Where do I file the divorce petition?

1. Where do I file the divorce petition?

I  have written a lot about divorce by mutual consent and contested divorce in my previous articles. Much has been written about the reasons for divorce. However, there is another important topic that is often rarely mentioned. That is, there is territorial jurisdiction to file for divorce. Since most marriages in India are governed by the Hindu Marriage Act, for convenience, I will explain the provision contained in the Hindu Marriage Act. The simplest way for me to explain territorial jurisdiction for the purpose of filing for divorce in India is to tell you about the time there was a young couple named Pankaj (real names changed for privacy reasons). come see me. Pankaj met Nisha while vacationing in Goa in the fall of 2015. He was a Delhite and lived with his parents in Green Park. Nisha belongs to Mumbai. She lived in Bandra with her parents since childhood. The moment Pankaj met Nisha, while they were casually strolling on a beach in South Goa, sparks flew and they were instantly captivated by each other. The attraction was so strong that it wasn't long before they decided to get married. Nisha wanted to have a wedding in Goa and both families agreed immediately.

A grand Indian wedding was held at a resort in South Goa. Guests from both sides were invited and since both Pankaj and Nisha were Punjabis, the marriage was solemnized according to Hindu religious rites and rituals. After marriage, Pankaj and Nisha came to Delhi and started living with Pankaj's parents in Green Park. However, things started going downhill between them a year after their marriage. That initial attraction and love seems to have disappeared. Nisha feels Pankaj is not the person she met in Goa. Pankaj thinks Nisha hates living with her parents in Green Park. Small problems escalate within minutes. Screaming and cursing at each other is a daily occurrence.

Parents on both sides intervened and tried their best to resolve their problems. They even asked Pankaj and Nisha to move out of the Green Park house. That they should live in rented houses in Gurugram (Gurgaon). This will also help Pankaj as he is working with a company in Gurugram. They did, but it didn't last long. Their relationship has deteriorated beyond repair. Things got so bad that one day, after a heated argument, Nisha packed her clothes and belongings and returned to her parents' house in Mumbai. Pankaj also felt hurt by this and left his rented house in Gurugram and went to his house in Green Park. After thinking endlessly, Pankaj and Nisha talked over the phone about their problem. They came to the solution of divorcing by mutual consent. It was a difficult decision for both of them, but they saw no other way out. Parents also reluctantly agreed for the sake of their children.

2. Where can submit the divorce application?

Before answering this question, let us look at Section 19 of the Hindu Marriage Act, 1955 (HMA). It refers to the territorial jurisdiction of petitions filed under the Act.
19. Court where the application is filed:

Any application under this Act must be brought to a district court within the local limits of the ordinary civil jurisdiction:

(i) the marriage has been performed, or

(ii) the defendant was, at the time of filing, a resident, or

(iii) the parties to the marriage last resided together, or

(iii-a) in the case of the wife being the applicant, her place of residence on the date of application, or

(iv) the applicant resides at the time of the application, in the event that the respondent resides, at that time, outside the territories to which this Act applies, or it is not known that he has lived a time. time. a period of seven years or more by those who would naturally have heard of him if he had lived.
Now let's analyze this clause a bit. Let's see where Pankaj and Nisha can file for divorce if both parties agree.
Section 19 of the HMA is a fairly liberal provision. This allows both parties to dispute the marriage application.
Therefore, District Court as defined in the above clause means Family Court. They were established under the Family Courts Act 1984 to promote conciliation and ensure speedy resolution of disputes relating to matrimonial and family matters. It may happen that a family court has not been established in a particular district. The functions of the District Court may then be exercised by the District Magistrate/Civil Magistrate as may be prescribed by the State Government through notification to this effect.

3. Part 19 offers five options. It allows the parties to file for divorce in any of them as per their convenience.

Clause (i) of Section 19 gives the option of filing the petition at the place where the wedding was solemnized. The marriage between Pankaj and Nisha was solemnized in Goa. So, if they want, they can file for divorce by mutual consent in the appropriate court in Goa.

Clause (ii) of Section 19 provides that the application must be made at the residence of the defendant. Since Pankaj and Nisha will file for divorce jointly, either of them can become the defendant/second party. Accordingly, the divorce petition can be filed in Delhi (Saket Court) or in Mumbai (Bandra Court). In a contested divorce case, the person (spouse) who files the lawsuit is the plaintiff and the other person becomes the defendant. Therefore, if the husband (plaintiff) files for divorce, he will have to apply to the court where the wife (defendant) resides. The same applies the other way. However, there is a downside here for women which I will discuss later.

