Code: Section 31
(1) Every petition under Chapter V or Chapter VI shall be presented to the district court within the local limits of whose original civil jurisdiction—
(i) the marriage was solemnized; or
(ii) the respondent, at the time of the presentation of the petition resides; or
(iii) the parties to the marriage last resided together; or
(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or
(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he were alive.
(2) Without prejudice to any jurisdiction exercisable by the court under sub-section (1), the district court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories.
Explanation of Section 31 – Special Marriage Act
Section 31 of the Special Marriage Act, 1954 lays down the territorial jurisdiction for filing petitions under Chapter V (dealing with restitution of conjugal rights, judicial separation, nullity of marriage, and divorce) and Chapter VI (miscellaneous provisions).
In essence, it defines the correct district court where either spouse can file a petition related to marriage matters.
Key Points
- A petition can be presented to the district court where:
- The marriage was solemnized
- The respondent currently resides
- The couple last resided together
- In case the wife is the petitioner, where she currently resides
- The petitioner resides and the respondent is either outside India or has not been heard from for 7 years
- A wife who is domiciled and ordinarily resident in India for three years can also file for nullity or divorce even if her husband is not residing in India.
Illustration
Example 1: Wife Residing Separately from NRI Husband
A woman married under the Special Marriage Act resides in Delhi while her husband has been living abroad for over 7 years with no communication. Under clause (iv), she can file for divorce in a Delhi district court since the respondent has not been heard of and she resides in Delhi.
Example 2: Couple Last Resided Together in Bangalore
A couple married in Mumbai but last lived together in Bangalore. Even if they now live in different cities, the petition can be filed in a Bangalore district court under clause (iii).
Example 3: Wife Files Petition from Her Current Residence
A woman separated from her spouse resides in Chennai. As per clause (iiia), she can file a petition in Chennai, even if the marriage took place elsewhere or they lived together in a different city.
Common Questions and Answers on Section 31 SMA
Q1. Can a wife file for divorce from her current place of residence?
Yes, if she is the petitioner, Section 31(iiia) allows her to file a petition in the district court where she is currently residing.
Q2. What if the respondent has not been heard of for years?
If the respondent has not been heard of for 7 years or more, the petitioner can file the case in the court where they currently reside under Section 31(iv).
Q3. Is it mandatory to file in the city where the marriage took place?
No. While that is one valid option, the petition can also be filed in the district where the respondent resides, where the couple last resided together, or in some cases, where the petitioner currently resides.
Q4. Can a woman file if her husband is abroad?
Yes. Under sub-section (2), a wife domiciled and residing in India for at least three years can file a petition for nullity or divorce, even if her husband is not currently residing in India.
Conclusion
Section 31 of the Special Marriage Act provides flexible and accessible options for spouses to file legal petitions related to their marriage. It particularly safeguards the rights of women by allowing them to file from their place of residence and ensures that jurisdiction is not a barrier to seeking justice.
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