CHAPTERISATION CHAPTERISATION CHAPTER – 1 $INTRODUCTORY% CHAPTER – 1 $INTRODUCTORY% IntroductionIntroduction
Meaning of ‘Marriage’Meaning of ‘Marriage’ CHAPTER – ! $MARRIAGE% CHAPTER – ! $MARRIAGE%
Formal validity of marriage – position in England and other countriesFormal validity of marriage – position in England and other countries
Essential validity of marriage / capacity to marryEssential validity of marriage / capacity to marry
Choice of Law ruleChoice of Law rule
CHAPTER – " $NRI MARRIAGES% CHAPTER – " $NRI MARRIAGES%
Concept of on!"esident Indian Marriages and legal issuesConcept of on!"esident Indian Marriages and legal issues
#pplication of marriage #cts in on! "esident Indian Marriages#pplication of marriage #cts in on! "esident Indian Marriages
$a$alidity of on! lidity of on! "esident Indian Marriag"esident Indian Marriageses
Indian courts %cenario and International lawIndian courts %cenario and International law CHAPTER – #
CHAPTER – # $JURISDICT$JURISDICTION%ION%
&ivorce and 'udicial separation&ivorce and 'udicial separation
ullity of Marriage ullity of Marriage
"ecognition of foreign &ivorces"ecognition of foreign &ivorces CHAPTER – 5 $CONCLUSION% CHAPTER – 5 $CONCLUSION%
CASES REFERRED
() #*dur "ahim +ndre v) ,adma #*dur "ahim- #I" (.0- 1om) 23( 0) #nil 4umar Mahsi v) +nion of India- 5(..67 ( %C8 .9!.3)
2) 1erthiaume v) &astous :(.29; #C <.-3) 1roo= v) 1roo= 5(>(7- . ?)L)C) (.2 6) Cristofaro v) Cristofaro 5(.37 $L" (>2 >) Davison v. Sweeney 509967 066 &)L)") <) De Reneville v. De Reneville, :5(.37 , (99; ) Hyde v. Hyde- 5(>>7 L" ( , @ & (29
.) 8acintha 4amath v) ,admana*ha 4)- #I" (..0 4ant 2<0) 20 (9) La=shmi %anyal v) %)4) &har- #I" (.<0 Aoa 0>><)
(() Lawrence v. Lawrence :(.6; ( #ll E" 69>) (0) Le Mesurier v. Le Mesurier, :(.6; #)C) 6(< (2) Levett v. Levett and Smith :(.6<;
(3) Madhu*ala v) 8agdish Chandera- 5(.<7 3- #ll L" 36<) (6) Mariamonia ,) v ,admana*ham- #I" 099( Mad) 269) (>) Marian Eva v) %tate of ?),)- #I" (..2 ?, <
(<) Mrs) #noop 1eniwal vs) &r) 8ag*ir %ingh 1eniwalB #I"(..9 &elhi296 () ,rem %ingh v) &ulari 1ai- #I" (.<2 Cal 626
(.) "amesh 4umar ,) v) %ecretary- 4annapuram Aram ,anchayat- #I" (.. 4er .6) 09) %an'ay Mishra v) Eveline 8oe- #I" (..2 M, 63)
0() %arla Mudgal- ,resident 4alyani v) +nion of India- #I" (..6 %C (62( 00) %atya vs) De'a %ingh 5(.<67(%CC(09
02) %haw v) Aould- (1868) H.L. !!
03) %ottomayor- otherwise &e 1arros v) &e 1arros- 5(<<7 2 ,& ( 06) $inaya air v) Corporation of 4ochi- #I" 099> 4er)0<6)
0>) $ishwanathan v) #*dul a'id- #I" (.>2 %C (6 0<) ay v) ay :(.3.; #ll E" .6.)
RESEARCH PROBLEM:
Dhis paper aims to ma=e an ela*orate study on the determination as to the legal recognition given to the marriage held or solemniGed in other countries *etween either Indian citiGen and other national or *etween Indian citiGens or *etween foreign nationals whose validity is challenged *etween Indian courts)
HYPOTHESIS:
Dhe marriage held in foreign countries is recogniGed *y the Indian courts) LIMITATION
Dhis research is done relying mostly on articles and essays pu*lished *y authors online and few on *oo=s written on the concept of marriage- its validity in case of cross *order issues- its relevance under English law and Indian Law) Dhough such *oo=s are
referred they do not contri*ute to the *ul= of the research and my research is mostly confined with the online sources) Dhe area of research is only restrained to the concept of marriage and enforcement of same under ,rivate International Law)
REVIEW OF LITERATURE
Dhe eHisting literature on this research wor= mainly revolves around the pu*lished wor=s of foreign as well as Indian authors pertaining to the su*'ect matter- well decided cases cited in Indian 8ournals and cases cited from other countries and the articles pu*lished in we*sites)
RESEARCH METHODOLOGY
Dhe research methodology adopted for the purpose of this pro'ect is the doctrinal method of research) Dhe various li*rary and internet facilities availa*le for %aveetha %chool of law has *een utiliGed for this purpose) Most of the information is- however- from the internet)
VALIDITY OF FOREIGN MARRIAGES BEFORE INDIAN COURTS – A STUDY
CHAPTER 1 INTRODUCTION:
Marriage is the very foundation of the civil society- and no part of the laws and institutions of a country can *e of more vital importance to its su*'ect than those which regulate the manner and condition of forming- and if necessary of dissolving- the marriage contract)J Dhe formal reKuirement of the marriage will *e governed *y the law of the country where the marriage is cele*rated) # marriage can *e cele*rated if the parties meet the su*stantive reKuirement of the domestic law of the country where the marriage is cele*rated- and one of the parties is a national of that state- or ha*itually resides thereB and each party satisfies the su*stantive reKuirements of the law applica*le to the parties in accordance with the conflict of law rules of the place where the marriage is cele*rated) Dhis article *asically focuses on the marriage as a contract which is sui generis along with the opinion of various 8udges though the 'udgments in different cases) ?owever it also tal=s a*out the position- legal formalities along with the validity and capacity of the parties to marriage and the choice of law rules governing such marriages in England and other common law countries though out the world) n the other hand the focus on the matrimonial causes li=e polygamous marriagesB divorce- 'udicial separation- nullity of marriage in different countries has also *een made) Dowards the end of the article it tal=s a*out the 'urisdiction and the choice of law for solving such causes after marriage and the recognition of foreign divorces in other countries) Dhe conclusion part tries to give an overall view along with the present scenario on the su*'ect)
MARRIAGE:
Dhe dictum in S&'( ). G*+,-1 states marriage as Marriage is the very foundation of the civil society- and no part of the laws and institutions of a country can *e of more vital importance to its su*'ect than those which regulate the manner and condition of forming- and if necessary of dissolving- the marriage contract)J In English law- a marriage though a contract- is a contract sui generis) Each legal system determines the attri*utes of a marriageB at Common Law in England- it is in essence a consensual union of a man and a woman) A
marriage was a voluntary union for life of one man with one woman to the exclusion of others2) Dhis decision was the foundation of the rule that polygamous marriages were not recogniGed in England *ut the situation has *een changed and such marriages are now recogniGed in England)
M'// *2 M'33'
Marriage is a contract *y which a man and a woman eHpress their consent to create the relationship of hus*and and wife) Dhis contract- however- differs fundamentally from a commercial contract in the following ways
#s a general rule- it can only *e concluded *y a formal pu*lic act)
It can only *e dissolved *y a formal pu*lic act)
More importantly- it creates a status which is ta=en into account in relation to- for eHample- succession- taH- legitimacy of children- and to some eHtent in relation to immigration laws2)
#ccording to Domlin’s &ictionary- Marriage is a civil and religious contract- where*y a man is 'oined and united to a women- for the purpose of civiliGed societyJ3)
Each legal system determines the attri*utes of a marriage in a different way) English law considers marriage as a contract- whereas in India- among ?indus marriage has always *een regarded as sacrament- whilst in Mohammedan Law- it is a contract) ?ence the perception of marriage differs from different legal entity- the practice of religion etc) as the case may *e)
2 See Hyde v. Hyde, (1866) LR 1 P & D 130
3 See Ces!"e & #o"t, rivate *nternational Law, t!"teent e$n, %. 741. 4 See S.R.Myneni, rivate *nternational Law, first edn- p)069)
CHAPTER – !
