Smt. Santosh Kumari vs Om Prakash Chopra

Hari Swarup, J.—This revision is directed against an order passed in appeal under Order 43 Rule 1 Code of Civil Procedure.

A husband filed a petition for judicial separation in the court of the Civil Judge, Dehradun. An objection was taken by the wife to the effect that the Dehradun Court had no jurisdiction as the marriage was performed in Delhi and the parties had also last resided in Delhi.

The trial court on a consideration of the evidence led by the parties held in favour of the Defendant and directed the return of the plaint for presentation to the court in Delhi. Against this order an appeal was filed and the appellate court reversing the finding of the trial court held that the parties had last resided together in Dehradun and not in Delhi. On this finding it held that the Dehradun Court had jurisdiction and directed the case to proceed in that Court. The Defendant has filed this revision against that order.

Learned counsef for the applicant has contended that the finding of the learned judge both on the question of the parties'' last residence in Dehradun and about their non-residence in Delhi are erroneous.

The Defendant''s case was that the husband had come to reside with her in Delhi in August, 1972, and that was the last residence together. The trial court had believed the evidence of the Defendant and held that the Plaintiff had gone to reside with his wife in Delhi for a night. The lower appellate court has re-considered the evidence and has come to a different conclusion. It has given various reasons. One of the reasons is that in the written-statement only the month was mentioned but no definite date was given. It was only in evidence that the date was fixed as 20th August, 1972. It has further ''held that because of the Plaintiff''s employment in Dehradun, it was not possible for him to be in Delhi on August 20. The appellate court had the jurisdiction to weigh the evidence again and to arrive at its own conclusions on the evidence. It could believe a witness and disbelieve a witness. A finding reached through the process of scrutinizing and weighing of evidence cannot be open to challenge in revisional jurisdiction of this Court. The finding has not been shown to be vitiated by any error of law of jurisdiction.

As regards the last residence of the parties at Dehradun the contention of the learned Counsel is that they cannot be said to have "resided together" in Dehradun in the circumstances of the case. It is not denied that the two had lived together from December 26 to December 31 in 1971. According to the learned Counsel this was just a casual visit by the wife at the house of the husband and such a visit could not be deemed to be a ''residence'' together. The facts found by the appellate court are that the wife had not visited. Dehradun on a casual visit but had gone there with the intention of residing with her husband. It has further found as a fact that marital functions had been discharged during this stay of the wife with the husband in Dehradun. It is clear from the decision of''- the Supreme Court in Jagir Kaur and Another Vs. Jaswant Singh, that for the purposes of giving jurisdiction to a court on the basis of residence together it is not necessary that the parties should or have intended to reside together permanently. Temporary residence is enough. In that case it was held that ''when the Respondent came to India and lived with his wife in his or in his mother''s home in village Hans Kalan, he had a clear intention to temporarily reside with his wife in that place. He did not go to that place as a casual visitor in the course of his peregrinations. He came there with a definite purpose of living with his wife in his native place and he lived there for about six months with her. The second visit appears to be only a flying visit to take her to Africa. In the circumstances we must hold that ho last resided with her in a place within the jurisdiction of the 1st class Magistrate, Ludhiana. In the present case it is proved that the wife had gone to the husband and had resided with him in his house at Dehradun for six days and during that stay marital functions were also performed. As such the visit-could not but amount to residence together of the husband and wife. The finding of the learned judge, therefore, on this point, also cannot be held to suffer from any error of law.

As the judgment suffers from no jurisdictional error or even from an error of law, the order cannot be interfered with in exercise of this Court''s powers u/s 115 Code of Civil Procedure. The revision is dismissed. Costs on parties.