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

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.