Hi Lawyers, My wife wants to file for a contested divorce. We got married in Baroda (girl's hometown) on 27/12/2020, following which we lived in our marital home in Kolkata with my parents up-to 20/3/2021 (3 months) following which we immigrated to the United States. We lived together until 07/11/2021 (7 months) following which she left for India and deserted me. I have following questions: 1. Does the party that files for divorce first have any upper hand? 2. Considering that Kolkata was the last city that we lived together in, would Kolkata have jurisdiction? 3. In case the petition gets filed in Baroda first, can we move to Kolkata on the ground that my senior citizens parents (69 - father and 65 - mother) would represent with Power of Attorney as I am residing in United States? I am aware that jurisdiction is based on where (1) where the marriage took place (Baroda), (2) where the couple last resided (Kolkata) and where the girl currently resides (Baroda). Due to conflicts, seeking clarity on whether Kolkata courts would have jurisdiction in this dispute. Thanks in advance.
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merely because spouse files for divorce first does not mean that person has upper hand
2)it can be filed in Baroda of Kolkata
3) convenience of wife is generally considered by courts in martial disputes
4) court may not grant you application for shifting divorce case to Kolkata in case wife files divorce petition in Baroda
1. There is no Law on this that who will be the upper hand or who will not. But it may be presumed that a person is suffering who knock the door of the court first.
2. As per Section 19 of Hindu Marriage Act the jurisdiction of the court is as under: -
19 Court to which petition shall be presented. Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction
1. No
2. Yes
3. Yes.
Yes kolkatta will have jurisdiction
The answer to your questions are given in chronological order:
1.No
2. Yes
3. Supreme Court of India has the power to transfer matrimonial cases from one state to another
Thanks Mr Muraleedharan. Will SC consider that Kolkata remain the jurisdiction as my senior citizens parents (69 - father and 65 - mother) in Kolkata would represent with Power of Attorney as I am residing in United States? How long does it take to transfer a case?
It takes around a year for transfer application to be disposed of
2) your parents are not party to divorce proceedings .you have e merely executed POA in their favour
3) SC may take the view that you can execute POA in favour of any third party in divorce proceedings and it is not necessary that your parents represent you
Dear Querist
Based on the husband convenience the SC will not transfer the matter due to the health of his POA Holder.
The SC will consider depending on the merits of the case.
In family court matters, the parties must personally present at least in the first few appearances
The time taken to interstate transfers depend on various circumstances, however in 2-3 months the matter will be decided
Kolkatta is a jurisdiction without any transfer required
Dear client,
A petitioner can have the upper hand in a divorce because they can set the tone of the divorce. This means they will have to decide whether to plead fault or no fault in the original petition. However, pleadings can be amended and changed by either party after the initial filing.
You can file a transfer petition in the Supreme Court to have the case transferred. It usually takes around 6-7 months for the process to be completed.
Thank you.
1. No body will get upper hand on the ground that he/she has filed the case first. Matters will be decided based on merits of the facts and law.
2. Of course Kolkata will have one of the three places having jurisdiction to file the suit but it is up to he/she who will file it.
3. Divorce Suit can not be contested through POA holders.
1. Now a days, the ASpex court is not allowing applications for any such transfer of cases.
2. Moreover, in your case, there will hardly any valid ground for your seeking the said transfer since Divorce Suit can not be filed/contested with the help of POA holders.
1. There is no such law that the party filing the divorce case first will have an upper hand in the case.
2. Kolkata also may be a place where the divorce can be filed.
3. No such provisions in law will permit you to get the case transferred to Kolkata, because the case is filed against you and for the purpose of convenience that you have given power of attorney to our father, therefore this ground will not be entertained by supreme court to grant transfer of the case from Baroda to Kolkata.
The transfer petition to transfer the case from Baroda to Kolkata would have to be filed before supreme court only.
The supreme court may or may not consider the said grounds for transfer of the case.
However it depends on the proper presentation and strong arguments that your advocate may present before supreme court in this regard.
1. what do you mean by upper hand ? Legally she having her right to file the divorce case from her home town or the place where she is residing presently
- Further, if you will not appear before the court , then court will grant her ex-parte decree after accepting her allegation mentioned in her divorce case petition.
2. She can file the case where she is residing presently , or the place where the marriage was solemnized or also from Kolkata.
3. You can approach the Supreme Court on this ground for transfer of the case
