Mat.Appeal No. 384 of 2013 (C)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **& THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 24TH DAY OF JUNE 2013/3RD ASHADHA, 1935** **Mat.Appeal.No. 384 of 2013 (C) ------------------------------** **AGAINST THE ORDER/JUDGMENT IN OP 215/2012 of FAMILY COURT, KASARAGOD DATED 25/02/2013** ## **APPELLANT(S)/PETITIONERS:** **----------------------------------------------** ## **1. RAVI JAISINGHANI AGED 40 YEARS** **S/O.HIRO, R/A.121/6, IST FLOOR SHAHANI NAGAR ROAD, MULIND EAST, MUMBAI-40081** ## **2. LINDSEY SPINKS AGED 38 YEARS** **R/A.BARONS COURT, WADDESDON, AYLESBURY BUCKINGHAMSHIRE, UNITED KINGDOM, RESIDED NEAR ANANDASRAMAM AJANUR VILLAGE, HOSDURG TALUK, ANANDASRAMAM P O KASARAGOD DIST** **BY ADV. SRI.JOSE J.MATHAIKAL** ## **RESPONDENT(S):** **----------------------------** **NIL** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 24-062013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal NO.384/13** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **ANNEXURE A1: COPY OF ORDER DT 25.2.13 IN OP NO.215 OF 2012 OF FAMILY COURT, KASARGOD. ANNEXURE A2: TRUE COPY OF INDIAN VISA OF SECOND PETITIONER.** ## **//True Copy//** ## **PA to Judge** ## **Rp** ## **ANTONY DOMINIC & P.D.RAJAN, JJ. ======================== Mat. Appeal No. 384 OF 2013 =======================** ## **Dated this the 24[th] day of June, 2013** ## **J U D G M E N T** ## Antony Dominic, J. The challenge in this appeal is against the judgment of the Family Court, Kasaragod dismissing OP No.215/12 filed by the appellants seeking divorce on mutual consent invoking Section 28 (1) of the Special Marriage Act, 1954 and Section 7(1)(a) of the Family Courts Act. 2. By the judgment under appeal, Family Court dismissed the OP on the ground that it had no jurisdiction to entertain the same. According to the learned counsel for the appellants, although the first appellant is a native of Maharashtra residing in Mumbai and the second appellant is a resident of Buckinghamshire, UK within the limits of the Family Court, Milton Keyness in Buckinghamshire, they last resided near to Anandhasramam, within the jurisdiction of the Family Court, Kasaragod. Therefore, it is contended that the appellants having last resided within the jurisdiction of the Family Court, Kasaragod, it had jurisdiction to entertain the petition. **Mat.Appeal No.384/13** **: 2 :** 3. The facts pleaded before the Family Court show that the first appellant is a resident of Mulund East, Mumbai within the limits of Family Court, Bandra, Mumbai and the second appellant is a resident of Buckinghamshire, UK within the limits of the Family Court, Milton Keyness in Buckinghamshire. According to the appellants, they registered the marriage at the Sub Registrar's Office, Bandra in Mumbai on 18.2.2009 as per the provisions of Special Marriage Act. Thereafter, they resided as husband and wife in the house of the first appellant at Mulund in Mumbai till June, 2009. Subsequently they went to England and stayed there as husband and wife in the house of the second appellant till November, 2009. Then the first appellant returned to India and the second appellant also came to India in January, 2010 and they continued to stay in Mumbai for one month and then shifted their residence to a house adjacent to Anandhasramam, Mavungal, Kanhangad in Kasargod District till 10/3/2010. In the meantime, due to some misunderstanding and ill feeling that developed between them, they realised that they could not live together and therefore the second appellant went back to England by 11/3/2010. Since then they were living separately and realising that there is no meaning in continuing **Mat.Appeal No.384/13** ## **: 3 :** their relationship, they filed the petition before the Family Court, Kasargode on 9.4.12. In the petition they said that the cause of action for the petition arose on and since 18.2.2009, when they got married and on 10/3/2010, when they started living separately and subsequently at Mavungal in Ajanur village, Hosdurg Taluk, Kasargod District, where the appellants last resided together as husband and wife, which is within the jurisdiction of the Court. 4. In the petition, the powers of the Family Court which are invoked are those under Section 28(1) of the Special Marriage Act, 1954 and Section 7(1)(a) of the Family Courts Act. Section 28 of the Special Marriage Act, 1954 provides for divorce by mutual consent and Section 28(1) which alone being relevant, is extracted below for reference: _**28. Divorce by mutual consent** -(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.”