C*/-4*/ 2*3 V',-46 *2 M'33':
Dwo conditions are to *e fulfilled to constitute validity of marriage
() ,arties to Marriage should have the capacity to marry- which in ,rivate International Law called as the Kuestion of essential or material validity)
0) ,arties to Marriage must have performed necessary rites and ceremonies- which in ,rivate International Law called as the Kuestion of Formal $alidity)
Dhe a*ove two conditions should *e fulfilled for the marriage to *e valid)
In De Renville v. De Renville5- the hon’*le court laid down conditions for conferment of status of marriage as
() Dhat the marriage conforms in its essentials with the law of each party’s domicile at the time of marriageB and
0) Dhat it has *een performed in accordance with the formal reKuirements of the law of the place where the ceremony ta=es place- generally called LeH loci cele*rationis) E/4', )',-46 *2 7'33' 8 ''46 4* 7'336:
Essential validity involves three elements
() #n agreement- which may *e affected *y mista=e- duress- undue influence or fraudB 0) Capacity to marry in the narrow sense 5herein called capacity7- i)e)- legal a*ility to
marry at allB and
2) Freedom from legal prohi*itions of the particular intermarriage 5herein called prohi*itions7>)
C''46 4* M'336
Essential validity covers all Kuestions of validity other than formal validity) Capacity to marry is a category within essential validity) Capacity to marry ought strictly to *e confined to rules which lay down that a particular class of person lac=s a power to marry which other people possess 5for instance- rule that a person *elow a certain age may not marry7) In
practice-5 :5(.37 , (99;
6 CFLICD F L#%!E%%EDI#L $#LI&ID F M#""I#AE- 1y Aeoffery %awer-LL)M)-1arrister at law)- senior lecturer in law at the +niversity of Mel*ourne)
however- capacity to marry also includes cases where the reason for the invalidity- is that such a marriage relationship is o*'ectiona*le in the eyes of law 5for instance- rules prohi*ited marriages *etween relatives of certain degrees7) Capacity to marry does not- however- cover the whole field of essential validityB it does not include the consent of the parties or the non! consummation of the marriage)
Dhere is general agreement that this terminology includes matters of legal capacity such as consanguinity and affinity- *igamy and lac= of age) Consideration is given later to a law to govern matters of consent and physical incapacity) Dhe fact that capacity as a term encompasses a wide range of matters does not necessitate the conclusion that all matters of capacity should *e su*'ect to the same choice of law rule! a matter to which we shall return) # further preliminary point which ought to *e *orne in mind is that- provided that a person has capacity under the relevant law- the fact that he is- for eHample- under age according to English law will not invalidate the marriage in the eyes of English law as the law of the forum at least if the marriage is not in England)
Dhere are two main views as to the law which should govern capacity to marry!
Dhe dual domicile doctrine- and
Dhe intended matrimonial home doctrine) C*//4 *2 P'34
Dhe rule states that no marriage is valid if *y the law of either party’s domicile he or she does not consent to marry the other <) Dhere appears to *e no specific authority in England on the su*'ect though o*servation *y the Court of #ppeal- in a case where the issue was whether a marriage *y proHy was valid- o*served that the mode of giving consent- as opposed to the fact of consent would *e governed *y the le+ loci celerationis) It was also held that the consent is governed *y the law of the domicile of the parties) Dhe Kuestion that arises is as to which le+ domicilii has to *e considered- of *oth parties- or of the party whose consent is in Kuestion) Dhe consensus seems to *e- though there is no decision on the su*'ect- that is should *e domiciled of the person who is alleged to have lac=ed consent) In Davison v. Sweeney-. it was held that alleged a*sence of consent was a matter for a domicile of the party concerned)
7 a"tle' , -'he olicy asis o/ the 0nlish %on/lict o/ Laws o/ Marriae2 (1972) 35 LR 571. 8 Way v. Way 1949* +ll R 959.
In Canada- consent is regarded as a part of essential validity of a marriage and depends on the ante nuptial domicile of the parties)
T& C&* *2 L'( R+,
Formal validity is governed *y the law of the country where the marriage is cele*rated- that law is not generally thought appropriate in the English conflict of laws to govern the essential validity) Dhis is *ecause the marriage may *e cele*rated in a country which in other respect has no connection with the marriage or the parties) either of the parties may *e domiciled there *efore the ceremony and they may not esta*lish their home there after it) Dhe choice of law rule doctrines are as under
1. D+', D*7, D*43/
#ccording to the dual domicile doctrine rule is that a person’s domicile at the date of the marriage has to *e considered) For marriage to *e valid- each party must have capacity *y the law of his or her domicile to contract the marriage) Dhis rule commands most in English law- has several advantages) In terms of principle- it is appropriate that people *e governed *y the law of their eHisting domicile) Dhe main rationale of this rule is that a person’s status is a matter of pu*lic concern to the country to which he *elongs at the time of marriageB and therefore the domiciliary law of each party has an eKual right to *e heard) #nother advantage of this doctrine is that it is easy to apply in prospective situation)
In B3**; ). B3**; 10- the ?ouse of Lords dealt with the Kuestion of essential validity and held that the marriage of a man to his deceased wife’s sister in &enmar= was invalid *ecause such a marriage was within the prohi*ited degrees of affinity under English
law-the law of law-the parties’ ante!nuptial domiciles- though not under &anish law) GOVERNING MATTERS OF CAPACITY TO MARRY:
C*//4 *2 '34 N*/A
P3*&<4- -3 *2 3,'4*/& !. I/4/-- M'437*/', H*7 D*43/
#n alternative approach is that the law of the intended matrimonial homes governs the essential validity of a marriage)(( Dhis provides a *asic presumption in favour of the law of the country in which the hus*and is domiciled at the date of the marriage) Dhis presumption can *e re*utted if at the time of the marriage the parties intended to esta*lish a matrimonial home in a different country and if they implemented that intention within a reasona*le time)(0
". R', '/- S+<4'/4) C*//4*/
#nother possi*ility is that the essential validity of marriage should *e governed *y the law of the country with which the marriage has its most and real and su*stantial connection) #s with the intended matrimonial home doctrine this rule is trying to connect the marriage with the country to which it *elong) ormally- the country with which a marriage is most closely connected will *e the country where the matrimonial home is situated(2) Further- while the real and su*stantial connection test has its supporters- it is-in reality- a Kuestion! *eggis-ing test) Dhe Kuestion is-in which- choice of law rule will *est lead to the application of the law to which the parties and marriages
*elong ) Dhis test does not answer the Kuestion- *ut rather simply restates the pro*lem)‟ (3
#. V',-46 *2 4&3 P'346= D*7,'36 L'(
+nder this test a marriage would *e regarded as essentially valid if it were valid under either party’s ante nuptial domiciliary law) Dhis proposal has the advantage that it would promote the policy in favour of validity of marriage- *ut has little else to commend it)(6 5. A V'3'<, R+,
In order to determine the most appropriate choice of law rule- one should eHamine why a particular impediment eHists and which law has the most interest in the validity of the
marriage) n this *asis- the modified intended matrimonial home rule proposed a*ove 11 See Ces!"e & #o"t, Private International Law, seent e$n, % 276.
