The main legal point established in the judgment is the interpretation of the provisions of Section 31 of the Foreign Marriage Act and the principles of domicile and residency.

1. Appeal is taken up for final hearing by consent of the learned counsel appearing for both the parties. Heard the learned counsel appearing for the Appellant and the Respondent.

2. Both the parties are aggrieved by a judgment and order dated 28th October, 2015, passed by the Family Court, Mumbai at Bandra, in an application filed under Section 18 of the Foreign Marriage Act, 1969 read with Section 27(1)(b) and (d) of the Special Marriage Act, 1954 (for short “the said Act”). The Petitioner was a Hindu and the Respondent was a Muslim at the time of marriage and they got married as per the provisions of the Foreign Marriage Act, 1969. The petition, however, was filed under Special Marriage Act, 1954, as also under the Foreign Marriage Act, 1954, and reliance was placed on Section 31 of the said Act.

3. After the Respondent was served, she filed a reply and stated that she has no objection if the decree of divorce is granted in favour of the Petitioner/Appellant. She is residing in Philippines. She was then interviewed by the marriage counselor on video conferencing. In the said session also she had stated that she had no objection if decree of divorce is passed and the petition for divorce is allowed. She had also stated that she did not claim any maintenance for herself and she will not claim maintenance in future. There is no child from their marriage. The Family Court, however, came to a conclusion that the Family Court did not have jurisdiction to entertain the petition for divorce, and also observed that the Petitioner could not convert the petition into a petition for divorce by mutual consent.

4. Being aggrieved by the said judgment and order, the Petitioner/Appellant has filed the present appeal. The Respondent was served and she has written a letter to the Registrar General, which has been placed before us, in which she has stated that she has no objection if decree of divorce is passed.

5. A short question which falls for the consideration of this Court is-whether the Family Court, Mumbai has jurisdiction to entertain the petition for divorce? It is quite well settled position that jurisdiction of the Court in a petition, seeking divorce or any other relief, is found in Section 31 of the said Act. It would be relevant and profitable to have a look at the said section, which reads as under:

“31. Court to which petition should be made

(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

[(iii-a) 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 that 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.”

The Family Court has observed that case of the Petitioner does not fall in any of the clauses of the said section.

6. In our view, the learned Judge of the Family Court clearly overlooked one important material fact that though the Petitioner/Appellant herein is residing in Dubai at the moment for the purpose of service, he is permanently residing in M