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Report No. 65

III. Special Marriage Act

5.4. Special Marriage Act.-

Under the Special Marriage Act1-

"31. (1) Every petition under Chapter V or Chapter VI shall be presented to the district court within the local limits of whose jurisdiction the marriage was solemnized or husband and wife reside or last resided together.

(2) Without prejudice to any jurisdiction exercisable by the court under sub-section (1), the district court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories."

1. Section 31, Special Marriage Act, 1954.

5.5. Scope of section 31.-

It may be noted that the section 31 of the Special Marriage Act, quoted above,1 is specific in one respect, inasmuch as sub-section (2) of that section seems to contemplate a case involving a foreign element. It emphasises the aspect.not of internal venue, but of jurisdiction with reference to private international law. This is apparent from the reference to a wife domiciled in the territories to which the Act extends, and from the requirement that she should be resident "in the said territories". These words do not insert any requirement that the wife should be resident in the district or local limits of the district court. Rather, they focus attention on the territories as a whole. In this sense, they seem to contemplate a case having a foreign element.

1. Para. 5.4, supra.

5.6. Neelakantan's case.-

With reference to this Act, the question of private international law was considered in Neelakantan v. Neelakantan, AIR 1959 Raj 133. The question which emerged for determination, was thus formulated in the judgment-

"Whether an application for divorce by a husband domiciled in India1 and living within the jurisdiction of the District Judge, Jodhpur, can be made in the Jodhpur Court under the principles of Private International Law, although admittedly the marriage between the parties was not solemnized within the jurisdiction of the said court, nor did the husband and wife reside at the time of the marriage or thereafter within the jurisdiction of that court as required by section 31 of the Special Marriage Act?"

It was held that the Jodhpur Court had jurisdiction, on principles of private international law, though section 31 of the Act did not, on the facts, apply. In doing so, the Court pointed out that the husband was domiciled in India. It is not necessary, for the present purpose, to examine the validity of the conclusion reached in this case to the effect that a marriage not solemnised under the Special Marriage Act can be dissolved thereunder. Nor is it necessary for us to express any view on the observations as to private international law. We are referring to this case merely to show the emphasis placed in the judgment on the husband's domicile in the judgment.

1. Emphasis added.

Recognition of Foreign Divorces Back

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