MATRIMONIAL JURISDICTION OF HINDU MARRIAGES IN INDIA BY ANIL AND ANKIT MALHOTRA

MATRIMONIAL JURISDICTION OF HINDU MARRIAGES IN INDIA

BY ANIL* AND ANKIT MALHOTRA **

INTRODUCTION

The legal landscape surrounding matrimonial disputes involving foreign nationals and parallel divorce proceedings abroad poses complex challenges in Indian Courts. The Hindu Marriage Act, 1955 (HMA), which governs matrimonial issues among Hindus in India, includes provisions that impact foreign nationals and non-resident Indians (NRIs) when divorce or ancillary proceedings occur in multiple jurisdictions. This article delves into remedies available to foreign nationals in such scenarios, focusing on jurisdictional issues, applicability of Indian matrimonial laws, and how Indian Courts address parallel divorce proceedings initiated abroad. A significant point of contention in such cases arises from the conflict of jurisdictions, particularly when divorce or ancillary relief is sought in both Indian and foreign Courts. The challenge lies in determining the jurisdiction of Indian Courts over Hindus domiciled outside India under the Hindu Marriage Act, 1955 and the Code of Civil Procedure (CPC), 1908. The extra-territorial application of the HMA, especially Sections 1 and 19, is central to this inquiry, addressing issues of domicile and residence as preconditions for invoking the Indian matrimonial law.

APPLICATION OF THE HINDU MARRIAGE ACT, 1955

Under Section 2 of the HMA, Hindu law applies to the following three categories:

(1) any person who is a Hindu, Jain, Sikh or Buddhist by religion;

(2) any person who is born to Hindu parents; and

(3) any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian Parsi, or Jew.

The jurisdiction for presenting petitions under the HMA is outlined in Section 19 of HMA, which specifies that petitions may be presented to the district Court within whose local jurisdiction the marriage was solemnised, where the respondent resides, where the parties last resided together, or where the petitioner is residing, if the respondent resides outside the territories governed by the HMA. Procedurally, Section 21 of the HMA mandates that all proceedings under the HMA be regulated by the CPC, subject to any specific provisions of the HMA or rules made by the High Court thereunder. Finally, Section 28A of the HMA deals with the enforcement of decrees and orders, ensuring that all decrees and orders made by the Court under the HMA are enforced in the same manner as those made in exercise of the Court's original civil jurisdiction.

STATUTORY PROVISIONS UNDER THE CODE OF CIVIL PROCEDURE, 1908

To understand the jurisdictional framework governing civil suits and the enforceability of foreign judgments within India, it is essential to consider the relevant statutory provisions laid out in the Code of Civil Procedure, 1908. Specifically, Sections 9, 13, and 14 of the CPC provide critical guidelines concerning the jurisdiction of civil Courts and the conditions under which foreign judgments are deemed conclusive in India. Section 9 of the CPC establishes the fundamental principle that civil Courts have jurisdiction to try all suits of a civil nature unless expressly or impliedly barred. This section underscores the broad jurisdiction of civil Courts, allowing them to adjudicate disputes involving property rights or claims to office, even if such disputes are intertwined with questions of religious rites or ceremonies. This section's explanations further clarify that the nature of the right in question, whether it involves property, office, or ceremonial rites, falls within the purview of civil Courts, irrespective of any associated fees or specific locations tied to the office.

Section 13 of the CPC delineates the circumstances under which a foreign judgment is not considered conclusive in India. This section is vital for determining whether a foreign judgment can be recognised and enforced within Indian Courts. A foreign judgment may be disregarded if it fails to meet specific criteria, such as being pronounced by a Court of competent jurisdiction, being decided on the merits of the case, or being consistent with international law and Indian law. Additionally, a foreign judgment will not be conclusive if it violates the principles of natural justice, is obtained through fraud, or supports a claim that breaches Indian law. Complementing Section 13, Section 14 of the CPC introduces a presumption in favour of the competence of foreign judgments. Upon presenting a certified copy of a foreign judgment, the Indian Court presumes that the judgment was pronounced by a Court of competent jurisdiction, unless evidence to the contrary is provided. However, this presumption is rebuttable, allowing the Court to reject the judgment if jurisdictional flaws are proven.

