T.A. Menon vs K.P. Parvathi Ammal

Krishnaswami Nayudu, J.—This revision petition raises among others, an important question of jurisdiction for a petition u/s 6, of the

Madras Marumakkattayam Act (XXII of 1933). The petitioner is the husband. The respondent is the wife. They are persons governed by the

Marumakkattayam law of inheritance. They were married on the 22nd March, 1941. The marriage was celebrated at Behala, in West Bengal. The

husband is a member of the Indian Civil Service permanently employed in West Bengal. The parties entered into a deed of dissolution of marriage

on the 10th October, 1947, the validity of which is however not admitted by the petitioner. On the 6th January, 1948, the husband filed Title Suit

No. 10 of 1948 on the file of the Third Court of Munsif of Alipore, 24 Parganas, against his wife and mother-in-law for restitution of conjugal

rights and for a decree declaring that the deed of dissolution of marriage dated 10th October, 1947, was obtained fraudulently and was not binding

on the parties to it. The wife filed a suit in the Madras City Civil Court, O.S. No. 61 of 1948, for a declaration that the deed of dissolution was

valid and binding on her husband, the petitioner. She filed an application in the High Court of Calcutta for transfer of the Title Suit No. 10 of 1948,

from the Third Court of Munsif, Alipore, 24 Parganas, to the City Civil Court, Madras, and by an order of the High Court, dated 14th July, 1948,

the said application was dismissed. The wife filed O.P. No. 111 of 1947, in the District Munsif''s Court'' of Palghat u/s 6 of the Madras

Marumakkattayam Act for dissolution, of the marriage and the husband applied to the District Munsif of Alipore for an injunction restraining the

wife from proceeding with O.P. No. 111 of 1947. An order of injunction was passed by the Munsif of Alipore restraining the wife from

proceeding with her petition for dissolution in the Court of the District Munsif of Palghat. This order of injunction was received by the District

Munsif of Palghat with a request not to proceed with the trial of O.P. No. 111 of 1947. This was received by the District Munsif on the 30th

August, 1948. The learned District Munsif proceeded with the trial. on the wife''s petition for dissolution and passed an order on the 8th

September, 1948, dissolving the marriage.

The main contention of the learned Counsel for the petitioner-husband is that the District Munsif of Palghat had no jurisdiction to entertain the

petition. The wife alleges in her petition that the marriage was solemnised at Calcutta but that the husband had a permanent dwelling in Ellapully

village within the jurisdiction of the District Munsif''s Court of Palghat. If in fact he had a permanent dwelling within the jurisdiction of the Madras

District Munsif''s Court, then certainly the petition is maintainable. Section 7(1)(i) of the Act reads as follows:

A husband or wife may present a petition for dissolution of the marriage if the place where the marriage was contracted or the respondent has a

permanent dwelling or actually and voluntarily resides or carries on business or personally works for gain, at the time the petition is presented, is

situated within the local limits of the jurisdiction of the Court of a District Munsif in such Court.

The question of the place of marriage does not arise here as it is admittedly outside the jurisdiction of the District Munsif''s Court of Palghat. But

the relevant portion of the section for consideration would be whether the husband had a permanent dwelling or actually and voluntarily resided

within the jurisdiction of the Court. There is no decision that has been placed before me interpreting the meaning of these words with reference to

this Act but the jurisdictional provisions in other enactments have been cited before me where the same words or similar words occur. Section 20

of the CPC gives jurisdiction to the Court to try a suit under Clause (a) if the defendant or each of the defendants, where there are more than one,

at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain. Explanation I says

that where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both

places in respect of any cause of action arising at the place where he has such temporary residence. Under Clause 12 of the Letters Patent,

jurisdiction is vested in the High Court if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally

work for gain, within such limits. In Mahomad Shuffi v. Laldin Abdulla ILR (1878) 3 Bom. 227., it is stated that the meaning to be given to the

word ''residence'' in legislative enactments depends upon the intention of the Legislature in framing the particular provision in which the word is

used and residence intended in Section 380 of the CPC (Act X of 1877) is residence under such circumstances as would afford a reasonable

probability that the plaintiff would be forthcoming when the suit was decided. It is observed by Sargent, J., that

an attempt has occasionally been made to draw a distinction between the meaning of the words "" dwell "" and "" reside "" but they appear to me to

express the same idea, the only difference being that they are, perhaps, in ordinary usage, applied to different classes of society. Neither

expression, however, necessarily implies a permanent state of things.

