Christian Divorce Act Amendment Kerala Hc Wife Residence Divorce

Flagging a disparity between the Christian divorce law and other statutes, the Kerala High Court has urged Parliament to amend the Divorce Act, 1869, to allow women to file divorce petitions from their place of residence.

The single-judge bench of Justice Bechu Kurian Thomas on June 30 held that “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 interest of women, who are governed by the Act, the Parliament ought to earnestly consider incorporating a provision…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 Court said there was “no justifiable reason” for the omission but held that adding such a provision was a legislative task beyond the judiciary’s powers.

When she filed for divorce before the Family Court in Kalpetta, the court returned her petition, citing a lack of territorial jurisdiction under Section 3(3) of the Divorce Act. She then approached the High Court, asking it to read Section 3(3) to include the district where the wife resides.

Hindus, Buddhists, Jains and Sikhs are governed by the Hindu Marriage Act, 1955, while interfaith and civil marriages come under the Special Marriage Act, 1954. Parsis have their own law from 1936, and Muslims are governed according to Islamic law. Christians are governed under the colonial-era statute, the Divorce Act, 1869. It was substantially amended in 2001 to remove several gender-based inequalities in the grounds for divorce under Section 10, but its jurisdiction clause under Section 3 was left untouched.

Section 3(3) states that a district court is “the court of the District Judge within the local limits of whose ordinary jurisdiction, or of whose jurisdiction under this Act the marriage was solemnized or the husband and wife reside or last resided together.”

A petition can only be filed in the same district where the marriage was solemnised or where the couple resided together. In the present case, the woman may have to file the petition where the marriage was conducted or where the couple had last resided. Parliament fixed this exact gap for Hindu and civil marriages back in 2003, but never touched the Divorce Act.

Justice Thomas held that the provision is “simple, plain and unambiguous” and that courts have no business rewriting it. It said that “when the words of a statute are plain or unambiguous i.e., they are susceptible to only one meaning, the courts are bound to give effect to such a meaning, irrespective of the consequences that may ensue. This principle has its roots in the concept that the intent of the law giver is expressed by the words used in a statute and when it is precise or does not lead to any ambiguous interpretation, the outcome of such a construction should not be a concern for the court.”

He also rejected the argument that the gap amounts to unconstitutional discrimination, holding that personal laws of different religious communities may differ. The court further said that the petitioner can apply under Section 24 of the CPC to transfer her case to a more convenient court, since Section 3(3) only governs where a case is first filed, not where it must stay.

In the 2024 case of Eldho Varghese v Liya Jose, a division bench of the Kerala HC considered whether a divorce petition filed under the Divorce Act could be transferred to another family court even if the court did not satisfy the territorial requirements under Section 3(3). The court there held that Section 3(3) only governs where a petition may initially be instituted. Once filed, the HC can transfer the case under Section 24 of the CPC.

In the present case, Justice Thomas relied on this judgment, noting that a Christian woman who is unable to litigate in the prescribed forum is not entirely without a remedy and can seek transfer of the case under the civil law.