JUDGMENT
Chandrakantaraj Urs, J.
1. This appeal is by the wife on the question of jurisdiction decided by the Principal Family Court at Bangalore, in a matrimonial matter arising under the Special Marriages Act, 1954 (hereinafter referred to as the Act).
2. We propose to state only those facts which are necessary for the disposal of this appeal and no more and they are as follows: The respondent before us (husband) presented a petition purportedly under Section 31 of the Act seeking a decree of divorce annulling the marriage between himself and the appellant before us. He stated in his pleadings that the marriage was solemnised at Bombay under the Act. He has specifically pleaded in para-15 of his petition as follows:
“The cause of action for the petition arose within the jurisdiction of this Hon’ble Court on 9-1-1985 or in any event at (east from 20th April 1986 when the opponent left the petitioner…….separation with intent to commit desertion in giving the petitioner adequate grounds and reasons to seek dissolution of marriage. The petitioner and respondent last resided at Bangalore.”
It appears that the petition had come to be allowed ex-parte in the first instance, as the appellant who was described to be a resident of England had not entered appearance though served at England. However, she later entered appearance, had the ex-parte order set aside and filed her statement of objections. In para-26 of her objection statement she has said as follows:
“With reference to para-15 of the petition the opponent denies that the cause of action arose within the jurisdiction of the Hon’ble Court and further denies that the petitioner and opponent last resided in Bangalore. The opponent craves leave to refer and rely on what is stated hereinbefore.”
Earlier in the course of her statement of objection she has stated that she went to England only on a student visa and she had no intention of settling down in England and after completing her studies she returned to Bombay where she permanently resides.
3. The order under appeal is passed unfortunately without properly understanding the position in law or the correct procedure that is required to be followed in the facts and circumstances of the case. Though the procedure to be followed by the Family Court is summary in character, the Presiding Officer is under an obligation to formulate the points for determination clearly and decide the same after inviting and receiving evidence and that is the procedure it should follow. Now we think it proper to extract para-4 of the Judgment which is as follows:
“It is stated on behalf of the respondent that she is a permanent resident of Bombay and she still resides there and she had gone to foreign country on a student visa for studies and she is not a permanent domicile of the foreign country. Their marriage took place at Bombay according to Special Marriage Act, and therefore this Court has no jurisdiction to try the petition. The petitioner in contra states that they last lived together and cohabited at Bangalore. The petitioner Counsel also contended that the way this proceedings conducted by her previous Counsel and placing her ex parte and later setting aside and giving her change etc., clearly indicates that the respondent is living outside India permanently.”
From the above it is clear that the Court below has done no more than drawing inferences without any reference to the wife’s specific pleading that she has completed her studies in England and since returned to India and permanently residing at Bombay. It has come to the conclusion in the very last paragraph of the order that the husband last resided in Bangalore as a permanent resident and therefore, it has jurisdiction. We are some what surprised at such cursory conclusion reached on the point formulated by it, which is as follows:
“Whether this Court has jurisdiction to try the petition?”
Section 31 of the Act is as follows:
“Court to which petition should be made:
(1) Every petition under Chapter V or Chapter VI shall be presented to the District Court within the local limits of whose original civil jurisdiction –
(i) the marriage was solemnized; or
(ii) the respondent, at the time of the presentation of the petition resides; or
(iii) the parties to the marriage last resided together; or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he were alive.
(2) Without prejudice to any jurisdiction exercisable by the Court under Sub-section (1), the District Court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories.”
As we have seen, a specific plea is taken by the husband that he and the appellant lived together at Bangalore, which was specifically denied by the appellant in her objection statement. No point for determination of that pleading was ever raised by the Court below to give jurisdiction under Clause (iv) of Sub-section (1) of Section 31 of the Act. Now apparently the Family Court came to the conclusion that on the date of the petition was presented by the husband, the appellant was residing outside the territories to which the Act extended and therefore it had jurisdiction. In other words, the expression ‘residing outside’ has been construed by it literally, which we feel is not correct. ‘Residing outside the territories to which this Act extends’ occurring in Clause (iv) of Sub-section (1) of Section 31 of the Act must be construed to mean residing with the intention of permanently residing and has acquired domicile of the other country to which the Act does not extend. If any other limited meaning is given then the jurisdiction can be created by inducing the other party to go on a pleasure trip to a country to which the Act does not apply. We do not want to say any thing more in regard to this question. At this stage we are satisfied that the Family Court should have formulated two points for determination in order to determine its own jurisdiction with reference to the pleadings and they are:-
1) Whether or not the appellant-wife and the respondent-husband last lived together within the jurisdiction of the Family Court at Bangalore? and
2) Whether the appellant-wife was a permanent resident or had acquired the domicile in England at the time the petition was presented in the Family Court at Bangalore?
We have used the word ‘domicile’ with the specific intention that the Family Court must go by what domicile in Municipal and International Law means and it should invite evidence from the parties in regard to the two points above as the jurisdiction will depend on the facts to be established on the points formulated. We find that the order under appeal is prima facie unsustainable and deserves to be set aside as the decision on the question of jurisdiction is found by it on mere inferences and conjectures. Therefore the order under appeal is set aside and the matter is remitted to the Family Court to decide the question afresh in the light of the points formulated by us and after inviting the evidence to be adduced by the parties in order to decide the jurisdiction of the Family Court.
This order is made at the stage of admission after notice to the respondent-husband. Under the circumstances there will be no order as to costs.