Allahabad High Court Says Australian Wife on Short Visit to India Can't File for Divorce, Citing Section 19 of HMA -

“Considering the undisputed status of wife’s residency in Australia, the provisions of Section 19 of the Act would not come to her rescue.”

In a recent adjudication, the Allahabad High Court confronted an appeal brought forth by a petitioner under the aegis of Section 19 of the Family Courts Act, 1984. This appeal originated from a prior adjudication on August 11, 2023, rendered by an Additional Principal Judge presiding over the Family Court, pursuant to the stipulations articulated in Section 13 of the Hindu Marriage Act, 1955. The predicate for the Family Court’s repudiation of the divorce petition lay in its assertion of a lack of territorial jurisdiction.

A division bench, comprised of Justices Saumitra Dayal Singh and Syed Aftab Husain Rizvi, elucidated that the act of temporarily sojourning within a jurisdiction does not ipso facto vest the court located therein with jurisdiction to adjudicate divorce matters. While the term ‘residing’ remains undefined within Section 19 of the Family Courts Act, extant jurisprudential interpretation implies the requisite of prolonged and substantive habitation within the territorial boundaries of the court’s jurisdiction to commence divorce proceedings.

In the present case, the petitioner ordinarily maintains her residence in Australia, and she initiated divorce proceedings during a transitory visit to India. Consequently, the High Court opined that, as a matter of law, she did not fulfill the criteria of residing within the territorial jurisdiction of the Family Court in Moradabad. The High Court discerned no legal infirmity in the prior judgment. However, it duly acknowledged the potential for any future alteration in the petitioner’s residence status to engender a fresh legal cause of action, contingent upon the evolving circumstances.