CONFLICT OF JURISDICTIONS IN MATRIMONIAL DISPUTES BY ANIL* AND ANKIT MALHOTRA**

CONFLICT OF JURISDICTIONS IN MATRIMONIAL DISPUTES

BY ANIL* AND ANKIT MALHOTRA**

EXTRA-TERRITORIAL APPLICATION OF THE HINDU MARRIAGE ACT, 1955 AND JURISDICTIONAL DETERMINATION

The Hindu Marriage Act, 1955 serves as the governing law for marriages solemnised between Hindus, irrespective of their domicile, nationality, or residency status. In addressing whether marriages solemnised under the HMA can only be dissolved by Indian Courts, it is important to delve into several key legal aspects related to extra-territorial jurisdiction, forum conveniens, and the issue of foreign divorce decrees. The HMA holds a unique place in matrimonial law as it applies to Hindus worldwide, even those domiciled outside of India. Section 1(2) of the HMA explicitly extends the applicability of HMA to Hindus domiciled abroad. In a given context, parties may continue to retain their permanent domicile in India despite temporary relocations. They may hold Indian passports and maintain strong connections to India, including family homes. The fact that one spouse has relocated to foreign territories does not affect their permanent domicile status in India. Moreover, temporary residency in foreign territories cannot be considered determinative of domicile for the purposes of ousting the jurisdiction of an Indian Court to adjudicate disputes under Hindu laws. 

Under the provisions of the HMA, there is no statutory provision that suggests that Hindus domiciled outside India are excluded from the ambit of the HMA. The HMA has extra-territorial reach, which supports the argument that the parties’ marital issues, including divorce, fall squarely within the jurisdiction of Indian Courts. The provisions of the HMA, therefore, mandate that jurisdiction over matters of divorce remains within the purview of Indian Courts, particularly in instances where the marriage was solemnised under the HMA.

FORUM CONVENIENS AND FORUM SHOPPING

It is crucial to emphasise that forum conveniens, or the convenience of a particular jurisdiction, does not provide sufficient grounds to challenge the jurisdiction of the Indian Courts. In a given case,  a spouse in India, may have neither submitted nor acquiesced to the jurisdiction of the foreign Court on the merits of the overseas divorce petition filed by a spouse concerned living abroad. Instead, the spouse may have formally objected to the jurisdiction of the foreign territories’ Court, making it clear that the matrimonial dispute falls under the purview of the HMA, and thus only the Indian Courts maintain jurisdiction. The timing of the filing of the application by   a spouse concerned in the Indian Court, coming after interim orders were passed in foreign territories, suggests that the challenge to jurisdiction may have been motivated by convenience rather than legal merit. Additionally, the fact that the spouse concerned had appeared unconditionally in the Indian Court earlier without raising any jurisdictional objections further undermines the validity of a belated challenge. The frivolous or vexatious nature of this jurisdictional challenge cannot, therefore, oust the jurisdiction of the Indian Court, which remains the competent forum to adjudicate the divorce petition under the HMA.

The appearance of the spouse concerned in the Indian Court on multiple occasions, without raising any jurisdiction objections, demonstrates  a spouse’s prior acceptance of the Indian Court’s authority. This conduct, coupled with the belated filing of a jurisdictional challenge, suggests an attempt to manipulate the legal process for strategic gain. Indian law does not permit parties to contest jurisdiction in such a manner, particularly after accepting the authority of the Court in earlier proceedings. Therefore, forum shopping cannot be used as a means to circumvent the legitimate jurisdiction of Indian Courts under the HMA.

FOREIGN DIVORCE DECREES AND THEIR IMPACT ON HINDU MARRIAGES

The dissolution of a Hindu marriage, solemnised under the HMA, must be carried out in accordance with the provisions of the HMA. A key legal principle that arises in this context is whether foreign divorce decrees, particularly those issued on grounds such as irretrievable breakdown of marriage, are recognised in India. Under Section 13 of the CPC, foreign judgments are not automatically conclusive in India. Indian Courts will not recognise a foreign divorce decree, if it does not meet the standards set by Indian law.