In Shri Goswdmi v. Shri Govardhan Lalji ILR (1890) 14 Bom. 541, which was a case under Clause 12 of the Letters Patent, the learned Judge

observed that the Legislature often employs the word "" residence "" in different senses and that whether it is used in a particular section in a narrow

or more extended meaning is to be determined according to what the Court believes to have been the intention of the Legislature in framing the

provision in which the word occurs. The learned Judge also proceeds to state that the residence contemplated by the Letters Patent must be of a

more or less permanent character of such a nature as to show that the High Court, in which a defendant is sued, is his natural forum; and that the

defendant coming to Bombay for the purpose for which he came, and staying for the period for which he stayed, was not on that account, liable to

be used in the High Court in respect of a cause of action which did not arise within the local limits of its jurisdiction. It is also observed therein that

there is no distinction between ""residing"" and "" dwelling "" used in its ordinary signification excepting that "" dwell "" is of Saxon origin and ""reside "" is

imported into the English language from the Latin and that to "" dwell "" would mean to ""reside"".

Levene v. Inland Revenue Commissioners (1928) A.C. 217 (P.C.), has also been cited. It was a case under the Income Tax Act and their

Lordships had to construe the words "" resident"" and "" ordinarily resident "". There they recognised two residences for purposes of jurisdiction and

held that a man may have two homes, one in London and the other in the country. In that case he was held to reside in both places and to be

chargeable with tax.

In Bhagat Singh Bugga v. Dewan Jaghir Sawhney ILR (1941) Cal. 490, where an application u/s 10 of the CPC was considered, the learned

Judge observes that "" residence "" is not identical with ownership and it means the place where a person eats, drinks and sleeps, or where his family

or his servants, eat, drink and sleep; of which however there was no evidence in that case and the learned Judge held that the animus revertendi is

not sufficient. So in construing the, language of the provisions of Section 20 of the CPC and Clause 12 of the Letters Patent, actual residence at the

time of the institution of the suit as pointed out in Bhagat Singh Bugga v. Dewan Jaghir Sawhney ILR (1941) Cal. 490, that is the place where a

man eats, drinks or sleeps, would be necessary to confer jurisdiction, whether the word used is "" dwell "" or "" actually and voluntarily resides "". The

words "" permanent dwelling "" are not found in these enactments excepting under Explanation 1 of Section 20, Civil Procedure Code, where it is

provided that where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside

at both places in respect of any cause of action for the purpose of conferring jurisdiction. But the permanent dwelling referred to in Explanation 1 in

my opinion is synonymous with the idea conveyed by the words "" actually and voluntarily resides "" in Clause (a) of Section 20, Civil Procedure

Code, i.e., place of permanent residence at the time of the institution of the suit. The temporary residence referred to in Explanation 1 is a place

where a man casually visits, stays for some time and returns to his permanent place of residence.

In Sitanath Bhadra v. Jatindra Nath Sircar ILR (1930) Cal. 65, Explanation 1 to Section 20, Civil Procedure Code, was relied upon to give

jurisdiction to the place of permanent residence even though the defendant carried on business in Calcutta and lived there with his family. It was

held that that fact did not oust the jurisdiction of the Gopalganj Court within the jurisdiction of which the defendant had a permanent residence. The

words ""permanent dwelling"" in Explanation 1 to Section 20, Civil Procedure Code, have been construed to mean "" permanent residence "".

A case u/s 62 of the Lunacy Act arose in H.M. Muhammad Ibrahim Vs. M.R. Abdul Hafeez Sahib, , where the word '' residing '' occurring in

that section was considered. It was held that where an alleged lunatic had his permanent residence where his parental home exists and where his

family permanently resides, the District Court having jurisdiction over that place can entertain an application for directing judicial inquisition u/s 62

of the Lunacy Act. The removal of the lunatic whether by legal means or otherwise to the Mysore State and the residence of the alleged lunatic

there might constitute temporary residence, but that would not put an end to the legal residence which the alleged lunatic already possessed and the

