Kerala HC Refuses to Read Wife's Residence into Divorce Act Jurisdiction, Urges Parliament to Act

Justice Bechu Kurian Thomas dismissed a petition seeking to add wife's residence as a jurisdictional ground under the Divorce Act, 1869, while urging Parliament to amend the law for Christian women.

The High Court of Kerala has dismissed a writ petition filed by a Christian woman from Wayanad who sought a declaration that the Family Court at Kalpetta, within whose limits she was residing, had jurisdiction to hear her divorce petition under the Divorce Act, 1869. Justice Bechu Kurian Thomas, sitting singly at Ernakulam, held on 30 June 2026 that section 3(3) of the Act is plain and unambiguous and does not permit courts to read in additional words conferring jurisdiction based on the wife's place of residence. The bench simultaneously directed the Registry to forward the judgment to the Ministry of Law and Justice, observing that Parliament ought to earnestly consider amending the provision to bring it in line with corresponding provisions in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.

The Dispute Before the High Court

The petitioner, Princy N.V., aged 32, a resident of Wayanad district, had filed a petition for dissolution of her marriage before the Family Court at Kalpetta. The Family Court returned the petition for lack of jurisdiction under section 3(3) of the Divorce Act, 1869.

Her case was that she had been thrown out of her matrimonial home at Kasaragod due to alleged severe domestic violence. She was residing with her parents in Manathavady Taluk, Wayanad, at the time she filed her petition. The marriage had been solemnised at Kasaragod in 2011, and the spouses had last resided together at Kasaragod. Under section 3(3) as it stands, the only available forums were the courts at Kasaragod — either where the marriage was solemnised or where the parties last resided together. Travelling to and litigating in what she described as a hostile jurisdiction created, in her submission, serious prejudice.

The petitioner did not challenge the constitutional validity of section 3(3). She sought instead a declaration that the provision should be read as including the court within whose territorial limits the wife resides at the time of presentation of the petition.

What Section 3(3) of the Divorce Act Provides

Section 3(3) of the Divorce Act, 1869 defines “District Court” for the purposes of petitions under the Act as the court of the District Judge within whose ordinary jurisdiction the marriage was solemnised, or where the husband and wife reside, or where they last resided together. Three fora are available to petitioners. None of them refers to the wife's independent place of residence at the time of filing.

By contrast, the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 were amended in 2003 to add the wife's place of residence as an additional ground of jurisdiction. No corresponding amendment was made to the Divorce Act, 1869, which governs Christian marriages. The petitioner's Senior Counsel, Adv. Jayna Kothari, argued that this omission amounted to discrimination based on religion and sex, violating Articles 14, 15 and 21 of the Constitution. She urged the court to adopt a purposive and harmonious construction, and to add the words “or wife resides” before the words “or last resided together” in the provision.

The Union of India, represented by Central Government Counsel Sri M. Jayakrishnan, resisted the petition. It was contended that, absent any challenge to the validity of section 3(3), the court had no basis to add words to the statute. The respondent also pointed out that when the 2003 amendments were introduced in the Hindu Marriage Act and the Special Marriage Act, parliamentary discussions reflected a specific legislative choice not to extend a similar provision to the Divorce Act. Personal laws of different communities, it was argued, need not be placed on an identical footing, and Article 14 does not compel parity between distinct personal law regimes.

The Court's Reasoning on Statutory Interpretation

Justice Bechu Kurian Thomas declined to adopt the construction urged by the petitioner. The court held that section 3(3) is simple, plain and unambiguous. There is no absurdity or ambiguity in the provision that would warrant departing from its literal text. When a statute is susceptible to only one meaning, courts are bound to give effect to that meaning irrespective of the consequences.

The judgment drew on the Supreme Court's recent restatement of this principle in Rajendra Bihari Lal v. State of Uttar Pradesh [2025 INSC 1249], which held that courts should not depart from the plain text of a statute where the plain interpretation does not produce absurdity or make the provision unworkable, and that tools of statutory interpretation are appropriate only where the text does not speak for itself or more than one interpretation is possible. The same proposition, the court noted, had been laid down in Raghunath Rai Bareja and Another v. Punjab National Bank and Others [(2007) 2 SCC 230].

The court was explicit that adding words to a statute is a legislative function, not a judicial one. The petitioner's argument, at its core, was asking the court to incorporate a special provision conferring extended jurisdiction on women under the Divorce Act. The Constitution does permit special provisions to be made for women, the court acknowledged, but the making of such provisions is a matter for the legislature. Courts are not permitted to enter the field of legislation.

