Kerala High Court allows Christian women to file divorce pleas before courts in places where they reside

The Kerala High Court on Wednesday held that Christian women can file for divorce before the family court having jurisdiction over the place where she resides, even if it is different from the place where her marriage was solemnised or where she last resided with her husband.

A Division Bench of Justice AK Jayasankaran Nambiar and Justice Preeta AK held that a restrictive interpretation of Section 3(3) of the Divorce Act would be discriminative to christian women.

Section 3(3) of the Divorce Act, which governs the dissolution of Christian marriages, sets out the territorial jurisdiction for filing a divorce petition.

The Court said the provision should be interpreted in a manner which is consistent with the constitutional guarantees of gender equality.

It added that similar provisions in the Hindu Marriage Act and the Special Marriage Act have already been amended to provide this relief for the married women covered by those laws.

"Axiomatically, therefore, when the pari materia provisions in other matrimonial statutes have been suitably amended to enable the wife, where she is the petitioner, to file a petition before the jurisdictional District Court where she is residing on the date of presentation of the petition, an interpretation of the second limb of the definition in Section 3(3) of the Act in a restrictive manner that prevents a christian woman from so approaching the jurisdictional District Court where she is residing on the date of presentation of the petition, would be discriminatory to Christian women and has to be avoided," the Court said.

The Court was dealing with an appeal filed by a 32-year-old woman from Wayanad, whose divorce petition had earlier been rejected by the family court at Kalpetta due to lack of territorial jurisdiction.

The family court's decision was affirmed on June 30 by a single-judge of the High Court who agreed with the woman's legal contention but refused to read such a right into Section 3(3) of the Divorce Act.

The woman stated in her petition that she was forced to leave her matrimonial home in Kasargod after suffering severe domestic violence and was residing with her parents in Wayanad.

She said that she was not in a position to file her divorce plea in Kasargod.

She also argued that denying Christian women the option to file divorce cases before family courts located near their place of residence amounts to discrimination.

After the single-judge declined to grant her any relief, she filed an appeal.

Under Section 3(3) of the Divorce Act, 'District Court' is defined as a court within whose jurisdiction:

- the marriage was solemnised, or

- where the husband and wife reside, or

- where they last resided together.

In the judgment delivered on August 19, the Court considered whether the second limb which refers to the court within whose jurisdiction, "the husband and wife reside", could also cover a situation where the husband and wife are residing separately.

The Court answered the question in the affirmative.

It observed that the second limb of the provision should be interpreted to allow a wife to approach the family court having jurisdiction over the place where she resides on the date of her filing the divorce petition.

It explained that if the second limb is interpreted as referring only to the place where both husband and wife last resided together, it would make that provision effectively redundant because the third limb already specifically deals with the place where they had last resided together.

"Thus, the second limb must be seen as conferring a jurisdiction on other District Courts, different from that within whose jurisdiction the husband and wife last resided together, if as a matter of fact, they are residing separately in places within the jurisdiction of those courts. To treat the same District Court as the one referred to in both - the second and third limbs of Section 3(3) - would tantamount to treating the phrases “within whose jurisdiction the husband and wife reside” and “within whose jurisdiction the husband and wife last resided together” as meaning the same thing, which would be impermissible," the Court said.

Thus, the Court set aside the single-judge's decision and allowed the woman's appeal.

It also declared that Section 3(3) of the Act would enable a wife to file a divorce petition before a family court having jurisdiction over the place where she is residing at the time of filing the petition.

Senior Counsel Jayna Kothari instructed by advocate Thulasi K Raj appeared for the petitioner.

Central government counsel M Jayakrishnan Vazhoor represented the Union government.

Senior government pleader TP Sajid appeared for the State.

[Read Judgment]