Christian Wives Should Not Be Denied The Right To File Divorce Petition At Place Of Residence: Kerala High Court Urges Parliament To Amend Divorce Act
The Court refused to read words into Section 3(3) Divorce Act, 1869, holding amendment is a legislative function; directed Registry to send judgment to Ministry of Law and Justice.
The Kerala High Court has observed that a Christian wife should not be denied the right to file a divorce petition before the Family Court within whose territorial jurisdiction she resides, a benefit already available to wives under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
Commenting that the situation is strange and unfortunate, the Bench urged legislative intervention, the Court recommended that Parliament earnestly consider introducing such a provision in the interests of Christian women and directed the Registry to forward a copy of the judgment to the Ministry of Law and Justice.
The Court, however, dismissed the writ petition, holding that while the existing provision is harsh on Christian women, harshness of a provision is not a ground for reading it down or adding words to it when the plain meaning is unambiguous and valid, and that adding words to a statute to extend the jurisdiction of courts is a legislative function into which courts are not permitted to enter.
Justice Bechu Kurian Thomas observed, “…the contentions raised by the petitioner are without merit. Notwithstanding the lack of merit, it is strange to note, and unfortunate too, that despite incorporating a provision enabling a wife to file a petition for divorce at the place where she resides at the time of filing the petition under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, such a provision has not been incorporated in the Divorce Act 1869. There is no justifiable reason not to incorporate such a provision in the Act. Parliament had, in the past, brought out sweeping changes in matrimonial legislation applicable to other religions by incorporating progressive and realistic grounds for divorce taking into account the changes in the nature of the family and the matrimonial relationship in the modern set up…”.
“…Nevertheless, a provision enabling the wife to file 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 Bench further noted.
Senior Advocate Jayna Kothari appeared for the petitioner and M. Jayakrishnan Vazhoor, CGC appeared for the respondent.
The petitioner, a 32-year-old Christian woman from Wayanad, had married the 4th respondent in June 2011 and alleged severe domestic violence following which she was thrown out of her matrimonial home.
Taking refuge at her parents' house in Wayanad, she filed a petition for dissolution of marriage before the Family Court at Kalpetta, which returned it for want of jurisdiction, holding that Section 3(3) of the Indian Divorce Act, 1869 did not confer jurisdiction on the court within whose limits the wife presently resides, only the court where the marriage was solemnised or where the husband and wife reside or last resided together.
She had also filed an FIR at Thondarnadu Police Station in April 2023 alleging domestic violence. She approached the High Court seeking a declaration that Section 3(3) of the Act must be read as including the court where the wife resides at the time of filing the petition.
The Court found Section 3(3) to be plain, clear and unambiguous, providing three jurisdictional courts, the place of solemnisation of marriage, the place where husband and wife reside, and the place where they last resided together, and that no absurdity, ambiguity or disastrous consequence arose from its literal reading.
The petitioner's argument that the words "or wife resides" must be read into the provision before the words "or last resided together" amounted to asking the Court to add words not present in the statute, a mode of legislative exercise not falling within the realm of judicial jurisdiction.
The Court distinguished the decisions in Saumya Ann Thomas and Mary Sonia Zachariah, where the Court had read down existing words or struck down unconstitutional portions, from the present case where no challenge to the validity of Section 3(3) had been raised and the relief sought was addition of new words.
“…when it comes to personal laws, the principle of equality, cannot be attracted between the different statutes governing those falling within different communities. Every legislative differentiation need not be necessarily discriminatory, especially when it relates to personal laws of different communities. Parliament undoubtedly possesses a wide power of classification and can legally enact laws operating differently for different categories of persons or groups of persons, to give effect to its policies”, the Bench noted.
Cause Title: P v. Union of India and Others (Neutral Citation: 2026:KER:47197)
Appearances:
Petitioner: Jayna Kothari, Senior Counsel, Thulasi K. Raj, Aparna Narayan Menon, Jomol Joy and Chinnu Maria Antony, Advocates.
Respondents: M. Jayakrishnan Vazhoor, CGC.