It is very common issue faced by the couples at the time of divorce that at which place they should file the case if they are living separately? Jurisdiction is a very important thing to be determined in any law suit because it is the very first base of a case. In case of marriage related issue, the jurisdiction of court will depend on the form in which marriage is solemnised i.e. it is solemnised under Hindu Marriage Act or Special Marriage Act etc. these Acts provides specific provisions for determining the jurisdiction of the case.
Jurisdiction of filing case when marriage is solemnised under Hindu Marriage Act, 1955
This Act provides jurisdiction of filing a case under section 19 which says that such case can be filed in district court (family court) under whose local limits-
- The marriage was solemnised, or
- The respondent at the time of the presentation of the petition resides, or
- The parties to the marriage last resided together, or
- In case wife is the petitioner, where she is residing on the date of presentation of the suit, or
- The petitioner is residing, in case respondent is out of the territory of which the Act applies or has not been heard for 7 years.
So, this section makes it very clear that in case where husband and wife are living separately then they have option to file a case at the place where the got married or the place where they last reside together or at the place where respondent resides now.
In case where the petitioner is wife then there is a privilege for her that she doesn’t have to file the case where her husband lives now as the 2nd condition will not apply here. She can simply file the case where she is residing now.
Jurisdiction of filing a case when marriage is solemnised under Special Marriage Act, 1954
if the marriage is solemnised between the parties under The Special Marriage Act the jurisdiction of filing case will be determined according to the section 31 of the act according to which petition can be filed in district court under whose local limits-
- The Marriage was solemnized, or
- The respondent at the time of the presentation of the petition resides, or
- The parties to the marriage last resided together, or
- In case wife is the petitioner, where she is residing on the date of presentation of the suit, or
- The petitioner is residing, in case respondent is out of the territory of which the Act applies or has not been heard for 7 years.
- In case the wife is the petitioner, where the wife resides as an ordinary citizen for 3 years preceding the presentation of petition and husband is not resident in the said territory.
The condition given under this Act is almost similar to the HMA. Again, the wife has privilege if she is petitioner as she can file the case where she resides for 3 years as an ordinary citizen.
What does Resides and Last Resided Together mean?
for understanding the matter of jurisdiction, it is also important to understand that what is the meaning of resides. For the purpose of divorce in India residence needs to be a permanent one. Casual visits made by a party to a place cannot be regarded as permanent or even temporary residence. The occasional stay in the premises jointly for a day or for a temporary period cannot satisfy the requirement of the residence. Bu the term last resided together it means that the place where parties lived together. The essential for this condition is that the couple must have intention to live together at that place for long time. If they have such intention but does not actually resides there for so, long and started living separately then also it will be considered as a place where the last resided together. A place where they go for holiday purpose or for honeymoon will not fall under this category.
So, after considering all these conditions correct jurisdiction of such cases can be decided and case can be filed.
For filing the mutual consent for Divorce please Click here
OUR SERVICES
Company Registration I Trademark I Copyright I Patent I GST I MSME
ISO Certification I Website/App Policy I Legal Documentation
Annual Compliance I Connect Consultant
Visit: Aapka Consultant to get Online Services of CA CS & Lawyers
