Kavati Nagesh vs Kavati Krishnaveni

Upenderalal Waghray, J.—This appeal is filed by the husband against the order of the Principal Subordinate Judge, Guntur, in O.P.No.265 of 1987 directing that the petition for declaration that marriage is a nullity and also for divorce under Sections 12 and 13 of the Hindu Marriage Act, shall be returned for presentation to the proper Court.

We have Heard the counsel for the appellant as well as the counsel for the respondent-wife. In view of the fact that this marriage O.P. was filed some time in the year 1987 and the petitioner''s evidence was completed and as the wife had not turned up, the matter was argued and the impugned order was passed, we have considered it appropriate to examine the material on record and dispose of the appeal on merits also. This is because any remand would further entail unnecessary delay in the disposal of the marriage O.P.

The parties were married at Vijayawada on 21-5-1986. They have proceeded to Guntur where the husband resides and on 22-5-1986, it is stated, it was discovered that the wife was pregnant by the date of the marriage. She went back to Vijayawada on 24-5-1986. There was no consummation of the marriage and admittedly the parties have been residing apart ever since then. The present petition was filed before the Guntur Court on 23-6-1987. The petitioner had invoked the jurisdiction of the Guntur Court on the ground that the parties had last resided together in Guntur within the jurisdiction of that court as contemplated by sub-clause (iii) of Section 19 of the Hindu Marriage Act. The vakalat was filed on behalf of the respondent-wife on 17-9-1987 and the matter was adjourned for counter to 11-12-1987. Several adjournments were taken for filing counter and the time was being extended from time to time. On 20th April, 1988, it was adjourned on payment of costs of Rs. 150/- to 24-6-1988. On 24-6-1988, neither counter was filed nor costs were paid. The respondent-wife set ex parte and the matter was posted to 1-7-1988. On 1-7-1988, the witnesses on behalf of the petitioner consisting of P.Ws.l and 2 were examined. There was no cross-examination. Arguments were also heard on that day. By the impugned order dated 8-7-1988, the trial court has returned the petition for presentation to the proper court on the ground that neither the respondent was residing within its jurisdiction nor the parties could be said to have last resided together within its jurisdiction.

It is useful to extract Section 19 of the Hindu Marriage Act which confers Jurisdiction on the various courts for entertaining the proceedings under the Act, which reads as follows:

"19. Court to which petition shall be presented; Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original Civil Jurisdiction-

(i) the marriage was solemnized; or;

(ii) the respondent, at the time of the petition, resides; or

(iii) the parties to the marriage last resided together; or

(iv) the petitioner is residing at the time of presentation of the petitioner, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has hot been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive."

We are concerned here with the interpretation of Clause (iii) of Section 19 of the Act as to whether the parties to the marriage last resided at Guntur or not. It is not in dispute that next day after the marriage at Vijayawada, the parties came to Guntur on 22-5-1986. The fact of the respondent being pregnant even by the date of marriage was noticed at Guntur and the wife left Guntur on 24-5-1986. The question is whether the parties can be said to have resided together within the meaning of the Act between 22-5-1986 and 24-5-1986. The trial Court has taken the view that as the marriage was not consummated it cannot be said that they resided together as husband and wife at Guntur. On this aspect, the counsel for the appellant has relied upon two decision, namely Jagir Kaur and Another Vs. Jaswant Singh, and Smt. Santosh Kumari Vs. Om Prakash Chopra, . The Allahabad High Court, while referring to the Supreme Court decision observed that for purposes of giving jurisdiction to a court on the basis of having resided together it is not necessary that parties should have intended to reside together permanently. The language of the section also does not imply that there is any requirement of the marriage being consummated or martial obligations having been performed at the place where the parties resided together. In the case before the Supreme Court even stay for a short period was held to be sufficient to confer jurisdiction. In this case, admittedly, the appellant''s house i.e., the marital home is at Guntur and the parties had resided together for three days. No doubt, there was no consummation of marriage and in view of the case of the appellant that wife was found to be pregnant, there were no marital relations between them. The conclusion of the trial court that it has no jurisdiction is, therefore, erroneous and is set aside.

The counsel for the respondent-wife submitted that the matter should be remitted back to the trial court. We are not inclined to accede to the said request because he is not in a position to give any reason explaining sufficient cause for counter not being filed or the wife not adducing any evidence or not cross examining the witnesses of the husband. The proceedings under the Hindu Marriage Act are expected to be completed expeditiously and multiplicity of proceedings are to be avoided. This is further reinforced by the amendments made to the Act in 1976 by introducing Sections 21A, 21B and 21C. In this case the parties have been admittedly residing apart from the year 1986 and no useful purpose would be served by again remitting back the matter keeping in view, the details of the proceedings in the trial court pointed out earlier.

In support of the allegations in the petition, two witnesses, namely, the petitioner as P.W. 1 and his father as P.W. 2 have been examined. Both of them have deposed about the discovery that the wife was pregnant on the date of the nuptial night at Guntur. The wife frankly refused to perform the marital obligations and did not dispute the allegations about the previous pregnancy. The witnesses have also given evidence about the other symptoms of pregnancy. In addition to the aforesaid positive evidence on behalf of the petitioner the conduct of the respondent in not filing counter inspite of the court granting adjournments spread over eight months and then in not instructing her counsel to cross-examine the witnesses, indicates that she has no defence. It also appears that the respondent is not interested in the marriage.

In view of the above finding recorded by us, the appeal as well as the petitioner O.P.No. 265 of 1987 are allowed and it is held that the marriage of the petitioner with the respondent was a nullity because by the date of the marriage the respondent was already pregnant and that fact was concealed from the petitioner and his family. The appeal is accordingly allowed. No costs.