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Thursday, March 10, 2011

DIVORCE - I

  Can the right of the wife to initiate matrimonial proceedings before a Family Court in India be defeated on account of foreign citizenship of the husband or his domicile in another country?  In other words, do 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? 


     To cite an example, an Indian Citizen migrated to the United States of America and on his migration he was granted US Citizenship.  His wife, before the marriage, was residing adjacent to his residence and their marriage was solemnized in the year 2002. The marriage was conducted in accordance with the Hindu Rites and Customs in the Balaji Temple at New Jersey, USA. The parties were living happily as husband and wife.  Subsequently, in the year 2003, the wife came to India for a short visit promising to return after completing her dance program.  However, all of a sudden she changed her mind and contrary to the promise made, began to act in films with no idea of returning to the United States. She then filed a divorce petition before the Principal Family Court, Chennai on the ground of cruelty. The husband was not aware of the proceedings initiated at Chennai since summons were not served on him.  However, an ex-parte order of divorce was granted by the Family Court, Chennai. On coming to know of the said decree the husband engaged a lawyer at Chennai and filed a petition to set aside the ex-parte decree. The ex-parte decree was set aside and the husband filed his counter in the original petition filed by his wife and opposed her plea.  He also filed a Writ Petition in the High Court, Madras  contending that the Family Court at Chennai has no jurisdiction to entertain the divorce proceedings, as he is a citizen of the US and a permanent resident in the said country and therefore the Family Court proceedings at Chennai was one without jurisdiction and he prayed for a direction to the Family Court to refrain from taking up the matrimonial proceedings.
         
              The moot question to be decided is as to whether the Indian Courts have jurisdiction to take up matrimonial proceedings involving two Hindus governed by the Hindu Marriage Act even in cases where the opposite party is a foreign national having his domicile outside India.


        Section 19 of the Hindu Marriage Act was amended in the year 2003 and with effect from 23-12-2003  the wife is entitled to file a matrimonial petition before the District Court in whose territorial jurisdiction she is residing.  Prior to this amendment, women were compelled to approach the courts in whose jurisdiction the marriage was solemnized or the husband resides or the parties to the marriage last resided together. Now she can file a petition in the local court within whose jurisdiction she is residing, no matter where the husband resides.
          
       The High Court decided that the domicile or citizenship of the opposite party is immaterial in a case like this (mentioned above). In case the marriage was solemnized under the Hindu Law, marital relationship is governed by the provisions of the Hindu Marriage Act and therefore Section 19 referred to above has to be given a purposeful interpretation. It is the residence of the wife, which determines the question of jurisdiction.


     The High Court therefore held that when the marriage was solemnized under the Hindu law, the proceedings for divorce has also to be  made under the Hindu Marriage Act and that the Hindu Marriage Act has to given an extended coverage even outside the territory to which the Act extends. The High Court held that the right of the wife to initiate proceedings before the local District Court where she is actually residing cannot be defeated by taking a technical plea that no such proceeding would lie on account of Foreign Citizenship of the husband or his domicile in another country.  A great relief to the women seeking divorce against their husbands who are residing in foreign countries as foreign citizens.



10 comments:

  1. A question relating to this specific case -
    I quote:
    The husband was not aware of the proceedings initiated at Chennai since summons were not served on him. However, an ex-parte order of divorce was granted by the Family Court, Chennai.

    Can an ex-parte order of divorce be granted when summons were not served?

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  2. @Anon:

    When the summons sent to the last known address of the opposite party are returned unserved, the Courts order "Substituted Service", that is, publication of notice in a local newspaper where the opposite party is known to have resided last. Once such a notice is published in the newspaper and the opposite party (he may not have seen the notice in the newspaper)does not appear in court, an ex parte order is passed. No doubt, the opposite party can, on coming to know of the ex parte order, file a petition to set aside the order.

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  3. How long is the appeal period?

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  4. Either Respondent or Petition will allow to post matrimonial advertisement like looking partner in the Web while Divorce case is pending?? It is legally punished or could be help take strength the divorce if so what act? thanks krishnan

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  5. @Krishnan: Law prohibits second marriage when the first marriage subsists. However there is nothing wrong in seeking proposals so long as you do not marry during the subsistence of the first marriage.

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  6. what if the wife is also a permanent resident of usa? can the Family Courts in India have jurisdiction to pass divorce decree?

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  7. hello
    soppose i take divorce under ex parte, and after that ex parte says i have not received any summon, may be received by somebody in house but not shown to her. what happens if after divorce she says like that

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  8. Can an Overseas Citizen of India (OCI) (consider as dual national) file divorce case in Family Court in India since being domiciled in India for over 10 years..

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  9. I had a question that I had being married in the 11 December 2012 and after the marriage my wife is not willing to stay at my home,and from the 31st Dec 2012 she is staying @ his father house and she blackmailing me now a days for the section 498 A.What should we do in this cases????
    Kindly guide

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  10. Thank you for the detail, I have a question regarding divorce procedure in India by mutual agreement.
    http://www.pathlegal.in/legal_services/divorce/divorceprocedureinindia.php
    I was going through the following link and found mutual divorce can be settled in one hearing itself. Can you please let me know is that true incase of mutual agreed divorce things will go much faster? and if so how long?

    Thanks,
    Ms.Anila

    ReplyDelete