In Y. Narasimha Rao v. Y. Venkata Lakshmi 1991 SCR (2) 821, the Supreme Court of India established that foreign divorce decrees will only be recognised in India if the foreign Court had proper jurisdiction, the judgment was rendered on merits, and the proceedings were in accordance with the principles of natural justice. Furthermore, the irretrievable breakdown of marriage is not a recognised ground for divorce under the HMA. As a result, any divorce decree issued by a foreign Court on this ground will not be enforceable or recognised in India under Section 13 of the CPC.

This legal position underscores the fact that the dissolution of Hindu marriages must take place within the jurisdiction of Indian Courts. Even if a foreign Court grants a divorce, it will not have legal validity in India unless the grounds for divorce align with Indian law and the decree is issued by a competent Court. The recognition of foreign judgments in matrimonial matters, particularly in cases where parties are Hindus, is thus strictly governed by Indian legal principles, ensuring that the jurisdiction of Indian Courts under the HMA remains intact. In conclusion, the extra-territorial application of the HMA ensures that Indian Courts retain jurisdiction over marriages solemnised under the Act, irrespective of the parties’ temporary domicile, nationality, or residence abroad. The challenge to the jurisdiction of the Indian Court is not supported by any statutory provisions, and forum conveniens cannot be used to impugn the Court’s authority. The petitioner’s conduct, including her prior unconditional appearance in the Indian Court, further weakens her jurisdictional challenge.

Moreover, the issue of foreign divorce decrees is governed by Section 13 of the CPC and the principles established in Y. Narasimha Rao. Any divorce decree granted by a foreign Court, particularly one based on an irretrievable breakdown of marriage, will not be recognised in India. Therefore, the dissolution of the parties’ Hindu marriage must occur under the provisions of the HMA, through a District Court in India. Failure to obtain a valid Indian divorce decree will result in a legal situation where the parties may be divorced in a foreign jurisdiction but still considered married under Indian law, with all the attendant legal consequences related to maintenance, property, child custody, and other matrimonial issues remaining unresolved in India.

ANTI-SUIT INJUNCTION IN MATRIMONIAL DISPUTES

When between the same parties, litigating on the same subject matter, and based on the same cause of action, only one Court has jurisdiction, it is said to have an exclusive jurisdiction. However, if more Courts than one have jurisdiction over the same matter, they are called “Courts of concurrent jurisdiction”. In such circumstances, the criteria to determine which is the more appropriate jurisdiction for the adjudication of the matter, either party can elect to restrain the other party, not to proceed with the same litigation in the other non-preferred jurisdiction. In such a process, Courts in different jurisdictions cannot restrain each other. However, the same parties appearing before both the Courts in different jurisdictions can seek an injunction to restrain the other party from proceeding in the other non-preferential jurisdiction with the same matter. Such suits seeking restraint of proceedings in one jurisdiction are called anti-suit injunctions. In ordering a stay of such a parallel suit, the Court would grant preference to the forum with which the subject matter of litigation has the most real and substantial connection in terms of convenience or expense, availability of witnesses, the law governing the relevant subject matter of litigation, and the places where the parties resided, carried on business, or worked for gain.

This class of litigation in the realm of conflicts of laws under private international law, by legal parlance, is labelled as an “anti-suit injunction”, and gives rise to an order issued by a competent Court in India that prevents an offending party from commencing or continuing a proceeding in another jurisdiction or foreign forum. The foreign Court cannot be, and is not, restrained in such processes, as the Indian Courts cannot injunct a foreign Court. However, if the opposing party contravenes such an order, a contempt of Court notice may be issued by the domestic Indian Court against the offending party located in the foreign jurisdiction. Not very often invoked, anti-suit injunctions, are preferred in personal actions of matrimonial causes, besides commercial matters, and may be used to prevent forum shopping, or checking oppressive and vexatious litigation in overseas jurisdictions to avoid conflicting judgments. Most often, its actual success is difficult and the procedure is cumbersome. Regardless, it is a developing jurisprudence in a country with a 30 million diaspora in 195 countries over the globe, contributing immensely to cross-border litigations.

