) of section 19 of the Act. It held that "resides" denotes actual, more or less permanent residence, not a place of origin or a temporary stay, and that at the commencement of the proceedings both parties were residing in Delhi. Consequently, the District Judge, Almora, lacked jurisdiction, and the petition must be presented before the District Judge, Delhi. The appeal was allowed, setting aside the High Court’s order.

Issues considered

Whether the District Judge, Almora had jurisdiction under clause (ii) of section 19 of the Hindu Marriage Act to entertain a petition for nullity of marriage.
What is the proper interpretation of the term "resides" in section 19(2) of the Hindu Marriage Act.

Legislation cited

Hindu Marriage Act, 1955s. 12, s. 19, s. 9

Subjects

Family LawJurisdictionResidenceHindu Marriage ActNullity of MarriageSection 19Section 12Section 9District Court

Judgment

ioo:l A
JEEWANTt PANDEY
v.
KISHAN CHANDRA PANDEY
B
October 20, 1981

(A. P. SEN AND A. VARADARAJAN, JJ.J

- Family Law-Jurisdiction of the District Court to entertain a petition for
nullity of 111arriage under se::tlon 12 of the Hindu Marriage Act, 1955,

Words and Phrases-:\feaning of the word "residence"-Section 19(ii) of
c
the Hindu Marriage Act, 1955 clarified.

The appellant is the wife, and the respondent is the husband. The parties
originally belonged to village Bag:ya;i, Di'itrict Pithoragarh in the State of Uttar
D
Pradesh. They fell in love and the appellant became cncients, as the respondent
had access to her during the period of courtship. As her father was opposed to
her marriage, the appellant was brought in a advance stage of pregnancy to
Delhi and through the intervention of her uncle Basant Kumar their marriage
was solemnised according toArya Samaj rites at New Delhi. A few days after
the marriage, the respondent left the residence or Basant Kumar on the pretext
of fetching his belongings from the residence of his uncle who also lives at Delhi
and never returned. He served a notice on the appellant alleging that the
E
marriage was a nullity as she got pregnant through son1eone else and that fraud
was practised on him by her uncle and that he bad coerced to marry against his
will. The appellant after denying the allegations filed a petition for restitution
of conjugal rights under section 9 of the Act in the Court of Subordinate Judge,
Class-I, Delhi which was decreed in her favour and the said decree had become
final. Later on, the respondent filed a petition under section 12 of the Act in the
Court of the District Judge, Almora, alleging that the parties were residents of
F
village Bagyan while in fact at all material times both resided at Delhi. A few
days after, the appellant delivered a dead child at Delhi. Later on, by her written
statement she challenged the jurisdiction of the District Judge, Almora to try
the suit. The district Judge answered the preliminary issue as to the jurisdiction
against the appellant. The High Court, in appeal, by its judgment affirmed the
order. Hence this appeal by special leave. G
Allowing the appeal, the Court

HELD; 1:1. In the context of clause (ii) of the sectio~ 19 of the Hindu
· A t 1955 the word "resides" must mean actual residence and not a
M arnagec,' Ir·· H
legal or constructive residence; it certainly does n~t con~ote the P. ace o ong1n.
In order to give jurisdiction on the ground of ures1dence' , something more than
a mere temporary stay is required. It must be more or less of a ~permanent
i004 SUPREME COURT REPORTS [1982] 1 s.c.i\.

A character, and of such a nature that the court in which the respondent is sued,
is his natural forun1. In the instant case, at the commencement of the proceed-
ings both the parties admittedly resided at Delhi and, therefore, the District ...
Judge, Almora did not have jurisdiction to entertain the suit. [1008 F-H, l009A]

1:2 The word "iesidence" is a flexible one and has many shades of meaning
but it must take its colour and content from the context in which it appears and
B cannot be read in isolation. It is capable of being understood in its ordinary sense
of having one's own dwelling permanently, as well 'as in -Jts extended sense. In
its ordinary sense "residence" is more or less of a permanent character. The
expression "resides" means to make an abode for a considerable time; to dwell
permanently or for a length of time; to have a settled abode for a time. It is the
place where a person has a fixed home or abode. Where. there is such fixed home •
or such abode at one place the person cannot be said to reside at any other place
c where he had gone on a casual or temporary visit, for example, for health or
business or for a change. If a person lives with his wife and children in an
established home, his legal and actual place of residence is the same. If a person
has no established home and is compelled ta live in hotels, boarding houses or
-
houses of others, his actual and ph)'sical habitation is the place where he actually
or personally resides. [1008 B-C, E·F]

D [The Court allowed the appeal and directed that the petition for nullity of
marriage filed by the respondent under s. 12 of the Hindu Marriage Act, 1955i be
returned for presentation to the proper courti i.e., the court of the District
Judge, Delhi.]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2754 of
1981.
E
Appeal by special leave from the judgment and order dated
the 6th August, 1979 of the Allahabad High Court in Civil Revision
No. 1904 of 1978.

