- 1 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF AUGUST, 2026 PRESENT THE HON'BLE MR. JUSTICE D K SINGH AND THE HON'BLE MR. JUSTICE H.SHANTHI BHUSHAN MISCELLANEOUS FIRST APPEAL NO.1901/2026 (SMA) BETWEEN: SMT NIJINKA CHINNIAH D/O J.W.R. CHINNALAH, W/O SHRI MOHAN SUNIL MICHAEL AGED ABOUT 53 YEARS, RESIDING AT SKANDA RESIDENCY, 6TH CROSS, NEAR MARUTHI NEXUS SERVICE STATION, ASHRAMA COLONY, RMV EXTENSION II STAGE, SANJAYNAGAR, BENGALURU NORTH – 560 094. …APPELLANT (BY SMT. ROSA PARAMEL., ADVOCATE) AND: SHRI MOHAN SUNIL MICHAEL S/O V. ACHYUTHA KURUP RAM MOHAN, AGED ABOUT 54 YEARS, RESIDING AT SOHAR, SULTANATE OF OMAN. PERMANENT ADDRESS 103, 7TH C MAIN, 1ST BLOCK, KALYANANAGAR, BENGALURU – 560 043. …RESPONDENT (BY Ms. KRUTIKA RAGHAVAN AS., AMICUS CURIAE TO ASSIST THE COURT (VIDE COURT ORDER DATED 23.07.2026)) THIS MFA IS FILED UNDER SECTION 39 OF SPECIAL MARRIAGE ACT, READ WITH SECTION 19 (1) OF FAMILY ® Digitally signed by VASANTHA KUMARY B K Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 COURTS ACT, AGAINST THE JUDGMENT AND DECREE DT.25.11.2025 PASSED IN MC NO.7135/2025 ON THE DISMISSING THE PETITION AS NOT MAINTAINABLE UNDER SPECIAL MARRIAGE ACT, 1954 SECTION 28 R/W SEC 18 OF FOREIGN MARRIAGE ACT. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE D K SINGH AND HON'BLE MR. JUSTICE H.SHANTHI BHUSHAN ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE D K SINGH) 1. The present appeal has been filed impugning the order dated 25.11.2025 passed by the IV Additional Principal Judge, Family Court, Bengaluru in M.C. No.7135/2025, whereby the petition filed by the appellants under Section 28 of the Special Marriage Act, 1954, read with Section 18 of the Foreign Marriage Act, 1969 seeking dissolution of their marriage by mutual consent, came to be dismissed as not maintainable. FACTS OF THE CASE: 2. The marriage between the appellants was solemnized on 09.08.2018 before the Marriage Officer, Embassy of India, Muscat, Sultanate of Oman, under the provisions of the Foreign Marriage Act, 1969. After their marriage, the appellants resided - 3 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 together at Muscat. Owing to irreconcilable differences, they mutually discontinued their conjugal relationship in August 2021, though they continued to reside under the same roof until March 2024. 3. The appellant No.1-wife thereafter returned to India in August 2024 and has been residing independently at Bengaluru, whereas appellant No.2-husband continues to reside and work in the Sultanate of Oman. The appellants assert that they are Indian domiciliaries and that there has been no resumption of cohabitation. There are no children born out of the wedlock and the issues arising out of the marriage have been amicably settled between them. 4. The appellants jointly presented M.C.No.7135/2025 before the Family Court, Bengaluru, under Section 28 of the Special Marriage Act, 1954, read with Section 18 of the Foreign Marriage Act, 1969, seeking dissolution of their marriage by mutual consent. Both the appellants were present before the Family Court and expressed their consent for dissolution of the marriage. - 4 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 5. The Family Court, however, vide order dated 25.11.2025, dismissed the petition as not maintainable on the ground that appellant No.1-wife had not completed three years of residence in India immediately preceding the presentation of the petition. The Family Court proceeded on the basis of Section 18(3)(a)(ii) of the Foreign Marriage Act, 1969. Aggrieved by the said order, the present appeal has been preferred. FINDINGS OF THE FAMILY COURT: 6. The Family Court framed the following point for consideration: “Whether the petition filed by the petitioners seeking dissolution of marriage dated 09.08.2018 is maintainable under Section 28 of the Special Marriage Act, 1954 read with Section 18 of the Foreign Marriage Act, 1969?” 7. The Family Court noted that the marriage between the appellants was solemnized at the Embassy of India, Muscat, Sultanate of Oman under the Foreign Marriage Act, 1969 and that both parties intended to dissolve the marriage. 8. The Family Court while considering the maintainability of the petition, referred to Section 18(3)(a) of the Foreign - 5 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 Marriage Act, 1969 and relied upon clause (ii), which provides that a decree of dissolution may be made where the petitioner, being the wife, was domiciled in India immediately before the marriage and has been residing in India for a period of not less than three years immediately preceding the presentation of the petition. 