Mrs. Vaishali W/O Manish Manekar vs Manish S/O Motiram Manekar
2002 Latest Caselaw 1321 Bom

JUDGMENT

R.S. Mohite, J.

1. Heard Shri Deshpande, Advocate for the petitioner and Shri Vishwarupe, Advocate for the respondent.

2.Rule. By consent, rule is made returnable forthwith.

3.This is a writ petition challenging an order dated 17.9.2002 passed by the Principal Judge, Family Court, Nagpur, below Exh. 13 in Petition No.A-144/2002. The main petition has been filed by the respondent husband for restitution of conjugal rights. The parties were married on 22.7.1999. It is not in dispute that after marriage, the husband and wife came to reside at the residence of the father of the respondent at Nagpur. The respondent was residing there for short time till 27.7.1999, on which date he left for United States of America to pursue his career. The wife stayed at her parents house till 24.8.1999, after that she left for U.S.A. to join her husband. The wife returned on 22.9.2000 for Diwali vacation and husband also returned for vacation on 11.10.2000. Thereafter, for a few days, they were residing at the parental place of the respondent. It is contended that the residence of the parties at the parental place of the respondent husband was for a short and temporary period and hence they cannot be said to have last resided there.

4.The learned counsel for the petitioner relied upon a judgment of the apex Court in the case of Jeewanti v. Kishan Chandra, .

In para 12 of the said judgment, the apex Court has had an occasion to interpret and give the meaning of the word "residence" occurring in Section 19(ii) of the Hindu Marriage Act. While interpreting the word "residence" the apex Court observed that in the ordinary sense it means a residence which is more or less of a permanent character. The apex Court further observed that 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 of others, his actual and physical habitation is the place where he actually or personally resides.

5.In my opinion, the aforesaid judgment considered the meaning of residence within the meaning of Section 19(ii) of the Hindu Marriage Act. In Section 19(iii) of the Act, the concept "last resided together" may not have the same connotation as the words "residing at the time of presentation of petition" within the meaning of Section 19(ii) of the Act. It is pertinent to note that the Legislature has not provided for any particular period during which parties should be last residing together at a particular place, for conferring jurisdiction to a Court at that place. Even otherwise the apex Court while observing as above, clearly had several exceptions in mind as can be inferred from para 3 of the apex Courts judgment. In the present case, the husband brought his wife to his fathers place for residence. It is not the petitioners case that the husband had any separate residence and that he had come to the parental place for the purpose of casual or temporary visit. It can be seen that even after coming from U.S.A., the parties were residing at Nagpur at the residence of the father of the respondent.

6.The petitioners advocate has referred to further authorities including one of Pushpa Datt Mishra v. Archana Mishra, reported in AIR 1992 M.P. 260. In that case, the facts were different. The husband and wife were both in service and were posted at different places. They had come to the husbands parental house for a period of about 20 days on a visit. In the present case, the parties did not have any such separate residence.

7.The reliance is lastly placed on a judgment of the Andhra Pradesh High Court in the case of T. Sareetha v. T. Venkata Subbaiah, , wherein the learned Single Judge of the Andhra Pradesh High Court while interpreting the expression "last resided together" occurring in Section 19(iii) of the Act, took the view that - "such a place can only be a place of permanent dwelling taken up by the husband and wife jointly for their matrimonial purposes. That place must be one to which the parties are bound by the solemn ties of their matrimony."

The learned Single Judge of the Andhra Pradesh High Court has further observed that -

"These ordinarily accepted descriptions of the word reside in matrimonial cases would have the effect of excluding the places where the husband and the wife stayed temporarily on short sojourns pursuing temporary purposes such as seeking pleasure or visiting a friend or a temple or attending a function from the category of residence. The places where the wife and husband stop to eat or drink or stay for the night during such short sojourns could never be taken to have been intended by Section 19(iii) to be called "the place they last resided together". Such places do not reverberate with the sounds of marriage destiny. Giving such a meaning to the words "last resided together" in Section 19(iii) would make that clause dis-functional."

8. If the facts of the above case are seen, the same do not come to the help of the petitioner. In that case, the husband and wife after their marriage went to reside at the parental home of the husband at Cuddapah. They were residing there for a period of six months. It is only thereafter that the married pair went to reside at Madras where the parents of the girl Sareetha were staying. A glance at the judgment would indicate that on the facts of the case, the learned Single Judge of the Andhra Pradesh High Court came to the conclusion that the parental home of the husband at Cuddapah could be infact said to be a permanent house.

9.In this view of the matter, in my opinion, there is no substance in the petition and there is nothing perverse in the impugned order. The rule is, therefore, discharged. There shall be no order as to costs.