Saraswathi Amma vs Kesavan Nambiar

M.S. Menon, Ag. C.J.

The appellant is the wife of the respondent. The petition from which this appeal arises is a petition filed by the respondent for restitution of conjugal rights u/s 9 of the Hindu Marriage Act, 1955, before the District Court of Quilon, petition No. 13 of 1959. The marriage between the appellant and the respondent was solemnised on 20-11-1955. The petition was filed on 22-12-1959.

Section 19 of the Act 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 or the husband and wife reside or last resided together. It is not contended that the marriage was solemnized within the jurisdiction of the Quilon District Court or that the appellant now resides within the jurisdiction of that court.

According to the respondent he and the appellant last resided together within the jurisdiction of the District Court of Quilon and that court has hence got the necessary jurisdiction to entertain the petition filed by him. According to the appellant they last resided together within the jurisdiction of the District Court of Kottayam and as a result the District Court of Quilon has not got the necessary jurisdiction to entertain the petition. The contention of the respondent has been accepted by the court below and this appeal is from its order in that behalf dated 26-7-1960.

It is clear from paragraph 5 of a petition filed by the appellant on 16-8-1960 that the joint residence she sets up within the jurisdiction of the District Court of Kottayam has reference only to some fugitive and sporadic visits of her husband. Such visits will not spell residence within the true and proper meaning of that expression.

The word "reside" postulates the idea, if not of permanence, at least of some degree of continuance. As pointed out in the cases collected by Raghavachariar on page 949 of his Hindu Law, 4th Edition, the expression does not take in merely casual or temporary visits, and denotes living in a place with the idea of making it a place for living for an indefinite duration for the time being.

The factum of residence has to be decided with reference to the circumstances of each case and in the light of the appellant''s petition referred to above, we have no hesitation to hold that the place in which the appellant and the respondent last resided together was within the jurisdiction of the District Court of Quilon as contended by the respondent and accepted by the court below. The appeal fails and is hereby dismissed. In the circumstances of the case, however, there will be no order as to costs.