The Kerala High Court has ruled that courts cannot expand the jurisdiction provisions under the Divorce Act, 1869 by judicial interpretation to allow a Christian wife to file a divorce petition before the Family Court where she currently resides. While dismissing the writ petition, the Court observed that such a change falls within Parliament's legislative domain, though it also urged the Union Government to consider introducing a similar provision for Christian women as already exists under the Hindu Marriage Act and the Special Marriage Act.
Background of the Case
The petitioner had approached the High Court after the Family Court at Kalpetta returned her divorce petition, stating that it lacked territorial jurisdiction under Section 3(3) of the Divorce Act, 1869. She submitted that she was presently living with her parents after allegedly being forced to leave her matrimonial home and argued that compelling her to file proceedings only where the marriage was solemnised or where the spouses last lived together placed an unfair burden on Christian women.
She requested the Court to interpret Section 3(3) to include the Family Court within whose jurisdiction the wife resides at the time of filing the divorce petition, contending that the present law discriminates against Christian women when compared with women governed by the Hindu Marriage Act and the Special Marriage Act.
Court's Observation
Justice Bechu Kurian Thomas held that the language of Section 3(3) is plain and unambiguous and therefore leaves no scope for courts to insert additional words into the statute.
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The Court observed,
"Adding words to a statute is a legislative function. Courts are not permitted to enter into the field of legislation."
The judgment explained that the Divorce Act presently permits filing of a divorce petition only before the court where the marriage was solemnised, where the husband and wife reside, or where they last resided together. Since the provision is clear, the Court said it cannot be interpreted to create an additional forum based on the wife's present residence.
The Court also distinguished earlier judgments where statutory provisions had been read down or declared unconstitutional, noting that in the present case there was no challenge to the constitutional validity of Section 3(3), but only a request to read new words into the provision.
The High Court pointed out that a spouse is not left without a remedy merely because of the jurisdictional rule. It observed that once a petition is instituted before the competent court, a transfer application can be filed under Section 24 of the Code of Civil Procedure if circumstances justify shifting the proceedings to another court.
Decision
Dismissing the writ petition, the Kerala High Court held that the relief sought could not be granted through judicial interpretation because it would amount to rewriting the statute.
At the same time, the Court expressed concern that Christian women do not have the same procedural benefit available under other matrimonial laws. It observed that Parliament "ought to earnestly consider" amending the Divorce Act to permit a wife to file a divorce petition before the court within whose jurisdiction she resides at the time of filing.
The Registry was also directed to forward a copy of the judgment to the Ministry of Law and Justice for appropriate consideration of these observations.
Case Details
Case Title: XXX v. Union of India & Ors.
Case Number: WP(C) No. 8801 of 2025
Judge: Justice Bechu Kurian Thomas
Decision Date: 30 June 2026