F
M. K. Garg for the Appellant.

K. K. Mahrotra for the Respondent.
-
The Judgment of the Court was delivered by

SEN, J. The short point involved in this appeal by special leave
G from a judgment of the Allahabad High Court, is whether the Court
of the District Judge, Almora had jurisdiction to entertain the peti-
tion for nullity of marriage filed by the respondent under s. 12 of the
Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act').
H
To bring out the point, it is necessary to state a few facts. It
appears that the parties originally belonged to village Bagyan,
JEEWANTI PANDEY v. K.C. PANDEY (Sen, J.) 1005

District Pithoragarh, in the State of Uttar l'radesh. The appellant's A
case is that they fell in love and she became enceinte, as the respon-
dent had access to her during the period of courtship. Her case is
that she wanted to marry the respondent, but her father was opposed
to the alliance as her elder brother and sister were unmarried. She
was therefore brought in an advanced stage of pregnancy to Delhi
and through the intervention of her uncle Basant Kumar, the B
marriage was solemnised on January 24, 1976 according to Arya
Samaj rites dt the Arya Samaj Mandir, Hanuman Road, New Delhi.
Three days after the marriage, i.e. on January 27, 1976, the respon-
.. dent left the residence of Basant Kumar on the pretext that he had
to fetch his belongings from the residence of his uncle Dharm Nand
Pant who also lives at Delhi, and never returned. On February 6, c
1976, he served a notice on the appellant alleging that the marriage
was a nullity as she got pregnant through someone else, that fraud
was practised on him by her uncle Basant Kumar and that he had
been coerced to marry her against his will. On February 17, 1976
she sent a reply denying the allegations made therein. On March 2,
1976 she filed a petition for restitution of conjugal rights under s. 9 D
of the Act in the Court of Subordinate Judge, Class I, Delhi.

It may here be stated that although the appellant is a resident
of Delhi as she lives with her uncle Basant Kumar at Lajwanti
Garden, and the respondent was also a resident of Delhi being
employed, at all material times, as Radio-Technician in the Ministry E
of Home Affairs, Rail Bhavan, New Delhi, he started the present
proceedings not at Delhi but at Almora.

On March 18, 1976 the respondent filed a petition for nullity
of marriage under s. 12 of the Act in the Court of the District Judge,
Almora alleging that the parties were residents of village Bagyan, F
District Pithoragarh, i.e. within the territorial jurisdiction of the
• Court of District Judge, Almora. On March 23, 1976 i.e. just after
five days of the filing of the petition under s. 12 of the Act the
~ appellant delivered a dead child at Delhi.

On February 25, 1977 the Subordinate Judge, Class I, Delhi
G
decreed the appellant's suit for restitution of conjugal rights under
s. 9 of the Act. In decreeing her claim for restitution of conjugal
rights, the learned Subordinate Judge observed :
H
"That to sum up, the evidence adduced by petitioner
proves that the petitioner and respondent were )<nown to
1006 SUPREME COURT REPORTS (1982] l S.C.R.
A each other and had developed sexual intimacy. It is further
proved that the respondent married the petitioner at Delhi
on 24.1.1976 of his own sweet free will according to Hindu
rites. The petitioner delivered a dead child on 23.3.1976
would show that on the date of marriage, the petitioner
was running in 7th month of pregnancy. Such advanced
B stage of pregnancy could not be hidden from the vision of
any person. The plea of respondent that he did not know
on 24. l.1976 that the petitioner was pregnant cannot he
believed. The respondent thus knew at the time of marriage
that the petitioner was pregnant. The very fact that be
married her of bis own free will would justify the conclusion
c corroborated by other evidence and circumstances discussed
above that the petitioner bad conceived from the respon-
dent and the respondent thus married her of his own free
wil1."

D The judgment of the learned Subordinate Judge decreeing the appel-
lant's claim for restitution of conjugal rights under s. 9 of the Act
was not appealed from and has, therefore, become final.

Upon these facts, it is quite evident that the Court of the
District Judge, Almora had no jurisdiction to try the petition for
E the nullity of marriage filed by the respondent under s. 12 of the
Act. The appellant by her written statement filed on August 23,
1976 challenged the jurisdiction of the District Judge, Almora to try
the suit. The learned District Judge, accordingly framed a prelimi-
nary issue as to jurisdiction. By bis order dated April 8, 1978 he
negatived the objection raised by the appellant holding that since
F the parties were originally resident of village Bagyan, District
Pitboragarh, that is, a place within the territorial jurisdiction of the
Court of the District Judge, Almora, he 1 was competent to entertain
and try the suit.