District Court concerned would not cease to have jurisdiction over the matter and that the place where he has been removed to may constitute

temporary residence. Even though the alleged lunatic did not actually and voluntarily reside at the time of the institution of the proceedings at

Tanjore where he had a personal home and where his family permanently resided it was held that he resided within the jurisdiction of the District

Munsif''s Court of Tanjore. The learned Judges held that the parental home or the place where the family permanently resides is legal residence

which would confer jurisdiction on the Court within the jurisdiction of which that home exists. The language in Section 7 of the Act appears to me

to be rather unique. The words "" permanent dwelling "" or "" actually and voluntarily resides "" have not been founded in any other enactment

excepting in a similar enactment, i.e., The Aliyasanthana Act (XIX of 1949), The decisions placed before me only construed the jurisdictional

provisions in enactments such as the Civil Procedure Code, the Lunacy Act, the Indian Income Tax Act and other enactments, but not under the

Marumakkattayam Act (XXII of 1933), or even under Act XIX of 1949.

The provisions relating to marriage and dissolution in the Marumakkattayam Act of 1933 have been taken subject to certain modification, from

the earlier Act of 1896 where the same language occurs as regards jurisdiction. As pointed out by the learned Judges in Muhammad Shuffi v.

Laldin Abdulla ILR (1879) 3 Bom. 227 and Shri Goswami v. Shri Govardhan Lalji I.LR (1890) 14 Bom 541 it has to be found whether the

words "" permanent dwelling "" are used in particular sense only from the intention of the Legislature in framing the provision in which the words

occur. This Act appears to confer upon a member to whom the Marumakkattayam law applies absolute right to divorce provided that he proves

certain formal conditions as to the validity of the marriage, etc., and one has to consider the life and custom of this particular community in

ascertaining what would have been the intention of the Legislature in using this language in this enactment. If the meaning of the words "" permanent

dwelling "" is to be taken as "" permanent residence "" as in Sitanath Bhadra v. Jatinthra Nath Sirkar ILR (1930) Cal. 65 the words "" actually or

voluntarily resides "" would also mean "" permanent residence "" in the sense of being the place where a man actually sleeps, eats, or drinks, as found

in Bhagat Singh Bugga v. Dewan Jaghir Sawhney ILR (1941) Cal. 490 It could not have been intended that the two sets of words should convey

the same meaning or the same idea. It cannot be ignored that the members of this community have been very advanced and enterprising and most

of them have left their family and tarwad houses to places outside Malabar even to other Provinces and some even to foreign territories and settled

there for the purpose of their business or other avocations. It could not have been the intention of the Legislature in such cases that a wife who had

been married under the Act should be compelled to seek the husband wherever he may be in order to file a petition for dissolution. I do not think a

right which has been granted under the Act could have been intended to be taken away by imposing a restriction on the person who wants to take

advantage of it. It is therefore necessary to consider whether the words ""permanent dwelling."" should not be given a special meaning with reference

to the particular community to which the legislation is intended to apply. The petition for dissolution may be filed in a place where the respondent

actually and voluntarily resides. It may be within the jurisdiction of the Court or outside it. But it would be sufficient if the petitioner had a

permanent dwelling within the jurisdiction, i.e., if his tarwad house or parental home was situated within the jurisdiction of the Court. However, it

should be noted that the words ""permanent dwelling"" do not signify mere ownership of property in the native village. It must be shown that he had a

permanent dwelling in the sense that it was his tarwad house or personal home or his own house where he resided at some time and which will be

available to him if he desired to go and live there. No question of animus revertendi would arise in this case since it would be open to any

respondent to say as a defence to the petition that he has no intention of reverting back to his native home. Therefore it will be enough to satisfy the

requirements if it is shown that he has a tarwad house or parental home or his own house within the jurisdiction of the Court in which the petition is

filed. To construe otherwise would, in my opinion, be to ignore the meaning intended to be given by the Legislature in framing the enactment.

