'Law Alone Not Enough, Judges Should Also Play Ball': Madras High Court Grants Mutual Consent Divorce After Family Court Declined Jurisdiction

The bench of Justice GR Swaminathan and Justice MD Sumathi remarked that though the Special Marriage Act provides for dissolution of marriage without much adjudication when there is consensus between the parties, the law alone was not enough and the judge should also play ball.

“There is a saying in Tamil '"Even if the Lord grants a boon, the priest will not allow it". The statute provides for dissolution of marriage without much of an adjudication when there is consensus between the spouses. But it is not enough if the law alone is willing.. The Judge too must play ball,” the court said.

The couple had married in 2008 under the Special Marriage Act. Since differences arose between them, they chose to part amicably and filed a joint petition before the Family Court, Thanjavur, for dissolving their marriage by mutual consent. The Family Court, however, dismissed the plea on the ground of lack of territorial jurisdiction. Thus, the parties had appealed before the High Court.

The court noted that the marriage had taken place in Trichy and the wife was a resident of Trichy. The court also noted that the matrimonial home was at Trichy. The court thus remarked that the Thanjavur Family Court could not be faulted for holding that it lacked territorial jurisdiction. The court, however, added that in such a circumstance, the Family Court should have returned the plea instead of rejecting or dismissing it.

The court noted that though the parties had filed a memo seeking the petition to be returned, the Family Court had rejected it, stating that evidence had already been taken. The court held that as per CPC, a plaint could be returned at any stage of the suit and thus, the Family Court should not have refused to return the plea merely because evidence had been taken.

The court also held that territorial jurisdiction was only a technical issue which did not go into the root of the matter. The court also noted that while considering divorce cases, the convenience of the wife had to be considered.

In the present case, the court noted that the wife had jointly presented the plea along with the husband before the Thanjavur Court, since the husband was working as a Munsiff Judge in Thanjavur. Thus, the court held that when the wife found it convenient to file the plea in Thanjavur, the court was obliged to entertain the same.

Thus, the court held that the mutual consent divorce petition jointly presented by the parties in the Family Court within whose local limits the husband was residing had to be entertained by the court and not returned or dismissed on the ground of lack of territorial jurisdiction.

Counsel for Petitioner: Mr. M. Rajarajan

Case Title: APS v NIL

Citation: 2026 LiveLaw (Mad) 432

Case No: CMA(MD) No 1272 of 2026