12 Coo/, The Logic and Legal Bases of the Conict of Laws (1942) %448. 13 Lawrence v. Lawrence 1985* 1 +ll R 506.
14 Da!e, The Breaking ! of the "ssential #alidity of Marriage Choice of Law R$les in "nglish Conict of Laws% (1994)
15 a"tle'& 'The Policy Basis of the "nglish Conict of Laws of Marriage% (1972) 35 LR 571.
seems the more appropriate to govern in capa*ilities which are imposed to protect the pu*lic interest of countries- rather than the interest of the parties to the marriage)(>
F*37', )',-46 *2 7'33' – *4*/ / E/,'/- '/- *4&3 *+/43: P*4*/ /
E/,'/-In recent years- the Common Law rules have *een considera*ly varied *y statuteB such changes are not discussed as the statutes would have no application outside England or +nited 4ingdom) # marriage is formally valid when any one of the following conditions as to the form of cele*ration is complied with 5that is to say7(<
i) If the marriage is cele*rated in accordance with the form reKuired or recogniGed as sufficient *y the law of the country where the marriage was cele*rated()
ii) If the marriage was cele*rated in accordance with the English common law in a country where the use of the local form is impossi*le)(.
iii) If the marriage- *etween parties of whom at least one is +nited 4ingdom national is cele*rated outside the Commonwealth in accordance with the provisions of- and the form reKuired *y- the Foreign Marriage #cts- (.0)09
Dhe leading more modern authority in England on the point is Sottomayor, otherwise De arros v. De arros-0( where the Court of #ppeal held that- the law of a country where the marriage is solemniGed must alone decide all Kuestions relating to the ceremony *y which the marriage is alleged to have *een constitutedB *ut- as in other contracts- so in that marriage- personal capacity must depends on the law of the domicileB and if the laws of any country prohi*its its su*'ect within certain degree of consanguinity from contracting marriage- and stamp a marriage *etween persons within the prohi*ited degree as incestuous) In‟
16 ae', To!ics in Choice of Law (1996) %% 37. 17 Rle 67(1) of Coon La Rles.
18 "ule ><5(7 of Common Law "ules)
19b!$,Rle 67(2) 20 I*id-"ule ><567
erthiaume v. Dastous-00 a decision of the ,rivy Council in an appeal from Canada- held that a marriage would *e regarded as valid if the form adopted *y the parties was in conformity with the law of the country where the marriage too= place- even if it was not a proper form of law of the domicile of the parties)
In English Law- two re*utta*le presumptions are drawn presuming the validity of marriage a7 Dhat if the parties go through a ceremony of marriage and live together- they were
validly married)
*7 If the parties coha*it and are reputed to *e married- they regarded as validly marriedB there must- however- *e some evidence that the marriage complied with local form)02
CHAPTER – "
C*/4 *2 N*/R-/4 I/-'/ M'33' '/- ,', +: D2/4*/ *2 N*/R-/4 I/-'/
%ection 0 of Foreign EHchange Management #ct- (... 5FEM#703 defines a person resident in India and a person resident outside India- *ut does not define the term "I) +nder FEM#- a person resident in India is one who resides in India for more than (0 days in the preceding
financial year and who comes or stays in India for any purpose) on!"esident Indian is defined as a person who is not a resident in India) Dherefore- an "I or on!"esident Indian can *e summed up as an Indian citiGen who is ordinarily residing outside India and holds an Indian passport) In other words on!"esident Indian! "IJ means an individual- *eing a citiGen of India or a person of Indian origin who is resident outside India) Marriages *y and/or with on "esident Indians 5"I marriages7 are a class apart in matrimonial law) Aenerally-the main motive for such a marriage is immigration to a foreign land in pursuit of greener pastures) on "esident Indian marriages may *e *etween !
() on!resident female and an Indian male
0) 1oth Indian spouses who later on migrate to a foreign land either together or separately
22 1930* +C 79, % 83.