On the argument that the provision is harsh on Christian women, the court held that harshness alone is not a ground for reading down a provision or adding words when the plain meaning is unambiguous and valid. Inconvenience caused by a statute has never been treated as a ground for annulling it, as affirmed by the Supreme Court in Authorised Officer, Central Bank of India v. Shanmugavelu [(2024) 6 SCC 641] and a Division Bench of the Kerala High Court in Sarala Baby v. State of Kerala and Others [2010 (2) KLT 66].

The amendments to the Hindu Marriage Act and the Special Marriage Act in 2003 also could not serve as a basis to add words to the Divorce Act. When it comes to personal laws, the court held, the principle of equality cannot be attracted between different statutes governing persons from different communities. Parliament possesses a wide power of classification and can legally enact laws that operate differently for different categories of persons. The reference to Nazeer @ Oyoor Nazeer v. Shemeema [(2016) SCC OnLine Ker 41064] and the Full Bench decision of the Andhra Pradesh High Court in Gogireddy Sambireddy v. Gogireddy Jayamma and Another [AIR 1972 AP 156] was found appropriate on this point.

Earlier Precedents Distinguished

The petitioner placed strong reliance on two earlier decisions of the Kerala High Court involving the Divorce Act, 1869: Saumya Ann Thomas v. Union of India and Another [2010 (1) KLT 869] and Mary Sonia Zachariah v. Union of India [1995 SCC Online Ker. 288]. Justice Bechu Kurian Thomas distinguished both.

In Saumya Ann Thomas, the court had found the mandatory two-year period of separate residence under the Act to be unconstitutional and read it down to one year. In Mary Sonia Zachariah, the reference to adultery in section 10 of the Act was found unconstitutional and struck down by applying the doctrine of severability. The crucial difference, the court observed, was that in both those cases there was an actual challenge to the constitutionality of a provision. In the present petition, no such challenge was raised against section 3(3). The petitioner only sought a declaration to read additional words into the provision — a fundamentally different exercise.

The petitioner also relied on Independent Thought v. Union of India and Another [(2017) 10 SCC 800], where the Supreme Court adopted a purposive and harmonious construction to read the age of consent in Exception 2 to section 375 of the Indian Penal Code as eighteen, to bring it in accord with the Prohibition of Child Marriage Act, 2006, POCSO, and the Juvenile Justice Act, 2015. The court found that decision distinguishable on multiple grounds: there was a direct constitutional challenge in that case, the provision created a conflict between criminal statutes operating on the same conduct, and the Supreme Court itself had observed in paragraph 107 of that judgment that bringing POCSO in consonance with Exception 2 would require a parliamentary amendment. The principle of harmonisation in Independent Thought could not, therefore, be transported to the present facts.

The Transfer Option Under Section 24 CPC

The court addressed the practical hardship separately. The petitioner's grievance, at its root, was that she was unable to file before the Family Court at Kalpetta because she was residing in Wayanad while jurisdiction lay at Kasaragod. The court pointed out that section 24 of the Code of Civil Procedure, 1908 provides an option to seek transfer of a case from one court to another. A Division Bench of the Kerala High Court in Eldho Varghese v. Liya Jose [(2024) 5 KHC 528] had held that section 3(3) of the Divorce Act operates only for the purpose of institution of a suit and that there is no bar on the original petition being transferred to another court based on applicable principles and the circumstances of the case. That avenue, the court noted, was always available to either party.

Observations on the Legislative Gap

Having dismissed the petition on the merits, Justice Bechu Kurian Thomas recorded a pointed observation. It was, the judgment stated, “strange to note, and unfortunate too” that despite incorporating the wife's place of residence as a jurisdictional ground in both the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955, no such provision had been incorporated in the Divorce Act, 1869. The court found no justifiable reason for the omission. Parliament had, in the past, brought sweeping changes in matrimonial legislation applicable to other religions by incorporating progressive grounds for divorce. A provision enabling a wife to file her petition where she resides had still not been extended to Christian women governed by the Divorce Act.

The court directed the Registry to forward a copy of the judgment to the Ministry of Law and Justice, Government of India, for appropriate consideration of these observations.

Order

The writ petition, WP(C) No. 8801 of 2025, was dismissed. The High Court of Kerala directed its Registry to send a copy of the judgment to the Ministry of Law and Justice, Government of India, for appropriate consideration in the context of the observations made in the penultimate paragraph of the judgment.