SYMBIOSIS PUNE LECTURES TITLED "WITHERING INDIAN MARRIAGE STRUCTURE," & "HINDU LAW APPLICATION TO OVERSEAS CITIZENS," BY ANIL MALHOTRA AND ANKIT MALHOTRA.
- anilmalhotra1960
- Oct 6
- 12 min read
WITHERING INDIAN MARRIAGE STRUCTURE
BY
ANIL MALHOTRA* AND ANKIT MALHOTRA**
EXISTING DIVORCE LAW IN INDIA.
Fault Grounds
Indian Hindu personal law marriages said to be made in heaven, solemnized on Indian soil being in the nature of a sacrament find an uphill road if sought to be broken on earth and dissolved on principles of irretrievable breakdown of marriage in foreign jurisdictions. This is so because divorce on fault grounds before competent Courts in India under personal law of parties do not permit irretrievable breakdown as a ground for divorce in India. Consequently, such marriages dissolved abroad create an anomalous situation. Thus, parties are divorced abroad but continue to be treated as married in India. These marriages are called as limping marriages, as was held in Satya vs Teja Singh[1].
Mutual Consent Divorce
Divorce by mutual consent in India requires both spouses to jointly file the petition in the Court and maintain the unanimous decision to part for at least six months from the date of first hearing before the competent Court. In Amardeep Singh Vs. Harveen Kaur,[2] the Supreme Court held that where the Court dealing with the matter is satisfied, the statutory period of one year separation of parties before filing the petition and the second statutory period of six months waiting before filing the second motion can be waived if all efforts of mediation/conciliation have failed and parties have genuinely settled their differences including alimony besides child custody issues. It was held that this is a discretionary relief as the waiting period is not mandatory but directory and the waiting period ought not to prolong the agony of the parties, but Article 142 of the Constitution of India should not be exercised contrary to the statutory provisions to dissolve marriages. However, in 2023, in Shilpa Sailesh Vs. Varun Sreenivasan[3], a Constitution Bench of the Supreme Court has examined and confirmed the jurisdiction of the Apex Court under Article 142 of the Constitution to dissolve a marriage between consenting parties directly in Supreme Court “to do complete justice”, without referring them to the Family Court, to wait for the mandatory period prescribed under Section 13-B, Hindu Marriage Act, 1955 (HMA).
Irretrievable Breakdown
However, when a traditional marriage of a Global Indian breaks up overseas, the anxiety to dissolve it expeditiously is preferred to be done in the foreign matrimonial home of the spouses. 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 HMA. The Apex Court in its celebrated decision in Y. Narashimha Rao v. Y. Venketa[4] 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 v. Jayant[5] case 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.
Extraterritorial application of Hindu Law.
In another perspective, the Supreme Court in Sondur v. Sondur[6] case, 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.
Supreme Court dissolving by irretrievable breakdown.
In Sivasankaran v. Santhimeenal,[7] the Supreme Court held that “living together is not a compulsory exercise” when a couple had not lived together for a single in 20 years of their marriage and used its powers under Article 142 of the Constitution to note that divorce was “inevitable” to do complete justice to the parties. In earlier decisions in R. Srinivas Vs. R. Shametha [8] case and in Munish Kakkar v. Nidhi Kakkar[9], the Supreme Court dissolved marriage under Article 142 to grant divorce to litigating parties. Earlier, the Apex Court in the case of Vishnu Dutt Sharma v. Manju Sharma,[10] and in Neelam Kumar v. Dayarani[11], had 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. However, now in Shilpa Sailesh (supra) a 5 Judge Constitution Bench of the Supreme Court, the Supreme Court has now held that it has the discretion to grant divorce under Article 142 of the Constitution when there is complete an irretrievable breakdown of marriage to do complete justice to the parties. In 2025, recently, in Pradeep Bhardwaj v. Priya [2025] 7 S.C.R. 534 2025 INSC 852 and A. Ranjithkumar v. E. Kavitha 2025 INSC 978, the Supreme Court recognising defunct marriages with no possibility of reconciliation & complete cessation of cohabitation, invoked Article 142 of Constitution to dissolve marriages having irretrievably broken down.
No recognition of Foreign Court irretrievable breakdown.
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 an 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.
Need for incorporating irretrievable breakdown in Hindu law.
With the influx of foreign matrimonial judgments being thrust before Indian Courts by a 34 million NRI population in 208 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 an 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. Once India adapts to international practices of incorporating irretrievable breakdown as a ground for divorce under Indian statutory law, then further options can be explored for accession to International Convention for recognition of divorce decrees and settlement of ancillary disputes. This further demonstrates that all International Conventions in the realm of international private law have a pivotal role in improving family relations and the betterment of the welfare of the families and securing the best interest of the children.
Road map for the future.
Alternative Options in existing personal law marriages.
· Live Apart Together (LAT) (in existing Marriages).
· Relationships in nature of Marriage (Live ins without marriage).
