Kerala High Court Suggests Parliament To Amend Divorce Act To Enable Christian Women File Cases At Place Of Residence

Justice Bechu Kurian Thomas observed that such a provision exists in the Hindu Marriage Act, 1955 as well as the Special Marriage Act, 1954 and there is no justifiable reason not to incorporate the same in the Divorce Act.

“it is strange to note, and unfortunate too, that despite incorporating a provision enabling a wife to file a petition for divorce at the place where she resides at the time of filing the petition under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, such a provision has not been incorporated in the Divorce Act 1869. There is no justifiable reason not to incorporate such a provision in the Act. Parliament had, in the past, brought out sweeping changes in matrimonial legislation applicable to other religions by incorporating progressive and realistic grounds for divorce taking into account the changes in the nature of the family and the matrimonial relationship in the modern set up. Nevertheless, 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 interests of women, who are governed by the Act, the Parliament ought to earnestly consider incorporating a provision similar to those in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, 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 observed.

The Court then directed the Registry to send a copy of the judgment to the Ministry of Law and Justice, Government of India for appropriate consideration of the afore observation.

The petitioner before the Court was a wife, who came before the High Court seeking a declaration that Section 3(3) of the Divorce Act ought to be read in a manner so that jurisdictional courts for filing petitions under the Act would also include the court within whose territorial limits the wife resides. The Court, however, refused to do the same.

Section 3(3) defines District Court and as per the provision, petitions under the Act can only be filed in the District Courts in whose jurisdiction: (i) marriage was solemnized; (ii) where the husband and wife resides; or (iii) the husband and wife last resided together.

She had filed an application for dissolving her marriage before the Family Court, Kalpetta (Wayanad) but it was rejected on the ground that there was no jurisdiction to entertain the same. She had submitted that her matrimonial home is at Kasargod but she was subjected to severe domestic violence and was thrown out. She then returned to her parents' house in Wayanad.

Her marriage was conducted at Kasargod and she along with her three children resided together at the matrimonial home there. Since Section 3(3) says only courts in Kasargod would have jurisdiction to entertain petitions, she is faced with severe difficulties.

It was also contended that serious prejudice is caused to Christian women who want to file for divorce and such a restriction is not there in other laws. It was pointed out the discrimination is based on religion and sex and fundamental rights under Articles 14, 15 and 21 of the Constitution are being violated.

The reality of Christian women being thrown out of their matrimonial homes and their lack of resources to approach the jurisdictional courts ought to be considered, it was submitted.

The Union filed a statement stating that there is no prayer to strike down the provision. It was also contended that since the words of the statute is unambiguous, the courts are bound by the same. It was also pointed out that a writ of mandamus cannot be issued to a legislature to enact law on any particular subject. Moreover, as per the request of the Centre, the Law Commission is presently examining the various issues relating to the uniform civil code to make recommendations.

After hearing the parties, the Court went on to examine Section 3(3) of the Divorce Act. It then observed:

“The statutory provision defining the District Court is simple, plain and unambiguous. There is no absurdity or ambiguity, warranting a different interpretation to be adopted. No disastrous situation will ensue by ascribing the plain meaning to the provision. When the statute is plain, clear and simple, the provisions as enacted, cannot be read down. The contention that words not otherwise included in the statute must be added, is not a legally tenable argument in the present context.. Of course, the Constitution of India permits special provisions to be made for women, but that is a matter of legislative exercise and not for the courts to indulge in. Adding words to a statute is a legislative function. Courts are not permitted to enter into the field of legislation. Apart from it, the language of the section being clear, it does not require any interpretation or construction. The court's function of ascertaining the legislative intention arises only if there is any ambiguity in the provision or the literal construction of a provision may be contrary to the legislative purpose or objective or may result in disastrous or absurd consequences.”

It also remarked that Parliament did not include a similar provision in the Divorce Act while incorporating it in the Hindu Marriage Act and the Special Marriage Act through amendments.

“the Parliament did not deem it fit to bring in such a provision in respect of divorce petitions under the Act for Christian women. As rightly contended by the learned counsel for the respondents, when it comes to personal laws, the principle of equality, cannot be attracted between the different statutes governing those falling within different communities. Every legislative differentiation need not be necessarily discriminatory, especially when it relates to personal laws of different communities. Parliament undoubtedly possesses a wide power of classification and can legally enact laws operating differently for different categories of persons or groups of persons, to give effect to its policies,” it added.

Even though the petitioner pointed out that the provision was harsh to Christian women, the Court opined that harshness is not a ground to add words to a statute.

Next, considering the facts of the present case, the Court said that there are no disastrous consequences if the petitioner is unable to file petition in Wayanad as there is an option provided under Section 24 of the Code of Civil Procedure to transfer the case from one court to another in appropriate situations.

Thus, the Court dismissed the plea. It, however, asked the Ministry to consider bringing in a change.

Case No: W.P.(C) No. 8801/2025

Case Title: X v. Union of India and Ors.

Citation: 2026 LiveLaw (Ker) 358

Counsel for the petitioner: Jayna Kothari (Sr.), Thulasi K. Raj, Aparna Narayan Menon, Jomol Joy, Chinnu Maria Antony

Counsel for the respondents: M. Jayakrishnan Vazhoor – Central government counsel

Click to Read/Download Judgment