I’ve written a lot about the Procedure for Mutual Consent Divorce and Contested Divorce in my previous articles. A lot has been written about the Grounds for Divorce as well. However, there is another important topic which often isn’t talked about much. That is, territorial jurisdiction for filing a Divorce Petition. Since most marriages in India are governed by the Hindu Marriage Act, therefore for the sake of convenience, I shall explain the provision contained in the Hindu Marriage Act.
The easiest way for me to explain territorial jurisdiction for the purpose of filing a Divorce Petition in India is to tell you about the time when a young couple named Pankaj (real name changed for privacy) and Nisha (real name changed for privacy) came to me. Pankaj met Nisha while he was enjoying a vacation in Goa during the autumn of 2015. He was a Delhite and lived with his parents in Green Park. Nisha belonged to Mumbai. She had been living in Bandra with her parents since her childhood.
The moment Pankaj met Nisha, while they were casually strolling on a beach in South Goa, sparks flew and they were instantly charmed by each other. The attraction was so intense and it wasn’t long before they decided to get married. Nisha wanted a destination wedding in Goa, to which both the families agreed instantly.
A grand Indian wedding was organized at a Resort in South Goa. Guests from both the sides were invited and since both Pankaj and Nisha were Punjabi, the marriage was solemnized as Hindu religious rites and ceremonies.
After the wedding, both Pankaj and Nisha came to Delhi and started living with Pankaj’s parents in Green Park. However, things started going sour between them within a year of their marriage. That initial attraction and love for each other seemed to have faded away. Nisha felt that Pankaj wasn’t the same person she had met in Goa. Pankaj felt that Nisha hated living with his parents in Green Park. Petty issues used to get aggravated in a matter of minutes. Sounds of shouting and yelling at each other was a common occurrence every other day.
The parents from both the sides intervened and gave their best efforts to sort out their issues. They even suggested that Pankaj and Nisha should move out from the house in Green Park. That they should live in a rented accommodation in Gurugram (Gurgaon). It would also help Pankaj since he was already working with a company in Gurugram. They did that, but that too didn’t lasted very long. The relationship between them had deteriorated beyond repair. Things went so bad that after a heated argument one day, Nisha packed her clothes and belongings and flew back to her parental house in Mumbai. Pankaj too felt hurt by it and left the rented accommodation in Gurugram and went to his house in Green Park.
After incessant thinking, both Pankaj and Nisha talked over the phone about their issue. They came to a solution that they should Divorce each other by mutual consent. It was a tough decision for both of them, but they couldn’t see any other way out. The parents too reluctantly agreed for the sake of their children.
After narrating their entire situation, their final question to me was, “where to file the Divorce Petition?”
Where should the Divorce Petition be filed?
Before I answer this, let’s take a look at Section 19 of the Hindu Marriage Act, 1955 (HMA). It deals with territorial jurisdiction of Petitions filed under the Act.
19. Court to which petition shall be presented:
Every petition under this Act shall be presented to the district Court within the local limits of whose ordinary 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
(iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, 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 or more by those persons who would naturally have heard of him if he were alive.
Now let’s dissect this provision a bit. Let’s understand where Pankaj and Nisha could have filed their Mutual Consent Divorce Petition.
Section 19 of HMA is quite a liberal provision. It enables both the parties to have convenience for contesting the matrimonial petition.
Now, District Court as provided in above provision means Family Courts. They were established under The Family Courts Act, 1984 with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters. There may be a case where a Family Court has not been established in a particular district. Then the functions of a District Court can be performed by a District Judge / Civil Judge as specified by the State Government via notification to that effect.
Section 19 provides 5 options. It enables the parties to file the Divorce Petitions under any one of them as per their convenience.
Clause (i) of Section 19 gives the option of filing the Petition where the marriage was solemnized. The marriage between Pankaj and Nisha was solemnized in Goa. So if they want to, they can file a Mutual Consent Divorce Petition before an appropriate Court in Goa.
Clause (ii) of Section 19 states that the Petition is to be presented where the Respondent resides. Since Pankaj and Nisha would be filing a joint Petition for Divorce, either of them can be made the Respondent / Second Party. Accordingly, the Divorce Petition can be filed either in Delhi (Court in Saket), or in Mumbai (Court in Bandra).
In a Contested Divorce, whosoever (Husband or Wife) files the Petition is the Petitioner and the other becomes the Respondent. So if a Husband (Petitioner) files a Divorce Petition, then he would be required to file it before a Court where the Wife (Respondent) resides. The same shall apply in the opposite case as well. However, there is loophole in this for the Wife, which I shall talk about in a little while.
Now, Clause (iii) of Section 19 provides states that a Petition can be filed where both the Husband and Wife last resided together. In our case, Pankaj and Nisha last resided together in Gurugram. Although initially they lived together in their Green Park house, however their place of last shared residence would be Gurugram. Therefore, they can file a Divorce Petition before a Court in Gurugram.
What does Resides and Last Resided Together mean?
It is also important to consider the meaning of resides for the purpose of territorial jurisdiction. Indian Courts have time and again ruled that to entertain a Divorce Petition, the residence needs to be a permanent one. Casual visits made by a party to a place cannot be regarded as permanent or even temporary residence. The occasional stay in the premises jointly for a day or for a temporary period cannot satisfy the requirement of the residence.
The correct legal meaning of last resided together too would have to be considered. There must be intention of both the parties to reside together at particular place for some length of time, even though the actual time spent over there might be short. So a couple may go for a honeymoon to a different state and stay there for few weeks or even a month, but that would not come under the definition of last resided together.
Advantage to the Wife
As I had hinted above, there is an advantage given to a Wife if she institutes a Divorce Petition. In case, the Petition is to be filed by the Wife, then Clause (ii) of Section 19 would not be applicable to her. Clause (iii-a) of Section 19 states that in case the Petitioner is the wife, she can file the Petition where she is presently residing, That is, Nisha need not file the Petition where Pankaj (Respondent) resides, ie. Delhi. She can simply file the Petitioner before a Court where she presently resides, ie. Mumbai.
So to sum up what we have understood so far. Pankaj and Nisha can file for Divorce before a Court where the marriage was solemnized, ie. Goa. They can file for Divorce before a Court where Nisha resides, ie. Mumbai. They can file for Divorce where both Pankaj and Nisha last resided together, ie. Gurugram. In case, the Petition is to filed by Nisha, then along with the above options, she also has the option of filing the Petitioner where she (Petitioner) is residing, ie. Mumbai.
Clause (iv) of Section 19 provides an option to a Husband or Wife to file a Petition against the other in case the other spouse is either beyond the jurisdiction of Indian Courts or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive, ie. his relatives and friends. This provision is important to safeguard the liberty of a spouse who has been deserted, under the conditions mentioned above, by the other and wants to break-free from the legal bondage of marriage.
I hope I have been able to shed enough light on this not-so-talked-about provision and made it simple for anybody to understand its application.
- Disclaimer: This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.
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