_ ## 5. Section 7(1)(a) provides that; _“subject to the other provisions of the Act, the Family Court shall, have and exercise all the jurisdiction_ **Mat.Appeal No.384/13** **: 4 :** _exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation_ . 6. Section 31(iii) of the Special Marriage Act, 1954, being relevant is extracted below for reference. _**31. Court to which petition should be made** ; (1) Every petition under Chapter V or Chapter VI shall be presented to the district court within the local limits of whose original civil jurisdiction,-_ _(i) the marriage was solemnized; or (ii) the respondent, at the time of presentation of the petition resides; or_ _(iii) the parties to the marriage last resided together;_ 7. From the above statutory provisions, it is evident that a petition under Section 28 of the Special Marriage Act and Section 7 of the Family Courts Act can be filed before the Family Court within whose jurisdiction the parties to the marriage last resided together. 8. In so far as this case is concerned, admitted facts of the parties show that according to them they resided within the jurisdiction of the Family Court, Kasaragod till 10/3/2010. Even according to the parties, one is a resident of Mumbai and the other is a resident of UK. There was absolutely no plea or evidence before the Family Court to the effect that they had any intention to make any place within the jurisdiction of the Family **Mat.Appeal No.384/13** **: 5 :** Court, Kasaragod their permanent or fixed abode. Instead, pleadings suggest that they came on a short trip or a holiday to Hosdurg where they stayed for a short while. 9. In such circumstances, the question is whether such a stay can be a “residing” as contemplated under Section 31(iii) of the Special Marriage Act. Chapter V of the Hindu Marriage Act, 1955 provides for jurisdiction and procedure. Section 19 of the Hindu Marriage Act occurring in Chapter V provides that every petition under the Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction, the marriage was solemnized, the respondent at the time of the presentation of the petition “resides”, or the parties to the marriage “last resided together”. The expression 'resides' occurring in clause (ii) of this section came up for consideration of the Apex Court in _**Jeewanti Pandey v. Kishan Chandra Pandey**_ (AIR 1982 SC 3) and in para 12 and 13 of the judgment, the Apex Court held thus; _12. 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 permanent 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 a variety of meanings according to the_ **Mat.Appeal No.384/13** **: 6 :** _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 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. In Webster's Dictionary, 'to reside' has been defined as meaning 'to dwell permanently or for any length of time', and words like 'dwelling place' or 'abode' are held to be synonymous. Where there is such fixed home or such abode at one place the person cannot be said to reside at any other place where he had 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 of others, his actual and physical habitation is the place where he actually or personally resides._ _13. It is plain in the context of cl. (ii) of Section 19 of the Act, that the word 'resides' must mean the 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 shades of meaning, but it must take its colour and content from the 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 not. That being so, the High Court was clearly in error in upholding the finding of the learned District Judge that he had jurisdiction to entertain and try the petition for annulment of marriage filed by the respondent under Section 12 of the Act._ **Mat.Appeal No.384/13** **: 7 :** 10. This judgment was followed by this Court in _**Pramod Vidyandhar Panicker v. Bindu Pramod Panicker**_ (2013 (1) KLT 332). 11. From the above, therefore it is obvious that to claim that a person is residing at a place, temporary residence will not suffice and instead it should satisfy the requirements which are indicated by the Apex Court in the judgment mentioned above. If the case of the appellants herein is appreciated in the above background, it can safely be concluded that the appellants did not in any manner establish that they were residing together within the jurisdiction of the Kasaragod Court. If that be so, the judgment of the Family Court holding that it had no jurisdiction to entertain the petition filed by the appellants does not suffer from any illegality justifying interference by this Court. Appeal is dismissed. Sd/- **ANTONY DOMINIC, Judge** Sd/- **P.D.RAJAN, Judge** Rp **//True Copy//** ## **PA TO JUDGE**