23 Cristofaro v. Cristofaro (1948) LR 163.
2) 1oth non!resident Indian spouses who marry under Indian marriage laws either in India or in a foreign country
3) #n Indian spouse- male or female- marrying a foreign spouse under Indian marriage laws either in India or in a foreign country
Dhe spouses in the "I marriage- li=e any other Indian ?indu marriage- may *e *etween 5i7 1oth parties *eing from the same caste
5ii7 ,arties may *e from different caste–inter!caste marriage)
5iii7 ne of the parties may *e a non!?indu–interfaith marriage- with or without conversion to mutual faith)
5iv7 ith or without surrendering the overseas citiGenship if married in India or acKuiring or not acKuiring a foreign citiGenship if married a*road)
5v7 %imilarly "I groom or "I *ride who comes to India for marriage with a native spouse may *e a foreign citiGen of a foreign country either *y adoption or *y *irthB a green card holderB on a wor= permit or on a temporary visa or may have
dual citiGenship as an ‘verseas CitiGen of India’
5vi7 Dhese marriages may *e *etween *achelors- remarriage of *oth or of either spouse after divorce or after widowhood
5vii7 1igamous or fraudulent marriage *ased on wrong information regarding 'o*-matrimony- addiction- illness or even criminal record
Even though this is a gender!neutral term- typically the ‘"I marriages’ are considered to *e *etween a woman from India and an Indian man residing in another country 5"I–non! resident Indian7- either as Indian citiGen at the time of marriage 5when he would legally *e an ‘"I’7 or as citiGen of that other country 5when he would legally *e a ,I–,erson of Indian rigin7) ,I means a foreign citiGen who any time held an Indian passportB or he/she or either of his/her parents or grandparents or great grandparents was *orn in India and was permanently resident in India or that he/she is spouse of a Indian citiGen or Indian rigin)
Indians settled a*road- having acKuired foreign citiGenship- get married either to Indian spouses who are (29 themselves citiGens of that country or to foreign spouses) Dhey are-thus- governed *y the local civil marriage laws and generally do not pose any legal pro*lems for Indian Courts)
A,'4*/ *2 7'33' A4 / N*/ R-/4 I/-'/ M'33'
Marriage laws outline the legal reKuirements- which determine the validity of a marriage) Dhe "I marriages may *e solemniGed under either- Dhe ?indu Marriage #ct- (.66- Dhe %pecial Marriage #ct- (.63- Dhe Foreign Marriage #ct- (.>. or any other personal law governing the spouses)
Dhe law under which the parties have married will determine the law that will *e applica*le to the couple) It will also affect their children in respect of rights relating to inheritance and succession- as also the couple’s right to adopt- to *e guardians or to o*tain custody of children) Each of the laws specifies persons who can marry under the provision of that law) Dhe ?indu Marriage #ct- (.66 reKuires that *oth the parties who are getting married must *e ?indus) %o that if a non!?indu wants to marry a ?indu under the ?indu Marriage #ct- (.66- the non!?indu partner will have to get converted to ?induism *efore their marriage can ta=e place) Dhe Muslim law- on the other hand- as applied in India permits a Muslim marriage *etween two Muslims or *etween a Muslim man and a Christian/,arsi woman *ut not a ?indu/1uddhist or %i=h woman) Dhe Christian law of marriage permits a marriage *etween any two Christians or even a Christian and a non!Christian under it)
Dhe marriage under Dhe ?indu Marriage #ct- (.66 can *e solemniGed only *etween two ?indus as defined in %ection 0- who are citiGens of India) Dhis marriage can *e registered under the same #ct under %ection or even under the %pecial Marriage #ct- (.63 under %ection (6 *ut such registration *y itself does not confer on the spouses all the rights guaranteed under the %pecial Marriage #ct- (.63) Dhe %pecial Marriage #ct- (.63 is a secular #ct where religion or caste of the spouses is legally not relevant- as %ection 3 has used the words any two personsJ) Dhis even eHcludes the need of wedding persons to *e Indian CitiGens- so any two foreigners- namely two non!citiGens domiciled in India may have their marriage solemniGed under the %pecial Marriage #ct- (.63)06 Dhe %pecial Marriage #ct- (.63 is in reality an Indian Marriage #ct- which applies to all Indians irrespective of caste- creed or religion) Dhe concept of marriage under this #ct is monogamous- that is union for life-dissolva*le *y 'udicial authority of law only)
Dhe uniKue feature of %pecial Marriage #ct- (.63 is that it avoids the conflict of inter! communal and interreligious laws- which is *ound to arise when parties to marriage *elong to different communities or different religions) Even succession to the property of such persons is also not governed *y their personal law i)e) *y the law of the community to which the party *elongsB it will *e governed *y Indian %uccession #ct- (.06) Dhis is so- even when *oth the parties *elong to the same community) Inter!religious marriages- which give rise to inter! personal conflicts will *e governed *y provisions of this #ct- provided such marriages are performed under this #ct or though solemniGed under any other law *ut are registered under
this #ct) Dhe entire #ct is in the form of a conflict statute in India answering all the issues arising out of conflict situations due to inter!religious marriages)
Dhe Law Commission0> in its 0(0th "eport has recommended that the word %pecialJ *e dropped from the title of the %pecial Marriage #ct- (.63 and it *e simply called Dhe Marriage #ct- (.63J or Dhe Marriage and &ivorce #ct- (.63J) Dhe suggested change will create a desira*le feeling that this is the general law of India on marriage and divorce and that there is nothing specialJ a*out a marriage solemniGed under its provisions) # provision *e added to the application clause in the %pecial Marriage #ct- (.63 that all inter!religious marriages eHcept those within the ?indu- 1uddhist- %i=h and 8ain communities- whether solemniGed or registered under this #ct or not shall *e governed *y this #ct)
In some cases the marriage may even *e under Dhe Foreign Marriage #ct- (.>.- which is 'ust an eHtension of Dhe %pecial Marriage #ct- (.63 eHcept that marriage under this #ct is *etween parties one of whom at least is a citiGen of India *y fulfilling the conditions laid
down in %ection 3 of the #ct) Dhe #ct provides facility for an Indian national t o marry a*road with another Indian national or a national of another country or with a person domiciled in another country) %uch a marriage may have *een solemniGed in India or *efore a marriage officer in a foreign country) Dhis #ct too- li=e other #cts- is a monogamous marriage #ct where *igamy is void and punisha*le under %ection (.)
+nder this #ct- Foreign marriages solemniGed under other laws can also *e registered under %ection (<)
For marriages to *e cele*rated in a foreign country- where at least one of the parties is a citiGen of India- effective and ela*orate provisions have *een made under the Foreign Marriage #ct- (.>.- where parties can proceed to have their marriage solemniGed under the said #ct- the Kuestion of domicile in India would no longer *e relevant)
Considera*le uncertainty as to the law governing foreign marriages @ the application of principles of private international law to such marriages is now removed as a result of this Foreign Marriage #ct- (.>.) Dhis #ct provides that marriages where one of the parties to the marriage is an Indian citiGen and the other party is a non!Indian- would *e governed *y the provisions of the %pecial Marriage #ct- (.63) Dhe courts in this country and in some other
countries may therefore- deal with the provisions of the %pecial Marriage #ct- (.63 while 26 La Co!ss!on of n$!a, 212t Re%o"t on Las of C!!l a""!aes !n n$!a = + P"o%osal to Resole Ce"ta!n Con>!;ts, (?;tobe", 2008).
dealing with dissolution of marriages which are covered *y the Foreign Marriage #ct- (.>.-which is a complete code in itself as it answers all the issues in conflicts)
,arties marrying under their personal law in a foreign country are governed *y the law in force in that country in respect of such marriage for matrimonial relief) ,arties marrying in a foreign country according to the civil law of that country- relief can *e claimed in India under %u*section 5(7 of %ection (- of Foreign Marriage #ct- (.>.- which
lays-%u*'ect to the other provisions contained in this %ection the provisions of Chapter I$- $- $I-and $II of the %pecial Marriage #ct- (.63- shall apply in relation to marriages- solemniGed under this #ct @ to any other marriage solemniGed in a foreign country *etween parties of whom one at least is a citiGen of India as they apply to marriages solemniGed under that #ctJ) In the latter situation- 5i)e) the parties marrying under civil law7 the formal validity of the civil marriage in foreign country will *e governed *y the civil law of that country) For matrimonial relief as envisaged *y %ection ( 5(7- the law of domicile of the parties is applica*le) %ection (< 5>7 of the Foreign Marriage #ct- (.>. *eing a deeming provision- ma=es the provisions of the %pecial Marriage #ct- (.63 applica*le to all marriages performed under the Foreign Marriage #ct- (.>. for purposes of matrimonial relief)
%ection (< 5>7 thus lays- # marriage registered under this %ection shall- as from the date of registration- *e deemed to have *een solemniGed under this #ctJ) In view of the deeming provision found in %ection (< 5>7 of the #ct- registration a*solves the parties of proving that the marriage of the parties was in fact solemniGed under the #ct)0< # marriage solemniGed under 1ritish Marriage #ct- (.3.- *etween a Muslim hus*and and a ?indu wife in (.>> is a foreign marriage within the meaning of Foreign Marriage #ct- (.>.) Dhe marriage is governed *y Chapter I$ of the #ct) Dhe said marriage would *e governed *y the %pecial Marriage #ct- (.63 and not *y the personal law of the hus*and)0
%ometimes on "esident Indians contract civil marriages a*road under foreign laws without solemniGing ceremonial marital customary rites simultaneously either in India or a*road nor register their marriage under any of the Indian marriage laws- such marriages do not come within the am*it of Indian law in any way) ?owever if the couple- in addition ta=e the precaution of solemniGing their marriage under the Foreign Marriage #ct- (.>. in any
27 @$ Desa!, Indian Law of Marriage and Divorce, (Aa$a an$ Co. #a%", 2004).
