Report No. 65

IV. Hindu Marriage Act

5.7. Hindu Marriage Act-Sections 1(2) and section 19.-

In the Hindu Marriage Act, 1955, there are two provisions which should be noted.1 Section 1(2) of the Act provides as follows:-

"(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories".

Next, we may refer to the provision relating to jurisdiction in the Hindu Marriage Act, which reads as follows:-

"19. Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together".

1. Sections 1(2), and section 19, Hindu Marriage Act, 1955.

5.8. Case law on Hindu Marriage Act.-

Decided cases on section 19 of the Hindu Marriage Act illustrate the application of the section. Thus, it has been pointed out1 that a plain reading of section 19 shows that it gives a choice either to the husband or to the wife to institute proceedings at three places-namely, where the marriage was solemnized, or where the husband and the wife both reside at the time of presentation of the petition, or where both of them last resided together. Hence, where the marriage was solemnized at Delhi and the parties last resided for a short period at Chandigarh, the Court at Chandigarh would have jurisdiction.

The phrase "last resided together" is not to be interpreted in a pedantic manner, and must be construed liberally and the Chandigarh Court will have jurisdiction apart from the Delhi Court. Of course, casual residence would not suffice. It has also been held2 by the Madras High Court that reading sections 19 and 21 of the Hindu Marriage Act, 1955, and sections 3 and 20 of the Code of Civil Procedure, 1908, together, the Court will be justified in holding that the provisions of the Code of Civil Procedure are also applicable to applications under the Hindu Marriage Act, and the Court within whose jurisdiction the defendant is residing will, by virtue of section 20 of the Code, have jurisdiction, where the tests laid down in section 19 of the Act are not satisfied on the facts.

1. Sushma v. A.K. Dewan, AIR 1973 P&H 256 (257), para. 6 (M.R. Sharma, J.).

2. M. Gomathi v. S. Natarajan, AIR 1973 Mad 247.

5.9. Provision ambiguous.-

Section 19 of the Hindu Marriage Act1 does not, however, very clearly indicate whether it is intended to apply also to cases involving a foreign element. In other words, it is not beyond doubt whether the section deals with jurisdiction amongst Indian Courts inter se, or whether it is also intended to incorporate a rule of conflict of laws in regard to jurisdiction. There is, no doubt, the general provision2 as to application of the Act to Hindus3 domiciled in India who are outside India-section 1(2). It could be argued that section 1(2) impliedly brings in the criterion of domicile, in regard to the exercise of jurisdiction by Indian Courts in general. But the matter is not entirely beyond doubt. For our present purpose, it is not necessary to express an opinion on the point.

1. Section 1(2), Hindu Marriage Act, 1955.

2. Section 1(2), Hindu Marriage Act, 1955.

3. Para. 5.7, supra.