The Allahabad High Court recently issued a ruling stating that divorce proceedings cannot be initiated in a court if the parties involved have only casually visited its territorial jurisdiction.

Although the Hindu Marriage Act, 1955 (HMA), does not provide a specific definition for the term 'residing,' the recent judgment by the bench of Justices Saumitra Dayal Singh and Syed Aftab Husain Rizvi indicates that residing implies more than a temporary or casual visit to a location falling under the territorial jurisdiction of the court where a divorce proceeding is initiated.

In light of this interpretation, the court rejected an appeal lodged by a woman who was living in Australia. Her appeal was against the decision of a family court in Moradabad, Uttar Pradesh, which had dismissed her plea filed under Section 13 of the Hindu Marriage Act.

The Family Court had initially declined the woman's divorce plea due to a lack of territorial jurisdiction. In her pursuit of legal recourse, the woman's counsel invoked Section 19 of the Hindu Marriage Act, that outlines the court to which petitions under the HMA should be presented.

As per the provisions outlined in Section 19 of the Hindu Marriage Act, when the wife is the petitioner, she can file her petition in the court that holds territorial jurisdiction over the area where she is residing on the date of submitting the petition.

The woman's counsel argued for the dismissal of the Family Court's order, asserting that the woman had not been given the chance to challenge the facts presented by her husband in his application. Furthermore, it was emphasized that there were no ongoing divorce proceedings between the parties in the relevant Australian court.

Nonetheless, the high court stated, "These considerations may not necessarily lead us to the conclusion that the lower court erred in refusing to entertain the divorce proceedings initiated by the appellant. This is because, for whatever reasons, it is not disputed that the appellant is residing in Australia."

The court held that, despite the woman's brief visit to India and her initiation of divorce proceedings during that period, her undisputed and continuous residency in Australia would not grant her the protections stipulated in Section 19(b)(a) of the Act.

As a result, the court dismissed the appeal but clarified that if the woman's residency status were to change in the future, it could potentially create a new legal basis for seeking relief based on that change in status.

Case: Smt. Adity Rastogi v. Anubhav Verma, FIRST APPEAL No. - 1145 of 2023.