I have now to consider whether the finding of the learned District Munsif that the petitioner had a permanent residence at Elupalli is supported

by any evidence and whether that finding should stand. The allegation in the petition is that he had a permanent dwelling in Elupalli. But the learned

District Munfsif goes further and gives a finding that the respondent had a permanent residence in Elupalli. Actual residence at the time need not be

shown as pointed out before and it is sufficient if he had a parental home or a tarwad house. The petitioner has not been examined but there are

some documents filed in the case which show that the respondent described himself as belonging to the Pirayiri amsom in Palghat taluk and that he

was also a party to proceedings for obtaining succession certificate to the properties of his father in Elupalli in 1943. In addition there are certain

statements of the petitioner in his counter which are relied upon by the counsel for the respondent as showing that he had a tarwad or parental

house within the jurisdiction of the Court where he resided prior to his leaving for Calcutta on service. The petitioner states in his counter that his

father built a house in Elupalli and by a will left him a share in this house and other properties, that on the death of his father in 1943 he relinquished

permanently all his claims to the whole patrimony in favour of his mother; and that since 1937 he has no permanent dwelling outside Bengal; and

that since 1937 he has at intervals of years merely visited at most for a few days at a time his mother wherever she used to be staying at the time

whether at Elupalli, Palghat town or elsewhere and that beyond this he has severed all connection with the house at Elupalli. There is also his

statement in the petition in title suit No. 10 of 1948, that he was a native of Elupalli village. Ordinarily I should think that such evidence would not

be sufficient proof of the allegation in the petition that the respondent had a permanent dwelling in Elupalli but in the exercise of revisional

jurisdiction, I am not inclined to interfere with this finding of fact of the learned District Munsif which is supported by some evidence and based on

the inference from the statements made by"" the respondent himself in his counter and other documents. That there was a house in Elupalli in which

he had an interest and that till 1937 he had a permanent dwelling in Elupalli is clear from the evidence. He says that he has relinquished all his claims

to the whole partrimony in favour of his mother about which'' there is absolutely no evidence and therefore I do not think that the finding of the

learned District Munsif that the petitioner had a permanent dwelling, though he wrongly puts it as a permanent residence, is such a finding as to be

interfered with in revision. I hold that the petition for dissolution was maintainable within the jurisdiction of the District Munsif of Palghat.

Another contention raised by the counsel for the petitioner is that the learned District Munsif acted with material irregularity in proceeding with

the hearing of the petition after receiving a request from the Munsif of Alipore not to proceed with the trial of the petition in pursuance of an order

of interim injunction issued by him to the respondent restraining her from proceeding with the trial of the suit which it is admitted was ordered under

Order XXXIX, Rules 1 and 2 of the Civil Procedure Code. Reliance was placed for this contention on Mungle Chand v. Gopal Ram ILR (1907)

Cal.101. A. Milton & Co. v. Ojha Automobile Engineering Co. ILR (1930) Cal. 1280. and Fazlur Rahman Sarkar v. Atal Behary Ghosh ILR

1940(2) Gal 203. Those were all decisions where the High Court in the exercise of its extraordinary jurisdiction issued an order of injunction

against a party not residing within the jurisdiction of the High Court with a request to the Court which tried the suit not to proceed with the trial of

the suit. There is difference of opinion among the Judges of the Calcutta High Court themselves, Gentle, J., holding one view in Binjraj Maheswria

and Others Vs. Ramniwasdas Jalan and Others, , and the other Judges holding a different view in the cases cited by the counsel for the petitioner.

However no such order has been issued by the High Court of Calcutta. It is doubtful whether an order under Order 39, Rule 2, issued against a

party would be binding on a District Munsif subject to the, jurisdiction of another High Court situated in a different province so as to compel him to

stay further trial of the petition. The question was considered though a finding has not been given in Periakaruppan Chettiar v. Ramaswami Chettiar

(1928) 27 L.W. 418. The learned Judges decided that case on the merits but pointed out that the cases relied upon were all cases where an order

of injunction was issued under Order 39, Rules 1 atid 2 and not under the equity jurisdiction inherited by the High Court from the old Supreme

Courts and that there was no case in which it was held that a Subordinate Court can exercise such power. I think in this case the order of the

Munsif''s Court of Alipore was no bar to the continuance of the trial of the petition.