9. The Family Court noted that the appellants had resided together at Muscat and that appellant No.1 had returned to India only in August 2024 and held that the wife had not been residing in India for three years immediately preceding the presentation of the petition. The learned counsel appearing for the appellants had submitted before the Family Court that the petition was a mutual-consent petition and that both parties were domiciled in India. However, the Family Court proceeded to hold that Section 18 had to be read as a whole and concluded that the Court could grant a decree of dissolution only upon compliance with the requirements contained in clauses (i) and (ii). On the aforesaid ground, the Family Court dismissed the petition as not maintainable. - 6 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 PROCEEDINGS BEFORE THIS COURT: 10. During the course of hearing the appeal, having regard to the question arising for consideration and the interpretation of Section 18 of the Foreign Marriage Act, 1969, this Court, vide order dated 23.07.2026, requested Ms.Krutika Raghavan, learned counsel to assist this Court as Amicus Curiae, on the following question: “Whether Section 18 of the Foreign Marriage Act, 1969, which governs the jurisdiction of Indian Courts in respect of matrimonial proceedings concerning marriages solemnised in a foreign country, mandates a minimum period of three years of residence in India as a jurisdictional pre-condition before a petition for dissolution of marriage can be entertained by a Family Court in India?” 11. The learned Amicus Curiae has submitted a detailed and very comprehensive report dated 11.08.2026 examining the statutory scheme of Section 18 of the Foreign Marriage Act, the distinction between domicile and residence, and the separate requirements contained in Section 18(3)(a)(i) and (ii). - 7 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 REPORT OF THE LEARNED AMICUS CURIAE: 12. The report commences by examining the manner in which Section 18 operates in relation to marriages solemnized under the Foreign Marriage Act wherein Section 18(1) makes the relevant provisions of Chapters IV, V, VI and VII of the Special Marriage Act, 1954 applicable to marriages solemnized in a foreign country between parties and one of them at least is a citizen of India as they apply in relation to marriages solemnized under the Special Marriage Act. Section 18(2) deals with the forum before which a petition for matrimonial relief may be presented, whereas Section 18(3) places limitations upon the power of the Court to grant certain matrimonial reliefs. 13. Before we proceed with the report, it is relevant to extract Section 18(3)(a) of the Foreign Marriage Act: “(3) Nothing contained in this section shall authorise any court— (a) to make any decree of dissolution of marriage, except where— (i) the parties to the marriage are domiciled in India at the time of the presentation of the petition; or - 8 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 (ii) the petitioner, being the wife, was domiciled in India immediately before the marriage and has been residing in India for a period of not less than three years immediately preceding the presentation of the petition;” 14. The learned Amicus Curiae has expressed that a close reading of Section 18 reveals that the legislature has consciously employed three distinct legal concepts viz. citizenship, residence, and domicile in different sub-sections of Section 18 of the Foreign Marriage Act, each serving a different function. 15. The learned Amicus Curiae also noted the ‘Statement of Objects and Reasons to the Foreign Marriage Act, 1969’ which states that sub-clause (3) of Section 18 "embodies the recognised principles of private international law as to jurisdiction of Indian courts to grant matrimonial relief." The relevant paragraph is extracted hereunder: “The Statement of Objects and Reasons to the Foreign Marriage Act, 1969 expressly states that sub-clause (3) of Section 18 "embodies the recognised principles of private international law as to jurisdiction of - 9 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 Indian courts to grant matrimonial relief." This legislative acknowledgement is critical: the domicile requirement in Section 18(3)(a) is not merely a procedural precondition but a deliberate adoption of the conflict-of-laws rule linking dissolution jurisdiction to the domicile of the parties. The Statement further records that the Act was modelled on the Special Marriage Act, 1954, and on English and Australian legislation on foreign marriages, and was designed to ensure, as far as possible, that the validity of the marriage could be recognised in other countries besides India. The 23rd Report of the Law Commission, which the Act implemented, noted that the object of the legislation was not only to provide for solemnisation of marriages but also to enable the parties to obtain proper matrimonial relief, including dissolution of marriage.” 