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There is no element of permanence connected to the term ‘resides’ under the Hindu Marriage Act : The High Court of Calcutta

The court interpreted Section 126(1)(b) and implied that is a proceeding under Section 125 of the Hindu Marriage Act may be taken against any person in any district where he or his wife resides. Reliance was placed on the case Vijay Kumar Prasad Versus State of Bihar and others (2004) 5 SCC 196, in the case of Sri Debmalya Chattopadhyay v. Smt. Baisakhi Chowdhry [CRR/764/2019]. Moreover, the bench was presided over by a single-judge bench led by Mr Justice Jay Sengupta in the High Court of Calcutta.

The facts of the case are as follow. The petitioner filed an application under  Section 12 of the Hindu Marriage Act,1955 before the learned District Judge, Birbhum at Suri praying for a decree of nullity of marriage. The opposite party filed a revisional application praying for transfer of the suit to the Court of the learned District judge at Purba  Bardhaman. Later, the opposite party filed an application under Section 125 of the HMA code. The petitioner filed an application before the Magistrate praying for dismissal of the case on the ground of lack of territorial jurisdiction.

The petitioner’s submitted, the opposite party/wife actually stayed at Bolpur, Birbhum. This was what she had stated clearly in her application under Section 125 of the Code. As the Hon’ble Court refused to accede to the prayer of the present opposite party and after taking into consideration the submissions of the respective parties, was pleased to transfer the case to Bolpur, Birbhum. There was no reason for which the present proceeding under Section 125 of the Code should be taken up at a different place.

The opposite party submitted that Although it was stated in the application under Section 125 of the Code that after being deserted by her husband, the wife took refuge at her father’s place at Bolpur, it was also quite categorically mentioned, both in the cause title as also in the affidavit, that the temporary residence ‘hal sakin’ of the petitioner/wife was at Paschim Bardhaman. That is why, she had to be put up at her brother-in-law’s place at Paschim Bardhaman. The jurisdiction for a proceeding under Section 125 of the Code was not exactly similar to that of a matrimonial suit between a couple. Section 126 (1) of the Code used the expressions ‘is’ and ‘resides’. Therefore, if the wife at present stayed, even temporarily, at a particular place, she would be entitled to initiate a proceeding under Section 125 of the Code or to continue the same at such place.

The Court submitted that “simply because the petitioner had received a notice in another proceeding at her parent’s place at Bolpur, it cannot preclude her from claiming that she was presently residing at Purba Bardhaman.” Section 126 (1)(b) implies that a proceeding under Section 125 of the Code may be taken against any person in any district where he or his wife resides.

Further, the court added “There is no element of permanence connected to the term ‘resides’. Therefore, if a wife resides at a place for a reasonable length of time so as to claim such place at least as her temporary residence, she should be entitled to initiate or continue a proceeding under Section 125 of the Code at such place. On this, reliance is placed on a decision of the Hon’ble Apex Court in Vijay Kumar Prasad case.”

The High Court of Calcutta submitted that the impugned order was a reasoned one and the proceeding could not be dismissed on the ground of lack of territorial jurisdiction.

Click here to view the judgement.

Judgement reviewed by- Pranav Vyas.

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