' A wife, Christian by faith, through this first appeal called in question order dated 20-9-1968 of learned District Judge, Gujranwala ; whereby her matrimonial (restitution) Suit No, 3 (a) of 1968 was not entertained for lack of territorial jurisdiction and the plaint was returned to her for presentation before competent Court.
2. The appellant/plaintiff was at the time of institution of the suit, residing in village Lohianwala, District Gujranwala. Her husband, defendant No, 1, was resident of District Sialkot. His address was given as School Teacher Government School Sambrial. Other respondents/defendants were shown as residents of village Jamke Cheema, Tehsil Daska, District Sialkot. The reason mentioned in para. 9 of the plaint for instituting the suit at Gujranwala was that the spouses allegedly last resided in that district and further because the marriage had allegedly taken place in the said district. In the written statement, amongst others, an objection was raised with regard to the territorial jurisdiction of the Court. Averments in para. 9 of the plaint were denied and it was asserted that the spouses never lived as husband and wife in village Lohianwala (District Gujranwala).
3. Both the parties led evidence on the question of territorial jurisdiction. The appellant, besides herself, examined Sardar Masih as her witness while besides respondent No, 1, Hameed Khalidi appeared as a witness for the defendants.
4. With the help of the learned counsel, we have gone through the evidence. The appellant deposed that after the marriage which was solemnized in village Lohianwala, she lived with her husband in village Jamke Cheema, District Sialkot for 8/10 months and thereafter in village Lohianwala for 2 months. She further stated that her parents-in-law used to altercate with her therefore, she and her husband had come to Lohianwala and then lived together for about a month at that place. This period of residence, it appears from her statement, is claimed to be the last period of residence at Lohianwala. On the contrary the husband (respondent-defendant) deposed that in 1964 he was studying in Government Normal School, Narowal, District Sialkot. In 1965 he was taken as a teacher in a school at village Jamke Cheema, District Sialkot. He stayed in village Jamke Cheema for 2.1-2 years. On 30-10.1967 he was appointed in Primary School Sambrial, District Sialkot and since then he was at Sambrial. He was examined on (14-9.1968) He also asserted that his original place of residence is village Jamke Cheema, District Sialkot, He was married to the appellant in 1963 at village Lohianwala and that thereafter they resided together in village Jamke Cheema, District Sialkot so long as he was there as a teacher. When he joined the school at Sambrial he shifted to Sialkot because he could not reach Sambrial in time. He further asserted that his wife shifted to Sialkot Cantt. And used to reside with his paternal aunt. He also asserted that on 8-3-1968 he adopted Islam as his religion. On this conversion he was given the name of Muhammad Khalid, that is why he deposed under this name. The appellant, he further asserted, did not like his becoming a Muslim and she administered poison to him but luckily he survived and thereafter she left Sialkot Cantt alongwith her ornaments and clothes. He denied having ever resided with his wife at Lohianwala. The other witnesses supported the party producing each one of them.
5. Learned counsel for the appellant has contended that it was not necessary for the appellant to establish that the parties resided permanently in District Gujranwala. It was enough if they had lived there together for few weeks. In this behalf he has relied on the expressions "reside or last resided together", used in the definition of "District Court" in section 3 (3) of the Divorce Act, 1869. He also contended that use of word "permanent" in the impugned judgment shows that the learned trial Judge did not apply the correct law. He, relying on Bhagat Singh Bugga v. Dewan Jagbir Sawhney (1) further contended that residence is not identical with ownership. It means where a person eats, drinks, and sleeps or where his family or his servants eat, drink and sleep. Mere animus revertendi and a lively interest in a former residence and connection with kith and kin residing there and an interest in ancestral property does not give Court jurisdiction under section 20 of the C. P. C. This argument has been advanced in connection with the evidence regarding admission from the appellant side, in the evidence, that no belongings were brought by the spouses when they had allegedly come to reside in village Lohianwala ; which has been commented upon in the impugned judgment. This aspect was noted in the impugned judgment as going against the appellant. Learned counsel explained the concept of residence, contended that a mere visit for few days as a quest or even as a relative would not constitute residence as intended by law (section 3
(3) of the Act). He argued that the stay during the particular visit in order to convert it into residence should at least, be of few weeks.