16. The learned Amicus Curiae has thereafter stated that the Foreign Marriage Act does not define the terms ‘domicile’, ‘residence’ or ‘citizenship’ within its provisions and that these concepts must be interpreted in accordance with principles of private international law as applied by Indian Courts in the matrimonial context. The courts have consistently held that these three concepts are distinct and cannot be conflated. - 10 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 17. The learned Amicus Curiae has further examined Section 18(3)(a), which specifically concerns the power of the Court to make a decree of dissolution of marriage. The provision contemplates two distinct situations: i) Under Section 18(3)(a)(i), a decree of dissolution may be made where the parties to the marriage are domiciled in India at the time of presentation of the petition; ii) Under Section 18(3)(a)(ii), a decree may be made where the petitioner, being the wife, was domiciled in India immediately before the marriage and has been residing in India for a period not less than three years immediately preceding the presentation of the petition. 18. The learned Amicus Curiae has referred to the decision of this Court in the case of MICHAEL GRAHAM PRINCE V. NISHA MISRA [2022 SCC OnLine Kar 1603] which has held that Section 18 of the Foreign Marriage Act is "citizenship neutral but domicile centric" and that the domicile involves the factum of residence and the intent to reside indefinitely. The relevant paragraph Nos.4(f) and (g) of the judgment are extracted hereunder: - 11 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 (f) It is relevant to state here that this Convention has been referred to by the Apex Court in SHAYARA BANO v. UNION OF INDIA, (2017) 9 SCC 1; ordinarily, the International Conventions of the kind are treated as a source of law even in the domestic sphere if they are not inconsistent with existing corpus juris of our country, vide JOLLY GEORGE VERGHESE v. BANK OF COCHIN, (1980) 2 SCC 360 : AIR 1980 SC 470; at least, while construing the provisions of domestic law, they need to be adverted to; keeping this in mind, the word ‘citizen’ occurring in Sections 4 & 18 of the Foreign Marriage Act, 1969, needs to be liberally construed to include a foreigner who holds OCI Card and resides in India. It is not prudent to insist that what the provisions of the statutes meant to the vision of its makers then, must mean to the vision of our time. They should be interpreted to meet and cover changing conditions of social and economic life. The law states not rules for the passing hour but the principles for an expanding future. Otherwise, it will not be living law of the people but would remain as a black letter on a white paper. Such a purposive construction serves the Parliamentary object of this Act which vide Section 18 refers to certain provisions of the Special Marriage Act, 1954. The march of law and more particularly family law from April to May - 12 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 and to the June of its life, as of necessity happens in the judicial process in all civilized jurisdictions where boundaries of nations are loosing significance in a shrinking globe. (g) The contention of learned counsel for the petitioner, that domicile being a pre-condition for the institution of matrimonial cases, the Court below could not have entertained the divorce petition of the wife, does not much come to his aid. Section 18 of the 1969 Act and Section 31 of the 1954 Act prescribe “residence” for invoking the jurisdiction of Family Court. The word ‘residence’ is not prefixed by the word ‘ordinarily’ and thus these provisions are a bit in variance with usual drafting. The absence of prefix gives an indication that the word ‘residence’ needs to be given an expansive meaning; after all, law is not the slave of dictionaries; words employed in a statute do not have a fixed meaning; the contours of their meaning vary with the run of time. Statutes do not suffer from rigor mortis. Admittedly, the respondent-wife has been residing within the jurisdictional limits of the Court. Thus, these provisions are ‘citizenship neutral’ but ‘domicile centric’; it hardly needs to be stated the domicile involves the factum of residence and the intent to reside indefinitely; these ingredients galore in this case. It is profitable to advert to ‘Halsbury's Laws of England’ - 13 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 (3rd Edn.) Vol. VII at paragraph 26:“A person's domicile is that country in which he either has or is deemed by law to have his permanent home”. 