HMA | Wife Seeking Divorce Must Be Physically Residing In Jurisdiction Of Court Where Plea Is Filed: Punjab & Haryana High Court

The Punjab and Haryana High Court has held that a wife seeking divorce under the Hindu Marriage Act (HMA) must be actually physically residing within the territorial jurisdiction of the court where the petition is filed.

According to Section 19(iii-a) of the Hindu Marriage Act, a petition under the Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction the wife is residing on the date of presentation of the petition, in cases where she is the petitioner.

Justice Sureshwar Thakur and Justice Vikas Suri referring to Section 19(iii a) of the Hindu Marriage Act said, "as is evident from the coinages which exist therein i.e. “where she is residing on the date of presentation of the petition” but is qua, the litigant concerned, permanently/ actually/ physically residing within the territorial jurisdiction of the Family Court concerned, thus necessarily at the time of presentation of the petition."

The Court added that, as such, the intention of the legislature in incorporating the said coinage in Section 19(iiia) of the Act of 1955, was manifestive to the extent, "that only when at the time of the presentation of the petition by the wife, she was physically and actually residing within the territorial limits of the jurisdiction of the Court concerned, therebys alone there could be assumption of valid adjudicatory jurisdiction upon the apposite petition."

The Court was hearing an appeal filed by a woman challenging the order of the Family Court which had rejected her plea for divorce under the Hindu Marriage petition for lack  of jurisdiction.

After about 2 and a half years of proceedings, the Husband challenged the maintainability of the divorce plea before the Family Court, arguing that the court lacked territorial jurisdiction. On December 17, 2024, the court agreed, ruled it had no jurisdiction, and ordered the petition to be returned for filing in the appropriate court.

The appellant-wife argued that the requirement for the petitioner to be residing at Faridabad on the date of filing should not be interpreted rigidly, especially since she was residing in Canada on a study visa at the time.

After hearing the submissions, the Court opined, "n the instant statute i.e. “where she is residing on the date of presentation of the petition”, thus the thereins used coinages, hence for conferring jurisdiction upon the Courts concerned, normally is/are the litigant(s) concerned, “ordinary residing”, thus within the territorial limits of the Court concerned, which he/she so prefers to make redressal motions."

Therefore, when the coinage used in Section 19(iiia) of the Act of 1955, does not state that the “ordinary residence” of the litigant concerned, is the pre requisite for conferring adjudicatory jurisdiction over the present petition.

It added that the petitioner was requited "physically and actually residing within the territorial limits of the jurisdiction of the Court concerned."

In the present case, the Court noted that since the appellant was not physically residing within the jurisdiction of the Faridabad Family Court, the petition was improperly filed there.

The appeal was dismissed, affirming the original decision, and the appellant was directed to refile the petition in the appropriate Family Court based on her actual physical residence. However, the Family Court was directed to expedite the process, as almost 2 and a half years had already been spent on the previous proceedings.

Mr. Vinay Kumar Mahajan, Advocate for the appellant.

Title: XXX v. XXXX