But the more substantial objection raised by Mr. Ramaswamy Aiyar is that the order of dissolution cannot stand in view of the fact that no valid

marriage under the Act has been proved. Section 6 of the Act states that a marriage valid u/s 4 may be dissolved by a registered instrument of

dissolution executed by the parties thereto or by an order of dissolution as provided under the Act. Here we have a petition for dissolution of

marriage and it is only in respect of a marriage valid u/s 4 of the Act that an order of dissolution could be passed. Section 9 makes it clear that on

the motion of the petitioner made not earlier than six months after the service of the copy aforesaid, if the petition is not withdrawn in the meantime,

the Court, shall, on being satisfied after such inquiry as it thinks fit that a marriage which is valid u/s 4 was contracted between the parties, by order

in writing declare the marriage dissolved. So the fundamental fact which has to be proved by the respondent to entitle her for an order for

dissolution would be that there was a marriage which was valid u/s 4. Section 4(1)(V)(ii) states that the conjugal union of a Marumakkattayi female

with a male belonging to the same community as such female, which is the case here, shall be deemed for all purposes to be a legal marriage, that is

a marriage valid under the Act, if the union was openly solemnised in accordance with the customary ceremonies, if any, prevailing in the

community to which the parties belong or either of them belongs. In the petition it is alleged that the petitioner married the respondent on the 22nd

March, 1941, and the marriage between them was solemnised at Calcutta in accordance with the customary ceremonies prevailing in the

community to which the parties belong. There is no evidence whatsoever as to the customary ceremonies or of the marriage. The learned Counsel

for the respondent relies on a statement made by the petitioner in his counter affidavit in the petition for dissolution that the marriage was publicly

conducted strictly in accordance with Hindu Brahmanic form of indissoluble marriage and not at all in accordance with the Marumakkattayam or

any other law or custom and as such the incidents of Act XXII of 1933 have no application. Counsel for the respondent stated that in fact there is

no rule or stringent form of marriage pertaining to this community and it may be a sambandham which may be solemnised by exchange of mundus

or clothes or exchange of betel leaves, etc. But the fact remains that certain customary ceremonies do exist in the community when a marriage is

performed. It may also be true that in fact no ceremonies exist or are required to be performed in some sections of the community and it will be

sufficient to have an open solemnisation of the marriage without any ceremonies whatsoever. But the petitioner alleges specifically that there was

not only open solemnisation but that it was done in accordance with the customary ceremonies prevailing in the community. The use of the words

if any "" in Section 4 was made with some purpose and the framers of the Act were aware that in some cases there may not be any customary

ceremonies required for a valid marriage. But here the respondent having alleged that the customary ceremonies were gone through, should have

proved the factum of such ceremonies having been performed and in the absence of such proof it could not be said that a valid marriage under the

Act was performed.

The learned District Munsif seems to think that to constitute a valid marriage under the Act, an open solemnisation would be sufficient. It is no

doubt not denied that there had been an open solemnization because the ceremonies were publicly conducted as admitted by the petitioner but it is

specifically denied that it was not in accordance with Marumakkattayam law or custom but was in accordance with the Hindu Brahmanic form of

indissoluble marriage. It is all the more necessary for the respondent to prove that the ceremonies conducted at the marriage were not in

accordance with the Hindu Brahmanic form of indissoluble marriage but were according to the custom prevailing in the particular section of the

community to which she and the petitioner belong. The learned District Munsif while observing that the customary ceremony mentioned in the sub-

clause to Section 4 varies in each part of Malabar and in each family, states however that there is no prescribed customary ceremony for marriage

in Malabar and that what is required is an open solemnization of marriage, no matter what customary ceremonies are followed. I think the learned

District Munsif was referring to marriages in general in Malabar and not a marriage which is required to be performed in accordance with the Act

to constitute a valid marriage under the Act. In view of the provisions of Section 6 of the Act the District Munsif is in error in holding that no

prescribed customary ceremony is necessary and an open solemnisation of the marriage would be sufficient to prove it as a valid marriage u/s 4 of

the Act. I am therefore of opinion that it has not been proved by the respondent that the marriage was openly solemnised in accordance with the

customary ceremonies, prevailing in the community. Mr. Rajagopalachari appearing for the respondent now asks that the petition may be

remanded to the trial Court to enable his client to adduce evidence on the issue as to whether the marriage is valid u/s 4 of the Act. The order of

the lower Court is set aside and I remand the petition to be heard on the question of the validity of the ""marriage and disposed of according to law,

in the light of the observations made by me above. The respondent will in any event pay the costs of this petition to the petitioner.