Report No. 65
The next criterion to be considered is that of residence. In India, this criterion is not in force as a basis of jurisdiction in divorce, but it should be noted that the Indian Divorce Act, 1869, section 2, was, for some time, construed as empowering the Courts to grant a divorce if the parties were resident in India. This is not the law now1 under that Act, in regard to dissolution of marriage-though it continues as to nullity under that Act. In section 20(c) of the Code of Civil Procedure, 1908, and in section 19, Hindu Marriage Act, 1955, the test of residence does occur, as a basis for the exercise of jurisdiction in respect of matters dealt with by those provisions. The applicability of section 19, Hindu Marriage Act to cases involving a foreign element is a matter which we shall reserve for later discussion.2
1. See Chapter 5, infra.
2. See Chapter 5, infra.
2.26. Intention not required.-
Residence does not require an intention to settle down. It has been pointed out1 that it is not even necessary to have a roof over one's head, and a nomad can be a "resident" in a country within which he wandered.
1. Internal Revenue Commissioner v. Lysaght, 1928 AC 234 (244) (Viscont Summer).
2.27. Residence a physical fact.-
"Residence" has always been regarded as essentially a physical fact.1 The combined effect of two decisions of the House of Lords,2-3rendered in taxation law, is that "ordinary residence"4 is the reverse of "extraordinary"-some residence which is "according to the way in which a man's life is usually ordered" (Lord Warrington)-"part of the order of a man's life adopted voluntarily and for certain purposes (Lord Summer)-not casually but in the ordinary course of his life." This is also clear from the analysis of the subject by a scholar.5-6
1. Ramsay v. Liverpool Royal Infirmary, 1930 AC 588 (597) (Lord Macmillan).
2. Levenvire v. Internal Revenue Commissioner, 1928 AC 225.
3. Internal Revenue Commissioner v. Lysaght, 1928 AC 234 (242, 243, 248).
4. See further para. 2.29, infra.
5. Farnworth in 67 LQR 32 (34).
6. Farrworth Residence in the Anglo-American Law, 38 Crotius Society Tfansactions 29.
2.28. Meaning of residence.-
In India, the expression -reside" has been construed by the Supreme Court in Jagir Kaur (Mst.) v. Jaswant Singh, AIR 1963 SC 1521. The question that came up for decision was as to what the word "resides" and the words "where he last resided with his wife" mean, in section 488(8) of the Code of Criminal Procedure,1 which gave a right, inter alia, to the wife to file a petition for maintenance before the competent Magistrate. While dealing with this case, the Supreme Court observed as below:
"A makes only a flying visit and he has no intention to live either permanently or temporarily in the place he visits. It cannot, therefore, be said that he 'resides' in the places he visits."
Earlier in the judgment, it was also observed that:
"Whichever meaning is given to it, one thing is obvious and it is that it does not include a casual stay in, or a flying visit to, a particular place. In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense. The purpose of the statute would be better served if the word 'resides' was understood to include temporary residence."
These observations are of interest, as pointing to the distinction between residence and domicile.
1. Now, Section 125, Cr. P.C., 1973.