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Synopsis

The Allahabad High Court recently ruled that divorce proceedings cannot be initiated in a court within whose territorial jurisdiction the parties have only casually visited.

The term 'residing' though not defined under the Hindu Marriage Act, 1955 (HMA), it clearly denotes more than a casual visit to a place falling within the territorial jurisdiction of the Court where a divorce proceeding may be instituted, said the bench of Justices Saumitra Dayal Singh and Syed Aftab Husain Rizvi.

In view of the same, court dismissed an appeal filed by a woman residing in Australia, against the rejection of her plea filed under Section 13 of the HMA by a family court in Moradabad, UP. 

The Family Court had rejected the woman's plea for divorce on the ground of lacking in territorial jurisdiction.

Seeking relief, the woman's counsel referred to Section 19 of the HMA which provides for court to which petitions under HMA are to be presented.

According to the provisions under Section 19, in case the wife is the petitioner, where she is residing on the date of presentation of the petition, she can file her plea before the court having territorial jurisdiction over that area. 

The counsel for the woman argued for the dismissal of the Family Court's order, citing that the woman had not been afforded an opportunity to contest the facts presented by her husband in an application. Additionally, it was emphasized that there are no ongoing divorce proceedings between the parties in the appropriate Australian court.

However, the high court said, "Those considerations may not lead us to any conclusion as to error committed by the learned court below in refusing to entertain the divorce proceedings instituted by the present appellant. It is so because for whatever reasons that may exist, it remains undisputed to the appellant that she is residing at Australia".

Court held that despite the woman's brief visit to India and her initiation of divorce proceedings during that period, her clear and uncontested residency in Australia would not provide her with the protections outlined in Section 19(b)(a) of the Act.

Consequently, court dismissed the appeal while clarifying that in case, woman's status of residency changes, it may give rise to fresh cause on the strength of that change of status.

Case Title: Smt. Adity Rastogi v. Anubhav Verma