PRINCY N.V. Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner, inter-alia, seeks for a declaration that Sec. 3(3) of the Divorce Act, 1869 ought to be read in a manner that the jurisdictional District Court for filing petitions under the Act, would include the court within whose territorial limits the wife resides.

(2.) Petitioner's application for dissolving her marriage allegedly filed before the Family Court at Kalpetta has been rejected pointing out that the said court had no jurisdiction under Sec. 3(3) of the Divorce Act, 1869 (for brevity 'the Act') to entertain the petition. Due to alleged severe domestic violence, petitioner claims to have been thrown out of her matrimonial home at Kasaragod and is presently residing with her parents at Wayanad and hence she filed the petition for divorce at the Family Court, Kalpetta, which was returned, stating lack of jurisdiction. Petitioner also alleges that her marriage was conducted at Kasaragod and she has three children in the said marriage and since they last resided together at their matrimonial home at Kasaragod, the jurisdiction as per the statute is only at Kasaragod which is creating serious prejudice to her. According to the petitioner, though amendments were made to the Hindu Marriage Act, 1955 as well as to the Special Marriage Act, 1954, providing jurisdiction to the place where the wife is residing, a corresponding amendment was not brought into the Act. Petitioner pleads that Sec. 3(3) of the Act visibly demonstrates discrimination against women, and hence seeks for a direction in the form of a declaration that the wife is entitled to maintain a petition where she resides.

(3.) A counter affidavit has been filed on behalf of the first respondent stating that petitioner has not sought for any relief for striking down any statutory provision. It is stated that for striking down a provision as ultra vires, specific pleadings are required and a specific relief is also required to be sought for, which is conspicuously absent in the writ petition. It is also pleaded that if there is no ambiguity to the provision in a statute, the Court cannot look beyond the words of the statute and any meaning inconsistent with the explicit or implicit language used in the statute cannot be adopted. According to the first respondent, as the statute exists now, a petition for divorce can be maintained before the District Court where the marriage was solemnised or where the husband and wife reside or last resided together. It is also stated that the Indian Divorce (Amendment) Act of 2001, brought in certain amendments to the Act and even at that stage the Parliament did not deem it appropriate to bring in any change as is now suggested by the petitioner. Respondents contend that the personal laws governing different communities may vary and especially the law relating to divorce may not be in parity with other communities. Moreover, courts have no authority to direct the legislature to frame a law in a particular manner and the subject matter of personal laws is related to Entry 5 List III of the 7th Schedule to the Constitution of India. According to the respondents, Courts cannot issue a writ of mandamus to the legislature to enact a law on a particular subject and that the Central Government had requested the 21 st Law Commission of India to undertake an examination of various issues relating to uniform civil code and to make recommendations thereof, which is being examined by the present Commission.