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Allows , Stresses Judge Must 'Play Ball' with Law
The
has allowed a
petition, overturning a Family Court order that dismissed the case for lack of
. The bench of Justice G.R. Swaminathan and Justice M.D. Sumathi delivered a sharp reminder that judges must not thwart the law's intent, declaring that
"
"
when the statute allows
by consensus.
The couple married on under the Special Marriage Act. Two daughters were born from the marriage, but differences eventually arose, leading them to part ways amicably. In early 2026, they filed a joint petition for divorce by mutual consent before the . However, the Family Court dismissed the petition on , holding that it lacked because the marriage was solemnized in Trichy, the wife was a resident of Trichy, and the was also in Trichy. Aggrieved, the couple appealed to the High Court.
A Procedural Misstep
Before addressing jurisdiction on merits, the High Court pointed out a fundamental procedural error. Under
, a
presented in a court without jurisdiction must be returned, not dismissed. The court noted that the trial judge rejected a memo filed by the parties seeking return of the petition on the ground that evidence had already been recorded. The High Court held that
"a
can be returned at any stage of the suit,"
and the mere recording of evidence did not empower the judge to refuse the return.
: A Waivable Technicality
Delving deeper, the court examined the jurisdictional objection on its merits. It observed that is with . Citing a series of precedents—including Sneh Lata Goel v. Pushplata (2019) 3 SCC 594 and Hira Lal Patni v. Sri Kali Nath AIR 1962 SC 199—the court noted that an objection to does not go to the of the court and can be waived. reinforces this principle by preventing appellate courts from entertaining such objections unless they were raised at the earliest opportunity and have caused a .
The court also highlighted the paradigm shift in favour of the wife's convenience. Relying on Sunita Singh v. Kumar Sanjay AIR 2002 SC 396 and Shekhar Harchand Indra v. Sangeeta Shekhar Indra 2012 SCC OnLine Bom 394, the court observed that provisions for are designed to protect the wife. Since the husband, a Principal District Munsif, was resident in Thanjavur, and the wife willingly joined as a co-petitioner, the Family Court was obliged to entertain the petition.
"If the wife finds it convenient to present the petition for
in the court within whose limits the husband is residing, the court concerned is obliged to entertain the same,"
the court stated.
''
In its most striking observation, the High Court employed a Tamil proverb to critique the trial judge's narrow interpretation of the law:
"There is a saying in Tamil 'Even if the Lord grants a boon, the priest will not allow it'. The statute provides for without much of an adjudication when there is consensus between the spouses. But it is not enough if the law alone is willing. ."
The court clarified that when both parties, especially the wife, find a particular forum convenient—and the statute itself lists the husband's residence as a venue—the court should not reject the petition on technical grounds.
Decision and Implications
Satisfied that all conditions under were met—the parties had been living separately for over three years and had mutually agreed to dissolve the marriage—the High Court set aside the impugned order. It granted a and waived the , given the long separation.
The judgment reinforces that in cases, is a flexible concept that yields to the parties' consent and the wife's convenience. It also serves as a caution to trial courts against elevating procedural objections over substantive justice.