Indian diplomatic office a*road- such a marriage can come under the 'urisdiction of Indian courts) #lternatively- "I spouses may have to choose either their foreign nationality law or their domicile law a*road to resolve their marital disputes in accordance with such laws)
%ection 0. of ?indu Marriage #ct- (.66 gives statutory recognition to customary marriages and divorces) Dhis aspect is very important as far as a certain category of Indian immigrants are concerned–those men who have migrated a*road from parts of rural India and have su*seKuently remarried after divorcing their Indian wives *y pleading customary divorce) 1efore permanent settlement can *e o*tained *y the Indian immigrant- who has su*seKuently remarried a woman of foreign origin and eHtraction- the immigration authorities will reKuire evidence regarding the legal validity of the customary divorce o*tained in India) ?owever- custom has to *e pleaded and proved that it must *e a regular practice in the community of the parties pleading it) %uch a custom should *e ancient- certain- reasona*le and not opposed to pu*lic policy) Dhe Madras ?igh Court held that customary divorce was recogniGed *oth *efore and after passage of ?indu Marriage #ct- (.66- it is not necessary for the parties in such a case to go to Court to o*tain divorce on grounds recogniGed *y custom)0.
For the application of ?indu Marriage (.66 as well as %pecial Marriage #ct-(.63- the parties must *e domiciled in India at the time of marriage while the Kuestion of domicile is not relevant under Dhe Foreign Marriage #ct- (.>.)
Every ?indu domiciled in India shall *e governed *y the ?indu Marriage #ct- (.66 and those whose marriage has *een solemniGed under the %pecial Marriage #ct- (.63 would *e governed *y the %pecial Marriage #ct- (.63)
Dhe %pecial Marriage #ct- (.63 provides for a civil form of marriage- which can *e availed of *y any one domiciled in India irrespective of the religion- through registration as provided in Chapter II of the %pecial Marriage #ct- (.63- *y fulfilling the conditions laid down in clause 5a7 to 5e7 of %ection 3 of the said #ct) Dhus the ?indus availing of Chapter II of the %pecial Marriage #ct- (.63 i)e) %ections 3 to (3 would *e outside the pale of the ?indu Marriage #ct- (.66) ?aving married under the %pecial Marriage #ct- (.63 they cannot *e heard to complain of the rigors)29
# certificate of registration of marriage under the %pecial Marriage #ct- (.63 operates as conclusive evidence of two facts
29 a"!aon!a P. Pa$anaba, +R 2001 a$. 350. 30 +n!l @a" as! . Bn!on of n$!a, (1995) 1 <C 9094.
5(7 Dhe marriage under the #ct had *een solemniGed and
507 Dhat the formalities respecting signatures of witnesses have *een complied with)2(
Many "Is of ?indu origin who have foreign domicile or have acKuired a foreign citiGenship- come to India and solemniGe their marriage either with an Indian national spouse or with a foreign domiciled spouse in India in accordance with customary rites and ceremonies under ?indu Marriage #ct- (.66 and have to get their marriage registered in India for purposes of immigration or entry into their present foreign home country) Dhey are faced with the dilemma as to whether they should get their marriage registered under %pecial Marriage #ct- (.63 or under ?indu Marriage #ct- (.66) In the first #ct- there is a prolonged process of time i)e) two months’ notice and prescri*ed o*'ection period *efore the Certificate
of marriage can *e o*tained while in the second #ct this period is spared) ?owever if one of the spouses is a foreigner and not ?indu *y religion at the time of marriage ceremony- they will have to get their marriage registered under %pecial Marriage #ct- (.63)
4erala ?igh Court20 has ruled that ?indu Marriage #ct- (.66 has eHtra!territorial operation and applies to all ?indus even if they reside in different parts outside India) ?owever- *oth parties must *e ?indu *y religion in any of its forms and they satisfy the conditions and have performed the ceremonies provided in the ?indu Marriage #ct- (.66) Dhere can *e no denial *y local authorities to register marriages under ?indu Marriage #ct-(.66 *etween ?indus having foreign domicile who have solemniGed marriages under ?indu Marriage #ct- (.66)
n the Kuestion of marriage *etween two ?indus- one *eing not of Indian domicile-4erala ?igh Court22 has held that %ection (507- ?indu Marriage #ct- (.66 specifically ma=es it clear that the #ct eHtends to the whole of India eHcept the %tate of 8ammu and 4ashmir and also that it applies to ?indus domiciled in the territories to which this #ct eHtends- who are outside the said territories) Dherefore- the #ct will apply to a ?indu outside the territory of India- only if he is a ?indu domiciled in the territory of India) Dherefore- only those ?indus
31 a$bala . a$!s Can$e"a, (1978) 4, +ll LR 457. 32 !na'a #a!" . Co"%o"at!on of @o;!, +R 2006 @e".275.
33 Raes @a" P. . <e;"eta"', @anna%"a "a Pan;a'at, +R 1998 @e" 95.
having permanent residence in India will *e covered *y the ?indu Marriage #ct- (.66) Dhere cannot *e a ?indu marriage *etween a ?indu and a Christian)23
#s a ?indu marriage *etween a ?indu and a Christian is invalid and issuance of a certificate of marriage does not cure the invalidity)26 n the Kuestion of inter!territorial operation of %ection (507 of the ?indu Marriage #ct- (.66- the Court held- that it applies to all ?indus- 1uddhist- 8ains and %i=hs- residing in India- irrespective of the Kuestion whether they are domiciled in India or not unless prohi*ited *y the domestic rule of law of the land to which one of the parties- a foreigner- may *elong- in which case the Kuestion of domicile may assume importance)2>
V',-46 *2 N*/ R-/4 I/-'/ M'33'
?indu Marriage is essentially a monogamous marriage and the marital *ond cannot *e *ro=en without Court intervention) "I marriages are heterogeneous @ pro*lematic group-involving sensitive and intricate issues of law as well as facts) ?ere the issue of validity of marriage assumes great significance)
In matrimonial cases involving the foreign element viG) "I matrimonial disputes- the courts have to decide a*out the validity of marriage) Dhe validity of marriage is 'udged in two ways
Dhe first reKuirement is the formal validity as to whether a religious or civil ceremony has *een o*servedB whether due formalities under the relevant marriage #ct have *een complied with) Dhese matters are regulated *y the leH loci cele*rationis i)e the law of the place where the ceremony ta=es place) Dhis is also called the rule of locus regit actum)
Dhe second important consideration is the personal laws of parties- *ecause marriage is a personal matter of the marrying spouses) Dhis is called su*stantial or essential validity of marriage)
# person’s capacity to marry is governed *y the law of domicile *ecause the religious traditional laws differ from one region to another in many aspects- more so in the face of
34 a;!nta @aat . Pa$anaba @., +R 1992 @ant 372. 32 35 <ana' !s"a . el!ne oe, +R 1993 P 54.