The appellant being aggrieved by the order of the learned
G District Judge preferred an appeal before the High Court. The High
Court by its judgment dated August 6, 1979 upheld the finding of
the learned District Judge observing :

"The allegations made in the written statement do un-
H mistakably show that the respondent was ordinarily residing
at village Bagyan which was within the limits of the terri-
lEEWANTI PANDEY v. K.C. PANDEY (Sen, J.) 1007

torial jurisdiction of the Court of District Judge, Almora. A
Even if she happened to be in Delhi on the date when the
petition was presented, she must have gone to Delhi only
on a temporary visit as she had no place of residence at
Delhi and the respondent could not be said to have been
residing at Delhi when the petition was presented in the
District Court." B

In arriving at that conclusion, the High Court was obviously
influenced by the fact that the parties never had any permanent
residence. While it is true that mere casual or temporary visits do

- not constitute 'residence' within the meaning of cl. (ii) of s. 19 of
the Act, it cannot be said that the parties came to Delhi [on a tem-
porary sojourn for a day or two. The appellant's case is that she
had left her parental home at village Bagyan as her father did not
c
consent to the marriage. If that be so, the irresistible conclusion is
that she came to reside with the respondent at Delhi. It was frankly
conceded before us that the finding of the High Court that she
should be so regarded as having her residence at village Bagyan in D
the District of Pithoragarh is based on no evidence. It is agreed on
all hands that ever since the marriage, the appellant has been resid-
ing with her uncle Basant Kumar at Lajwanti Garden, New Delhi.

Section 19 of the Act, insofar as material, reads as follows :
E
"19. Every petition under this Act shall be presented
to the District Court within the local limits of whose ordi-
nary original civii jurisdiction-

(i) the marriage was solemnised, or
F
(ii) the respondent, at the time of the presentation of
the petition, resides, or

,
> (iii) the parties to the marriage last resided together ... "

It is common ground that the marriage was solemnised on
January 26, 1976 at New Delhi. The fact that the parties last
G
resided together at the residence of the appellant's uncle Basan t
Kumar at Lajwanti Garden, New Delhi is not in dispute. It is,
therefore, clear that the conditions laid down in els. (i) and (iii) of
s. 19 of the Act are not present to invest the Court of the District
H
Judge, Almora to entertain the petition for annulment of marriage
filed by the respondent under s, 12 of Act,
JOOS SUPREME COURT REPORTS [19S2] l S.C.R

A The question that arises is whether the learned District Judge
was invested with jurisdiction by reason of cl. (ii) of s. I 9 of the Act,
i.e. whether, at the time of presentation of the petition, the appellant
was a resident of village Bagyan within the territorial jurisdiction of
the Court of District Judge.

B In order to give jurisdiction on the ground of 'residence',
something more than a temporary stay is required. It must be more
or less of a pern1anent character, and of such a nature that the court
in which the respondent is ~sued, is his natural forum. The word
'reside' is by no means free from all ambiguity and is capable of

c
a variety of meanings according to the circumstances to which it is
made applicable and the context in which it is found. It is capable
of being understood in its ordinary sense of having one's own
dwelling permanently, as well as in its extended sense. In its ordi-
nary sense 'residence' is more or less of a permanent character.
-
The expression 'resides' means to make an abode for a considerable
time; to dwell permanently or for a length of time; to have a settled
D abode for a time. It is the place where a person has a fixed home
or abode. In Webster's Dictionary, 'to reside' has been defined as
meaning 'to dwell permanently or for any length at time', and
words like 'dwelling place' or 'abode' are held to be synonymous.
Where there is such fixed home or suoh abode at one place the
person cannot be said to reside at any other place where he had
E gone on a casual or temporary visit, e.g. for health or business or
for a change. If a person lives with his wife and children, in an
established home, his legal and actual place of residence is the same.
If a person has no established home and is compelled to live in
hotels, boarding houses or houses or others, bis actual and physical
habitation is the place where he actually or personally resides.
F
It is plain in th context of cl. (ii) of s. l 9 of the Act, that the
word 'resides' must mean tee actual place of residence and not a
legal or constructive residence; it certainly does not connote the
place of origin. The word 'resides' is a flexible one and has many
r
shades of meaning, but it must take its colour and content from the
G
context in which it appears and cannot be read in isolation. It
follows that it was the actual residence of the appellant, at the
commencement of the proceedings, that had to be considered for
determining whether the District Judge, Almora, had jurisdiction or
8 not. That being so, the High Court was clearly in error in uphold-
ing the findin!;l of the learned l)istrict Jud!;le that he had jurisdiction
JEEWANTJ PANDEY v. K.c. PANDEY (Sen, i.) 1009
A to entertain and try the petition for annulment of marriage filed by
the respondent under s. 12 of the Act.

In the result, the judgment of the [High Court is set aside and
the District Judge, Almora, is directed to return to the respondent
the petition filed by him for nullity of marriage under s. 12 of the
13 Hindu Marriage Act, 1955 for presentation to the proper court, i.e.
the Court of the District Judge, Delhi. There shall be no order as
to costs.

Appeal allowed.
... S.R .

-
.
~.

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