The Kerala High Court has declined to interpret Section 3(3) of the Divorce Act, 1869 in a manner that would allow Christian women to file divorce petitions before the Family Court where they presently reside. Holding that such a change can only be made by Parliament, the Court dismissed the writ petition but observed that the legislature should consider amending the law to provide the same benefit available under certain other matrimonial statutes.
Background of the Case
The petitioner approached the High Court after the Family Court at Kalpetta returned her divorce petition on the ground that it lacked territorial jurisdiction under Section 3(3) of the Divorce Act, 1869.
According to the petitioner, she was compelled to leave her matrimonial home in Kasaragod after allegedly facing severe domestic violence and is presently residing with her parents in Wayanad. Since the marriage was solemnised in Kasaragod and the couple had last resided together there, the Family Court held that it could not entertain the petition.
The petitioner argued that while the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 permit a wife to file matrimonial proceedings where she resides, no similar provision exists under the Divorce Act governing Christians. She contended that this omission places Christian women at a disadvantage and sought a declaration that Section 3(3) should be read to include the court within whose jurisdiction the wife resides.
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Court's Observations
Justice Bechu Kurian Thomas held that the language of Section 3(3) is clear and unambiguous. The provision presently permits petitions to be filed only before the District Court or Family Court within whose jurisdiction the marriage was solemnised, where the husband and wife reside, or where they last resided together.
Rejecting the petitioner's request to read additional words into the provision, the Court observed,
"Adding words to a statute is a legislative function. Courts are not permitted to enter into the field of legislation."
The Court noted that judicial interpretation cannot be used to rewrite a statute when its language is plain. It further observed that although Parliament amended the Hindu Marriage Act and the Special Marriage Act in 2003 to allow wives to institute proceedings where they reside, it did not introduce a corresponding amendment to the Divorce Act. The Court held that this legislative choice could not be altered through judicial interpretation.
The bench also rejected the argument that inconvenience faced by Christian women could justify reading new words into the statute. It pointed out that if circumstances warrant, parties can seek transfer of matrimonial proceedings under Section 24 of the Code of Civil Procedure, 1908.
Court Recommends Legislative Review
While refusing to grant the relief sought, the High Court remarked that it was "strange" and "unfortunate" that the Divorce Act still does not contain a provision enabling a wife to file a petition where she resides, despite similar amendments having been introduced in other matrimonial laws.
The Court observed that there appeared to be "no justifiable reason" for the absence of such a provision and stated that Parliament ought to earnestly consider incorporating an amendment similar to those contained in the Hindu Marriage Act and the Special Marriage Act. It also directed the Registry to forward a copy of the judgment to the Ministry of Law and Justice for appropriate consideration of these observations.
Decision
The Kerala High Court dismissed the writ petition, holding that it could not expand the scope of Section 3(3) of the Divorce Act through judicial interpretation. The Court concluded that any change permitting Christian women to institute divorce proceedings where they reside must come through legislative amendment and not by adding words to the existing statute.
Case Details:
Case Title: X v. Union of India & Ors.
Case Number: W.P.(C) No. 8801 of 2025
Judge: Justice Bechu Kurian Thomas
Decision Date: 30 June 2026
