- (1.) THIS is a revision by the husband and arises out of a petition filed by his wife (opposite party) under S. 10 of the Hindu Marriage Act, 1955 hereinafter referred to as the Act for a decree for judicial separation, payment of permanent alimony and maintenance at the rate of Rs. 500/- per month and return of ornaments, clothes, certificates and degrees detailed at the foot of the petition. The claim for judicial separation was found on allegations of mental and physical cruelty.
(2.) UNDISPUTABLY the applicant and the opposite party were Hindus within the meaning of S. 2 of the Act and were married according to the Hindu rites and customs at Allahabad on the 25th June, 1974. After their marriage they lived as husband and wife at Allahabad till December 1974 and during this period, it is alleged by the wife that various forms of physical and mental cruelty, were practised on her by the applicant and the members of his family. Ultimately on the 6th Dec. 1974, the opposite-party' s mother came to Allahabad and she accompanied her to Bareilly to her father' s house. It is alleged that on the 18th Dec. 1974 the applicant went to Bareilly to the house of the father of the opposite-party and resided there with her. According to the petition he tried to persuade the opposite party and her parents but she refused to go back with the applicant to Allahabad and to live with him as his wife. It is disclosed in the petition that the applicant requested the opposite party to have sexual intercourse with him at Bareilly but she plainly refused to do so. The husband remained in Bareilly at the house of his wife' s father for three days but they slept in separate rooms and the wife did not permit him to have access to her. Reluctantly, it is stated, the applicant returned back to Allahabad. According to the petition, in the months of February and March 1975 the applicant again went to Bareilly and resided with her at her father' s house. The wife alleges that again he pressed for a compromise and requested her to return with him to Allahabad but she declined to accompany him. In para 29 of the petition, it is alleged that, " the cause of action for this petition arose when the respondent committed various acts of cruelty upon the petitioner and also when the respondent came to Bareilly within the jurisdiction of this Hon' ble Court where the parties last resided together, and this Hon' ble Court has jurisdiction to try this petition." No written statement was filed on behalf of the applicant. An affidavit was filed wherein it was admitted that the applicant and the opposite party were married at Allahabad where they resided together as husband and wife till the 6th Dec. 1974, when the opposite party left Allahabad at the instigation of her mother and sister and since then did not return to the matrimonial home and never lived thereafter with him as his wife. The stand was taken in the affidavit that the applicant had received legal advice that the court at Bareilly where the petition had been lodged had no jurisdiction to entertain and hear it. The learned Civil Judge, Bareilly, before whom the petition under S. 10 of the Act was pending, framed a preliminary issue as follows :- " Whether this court has jurisdiction to try the suit" . On the preliminary issue the opposite party examined herself as a witness to establish that she and the applicant had resided together last at Bareilly and she was cross-examined. She also produced and proved certain letters sent to her and her sister by the applicant from Bareilly itself. The applicant did not examine himself but filed certain documents to prove that during the period that he was alleged to be at Bareilly he was either at Allahabad or Lucknow. The learned Civil judge held that, " All this reasonably leads to the inference that the respondent had come to Bareilly from Allahabad firstly on 18-12-1974, and then in February and March 1975 and had stayed in her parents' house where the petitioner was at that time residing. The purpose of all such visits was to bring the petitioner back to Allahabad." He accepted the legal proposition that the word ' reside' implies more than mere brief or flying visits on the allegations contained in the petition and the statement of the applicant, the learned Civil Judge came to the conclusion that the husband and wife ' resided together' last at Bareilly and consequently he had jurisdiction to entertain the petition. On a revision filed by the applicant, the learned Vth Additional District and Sessions Judge, Bareilly upheld the conclusions arrived at by the trial court and dismissed the revision.
(3.) AGGRIEVED by the decisions taken by the courts below on the preliminary issue, the husband Dr. Ashok Ranjan Saxena has invoked the jurisdiction of this Court under S. 115 of the Civil P. C. The admitted case of the parties is that the opposite party left the matrimonial home at Allahabad for her father' s place at Bareilly early in December 1974 and never returned back to Allahabad. If the allegations made in the petition and the evidence of the opposite party is believed, thrice her husband visited Bareilly, and stayed as an unwanted guest at her father' s house, in an attempt to bring about reconciliation and persuade her to return back. During the short visits, which according to the opposite party herself never lasted beyond three days attempts made by the applicant for reconciliation proved futile and he had to return back to Allahabad disappointed. From the post-cards produced by the opposite party it is apparent that communication between the parties even during the brief visits of the husband to Bareilly was so difficult that he had to rely for the same on the postal system.;