Report No. 15

Clause 36

Sub-clauses (1) and (2) are new and are intended to define which district court will have jurisdiction in certain petitions relating to marriage.

Sub-clause (3)-General.-Assuming that Indian courts have jurisdiction to try a particular petition in the nature of matrimonial cause, this sub-clause seeks to lay down which district court shall exercise such jurisdiction.

The provisions of the sub-clause are thus subject to those of the clause relating to jurisdiction of Indian Courts1-a proposition which need not be expressly enacted.

(a) This head of jurisdiction is new, and is not found either in the existing provision or in the Hindu Marriage Act or the Special Marriage Act. It follows the principle behind section 20 of the Code of Civil Procedure, 1908, under which the defendant's residence confers jurisdiction on the court. Section 29(1) of the Parsi Marriage and Divorce Act, 1936, may also be compared.

See also Supplementary note (i) below.

Para. (b).-This is not found in the existing Act, but has been adopted from section 19 of the Hindu Marriage Act and section 31(1) of the Special Marriage Act.

Para. (c).-This is found in section 3(1) and section 3(3) of the existing Divorce Act, and also in section 19 of the Hindu Marriage Act and section 31(1) of the Special Marriage Act.

Where the husband and wife are residing together, sub-clause (a) will suffice.

Para. (d).-Whenever Indian courts have jurisdiction by virtue of the provisions inserted in the clause2 relating to jurisdiction of Indian courts, it is necessary to provide which district court will exercise jurisdiction. While paragraphs (a) to (c) above will meet normal situations, there may be situations which are not covered by them, though covered by the clause2 relating to jurisdiction of Indian courts. Hence the paragraph under discussion.

In most of the provisions incorporated in the clause relating to jurisdiction of Indian courts, jurisdiction is related to

(i) domicile of the parties;

(ii) domicile of the petitioner;

(iii) residence of the petitioner.

In such cases, the question "which district court will exercise the jurisdiction" will be decided (in view of the paragraph under discussion) on the basis of the residence of the petitioner.

[It is considered that the petitioner should have some kind of residence and that mere physical presence should not suffice. Cases where a petitioner is domiciled in India but has no residence here are, it is considered, not likely to arise].

[It may, of course, be noted that the paragraph under discussion is intended to deal with cases only where the respondent is residing outside India. If he is residing within India, the matter will be decided by draft paragraph (a), and the petitioner's residence or presence within a particular jurisdiction will be irrelevant.]

The paragraph under discussion will, in short, ensure that whenever an Indian court has jurisdiction, the question-"which district court will exercise the jurisdiction" is answered for all situations.

[The sub-clause under discussion is, it need not be mentioned, not intended to have the effect of expanding the jurisdiction of Indian Courts. As already pointed out, it is subject to the provisions of the restrictions on jurisdiction of Indian courts.]

Supplementary Note.-

(i) It may be noted that where the marriage was solemnised within the jurisdiction of court 'A' and the parties last resided together in the jurisdiction of court 'B', while the husband now resides in the jurisdiction of a court 'C' and the wife now resides in the jurisdiction of court 'D', the case would not be covered by the existing provision in the Indian Divorce Act or by the corresponding provision in the Special Marriage Act3 or the Hindu Marriage Act. Such a case will be covered by draft para. (a) which authorises the filing of a petition in the court within whose jurisdiction the respondent is residing. In the absence of such a provision, the parties have to go either to court A or to court B-even though neither of them is staying there now.

(ii) No special provision has been considered necessary in respect of a petition at the instance of a person who is not a party to the marriage4

1. Clause 35. See also clause 34.