Now, clause (iii) of Section 19 provides that the petition can be filed at the place where the spouses last resided together. In our case, Pankaj and Nisha last resided together in Gurugram. Though they initially lived together in their house in Green Park, their last shared residence is said to be Gurugram. So, they can file for divorce in a court in Gurugram.

What does Stay and Be Together for the Last Time mean?

It is also important to consider the meaning of the term “residence” for territorial jurisdiction purposes. Indian courts have repeatedly ruled that to obtain a divorce, the residence must be permanent. Occasional visits by a party to a location cannot be considered a permanent or even temporary residence. Occasional stays on shared premises for one day or for a temporary period may not satisfy the residency requirement.
It is also important to consider the precise legal meaning of the term “last residence together”. Both parties must intend to reside together in a particular location for a period of time, although the actual time spent there may be short. So, a couple could honeymoon in another state and stay there for a few weeks or even a month, but that would not fall under the definition of final joint residence.

4. Advantages for women

As I implied above, the wife will be entitled to benefits if she files for divorce. In case the wife files an application, clause (ii) of Section 19 shall not apply to her. Clause (iii-a) Section 19 provides that if the applicant is a wife, she may apply at the place where she currently resides. That is, Nisha does not need to file a lawsuit where Pankaj (the defendant) resides. Delhi. She can simply depose the petitioner in the court where she currently resides, viz. Bombay.
So to summarize what we have understood so far. Pankaj and Nisha can file for divorce in the court where the marriage was solemnized, i.e. Goa. They can file for divorce in the court where Nisha resides. Bombay. They can file for divorce where Pankaj and Nisha last resided together, viz. Gurugram. In case Nisha applies, then in addition to the above options, she also has the option of applying to a sponsor in the place where she (the sponsor) resides, viz. Bombay.
Clause (iv) of Section 19 provides an opportunity to one spouse to file a suit against the other in case the other spouse is outside the jurisdiction of the Indian courts or is not found to be alive for a period of seven years. or more by those who would have heard of him had he lived, viz. his parents and friends. This provision is important to protect the freedom of the spouse who has been abandoned by the other, under the conditions mentioned above, and wants to free himself from the legal slavery of marriage.
I hope I have been able to shed enough light on this little talked about term and make it easier for everyone to understand its application.

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• Legal Expertise: ACC Law Firm specializes in divorce cases and has a team of experienced divorce attorneys who understand the intricacies of divorce law. Professionals can benefit from their legal knowledge and guidance.

• Personalized Support: Each divorce case is unique, and ACC Law Firm provides personalized support to meet the specific needs and circumstances of professionals. They can tailor their services to ensure a smoother divorce process.

• Documentation Assistance: Divorce involves a significant amount of paperwork and documentation. ACC Law Firm can assist professionals in preparing and filing the necessary legal documents accurately and on time.

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Q&A

Question 1: Where should I file a divorce petition?

Answer 1: In most cases, you should file a divorce petition in the family court of the jurisdiction where either you or your spouse currently resides. This is typically the court responsible for handling divorce cases in your specific area.

Question 2: Can I file for divorce in a different jurisdiction?

Answer 2: Filing for divorce in a different jurisdiction, also known as "forum shopping," may be possible under certain circumstances, such as if you and your spouse have recently moved or if there are specific legal reasons to do so. However, it's advisable to consult with an attorney to ensure you follow the correct legal procedures.

Question 3: Is it possible to file a divorce petition online?

Answer 3: Many jurisdictions now offer online filing options for divorce petitions. You can check with your local family court or visit their website to see if online filing is available in your area. Online filing can simplify the process by allowing you to initiate the divorce electronically and submit necessary documents.

Question 4: What documents are required when filing a divorce petition?

Answer 4: When filing a divorce petition, you will typically need to submit a completed divorce petition or complaint, your marriage certificate as proof of the marriage, financial records detailing assets, debts, income, and expenses, arrangements for child custody and support if you have minor children, any relevant prenuptial or postnuptial agreements, and your identification details and contact information. These documents may vary by jurisdiction, so it's advisable to consult your local court for specific requirements.