religious conversions for the sa=e of marriage) Dhis results in inter!personal conflict of laws in India2<)
%upreme Court of India has held that the capacity to marry and impediments in the way of marriage would have to *e resolved *y referring to their personal law) ?ere the Court has followed the rule of personal law i)e) the law of domicile2)
Dhere is a sharp distinction in ,rivate International Law *etween the formal and su*stantial validity of marriage) hen the personal law of a party attaches some fundamental conditions- which are essential for the validity of marriage- compliance with these conditions ma=es marriage su*stantially valid) Dhese fundamentals vary from place to place) In England-capacity to marry and marriage *etween consanguinity as prohi*ited *y the statutes are eHamples of su*stantial validity of marriage) In India- amongst the ?indus- now marriage during lifetime of his or her spouse is void a* initio and this constitutes one element for su*stantial validity of marriage) n the other hand when the law of the land where the marriage is cele*rated attaches some formalities for the marriage *etween persons whether domiciled in that country or in a foreign land these are called formal validity of marriage) Dhe formal validity of marriage is not as vital as the essential validity to a particular society) on! o*servance of any formality renders a marriage voida*le only- not void)
#ccording to Cheshire there is no rule more firmly esta*lished in ,rivate International Law than that- which applies the maHim locus regit actum to the formalities of marriage) hether any particular ceremony constitutes a formally valid marriage depends solely upon the law of the country where the ceremony ta=es place)
%ection 567 of ?indu Marriage #ct- (.66 specifically lays down that failure to register a ?indu marriage does not affect its validity) Even where compulsory registration of marriage is laid down under the rules- such as immigration rules- non!registration does not affect the validity of the marriage- *ut merely entails a nominal fine) Moreover- mere registration of a marriage under %ection will not ipso facto ma=e the marriage valid)
I/-'/ C*+34 S/'3* '/- I/43/'4*/', L'(
37 <a"la $al, P"es!$ent @al'an! . Bn!on of n$!a, +R 1995 <C 1531 38 La/s! <an'al . <.@. Da", +R 1972 oa 2667.
"I marriages are essentially inter!country marriages with legal ramifications as to $alidity of marriage- 8urisdiction of Indian courts visa vis Foreign Courts- "ecognition of foreign decrees and Enforcement of Foreign 'udicial orders)
India has as yet no legislative law to com*at matrimonial disputes involving a foreign element–i)e) where at least one of the spouses is domiciled outside India) Each case has to *e dealt with on the *asis of precedents as ad'udicated law or 'udge!made law)
Dhe English law has grappled with similar legal disputes under the category of Conflict of LawsJ @ have enacted ‘,rivate International Law’) It is a distinct unit in English legal system and it is always concerned with one or more of four Kuestions- namely
5a7 'urisdictionB 5*7 choice of lawB 5c7 recognitionB
5d7 Enforcement of foreign 'udgments)
Dhere is no legislative law in India compared to ‘,rivate International Law’ or Conflict of Laws as in some western countries) In family and marriage cases involving "I spouses- Indian courts rely upon %ections(2 and (3 of the Civil ,rocedure Code- (.9 and %ection 33 # of the Civil ,rocedure Code- (.9) hile the former deals with the competence to ad'udicate and 'urisdiction of a foreign Court as to their conclusiveness- the later deals with presumption of a decree *y a foreign Court for its eHecution)
S4*/ 1" '/- 1# O2 T& C), P3*-+3 C*-> (.9 %ection (2 hen foreign 'udgment not conclusive) ) )
# foreign 'udgment shall *e conclusive as to any matter here*y directly ad'udicated upon *etween the same parties or *etween parties under whom they or any of them claim litigating
under the same title eHcept) ) )
here it has not *een pronounced *y a Court of competent 'urisdiction where it has not *een on the merits of the case)
here it appears on the face of proceedings to *e founded on an incorrect view of international law or a refusal to recogniGe the law of India in cases in which such law is applica*le)
here the proceedings in which the 'udgment was o*tained are opposed to natural 'ustice) here it has *een o*tained *y fraud
here it sustains a claim founded on a *reach of any law in force in India)
Dhese siH eHceptions are concise- precise and comprehensive in wording) Dhis %ection is of a general nature and does not specifically deal with 'udgments of divorce or matrimonial matters) %till- this %ection has *ecome an effective tool in the hands of Indian Courts in the a*sence of Indian legislation compara*le to ,rivate International Law in matters of family law)
%ection (2 em*odies the principle of res 3udicata in foreign 'udgments) It applies to the plaintiff as well as to the defendant who is eKually entitled to non!suit the plaintiff on the *asis of a foreign 'udgment) ?owever- a foreign 'udgment is not conclusive as to any matter
directly ad'udicated upon- if one of the conditions specified in clauses 5a7 to 5f7 of %ection (2 Civil ,rocedure Code- (.9 is satisfied and it will then *e open to a collateral attac=)
#ccording to &icey-2. # foreign 'udgment is conclusive as to any matter there*y ad'udicated upon and cannot *e impeached for any error either 5(7 of factB or 507 of lawJ) Dhus- a foreign 'udgment can *e eHamined from the point of view of competence *ut not of errors) ?ence- the
Indian Court cannot go into the merits of the original claim)
%ection (2 of the Civil ,rocedure Code- (.9 is the part of procedural law followed in Indian Courts) It concerns with recognition of the foreign decree only) Dhe decree holder has to proceed *efore an Indian Court *y filing a regular suit as the first stage of the enforcement proceedings) Dhe Court after hearing the suit proceedings- may pass a 'udgment for its enforcement through an eHecution petition) Dhus- a foreign decree is converted into a domestic 'udgment for its enforcement)
nce the Court comes to the conclusion that the foreign 'udgment is a 'udgment of competent Court- it will not go into the Kuestion whether the foreign law made a mista=e on matters of law or facts) If the 'udgment is not a 'udgment of a Court of competent 'urisdiction it would *e given no effect- even if the foreign Court correctly chose the applica*le law and correctly
determined the facts of the case)
Dhe Kuestions of competency of the foreign Court is determined *y the rules of ,rivate International Law) %ometimes- in a suit *efore the Indian Court- a foreign 'udgment is 39 !sanatan . +b$l Aa!$, +R 1963 <C 158.