· Pre-nuptial agreements (At the time of or before marriage).
· Divorce Consent Agreements (Implementing Foreign Divorces).
· Irretrievable Breakdown of Marriage under Article 142 of Constitution by Supreme Court (Dissolving Broken Marriages and need for amendment of Family laws in India to incorporate irretrievable breakdown as a ground for divorce in HMA/SMA).
· Alienation of Affection as a tort for remedy in a Civil Suit.
*IAFL Fellow, Managing Partner, Malhotra & Malhotra Associates, India.
Email: anilmalhotra1960@gmail.com, Website: https://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] AIR 1975 SC 105
[2] AIR 2017 SC 4417
[3] 2023 (3) RCR (C) 107
[4] 1991 (3) SCC 451
[5] (1994) SCC 6 461
[6] 2013 (7) SCC 426
[7] 2021 All SCR 2007
[8] 2019 (9) SCC 409
[9] AIR 2020 SC 111
[10] JT 2009 (7) SC 5
[11] AIR 2011 SC 193
HINDU LAW APPLICATION TO OVERSEAS CITIZENS
BY ANIL MALHOTRA*, ADVOCATE, IAFL FELLOW &
ANKIT MALHOTRA**, ADVOCATE, LLM (LONDON), FELIX SCHOLAR
APPLICATION
If parties are Hindus by religion and they profess Hinduism, Hindu Marriage Act (HMA) i.e. their personal law is applicable to them even whilst they are residing in any country abroad, as also regardless of their nationality or current domicile/residence in any foreign jurisdiction. Hindu Law is applicable to Hindus irrespective of their current nationality, overseas residence or temporary domicile in any other foreign country. HMA is a personal law applicable to all Hindus irrespective of their present place of stay in a foreign jurisdiction. HMA has extra territorial application and applies to Hindus living outside India. There is no mandatory requirement under HMA that HMA applies only to Hindus who are living in India. Thus, those who are Hindus by religion and profess Hinduism, will be governed by Hindu Law irrespectively of their present nationality or current domicile.
EXTRA TERRITORIAL EFFECTS
· HMA has extra-territorial application, as it applies to Hindus domiciled outside India. It applies to Hindus irrespective of any foreign nationality or residence. Domicile does not bar maintainability of a petition under HMA in India. No statutory bar of jurisdiction is imposed by HMA to maintainability of petitions for divorce by non-resident Hindus under HMA filed in accordance with Section 19 HMA determining jurisdiction. No such adjudication is possible to reject a divorce petition as a preliminary objection without filing reply on merits, issues being framed on pleadings of parties and evidence being led by respective persons concerned.
· HMA, as a personal law governing Hindus, applies to Hindus even when they are residing in foreign jurisdictions. The applicability of HMA is not confined to Hindus residing within the territorial boundaries of India; rather, it extends to Hindus domiciled outside India. This extra-territorial application underscores that HMA governs all Hindus irrespective of their place of residence, provided they are adherents of the Hindu religion. No stipulation within HMA limits its applicability solely to Hindus living within India. Consequently, Hindus by religion, are bound by the provisions of Hindu law as codified in HMA, irrespective of their current nationality or residence abroad.
DISSOLUTION UNDER HINDU LAW
· A Hindu marriage solemnised under HMA, in or outside India and irrespective of current domicile of Hindus outside India, can be dissolved only under HMA i.e. personal law applicable to Hindus and under which they were married in India. Marriages solemnised under HMA can only be dissolved under HMA. However, under HMA, Hindus have the option of seeking contested divorce proceedings under Section 13 HMA on fault grounds set down in Section 13 HMA, for which either spouse can initiate divorce proceedings in India. No advance intimation, consent or prior notice is required to be given for seeking divorce on fault-based grounds.
· Hindus have also the option of arriving at a mutual settlement for divorce by mutual consent under HMA by presenting a joint petition to the District Court in terms of the provisions of HMA. A written mutual settlement can be placed before the District Court in India to record their terms of mutual consent of divorce in India. Such petition is to be presented jointly by both the Hindus by mutual consent.
· All decrees and orders made by the District Court in India under HMA shall be enforced as decrees and orders passed by the District Court in exercise of its original civil jurisdiction for being enforced in India.
· Any pendency or initiation, prior or subsequent of any divorce proceedings in any foreign jurisdiction whatsoever to dissolve a Hindu marriage solemnised in India would have no effect on or in any independent divorce proceedings initiated or pending in India under HMA. Only a court of competent jurisdiction under HMA in India will separately adjudicate the divorce petition regardless of any prior or subsequent petition in any foreign jurisdiction. Further, any decree of divorce passed by any Court in any foreign jurisdiction on the ground of irretrievable breakdown of marriage to dissolve a Hindu marriage solemnised in India under HMA, will not be valid or recognised in India as this ground is not available statutory ground for divorce under Hindu law, because of which such foreign court decrees are not recognised under Section 13 of The Indian Code of Civil Procedure.
