Kerala HC calls for change in law to let Christian women file divorce pleas from their place of residence

The Kerala High Court recently urged the Parliament to amend the Divorce Act,1869 and allow Christian women to institute divorce proceedings before the family court within whose jurisdiction they may reside after leaving their matrimonial home. .The Divorce Act governs the dissolution of Christian marriages. Under Section 3(3) of this Act, a divorce petition can only be filed before the court within whose jurisdiction the marriage was solemnised or where the married couple resided as husband and wife.In a ruling passed on July 1, Justice Bechu Kurian Thomas observed that there was no reason to deny a Christian woman the benefit of also being able to file divorce petitions from the place where she may reside after separating from her husband. Women governed by the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, are already permitted to do so, the Court noted. The judge pointed out that the Parliament has introduced progressive reforms earlier in other matrimonial laws, considering the interests of women. The same procedural safeguard should be extended to Christian women as well through changes in the Divorce Act, he observed. "A provision enabling the (Christian) wife to file (divorce) petitions in the place where she resides has not been brought into the statute book. Hence in the interests of women, who are governed by the Act, the Parliament ought to earnestly consider incorporating a provision similar to those in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, enabling the wife to file a petition under the Act before the competent court within whose jurisdiction she resides, at the time of filing the petition," the Court's ruling stated. The Court also directed the Registry to forward a copy of the judgment to the Union Ministry of Law and Justice so that they may consider this suggestion. .The Court made the observation while dealing with a plea by a 32-year-old woman from Wayanad.She had approached the High Court after a family court at Kalpetta declined to consider her divorce petition, citing a lack of territorial jurisdiction.She stated that she had been forced to leave her matrimonial home in Kasaragod due to severe domestic violence and was residing with her parents in Wayanad. She highlighted that she was not in a position to file her divorce plea from Kasargode. She argued that the law's failure to allow Christian women to file divorce cases from where they resided amounted to religious discrimination. She called for a re-interpretation of the law so that Section 3(3) of the Divorce Act is modified to allow the filing of divorce pleas from the place where the wife resides. The Court, however, declined to grant such relief, observing that it cannot rewrite the law. The Court said that such functions fall in the exclusive domain of the legislature. Even if the existing law causes hardship to Christian women who had left their matrimonial homes, such inconvenience alone could not justify reading additional text into a clear statutory provision, the Court stated..It also held that differences in personal laws governing different religious communities could not be treated as unconstitutional discrimination. The Court pointed out that a wife who is unable to pursue a case in a court having jurisdiction under Section 3(3) of the Divorce Act could still seek the transfer of her divorce petition to a more convenient place, under Section 24 of the Code of Civil Procedure, 1908.The Court proceeded to dismis the petition before it, while expressing hope that the Parliament would address the issues flagged in this case. .Senior counsel Jayna Kothari, instructed by advocate Thulasi K Raj, appeared for the petitioner..Central government counsel M Jayakrishnan Vazhoor represented the union..[Read Judgment]