pleaded as res 3udicata then it will *e the duty the Indian Court to find out whether the foreign Court- which rendered the 'udgment has 'urisdiction in the international sense)
%ection (3 lays presumptions as to Foreign 8udgments) Dhe Court shall presume upon the production of any document purporting to *e a certified copy of a foreign 'udgment- that such 'udgment was pronounced *y a Court of competent 'urisdiction- unless the contrary appears
on the recordB *ut such presumption may *e displaced *y proving want of 'urisdiction)
In a case the #peH Court-39 held that mere production of a ,hotostat copy of a decree of foreign Court is not sufficient) It is reKuired to *e certified *y a representative of the Central Aovernment in #merica)
%ection 33 # of Civil ,rocedure Code- (.9
Dhis %ection deals with the eHecution of decrees passed *y courts in reciprocating territory) here a certified copy of a decree of any of the superior courts of any reciprocating territory has *een filed in a &istrict Court- the decree may *e eHecuted in India as if it had *een passed *y the &istrict Court)
Dogether with the certified copy of the decree shall *e filed a certificate from such superior Court stating the eHtent- if any- to which the decree has *een satisfied under this %ection- *eing conclusive proof of the eHtent of such satisfaction or ad'ustment)
Dhe provisions of %ection 3< shall- as from the filing of the certified copy of the decree- apply to the proceedings of a &istrict Court eHecuting a decree under this %ection and the &istrict Court shall refuse eHecution of any such decree- if it is shown to the satisfaction of the Court that the decree falls within any of the eHceptions specified in clauses 5a7 to 5f7 of %ection (2) # foreign decree can *e eHecuted under %ection 33!# C,C only if all the conditions of %ection (2 5a7 to 5f7 C,C are satisfied)
+nli=e %ection (2 Civil ,rocedure Code- %ection 33!# of Civil ,rocedure Code- (.9-envisages a direct enforcement of the foreign decree through an eHecuting petition in civil matters without the necessity of going through initial suit proceedings) Dhis facility of direct eHecution of the foreign decree is availa*le only on the *asis of a *ilateral understanding on the *asis of reciprocity *etween India and the country from where the decree has *een delivered) Dhis ensures a speedier disposal)
%ection 2 and %ection (9!# of the Indian ,enal Code- (>9 40 Infranote 81.
It provide for eHtra!territorial 'urisdiction) It is- however- de*ata*le whether these could *e invo=ed in case of pro*lems in "I marriages) %ection 2 of Dhe Indian ,enal Code (>9-reads as under ,unishment of offences committed *eyond- *ut which *y law may *e tried within India)
#ny person lia*le- *y any Indian law- to *e tried for an offence committed *eyond India shall *e dealt with according to the provisions of this Code for any act committed *eyond India in the same manner as if such act had *een committed within IndiaJ)
%ection (9!# of Dhe Indian ,enal Code(>9 read as under #*etment in India of offences outside India)
# person a*ets an offence within the meaning of this Code who- in India- a*ets the commission of any act within and *eyond India which would constitute an offence as if committed in IndiaJ)
CHAPTER – # J+3-4*/
D)*3 '/- J+-', S'3'4*/
It was held *y the ,rivy Council in Le Mesurier v. Le Mesurier &1 , that according to international law- the domicile for the time *eing of the married pair affords the only 'urisdiction and only true test of 'urisdiction to dissolve their marriage) Dhe essence of the rule in this case was that there should *e only one test of 'urisdiction and only one court capa*le of dissolving a particular marriage- the court of the parties domicile) Dhe Matrimonial Causes #ct- (.2<- provided that the Court should have 'urisdiction to grant a divorce- in proceeding *y a wife- notwithstanding that the hus*and was not domiciled in England- if she had *een deserted *y her hus*and- or the hus*and had *een deported from +nited 4ingdom- and the hus*and was immediately *efore the desertion or deportion 41 1895* +.C. 517
domiciled in England) Dhese enactments were confined to proceeding *y a wife) Dhey did not eHtend to cross!petition *y a respondent hus*and)30 Dhe eHercise of the English Courts 'urisdiction in proceeding for divorce is su*'ect to rules reKuiring or ena*ling the court to stay
those proceedings in certain circumstances)32 N+,,46 *2 7'33'
1efore (.<3 the 'urisdiction of the 1ritish Court to entertain petitions for the nullity of marriages was one of the most veHed and difficult Kuestion in the whole of the English conflict of laws) #n enormous simplification of the law was effected *y section 6527 of the &omicile and Matrimonial ,roceeding #ct (.<2) Dhis provides that the English Court have such 'urisdiction to entertain such petition if 5and- su*'ect to section 6567- on if7 either party to the marriage
5a7 Is domiciled in England on the date when the proceedings are *egun
5*7 as ha*itually resident in England throughout the period of one year ending with the date- or
5c7 &ies *efore that date and either was at death domiciled in England- had *een ha*itually resident in England throughout the period of one year ending with the date of the death) ithout this insignificant eHception- the *ases for 'urisdiction in nullity of marriage are now the same as in divorce and 'udicial separation) # voida*le marriage no longer confers the hus*and’s domicile at the date of the marriage)33 Dhe *ases for 'urisdiction are now same whether the marriage is alleged to *e void or voida*le) It is therefore no longer necessary to consult foreign law i)e) the law of the hus*and’s domicile at the date of the marriage)36
R*/4*/ *2 2*3/ D)*3:
&omicile determines the law that will *e applica*le to an individual) # person may *e resident and citiGen of a country- while his domicile is somewhere else) Dhe general rule is that domicile is where the heart isJ) In general- we can say that in the case *eing considered *y us- the couple remains domiciled in India even though they might have moved their
42 Levett v. Levett and S(ith 1957* P. 156 43 a!l' P"o;ee$!n Rles, 1991
44 <e;t!on 1 of Do!;!le an$ at"!on!al P"o;ee$!ns +;t, 1973. 45 )e Reneville v. )e Reneville& 1948* P. 100.