JURISDICTION OF INDIAN COURTS
· In a matrimonial dispute in a petition before the Indian Courts, the domicile is to be determined on the basis of when and where Hindus tied the nuptial knot under the Hindu Marriage Act and not on the subsequent date when an application is made in Court for matrimonial reliefs. Therefore, if Hindus were domiciled in India on the date of their marriage, the jurisdiction of the Indian Court cannot be taken away if after marriage a Non-Resident Indian (NRI) spouse has acquired a foreign domicile.
· 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. An Indian by retaining his domicile in India may acquire citizenship of some other foreign country.
· The Indian domicile of origin is not 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 Non Resident Indian.
OBJECTIONS ON JURISDICTION OF INDIAN COURTS
· Acquiring permanent residency in foreign territories does not equate to acquiring permanent domicile, which is a crucial factor in determining jurisdiction under HMA. As a general principle, it can be stated that absence of a matrimonial home in a foreign territory, coupled with lack of cohabitation between Hindus in that jurisdiction, will further reinforce conclusion that their permanent domicile remains in India. Consequently, domicile cannot serve as a basis to exclude the jurisdiction of Indian courts under HMA, particularly when it explicitly mandates its application to Hindus domiciled outside India, as per Section 1(2) HMA. In addition, HMA does not impose any statutory bar on maintainability of petitions filed by non-resident Hindus seeking divorce under HMA. Jurisdictional provisions of HMA, particularly Section 19, dictate that petitions for divorce may be filed in District Courts within local limits where marriage was solemnized, where respondent resides, or where Hindus last resided together.
KEY CONCLUSIONS
· Absence of any statutory prohibition within HMA against petitions filed by non-resident Hindus affirms that such petitions are maintainable. Any objections to jurisdiction on the grounds of domicile should not be summarily adjudicated without the proper legal process, including the framing of issues and the presentation of evidence by the Hindu parties. A spouse’s attempt to challenge jurisdiction of Indian Courts without it having framed any issues, is procedurally premature and cannot be resolved as a preliminary legal objection.
· Furthermore, matters of matrimonial cruelty and differences between parties are factual issues that must be examined on their merits within the framework of HMA. Competence of HMA as governing legislation provides appropriate forum in India for adjudicating such matters. Any spouse concerned by appearing before Indian Courts and seeking time to file a written statement on merits, has effectively submitted to jurisdiction of Indian courts. This conduct legally estops a spouse from subsequently contesting court’s jurisdiction without addressing merits of case. Unconditional appearance of a spouse before a Family Court on multiple occasions further solidifies spouses acquiescence to court’s authority.
· If marriage has been performed in accordance with Hindu religious rites and ceremonies, it can be registered with Registrar of Marriages. If marriage is solemnized and registered under HMA, any dissolution of marriage must also occur under same law, regardless of Hindu parties domicile outside India. Under HMA, Hindus have the option to seek a contested divorce under Section 13 on fault-based grounds or to pursue a mutual consent divorce by filing a joint petition under Section 13-B. These provisions allow either spouse to initiate divorce proceedings in India without the need for prior notice or consent from the other party. The law also permits the Hindu parties to present a written mutual settlement to the District/Family Court in India for recording terms of their mutual consent divorce. Furthermore, any decrees or orders issued by District/Family Courts in India under HMA are enforceable in same manner as those issued by courts in its original civil jurisdiction. This ensures that legal decisions made by Indian courts in matrimonial matters are fully executable within the country.
· Any ongoing or future divorce proceedings initiated in foreign territories to dissolve a Hindu marriage solemnized in India will not impact independent proceedings initiated or pending in India under HMA. Jurisdiction of Indian courts under HMA remains intact, and any foreign divorce decrees based on grounds not recognized under Hindu law, such as irretrievable breakdown of marriage, will not be valid or recognized in India. This is in accordance with Section 13 of Indian Code of Civil Procedure (CPC), which governs recognition of foreign judgments in India.Top of Form Parties if Hindus by religion are governed by HMA in matters concerning their marriage and divorce. HMA, as their law, applies to them regardless of their current domicile in foreign territories, underscoring its extra-territorial application.
· Section 21 of HMA, which applies provisions of CPC to proceedings under HMA, divorce petitions in Family Courts in India will be fully maintainable. Section 9 of CPC further reinforces statutory jurisdiction of Family Courts in India to adjudicate divorce petitions involving Hindus parties. There is no legal bar or deficiency in inherent jurisdiction of Indian Family Courts to do so.
ADVOCATE, ANIL MALHOTRA, IAFL FELLOW, L.L.M. (LONDON)*
Secretary, IAFL International Child Relocation Committee.
E-mail: anilmalhotra1960@gmail.com
Website: https://www.anilmalhotra.co.in
ANKIT MALHOTRA, ADVOCATE, L.L.M (LONDON), FELIX SCHOLAR**E-mail: ankitmalhotra97@gmail.com
Website: https://www.ankitmalhotra.co.in/
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