MATRIMONIAL DISPUTES

This class of litigation is now being used in matrimonial matters as well. It is claimed that Hindu marriages, said to be made in heaven and solemnised in India, are now only dissolved abroad. Sad but true. A prelude follows. Parties immigrate, fight abroad, and litigate for the parallel adjudication of their matrimonial disputes in Courts simultaneously in India and abroad, which activates a new inter se marital discord. This clash of jurisdictional battles also germinates a conflict amongst the authority of Courts. Foreign Courts often impose penal sanctions oblivious of prior directions of Indian Courts of superior hierarchy. Rules of private international law offer little resolution. Spouses, children, and extended families bear the brunt of multi-faceted parallel directives of Courts of different overseas territories.  The Supreme Court in Neerja Saraph v. Jayant Saraph 1994 SCC (6) 461 proposed feasibility of enacting a legislation to ensure that no marriage between an NRI and an Indian, which has taken place in India, may be annulled by a foreign Court. Earlier in Y. Narasimha Rao v. Y. Venkata Lakshmi 1991 SCC (3) 451 the Apex Court spelt out guidelines for the recognition of foreign Court matrimonial judgments to decide if Hindu marriages solemnised in India were said to be dissolved by unenforceable foreign decrees.

The Bombay High Court in Sondur Rajini v. Sondur Gopal, 2005 (4) MahLJ 688 affirmed by the Supreme Court in 2013 in Sondur Gopal v. Sondur Rajini, 2013 (7) SCC 426 ruled that a foreign domicile of parties will not take away the jurisdiction of Indian Courts to decide the annulment of their ceremonial Hindu marriage solemnised when they were domiciled in India. It was held by the Supreme Court, that where both parties are Hindus by religion and have a permanent domicile in India, a matrimonial cause of action would be maintainable in India, even if they reside outside India. In Navin Chander v. Leena, AIR 2005 Bom 277 the matrimonial dispute of a ceremonial marriage of Hindus celebrated in the USA was held by the Bombay High Court to be amenable for adjudication by the Family Court, Pune. The Delhi High Court in Veena Kalia v. Jatinder Kalia, AIR 1996 Delhi 54 ruled that an ex parte decree of divorce of a foreign Court, being a nullity, would not bar a subsequent petition for divorce in India, even though maintenance had been accepted under the foreign judgment. In Harmeeta Singh v. Rajat Taneja, 102 (2003) DLT 822 the Delhi High Court, temporarily restraining the foreign Court divorce proceedings, held that even if the Hindu marriage is dissolved in the USA, it would still have to be confirmed by an Indian Court. In Moina v. Amardeep, AIR 1986 Delhi 399 a foreign domicile was held by the Delhi High Court to be no deterrent to a divorce petition preferred in India to dissolve a Hindu marriage celebrated here.

These authoritative and laudable verdicts clearly reflect that Indian Courts rightly have a prerogative to adjudicate matrimonial disputes falling in their domain. The decisions of the Indian Courts in implementing personal law had prevailed after the Supreme Court decision in Rajini Sondur (supra), holding that in the case of a Hindu couple settled in a foreign country, for deciding matrimonial issues, they would be governed by the provisions of Hindu law, i.e., the law of their permanent domicile, irrespective of the foreign nationalities and overseas residences acquired by them.

However, in Rakesh Kumar v. Ashima Kumar, AIR 2007 P&H 63 in a case of parallel matrimonial litigation in India and the USA, the High Court declined to grant an anti-suit injunction. The parties were married in Dehradun and lived at Panchkula. The wife left for the USA and filed a divorce petition in a US Court. The husband raised objections regarding jurisdiction of the foreign Court to entertain the litigation for divorce, which was already pending before the Panchkula Court. The husband filed a suit at Panchkula for restraining the wife from pursuing or continuing with the divorce litigation in the USA. It was averred that only the Panchkula Court had the jurisdiction to adjudicate the matter. The anti-suit injunction was declined and it was held that, in terms of Section 19  of the CPC, the husband cannot seek to file the suit for injunction before the Courts at Panchkula. It was also held that the Courts had no jurisdiction to grant interim injunction for restraining a person from instituting any proceeding in a Court, not subordinate to that Court from which injunction is sought and thus, the foreign Court cannot be treated as a Court subordinate to the Panchkula Court. It was thus held, that in terms of Sections 41(a) and 41(b) of the Specific Relief Act, 1963, injunction cannot be granted. In Dinesh Singh Thakur v. Sonal Thakur, AIR 2018 SC 2094 where there were parallel matrimonial proceedings before the Family Court, Gurgaon and a US Court, between the same parties in respect of a marriage solemnised as per Hindu rites in India, it was held that the husband was not entitled to an anti-suit injunction to restrain the wife from proceeding with the matrimonial litigation in the USA. The Supreme Court held as follows:

“9. Anti-suit injunctions are meant to restrain a party to a suit/proceeding from instituting or prosecuting a case in another Court, including a foreign Court. Simply put, an anti-suit injunction is a judicial order restraining one party from prosecuting a case in another Court outside its jurisdiction. The principles governing grant of injunction are common to that of granting anti-suit injunction. The cases of injunction are basically governed by the doctrine of equity.

10. It is a well-settled law that the Courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. However, before passing the order of anti-suit injunction, Courts should be very cautious and careful, and it should be granted sparingly and not as a matter of routine as such orders involve a Court impinging on the jurisdiction of another Court, which is not entertained very easily specially when the it restrains the parties from instituting or continuing a case in a foreign Court.

20. Foreign Court cannot be presumed to be exercising its jurisdiction wrongly even after the appellant being able to prove that the parties in the present case are continued to be governed by the law governing Hindus in India in the matter of dispute between them.

21. In view of the above discussion and after having regard to the nature of case and other peculiar facts, we do not deem it appropriate to interfere with the decision rendered by the High Court. We are of the opinion that the proceedings in the Foreign Court cannot be said to be oppressive or vexatious. The appeal is accordingly dismissed with no order as to costs.”

Accordingly, as per the 2018 judgment of the Supreme Court in Dinesh (supra), it has been held that in matrimonial disputes between the same parties, both Indian and foreign Courts have concurrent jurisdiction. Consequently, it has now been held that foreign Courts cannot be presumed to be exercising jurisdiction wrongly, even if the parties are governed by Hindu law in India in matrimonial matters. Hence, an anti-suit injunction can be declined. However, depending on the facts and circumstances of an individual case, the view point of a Court may differ. Thus, the proposition cannot be generalised as a strict rule, and the relief, which may be granted, may vary on the facts of the case.

However, the Punjab and Haryana High Court in Rakesh Kumar v. Ashima Kumar, AIR 2007 P&H 63 has been categoric in holding that Courts in India had no jurisdiction to grant interim injunction for restraining persons instituting cases in foreign Courts which were not subordinate to Indian Courts. The Court held that, under Sections 41(a) and 41(b) of the Specific Relief Act, 1963, no such injunction could be granted.

JUDGMENTS IN MATRIMONIAL ANTI-SUIT ACTIONS

In this backdrop, this new dimension of matrimonial litigation is coming in practice in the arena in the shape of anti-suit injunctions. They are the remedy against filing of suits in different jurisdictions, in respect of the same cause of action. A petition preferred in India for restraining an opposing spouse from pursuing or continuing with a complaint for matrimonial relief in a foreign Court would be such an anti-suit injunction petition in matrimonial matters. Lack of jurisdiction, both regarding the corpus of the Hindu marriage, and the physical presence of an Indian spouse in the territory abroad, is the main ground of such suits in India. However, even the reverse application now finds popular practice, making anti-suit injunctions a two-way street. Accordingly, the grant of relief to restrain foreign Court proceedings by domestic Courts is a discretionary relief to be adjudged on the facts and circumstances of every case. Resolution rests in every individual case based on the facts and circumstances of the peculiar factual situation of every human relationship dispute. 

*Author, a practising Senior Advocate, has ten books pertaining to issues of private international law. He can be reached at anilmalhotra1960@gmail.com. www.anilmalhotra.co.in

Advocate, Malhotra & Malhotra Associates, India.

LL.M [London]&Felix Scholar, School of Oriental &African Studies, University of London, London.

Email: ankitmalhotra97@gmail.com ,

Website:https://www.ankitmalhotra.org.in