19. The learned Amicus Curiae has further referred to the judgment of Supreme Court in the case of Dr.PRADEEP JAIN & ORS. V. UNION OF INDIA & ORS. [(1984) 3 SCC 654] wherein it was held that the domicile of a person is in that country in which he either has or is deemed by law to have his permanent home and the notion which lies at the root of the concept of domicile is that of permanent home. The relevant paragraph is extracted hereunder: “7. It is well settled that the domicile of a person is in that country in which he either has or is deemed by law to have his permanent home... The notion which lies at the root of the concept of domicile is that of permanent home... There are two main classes of domicile: domicile of origin, communicated by operation of law to each person at birth... and domicile of choice, which every person of full age is free to acquire in substitution for that which he presently possesses. The domicile of choice is acquired by residence in a territory subject to a distinctive legal system, with the intention to reside there permanently or indefinitely." - 14 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 20. The learned Amicus Curiae has further stated that based on the abovementioned authorities, the following principles govern the meaning of "domicile" under Section 18(3)(a): i) Permanent home test: Domicile in India means India must be the country in which the person has or is deemed by law to have their permanent home. It is not enough to have a temporary or transient residence in India. ii) Domicile of origin: An Indian citizen by birth ordinarily has an Indian domicile of origin unless displaced by a domicile of choice acquired in another country with the requisite intention to reside there permanently. iii) Domicile of choice: Acquired by actual residence in a country combined with the intention to reside there permanently or indefinitely (animus manendi). Both the factum of residence and the animus are required. iv) Domicile is distinct from citizenship and residence: A person may be a citizen of India and yet not be domiciled in India. Equally, a person working abroad may retain an Indian domicile - 15 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 of origin if they have not acquired a domicile of choice in the foreign country by manifesting a fixed and settled intention to make that country their permanent home. Courts will look at intention, not merely passport status. v) The relevant moment: For Section 18(3)(a)(i), domicile must be established at the time of presentation of the petition. 21. The learned Amicus Curiae has further referred to the decision of the Kerala High Court in the case of MOLLY ABRAHAM V. MARRIAGE OFFICER [2015 SCC OnLine Ker 34149] which has held that the law relating to marriage is based on the law applicable to the place of celebration and the law applicable to the divorce is based on the domicile of the parties whereas the decree of divorce granted by the foreign court is based on the domicile. The relevant paragraph is extracted hereunder: “2. The law relating to marriage is based on the law applicable to the place of celebration. The law applicable to the divorce is based on the domicile of the parties. The decree of divorce granted by the American court is based on the domicile. Therefore, the Indian court is free to recognize a Foreign - 16 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 decree of divorce, subject to any challenge, such divorce decree with reference to the parameters of Section 13 of the Civil Procedure Code. In the absence of any challenge, there is no impediment for public authorities or court to recognize divorce decree granted by the Foreign Court.” 22. The learned Amicus Curiae has further referred to the judgment of the Supreme Court in the case of Y. NARASIMHA RAO vs Y. VENKATA LAKSHMI [(1991) 3 SCC 451] which laid down the rule that in matrimonial cases involving foreign elements, jurisdiction must be linked to domicile, habitual residence, or the lex loci celebration is, and that the Indian courts will recognise a foreign matrimonial decree only if the foreign forum had jurisdiction under these recognised connecting factors. The relevant paragraph is extracted hereunder: “20. From the aforesaid discussion the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. - 17 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.” 23. The learned Amicus Curiae has further explained that the sole requirement under Section 18(3)(a)(i) is domicile and not the residence. Section 18(3)(a)(i) states that "the parties to the marriage are domiciled in India at the time of the presentation of the petition". The plain language of the sub-clause is unambiguous. It imposes one and only condition i.e., both parties must be domiciled in India at the relevant time. There is no requirement of any period of physical residence in India under Section 18(3)(a)(i). The three-years residence - 18 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 requirement appears exclusively in Section 18(3)(a)(ii) and is confined to the special case of the wife- petitioner. The distinction was made explicit by this Court in the case of MICHAEL GRAHAM PRINCE (supra). She has further explained that the physical presence in India at the time of presentation of the petition is not required as held by the Bombay High Court in the case of AAMIRA OPHER JOSEPH AND OPHER DAN JOSEPH vs BY CONSENT PETITION [WP No. 4254/2009]. The relevant paragraphs are extracted hereunder: “2. Section 28 of the Special Marriage Act requires parties to present a Petition for divorce if it is to be filed by mutual consent. However, the section does not make it encumbent on the parties to be present when the Divorce Petition is presented in the Court. Subsection 2 of Section 28 stipulates that either party to the Divorce Petition may after six months of its filing withdraw the consent within eighteen months of the date of presentation of the Petition. Therefore, the presence of the parties is expected between six to eighteen months when the appropriate orders are to be passed on the Divorce Petition. 