6. While we agree with the learned counsel that a mere visit would not convert the stay into residence, we are, however, unable to agree with him that whenever few weeks' stay is established it has to be necessarily presumed that the stay was for the purpose of residence. Expression "reside or last resided together" used in section 3(3) of the Divorce Act, means ordinary residence which though need not be permanent, should be of such a duration as to distinguish it from a mere visit or a temporary stay for few days or even for few weeks. The period should be such which might create an impression that the person is ordinarily residing at a particular place even though he might not have yet decided to make it as permanent home.
7. In this case the appellant had in unambiguous terms stated in para. 3 of her plaint that 6 months prior to its institution on 27-3-1968 her husband came to village Lohianwala "for few days" and accused her of having administered poison to him ; and, on this accusation, having picked up a (1)
AIR 1941 Cal. 670 quarrel with her, left the plaintiff permanently and went away. Although in para. 1 of the plaint she had admitted that after her marriage she lived in village Jamke Cheema in District Sialkot and also in village Lohianwala but in para. 2 she asserted that about 3 years prior to the institution of the suit her husband had, on the instigation of his parents and grand parents (other respondent-defendants), forcibly turned her out of his house. 'Thereafter the respectables brought about a conciliation and arranged restoration of the plaintiff in the house of her husband, whereafter (about 1 years) again the same condition prevailed as before. These assertions are followed by the earlier noted assertion made in para. 3 that six months prior to the institution of the suit the husband came to reside with the appellant in her parents' house for few days. The appellant was duly confronted with the assertion made in the plaint which clearly contradicted her deposition in Court. She failed to give any satisfactory explanation.
8. It is obvious from what has been stated above that the appellant and respondent No, I "did not reside" together at village Lohianwala nor that place was otherwise their ordinary place of residence. Although the respondent-defendant has denied even a casual visit for few days as asserted in para. 3 of the plaint yet assuming for the sake of argument the assertion in the plaint to be correct, that would not constitute stay of both the supouses together at Lohianwala of such a type which could be termed as residence. It could, at the most, be treated as a casual visit by the husband to the house of his parents-in-law and his stay there for a short time with a view, as alleged by the plaintiff, to accuse her of having administered poison to him, cannot be treated as residence as visualized by law. Hence it needs to be observed that the afore noted denial of the respondent/defendant appears to be more in accord with the natural circumstances. If he had decided to accused the appellant of an attempt to murder him, he would not have stayed in her parents' house even for few days. On facts also; we have no reason to disturb the findings of the learned trial Judge. In view of the discussion on question of law as also the facts involved in this case, it is not necessary to deal with the Calcutta case cited by the learned counsel for the appellant.
9. It needs to be clarified that while reaching the above conclusions we have assumed that the learned trial Judge when using the expression "never permanently resided", did not mean to hold that for purpose of assuming jurisdiction at District Court, under section 3(3) of the Act, permanent residence was necessary. The Word "permanent" was used only in contradistinction to visits of short duration ; and thus, would be understood as conveying ordinary residence. It also needs to be clarified that under the definition of "District Court" (in subsection (3) of section 3 of the Act), in case like the present one, is meant "the Court of District Judge within the local limits of whose ordinary jurisdiction or of whose jurisdiction under this Act, the husband and wife reside or last resided together". The appeal has been argued with reference to the Court of District Judge "within the local limits of whose ordinary jurisdiction' the husband and wife reside or last resided together and not with reference to the Court of the District Judge "within the local limits of whose jurisdiction, under this Act", i. e. The Divorce Act, 1869, the husband and wife reside or last resided together. No attempt has been made that the consideration, for assumption of territorial jurisdiction, under the Divorce Act, would, in any case, be different.
10. With these clarifications we find no force in this appeal and the same is dismissed. There shall be no order as to costs.