Saturday, March 19, 2011

DIVORCE-II

In my last Post (Divorce-I), the question was whether the Family Courts in India have jurisdiction to pass divorce decrees or decrees of other types (alimony, judicial separation etc.,) against persons who have been granted citizenship of another country on his/her migration to the said country. You would have seen that the Family Courts in India have jurisdiction to pass such decrees in respect of such persons.
 Now, the question is : Whether a court of a foreign country can grant any decree of divorce or other matrimonial relief in respect of marriages performed under the Hindu Marriage Act, 1956 and whether such judgments and decrees of foreign courts can be enforced in India?  Interesting question!
          In a case before the Supreme Court of India, the marriage took place at Tirupathi in India according to the Hindu law and the parties settled down at New Orleans, Lousiana, USA but they separated after three years. Thereafter the husband moved to Missouri  and set up a residence in the State of Missouri. The wife returned to India. The husband filed a petition for dissolution of marriage in the Circuit Court of  St. Louis County, Missouri, USA on the ground that his wife deserted him for more than one year and that the marriage was irretrievably broken. The Circuit Court assumed jurisdiction over the matter on the ground that the husband had been a resident of the State of Missouri for over 90 days immediately preceding the date of filing the Petition and passed a decree for dissolution of the marriage in the absence of the wife on the only ground that the marriage was “irretrievable broken”.  Thereafter the husband returned to India and married another woman.  The first wife filed a criminal complaint against her husband for the offence of bigamy. The husband contended that the first marriage was dissolved by the Circuit Court of St. Louis County, Missouri, USA and therefore he did not commit the offence of bigamy.  Accepting his contentions the Magistrate acquitted him.  The wife took the matter on appeal to the High Court and the High Court reversed the judgment of the Magistrate on the ground that a Photostat copy of the decree of the Circuit Court of St. Louis County, Missouri was not admissible in evidence to prove the dissolution of marriage.  The husband filed an appeal before the Supreme Court of India.
The Supreme Court of India held that even assuming that the foreign court by its own rules of jurisdiction had rightly entertained the dispute and granted a valid decree of divorce according to its law, it cannot be recognized by the courts in India and therefore unenforceable in India since with regard to the jurisdiction  of the forum as well as the ground on which it was passed, the foreign decree is not in accordance with the Hindu Marriage Act under which the parties were married  and the wife had not submitted to the jurisdiction of the foreign court or consented to its passing a decree.
Therefore, the decree of divorce passed by a foreign court in respect of a marriage performed under the Hindu Marriage Act is not enforceable in India and the courts in India shall not recognize such a decree as valid. However, if the wife submits to the jurisdiction of the foreign court and contests the proceedings without raising any objection with regard to the jurisdiction of the foreign court or consents to passing a decree by the foreign court, then such a decree is binding on her.  If she does not appear in such proceedings and remains ex-parte, the decree that may be passed in such proceedings is not enforceable in India.
The message is clear:  If your husband initiates any matrimonial proceedings against you in any foreign court  in respect of your marriage performed according to the Hindu Marriage Act, do not submit to the jurisdiction of such foreign courts. If you do not submit to the jurisdiction of such a foreign court, its decree will not be binding on you and it cannot be enforced in India and no court in India will recognize such decrees as valid in India.

P.RAJENDRAN       www.prajendran.com

4 comments:

  1. I actually enjoyed reading through this posting.Many thanks.

    Divorce in India

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  2. sir, i want a divorce from my wife. we both got marrried in delhi, india and we moved to canada, but now in canada we have seperated...and would like to go for a divorce. if i file for a divorce in canada and get a divorce, would it be applicable in india...I would like to remarry in india....after sometime.thanks

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  3. Thanks for sharing your insights here. Can you also name the judgement being quoted above?

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  4. Thanks for sharing your insights here. Can you also name the judgement being quoted above?

    ReplyDelete