Darshan Singh vs Smt. Swaran Kaur

J.V. Gupta, J.—This is husband''s appeal whose petition for divorce u/s 13 of the Hindu Marriage Act has been dismissed on the ground of tutorial jurisdiction.

Marriage between the parties was solemnised on 12th December, 1978 According to the husband, the wife only stayed with him for one night at his house at village Kundi, Tehsil Kalka, District Ambala, and then returned to her parental bouse ; whereas according to the wife, she stayed with her husband for about four nights The present petition for divorce was filed on 28th July, 1986. It appears that in the written statements an objection was taken that the court at Ambala has no jurisdiction to entertain and try the petition as the marriage between the parties was solemnised at village Makhan Majra, Union Territory, Chandigarh. But no issue was ever claimed in that behalf.

On the pleadings of the parties, the trial Court framed the following issue:

Whether the Respondent has deserted the Petitioner for a continuous period of more than 2 years immediately preceding the presentation of the present petition ? OPP.

The learned trial judge after discussing the entire evidence came to the conclusion that it was proved that the wife had deserted her husband for a period of more than 2 years immediately preceding the presentation of this petition without any reasonable cause and excuse On the basis of that finding the husband was entitled to a decree of divorce, but surprisingly enough the trial court without there being any issue on the question of jurisdiction, found that since the marriage between the parties was solemnised at village Makhan Majra, Union Territory, Chandigarh, the Court at Ambala had no jurisdiction to entertain the petition. According to the learned Additional District Judge, even if we assume that the wife parted company from her husband while they were staying in village Kundi, Tehsil Kalka, District Ambala, it could not be said that they last resided together at village Kundi.

The finding of the learned trial Judge on merits has not been challenged on behalf of the Respondent-wife and, therefore, the facts need not be gone into. The only question to be determined is whether the court at Ambala had jurisdiction to entertain the petition. It is quite evident that no such issue was claimed by the wife in this behalf. As a matter of fact whether the parties last resided together at village Kundi or not, for the purposes of Section 19 of the Hindu Marriage Act, was a question of fact and unless there was an issue and the parties were allowed to lead evidence, the same could not be decided as such. Section 21 of the CPC provides that no objection as to the place of suing shall be allowed by any appellate or revisional court unless such an objection is taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. In the present case the parties had led their evidence on the issue framed by the trial Court. No objection of any kind as to the jurisdiction of the court was raied on behalf of the wife-Respondent and under these circumstances it was not open to the trial Court to dismiss the petition on this ground alone, particularly when it has been found on merits that the wife has deserted her husband. Even in this Court the learned Counsel for the wife- Respondent was unable to suggest that there has been a consequent failure of justice on account of this lack of jurisdiction if any. In the absence of any failure of justice, the divorce petition could not be dismissed on this technical ground without framing any issue.

Even otherwise it is no more disputed and it is the common case of the parties that the wife parted company of her husband from village Kundi, Tehsil Kalka, District Ambala. Moreover in the petition the husband pleaded that they were married according to Hindu rites at village Kundi, District Ambala, whereas in the written statement it was stated that the marriage was solemnised at village Makhan Majra, U.T. Chandigarh In any case, the wife parted company of her husband at village Kundi, to which place the husband belonged. Therefore, it could not be held that village Kundi, Tehsil Kalka, District Ambala, was not the place where the parties last resided together. The mere fact that they resided together for one night only under the circumstances becomes immaterial.

As a result of the above discussion, this appeal succeeds, the decree of the trial court is set aside and the marriage between the parties is dissolved by a decree of divorce. No costs.