S.19 Hindu Marriage Act | Wife Residing In Australia Can't Invoke Jurisdiction Of Indian Court Where She Briefly Visited: Allahabad High Court

The Allahabad High Court has held that though the term 'residing' appearing in Section 19 (Court to which petition shall be presented) of the Hindu Marriage Act, 1955 is not defined under the Act, a casual visit to a place will not grant jurisdiction to the Court in that area to adjudicate upon divorce proceedings.

The bench comprising of Justices Saumitra Dayal Singh and Syed Aftab Husain Rizvi while hearing an appeal of wife residing in Australia held,

“The term 'residing' though not defined under the Act, it clearly denotes more than a casual visit to a place falling within the territorial jurisdiction of the Court where a divorce proceeding may be instituted. Once it is admitted to the appellant that she is continuing to reside in Australia though under force of circumstance, it has to be maintained in law that she is not residing within the territorial jurisdiction of the Family Court, Moradabad.”

Additional Principal Judge, Family Court, Moradabad rejected application filed under Section 13 of the Hindu Marriage Act, 1955 by the appellant-wife on grounds of lack of territorial jurisdiction.

Counsel for appellant contended that she was denied the opportunity to rebut the facts stated in the application filed by the respondent. Though the Court found substance in the argument, it noted that even if no divorce proceedings are pending between the parties before any competent court in Australia, it cannot be concluded that the Court below erred in rejecting the plea on grounds of lack of jurisdiction.

Undisputedly, appellant is residing in Australia and while on a brief visit to India, may have instituted the divorce proceedings. However, the Court held that considering the undisputed status of her residency in Australia, the provisions of Section 19(b)(a) [sic.] of the Act would not come to her rescue.

[Editor's note: Provision is Section 19(iii)(a) which states where petitioner is wife, petition under HMA shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction where she is residing on the date of presentation of the petition]

The Court held that based on brief visit to India, it cannot be said that the Family Court in Moradabad will have jurisdiction as the appellant was residing in Australia.

Accordingly, while dismissing the appeal the Court observed that if the status of appellant's residency changes, it may give rise to fresh cause on the strength of that change of status.

Case Title:- Smt. Adity Rastogi v. Anubhav Verma [FIRST APPEAL No. - 1145 of 2023]

Citation: 2023 LiveLaw (AB) 412

Counsel for Appellant :- Dharmendra Vaish

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