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Synopsis

Recently, the Bombay High Court held that the family court in Mumbai lacked jurisdiction to preside over a divorce case considering the couple only completed their marriage rituals in India and had spent most of their married time in the USA. Therefore, the latter ought to be the last shared residence of the couple. 

The Bench of Justice Rajesh S. Patil held, “The last residing together of the couple would be U.S.A., and it can’t be Mumbai, where the couple briefly stayed for less than 10 days immediately after marriage, in the home of parents of Husband, hence the Family Court in Mumbai will have no jurisdiction, under sub-section (iii) of 19 of Hindu Marriage Act, to entertain Divorce Petition in Mumbai”. 

The wife filed a writ petition, challenging the family court's assertion of jurisdiction over the divorce petition initiated by her husband. The couple, who were married according to Hindu Vedic customs, lived for less than 10 days in Mumbai at the husband's parents' home. Subsequently, the husband relocated to the USA, where he had been residing and working before their marriage. Shortly after, the wife also moved to the USA to join her husband and began working there. However, due to marital issues, they separated while in the USA.

Advocate Gayatri Gokhale, representing the wife, emphasized that the couple worked and resided in the United States, with only ceremonial rituals occurring in Jodhpur and a reception in Mumbai. She argued that the couple's brief stay in Mumbai did not establish jurisdiction for the family court there, especially considering their long-term residency and employment in the USA.

Advocate Siddharth Shah, representing the husband, highlighted the husband's Indian passport and that the marriage reception took place in Mumbai. He argued that the couple's last residence in India, Mumbai, should be considered for jurisdiction under Section 19 (iii) of the Hindu Marriage Act.

The court acknowledged the primary issue regarding “whether the Family Court at Mumbai has jurisdiction to try and entertain under section 19 (iii) of Hindu Marriage Act, the Divorce Petition filed by Husband under Section 13 (1)(ia) of Hindu Marriage Act?”. 

The court observed that the marriage ceremonies occurred in Jodhpur, Rajasthan, without dispute between the parties. The only event in Mumbai was a wedding reception. The court emphasized that a wedding reception does not form part of the marriage ceremony. The couple spent less than ten days together at the husband's parents' home in Mumbai before he left for the USA on June 15, 2015, followed by the wife on August 1, 2015. From October 15, 2019, they lived apart, with approximately four years spent together in the USA, with occasional visits to India.

The court noted that both parties had filed for divorce, the wife in the USA and the husband in the Mumbai family court. The wife's decision to file in the USA indicated her reluctance to acknowledge the jurisdiction of the Mumbai family court. 

The bench emphasized the jurisdiction and procedures outlined in the Hindu Marriage Act. The court noted that the husband had the option to file for divorce in Jodhpur, however, he did not pursue such relief under Section 19(i). Additionally, since the wife resided in the USA when the husband filed for divorce, Section 19(ii) was not applicable. 

The bench highlighted the 2003 amendment to the Hindu Marriage Act, introducing Section 19(iii-a), allowing an aggrieved wife to file for divorce where she currently resides, aiming to address perceived inadequacies in existing provisions, especially regarding women's rights. Contrary to a common interpretation, Section 19(iii) does not explicitly mention "last residing together".

The court rejected the cases referred to by Advocate Shah on behalf of the husband. However, the court accepted the cases cited by Advocate Gokhale, representing the wife. In the case of Kashmira Kale vs. Kishore Kumar Mohan Kale [(2010) 4 Mah. L.J. 395], it was established that since the parties stayed in Pune for only one day, their residence was considered to be in the USA, where they primarily resided. 

Similarly, referring to the case of ​​Smt. Aditya Rastogi vs. Anubhav Varma [2023:AHC:205480-DB], the court observed a situation where the wife resided in Australia. The court concluded that a mere visit to India by the appellant/wife and initiating divorce proceedings during that time did not establish jurisdiction for the family court in India. The facts of this cited judgment mirrored those of this proceedings.

Furthermore, the court also referred to the case of Sanjana Sharma vs. Ashok Sharma [2023 SCC OnLine Del.5560], reiterating that since the couple lived together in the USA until their separation in November 2012, with the wife subsequently remaining in the USA for work while the husband returned to India, their last shared residence was in the USA, not Delhi. The court noted that such a finding was directly relevant to these proceedings.

The court observed that a mutual consent divorce was prepared but was not submitted to the family court in Jodhpur, Rajasthan. In this case, the husband notarized his petition in the USA and filed it in Mumbai through Power of Attorney. The bench concluded that the last shared residence of the couple would be the USA, rather than Mumbai, where they briefly stayed for less than ten days immediately after marriage at the husband's parents' home. Consequently, the family court in Mumbai lacked jurisdiction under subsection (iii) of Section 19 of the Hindu Marriage Act to entertain the Divorce Petition.

Accordingly, the court set aside the impugned order of the family court and allowed the wife’s petition. 

Case Title: Shikha Lodha v Suketu Shah (2024:BHC-AS:17370)