residence to some foreign land) Dhe domicile may *e India even if the person after moving to the foreign land acKuires foreign citiGenship) Dhis is often true *ecause first generation migrants from India retain India in their heart)
In S'46' ). T?' S/&#@ where a man domiciled in India moved to +%#- got a divorce from a court at evada- +%# *y pleading domicile of evada even though he had not lived in evada and never lived in evada after the divorce) Dhe wife challenged the divorce in India on the ground that the 'urisdiction of the evada court was o*tained *y fraud) %upreme Court of India accepted the plea of the wife and refused to recogniGe the divorce o*tained in evada) Dhe following eHtract from the 'udgment ma=es the position very clear)
+nder %ection (25e7- Civil ,rocedure Code- the foreign 'udgment is open to challenge Nwhere it has *een o*tained *y fraudN) Fraud as to the merits of the respondentOs case may *e ignored and his allegation that he and his wife Nhave lived separate and apart for more than three 527 consecutive years without coha*itation and that there is no possi*ility of a reconciliationN may *e assumed to *e true) 1ut fraud as to the 'urisdiction of the evada court is a vital consideration in the recognition of the decree passed *y that court) It is therefore relevant that the respondent successfully invo=ed the 'urisdiction of the evada court *y lying to it on 'urisdictional facts)
Divorce Proceedings Not Attended:
It is not uncommon to hear a*out cases either the hus*and or the wife filed for divorce in a foreign court- while the spouse did not attend the proceedings either due to notice not *eing served or due to some other reason) In such a situation- the case of arasimha "ao3<
is relevant) ) arsimha "ao and ) $en=ata La=shmi were married in Dirupati- India as per ?indu customs in (.<6) Dhey separated in 8uly (.<) Mr) "ao filed a petition for dissolution of marriage in the Circuit Court of %t) Louis County Missouri- +%#) Mrs) La=shmi sent her reply from India under protest) Dhe Circuit Court passed a decree for dissolution of marriage on Fe*ruary (.- (.9 in the a*sence of Mrs) La=shmi) Mr) "ao had earlier filed a petition for
46 De;!$e$ on 1 ?;tobe" 1974E +#BF<CF0212F1974, +R1975<C105, 1975C"!L52, (1975)1<CC120, 1975*2<CR197
47 G. #a"as!a Rao an$ ?"s. s. G. en/ata La/s! an$ +n".E De;!$e$ on 9 l' 1991E +#BF<CF0603F1991, 1991(2)C"!es855(<C), (1991)DC366<C,
dissolution of marriage in the %u*!Court of Dirupati) Later- he filed an application for dismissing the petition in view of the decree passed *y the Missouri Court)
n 0 ovem*er (.(- Mr) "ao married another woman) ?ence- Mrs) La=shmi filed a criminal complaint against Mr) "ao for the offence of *igamy) Dhe %upreme Court refused to accept the divorce decree granted *y the court at Missouri- +%#) hile deciding the case the %upreme Court laid down the law for foreign matrimonial 'udgments in this country) Dhe relevant eHtract from the 'udgment is as follows
Dhe 'urisdiction assumed *y the foreign court as well as the ground on which the relief is granted must *e in accordance with the matrimonial law under which the parties are married) Dhe eHceptions to this rule may *e as follows 5i7 where the matrimonial action is filed in the forum where the respondent is domiciled ha*itually and permanently resides and the relief is granted on a ground availa*le in the matrimonial law under which the parties are marriedB 5ii7 where the respondent voluntarily and effectively su*mits to the 'urisdiction of the forum as discussed a*ove and contests the claim which is *ased on a ground availa*le under the matrimonial law under which the parties are marriedB 5iii7 where the respondent consents to the grant of the relief although the 'urisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties)
Dhe =ey rule laid *y the %upreme Court can *e summed up as follows If a couple is married under ?indu law- 5a7 the foreign court that grants divorce must *e accepta*le under ?indu lawB and 5*7 the foreign court should grant divorce only on the grounds which are permissi*le under ?indu Law) Dhe two conditions ma=e it almost impossi*le for a ?indu
couple married in India to get a legally valid divorce from a foreign court since no foreign court is an accepta*le one under ?indu Marriage #ct and also *ecause no foreign court is li=ely to consider the provisions of ?indu Marriage #ct *efore granting divorce)
Dhe eHceptions that %upreme Court has permitted to the a*ove rule laid *y it are as follows in a case where hus*and has filed for divorce in a foreign land
#7 Dhe wife must *e domiciled and permanently resident of that foreign land #& the foreign court should decide the case *ased on ?indu Marriage #ct)
17 Dhe wife voluntarily and effectively attends the court proceedings and contests the claim on grounds of divorce as permitted under ?indu Marriage #ct)
Divorce Proceedings Attended
In general- it can *e said that if the partner contesting the divorce actively attends the divorce proceedings in the foreign court- the chances of his or her *eing a*le to later successfully approach Indian courts against an unfavora*le 'udgment of the foreign court are very low) Indian courts- or for that matters courts anywhere in the world- do not wish to encourage *+34&*/)
Dhe well!accepted universal principle of law can *e stated as – If someone has accepted the authority of a court- it cannot *e open to the person to later Kuestion the authority of the court)
# similar matter came up *efore %upreme Court of India in the matter of Mrs) A/** B/(',#) Dhe lady attended the court proceedings in +4 and later contested the divorce granted *y the +4 court) %upreme Court refused to grant her any relief) "elevant eHtract from the 'udgment is as follows
30) Factually the plaintiff herein and the respondent in the proceedings in England did have the opportunity to defend the suit held against her) %he led evidence in those proceedings) %he 'ust happens to have failed to have a decision in her favor) #n opportunity of hearing having *een granted- it is not right to assert that the proceedings in England were opposed to natural 'ustice) or is it proper to say that the 'udgment *y a Court of England has not *een given on the merits of the case) In my view- the assertions made in the N,articularsN anneHed to the petition- it has *een shown to me- and reproduced here a*ove- could *e made under %) (25l7 5ia7 of the ?indu Marriage #ct regarding treatment of the petitioner with cruelty) Dhe claim in the proceedings in England cannot Dherefore- *e said to *e founded on the *reach of law in force in India)
C*/+/ *2 I/)',- D3 *2 D)*3
It is not unusual for one of the partners to o*tain a decree of divorce from a foreign court while the other partner is either in India or in some other part of the world) Dhe partner who has o*tained divorce may feel comforta*le in the thought that the other partner has neither protested not contested the decree of divorce) ?owever this comfort may *e a false one)
48 "s. +noo% -en!al s. D". ab!" <!n -en!alE De;!$e$ on 25 ?;tobe" 1989E +#BFDF0044F1990, +R1990 Del!305, (1990)DC239, 1989RLR554
#ssuming that the hus*and has o*tained the decree of divorce from a foreign court-some conseKuences that may *e faced *y the man in due course are as follows
a7 If he remarries- he may *e prosecuted for *igamy) Dhere is no time limit for the first wife to file a complaint with the police against the hus*and in the matter of *igamy) e have seen in the case of arasimha "ao6 that the couple separated in (.<- the man remarried in (.( and ten years later- %upreme Court ordered for *igamy proceedings to *e started against the man) 1igamy is punisha*le under section 3.3 of Indian ,enal Code with imprisonment of seven years)
*7 ife 5divorced as per foreign law7 may file for maintenance)
c7 In case the man dies without ma=ing a will- the first wife will have the right to her share in the property of the man while the second wife will get nothing *ecause her marriage will not *e considered legitimate)
It may *e noted that the a*ove may *e faced *y the man even though he may have acKuired the citiGenship of the foreign country 5assuming that his domicile or his heart remains Indian7)
If a women gets divorce from a foreign court and remarries- her new hus*and may *e prosecuted under section 3.< of Indian ,enal Code under which he may face imprisonment of
five years) Dhe wife will- of course- *e lia*le for punishment under section 3.3 of Indian ,enal Code for *igamy)
CHAPTER 5 C*/,+*/
Do sum up one can say that eHceptions aside- a ?indu couple married in India must see= divorce from an Indian court only) Dhe two nota*le eHceptions 5when a foreign decree of divorce is valid7 are 5a7 when the couple decides to ta=e divorce *y mutual consent and 5*7 when the person who is contesting divorce attends divorce proceedings and the foreign court grants divorce on grounds that are permitted grounds of divorce under ?indu Marriage #ct) ne should not draw comfort from inaction of the person who did not participate in divorce
proceedings) Dhe implications of an invalid divorce may appear many years later and even may arise after the death of the person who got the invalid divorce from a foreign court)
BIBLIOGRAPHY BOOS
1. Cheshire @ orth- rivate *nternational Law- thirteenth edn-2. S.R.Myneni, rivate *nternational Law, first
edn-EBOOS
1. 8affey-'o4ics in %hoice o/ Law 5(..>7
