THE PROBLEM
Hindu marriages solemnized on Indian soil being in the nature of a sacrament find an uphill road if sought to be dissolved on fault grounds before competent Courts under personal law of parties. Divorce by mutual consent requires both spouses to jointly petition the Court and maintain the unanimous decision to part for at least six months from the date of first hearing before the competent Court. Hence, when a traditional marriage of a Non Resident Indian breaks up overseas, the anxiety to dissolve it expeditiously is preferred to be done in the foreign matrimonial home of the spouses. The vexed question which then crops up frequently before Indian marital Courts is whether to accord recognition to such foreign divorce decrees or not as invariably such overseas dissolution is based on the ground of irretrievable breakdown of marriage which is not a ground for divorce under Hindu Marriage Act, 1955 (HMA).
A RECENT DECISION
A recent reported verdict of the Delhi High Court in Pritam Ashok Sadaphule Vs. Hima Chugh, 2014 (1) RCR (Civil) 697 (Delhi) refused to give its imprimatur to a decree of divorce obtained by the husband from an English Court in UK. The marriage solemnized in New Delhi according to the Hindu rites was dissolved in UK on the ground of the marriage having been broken down irretrievably. The wife had represented to the English Court protesting that she was in India and was in acute financial difficulty to travel to London to contest the case. She requested the English Court not to grant divorce and had also petitioned the Delhi High Court for grant of a decree of permanent injunction against her husband from continuing with his divorce petition in UK. However, the English Court proceeded with the matter and dissolved the marriage.
The parties had met in England in 2004 and got married at New Delhi in 2005 to return to UK for work reasons. Developing matrimonial differences, the wife returned to India in 2010 to allege matrimonial cruelty. The husband petitioned for divorce in UK in 2010 and failing to injunct him in Delhi High Court through an anti suit injunction, in 2011 the wife also filed a petition for divorce in Delhi under the HMA on the ground of cruelty. The husband appeared in the Delhi matrimonial Court alleging that since the English Court had already dissolved the marriage, the divorce petition in Delhi was not maintainable. The Delhi matrimonial Court rejected this plea of the husband which was challenged by him before the Delhi High Court. Relying on the Supreme Court judgment in Y. Narashimha Rao’s case (1991) 3 SCC 451, the Delhi High Court rejected the challenge holding that the ex parte English divorce decree was not passed by a competent Court in accordance with Hindu Law and the wife had not submitted to the jurisdiction of the English Court. Hence, the divorce petition before the Delhi matrimonial Court by the wife was held to be maintainable.
PREVIOUS PRECEDENTS
The Apex Court in its celebrated decision in Y. Narashimha Rao’s case had laid down authoritative principles for recognition of foreign matrimonial judgments by settling that “the jurisdiction assumed by the foreign Court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.” Culling out exceptions when parties voluntarily and unconditionally submit to the jurisdiction of a foreign Court, where the contested decision is on a ground available under the law under which parties are married, the Supreme Court afforded protection to spouses to ensure that they were not saddled with ex parte decisions based on foreign law. The Supreme Court further in Neerja Saraph’s case (1994) SCC 6 461 went to the extent of advocating of the feasibility of an Indian legislation being made to safeguard interests of women so that no marriage between an NRI and an Indian woman solemnized in India may be annulled by a foreign Court.
The Delhi High Court in Harmeeta Singh’s case 2003 (2) RCR (Civil) 197 has held that in the event of a decree of divorce being passed by a Court in America on an NRI spouse’s petition, it would have to be confirmed by a Court in India in consonance with the principles of private international law embodied in Section 13 of the Civil Procedure Code. Likewise, the Bombay High Court in Navin Chander Advani’s case 2005 (2) HLR 582 held that the personal law of the parties will prevail. Similarly, the views of the Delhi High Court in Monia Khosla’s case AIR 1986 Delhi 399 hold that the Courts in India would not be ousted of their jurisdiction simply because one of the spouses was not resident in India.
DOMICILE CONFERS JURISDICTION
In another perspective, the Supreme Court in Sondur Gopal’s case 2013 (7) SCC 426, has whilst interpreting the extra territorial application of the HMA, authoritatively held that where both parties are Hindu 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. It has been settled that the extra territorial application of the HMA is linked to Hindus domiciled in India under the scheme of the HMA and hence provisions of HMA will apply to them.
IRRETRIEVABLE BREAKDOWN
The Apex Court in the case of Vishnu Dutt Sharma JT 2009 (7) SC 5, and in Neelam Kumar AIR 2011 SC 193, have held that since irretrievable breakdown of marriage is not a ground for divorce recognised by statutory law, no marriage can be dissolved on this ground under the HMA and it is for Parliament to enact or amend the law on the subject. Therefore, any foreign court matrimonial decree dissolving a Hindu marriage on the breakdown principle does not find recognition in India. Consequently, whenever any such foreign divorce decree is thrust before a Indian matrimonial court in an attempt to avoid a matrimonial litigation of a divorce petition preferred by the local spouse on conventional fault grounds under HMA, the lack of maintainability has to be tested on judicial principles settled by the Apex Court. Invariably, attempts to avoid divorce trials in India on the basis of a foreign matrimonial decree do not find favour. Parties may be directed to file pleadings and establish facts by leading evidence upon issues being framed by the Indian Court. The crisis only perpetuates the misery of parties who can no longer live together.
A POSSIBLE RESOLUTION
With the influx of foreign matrimonial judgments being thrust before Indian Courts by a 30 million NRI population in 180 countries abroad, Parliament in its wisdom could well consider enacting a simplified irretrievable breakdown ground hedged with safeguards if one or both parties are resident abroad. Shifting the adjudicatory forum on Indian soil will aid and assist spouses to peacefully bury the hatchet on a equitable settlement fair to both parties on home turf without putting parties to expensive litigation abroad. This would also resolve the application of personal law issues being adjudicated by competent courts in India without a conflict of jurisdictions. Overseas spouses upon being offered a breakdown ground would prefer Indian matrimonial courts to settle issues so that parties are not in collision with law and domestic judgments so obtained would assume finality to conclusively settle aggravated matrimonial disputes without acrimony. If both spouses unanimously wish to terminate a matrimonial union, the breakdown principle in any case finds application even in divorces by mutual consent under the HMA. Therefore, landing credibility to irretrievable breakdown with legislative inputs will only define a recognised principle ingrained in the thought of dissolving a broken union. However, considering domestic conditions and to prevent spouses on Indian soil from being treated unfairly, issues relating to custody of children, maintenance and settlement of matrimonial property must be conclusively settled simultaneously. Friendly and speedy resolution of warring marital differences ought to be redressed by expeditiously setting up Family Courts under the Family Courts Act, 1984. A friendly law and a congenial atmosphere to resolve marital relationships gone sour is the epitome of any civilised set up. Peace at home brings happiness and stability. No sooner is this done, spouses will stop importing and imposing foreign matrimonial decrees against hapless partners pitted on Indian soil on uncomfortable terrain. A time has come to change for the better by incorporating what Courts offer abroad.
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