3. Thus, there is no requirement of the petitioners to a petition for a divorce by mutual consent to be present at the time of presentation of the Petition. Any doubts regarding the consent can - 19 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 always be cleared when the parties are present before the Court after six months” 24. The learned Amicus Curiae has further explained the legislative purpose of Section 18(3)(a)(ii) which requires that "the petitioner, being the wife, was domiciled in India immediately before the marriage and has been residing in India for a period of not less than three years immediately preceding the presentation of the petition" is a distinct and self-contained jurisdictional gateway. The provision's legislative purpose, as illuminated by the Statement of Objects and Reasons and the Private International Law principles that Section 18(3) explicitly embodies, is protective. Under the old common-law rule, a married woman's domicile followed her husband's. A wife who married a foreign national and followed him abroad might therefore lose her Indian domicile and be unable to establish domicile in India at the time of the petition (since her domicile would, under the old rule, be her husband's foreign domicile). Section 18(3)(a)(ii) was accordingly designed to ensure that the Indian courts have jurisdiction to protect such wives those who had an Indian domicile before marriage, and who have - 20 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 since returned to and been residing in India even when they may not presently be able to prove a technical Indian domicile. This protective purpose was identified and applied by the Andhra Pradesh High Court in the case of JOYCE SUMATHI vs ROBERT DICKSON BRODIE [1982 SCC OnLine AP 14] where it was held that Section 18(3)(a)(ii) is an enabling provision for wives of Indian origin who married foreign nationals abroad, and that pre-marital Indian domicile coupled with continuous post-marital Indian residence is sufficient, the petitioner-wife need not establish current technical domicile in India. The judgment confirmed that this sub-clause was enacted in recognition of the particular vulnerability of wives who may have lost their Indian domicile upon marriage. 25. The learned Amicus Curiae has placed emphasis on the expression ‘or’ occurring between the clauses (i) and (ii) of Section 18(3)(a) which indicates that the two clauses are not cumulative conditions which have to be satisfied together. They constitute two alternative jurisdictional gateways. Therefore, where the requirements of clause (i) are satisfied, the - 21 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 requirements prescribed under clause (ii) need not additionally be fulfilled. 26. The learned Amicus Curiae has further explained that the Section 18(3)(a)(ii) of the Foreign Marriage Act, on its face, contemplates "the petitioner, being the wife" language that presupposes a unilateral petition by the wife. In a mutual consent petition under Section 28 of the Special Marriage Act, there is no "petitioner" in the traditional adversarial sense; both parties are joint petitioners. Therefore, the question that arises is “could Section 18(3)(a)(ii) be invoked in a mutual consent petition if the wife (as joint petitioner) satisfies its conditions, notwithstanding that the husband is not domiciled in India (and hence clause (i) cannot be satisfied for both parties jointly)?” 27. The learned Amicus Curiae has explained the answer to the abovementioned question stating that the provision was enacted to protect the wife's access to Indian Courts. The protective purpose of Section 18(3)(a)(ii) is equally served in the mutual consent context indeed, denying the wife the benefit of this provision in a mutual consent petition where she satisfies the conditions would be paradoxical, since her - 22 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 exposure to hardship is no less in a joint petition than in a unilateral one. The Amicus Curiae has expressed that there is a structural tension. This Court in the case of MICHAEL GRAHAM PRINCE (supra) and the Bombay High Court in the case of ABDUR RAHIM UNDRE (DR.) V. PADMA ABDUR RAHIM UNDRE [1982 SCC OnLine Bom 29] interpreted Section 18(3)(a) as embodying principles of Private International Law, with sub-clauses (i) and (ii) as distinct jurisdictional gateways. Sub-clause (ii), however, uses singular language "the petitioner, being the wife", and it is at least arguable that a mutual consent petition where both parties are equally petitioners does not straightforwardly fall within the words "the petitioner, being the wife". 