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Report No. 59

8.2. Defects of the present section.-

We are of the view that this section is defective in several respects. In the first place, it does not take sufficient account of cases where one of the parties does not reside in India, or his whereabouts are unknown. The place of solemnisation of marriage or the last matrimonial home-two of the tests given in the section-may not turn out to be satisfactory, because both may have ceased to be of any importance to the parties, in these days of mobility of population. The place where the parties are both residing-which is the third test-is inapplicable on the facts. For such cases, a more satisfactory test should be devised.

Courts have found a way out. Reading sections 19 and 21 of the Hindu Marriage Act and sections 3 and 20 of the Code of Civil Procedure together, the Court (it has been held) will be justified in holding that the provisions of the Code of Civil Procedure are also applicable1 to application under the Hindu Marriage Act, and the Court within whose jurisdiction the defendant is residing will have jurisdiction. However, it is desirable to make the section comprehensive.

1. (a) Hariram Dhalumal Karamchandani v. lasoti, AIR 1963 Born 176.

(b) M. Gomathi v. S. Natarajan, (1973) 1 MLJ 246.

8.3. In the second place, the word "together" is to be read only with the words "last resided"1, and that should be made clear. There are also a few other points, which we shall explain in due course2.

1. Para. 8.5, infra.

2. Para. 8.4, infra.

8.4. We are, therefore, recommending a redraft1 of the section. The following explanatory comments may the useful for understanding the salient points of the revised section. The following comments explain each head of jurisdiction under the new section:

Clause (a)-See section 19, H.M.A. and section 31(1), S.M.A.

Clause (b)-This head of jurisdiction is not found (in that form) either in the Hindu Marriage Act or in the Special Marriage Act. It follows the principle behind section 20 of the Code of Civil Procedure, 1908, under which (inter alia), the defendant's residence confers jurisdiction on the court. Section 29(1) of the Parsi Marriage and Divorce Act, 1936, may also be compared. The defendant cannot have any ground of complaint by reason of this head of jurisdiction. It will be more rational than the present head of jurisdiction relating to the place where "the husband and the wife" reside. There is no reason why the law should insist that both parties should reside at the venue.

1. Para. 8.9, infra.

8.5. It may be noted that the words "together" (in section 3, Divorce Act),1 do not go with the words "husband and wife reside", and the same would be the position under the Hindu Marriage Act. Hence, the present formula cannot be supported, even on the basis of matrimonial home also.

An illustration will help to explain the matter:

Where the marriage was solemnised within the jurisdiction of court 'A', and the parties last resided together in the jurisdiction of court 'B', but the husband now resides in the jurisdiction of court 'C' and the wife now resides in the jurisdiction of court 'D', the case would not be satisfactorily covered by the existing provision in the Special Marriage Act or the Hindu Marriage Act, which drives the parties to court 'A' or court 'B'. Such a case will be covered by proposed clause (b), 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 (in the above illustration) have to go either to court 'A' or 'B'-even though neither of the parties is staying there now.

8.6. Clause (c)-This is found in section 19 of the Hindu Marriage Act and section 31(1) of the Special Marriage Act.

Where the husband and wife are residing in the same place at the time of presentation of the petition, clause (b) will apply.

8.7. and 8.8. Clause (d)-While Clause (a) to (c) above will meet normal situations, there may be situations which are not covered by them.

Clause (d) takes care of one of them, and is new. It is found (in a different form) in the Parsi Marriage Act.1

1. Section 29(3), Parsi Marriage and Divorce Act, 1936.

Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back

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