When these provisions are read in conjunction with Sections 9 and 21 of the CPC, along with Sections 3(d) and 19 of the HMA, it becomes evident that the civil Court, specifically the District Court under the HMA or a Family Court constituted under the Family Courts Act,1984 (FCA), located within the jurisdiction where the marriage was solemnised, holds the competence to dissolve the marriage under the HMA. This legal framework ensures that civil Courts have the necessary jurisdiction to adjudicate matrimonial disputes and that foreign judgments affecting such disputes are scrutinised for compliance with Indian legal standards before being recognised or enforced.

SUMMARY AND ANALYSIS OF JURISDICTION

Section 19(iii-a) of the HMA allows the wife, as the petitioner, to institute a petition for divorce in the District Court within the local limits of whose ordinary civil jurisdiction the wife is residing on the date of the presentation of the petition. This provision was specifically introduced in 2003 to provide an additional advantage to women, allowing them to institute divorce petitions at the place where they were residing on the date of presentation of the petition. However, this provision has been liberally interpreted by Courts in India to extend the concept of residing in India to mean domicile in India. Hence, if a wife retains a domicile in India, the District Court where she is domiciled, can entertain a petition for divorce in India. Therefore, actual physical residence on the date of presentation of the petition to a District Court in India can be read down to mean domiciled within the local limits of the District Court where the wife is domiciled.

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.

APPLICABILITY OF THE HINDU MARRIAGE ACT, 1955 TO HINDUS DOMICILED OUTSIDE INDIA

From a reading of the above provisions of the HMA, and the fact that both spouses are Hindus by religion, were married in India according to Hindu rites and ceremonies in 1999, and had subsequently registered their marriage in India under the HMA, it is abundantly clear that the provisions of the HMA govern their marriage. For the purposes of marriage and divorce, the provisions of the HMA apply to all Hindus, irrespective of their foreign domicile, overseas residence, and/or foreign nationality, once it is established that the parties have been married in accordance with the requirements of the HMA. This proposition of law is supported by various judgments/precedents from different Courts in India, which have consistently opined on this proposition in the following terms.

The landmark judgment of the Supreme Court of India in Y Narsimha Rao and Others v. Y Venkata Lakshmi and Another[1], held in paragraph 17 that “the marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law”. 

The Supreme Court in Sondur Gopal v. Sondur Rajini[2], affirming the High Court decision, held that were both the parties are Hindu by religion, and have a permanent domicile in India, a matrimonial cause of action would be maintainable in India, even if spouses resides outside India. Three clear conclusions can be culled out from the exhaustive judgment which is a clear pronouncement of the rights of parties:

     I.        Firstly, in the view of the Court, in a matrimonial dispute in a petition before the Indian Courts, the domicile is to be determined based on the date when the parties tied the nuptial knot under the HMA and not on the subsequent date when an application is made in Court for matrimonial reliefs. Therefore, if parties were domiciled in India on the date of their marriage, the jurisdiction of the Indian Court cannot be taken away if, after marriage, an NRI spouse has acquired a foreign domicile.

   II.        Secondly, the Court has held that merely because a person has acquired citizenship of some other country does not necessarily mean that he has abandoned the domicile of India, which is the domicile of his origin. The Court has thus held that an Indian by retaining his domicile in India may acquire citizenship of some other foreign country.

  III.        Thirdly, the Court pronounced that if the Indian domicile of origin is displaced as a result of the acquisition of a foreign domicile of choice, the domicile of Indian origin remains in the background, ever ready to revive and fasten the moment the foreign domicile of choice is abandoned by the NRI. Hence, in the facts of the case, the Court ruled that no Australian domicile was acquired upon abandoning the Swedish domicile as the domicile of India was revived immediately upon abandoning the Swedish citizenship.

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.

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.

*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.co.in

[1] 1991(2) Hindu Law Reporter (SC) 154: 1991(3) SCC 451.

[2] (2013) 7 SCC 426.