28. The learned Amicus Curiae has concluded her report stating that for a mutual consent petition under Section 28 of the Special Marriage Act, as applied by Section 18(1) of the Foreign Marriage Act, the parties need not reside in India for a period of three years prior to the presentation of the petition. The three-years residence requirement pertains only to the alternative gateway under Section 18(3)(a)(ii). The primary requirement, applicable to all dissolution petitions including - 23 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 mutual consent petitions, is that both the parties be domiciled in India and that mandatory condition is satisfied in the present case. Section 18(3)(a)(ii) may come to the aid of a wife petitioner where domicile under clause (i) cannot be established, but there is no judicial authority on its precise applicability to a mutual consent petition. ANALYSIS BY THIS COURT: 29. We have carefully read the report submitted by the learned Amicus Curiae, the statutory provisions referred to therein and the authorities relied upon in support of the opinion expressed. We find that the interpretation of Section 18(3)(a) submitted in the report is consistent with the language employed by the legislature. 30. The distinction in the language employed by the legislature is deliberate. If the legislature’s intent was to prescribe three years' residence in India as a condition applicable to every petition for dissolution under Section 18(3)(a), the legislature would have incorporated such requirement in sub-clause (i) itself. Instead, the requirement has been specifically incorporated only in sub-clause (ii). - 24 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 31. We, therefore, find considerable force in the submissions of the appellants as well as the learned Amicus Curiae that the three-year residence requirement cannot be read into clause (i). A Court interpreting a statutory provision cannot add words to the provision when the language employed by the legislature is otherwise clear. 32. It is also important to note the distinction between domicile and residence. The two concepts operate differently. Section 18(3)(a)(i) is concerned with domicile, whereas Section 18(3)(a)(ii) combines the requirement of domicile immediately before marriage with a period of three years’ residence in India. The fact that the legislature has used these expressions in different clauses reinforces the conclusion that the two clauses operate distinctly. 33. The Family Court, however, proceeded principally on the basis of the three-year residence requirement. Since appellant No.1 had returned to India only in August 2024, the Family Court concluded that she had not completed three years' residence in India and, therefore, dismissed the petition as not maintainable. In doing so, the Family Court did not sufficiently - 25 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 distinguish between the two alternative situations contemplated by Section 18(3)(a). The absence of three years' residence may be relevant when the petition is sought to be maintained under clause (ii). It cannot, however, by itself defeat a petition which is sought to be maintained under clause (i), provided the parties satisfy the requirement of domicile contained therein. CONCLUSION: 34. We are, therefore, in agreement with the learned Amicus Curiae that the three years' residence in India is not a condition precedent under Section 18(3)(a)(i). The statutory requirement under that clause is confined to the parties being domiciled in India at the time of presentation of the petition. We accordingly adopt the opinion expressed by the learned Amicus Curiae on the interpretation of Section 18(3)(a) of the Foreign Marriage Act, 1969. 35. However, adoption of the aforesaid legal interpretation does not by itself amount to a finding that the appellants are, as a matter of fact, domiciled in India. The question of domicile has to be determined on the basis of the pleadings, evidence and material placed before the competent Court. - 26 - HC-KAR CNR: KAHC010182542026 NC: 2026:KHC:42679-DB MFA No. 1901 of 2026 36. In view thereof, the order dated 25.11.2025 passed by the IV Additional Principal Judge, Family Court, Bengaluru in M.C. No.7135/2025 is hereby set aside. The Miscellaneous First Appeal is accordingly allowed. The matter stands remanded back to the Family Court, Bengaluru, for consideration afresh in accordance with law. We place on record our deep appreciation to the learned Amicus Curiae, Ms. Krutika Raghavan, for rendering valuable and very effective assistance in deciding the present appeal and her excellent report which has helped this Court to deliver the judgment. Sd/- (D K SINGH) JUDGE Sd/- (H.SHANTHI BHUSHAN) JUDGE RKA/BKV CT:SN List No.: 2 Sl No.: 5