Can the right of the wife to initiate matrimonial proceedings before a Family Court in
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? India
To cite an example, an Indian Citizen migrated to the
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.
- P.Rajendran http://www.prajendran.com/