Married In India, Divorce Elsewhere? New Myths And Facts

The inviolability of a Hindu marriage, solemnized in India, to a foreign court.

Over time, especially after India attained Independence, the applicable portions of the Manusmriti were codified into statutory laws, being the Hindu Marriage Act, 1956 (HMA), the Hindu Adoptions and Maintenance Act, 1956 (HAMA), the Hindu Succession Act, 1956 (HAS), etc., and for the purpose of this article, I restrict myself to Section 13, HMA, bearing the relevant provisions for obtaining a decree of divorce, contested and/or by mutual consent, under the Hindu Marriage Act.

However, the inviolability of a Hindu marriage has, quite understandably, never really been understood by the outside world and courts abroad, going left, right and center, even at the mistaken asking of any of the parties to a Hindu marriage, whose marriage has been solemnized in India, to proceed ahead with the dissolution of a Hindu marriage, in a foreign country, by a foreign court, by its decree of divorce, though no such decree of divorce, dissolving a Hindu marriage, solemnized in India, can validly be passed by a foreign court.

A Hindu marriage, solemnized in India, has, inter alia, two vital ceremonies: saptapadi, being the seven sacred steps around the holy fire, and the chanting of mangalashtakas, while the same is being taken, apart from passing the muster of validity of a Hindu marriage, as mentioned in Section 5, HMA. It is to be further noted that a valid Hindu marriage, performed as mentioned above, is in consonance with the requirements of Section 7, HMA.

The divorce of the aforesaid valid Hindu marriage can be sought for, inter alia, under Section 13, under any of the 8 grounds mentioned in Sections 13 (1)(i) through 13(1)(vii) of the HMA, if the said divorce is contested, and if uncontested between the two parties to a valid marriage, the same can be obtained under the provisions of Section 13 (B) of the HMA.

In my practice over the last 26 years here in India, I have come across various cases where a valid Hindu marriage, solemnized in India, has been held to be “dissolved” by a foreign court, on grounds foreign and alien to the grounds of divorce as provided for in the Hindu Marriage Act. It is precisely this “dissolution” of marriage by an alleged Decree of Divorce that I wish to bring to the notice of the Indian diaspora, so that they can guard themselves against the same.

Firstly, no valid Hindu marriage, solemnized in India, can ever be dissolved by a foreign court, as the HMA requires none but the “District Court” to mean “..a City Civil Court or original jurisdiction and includes any other Civil Court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act.” A foreign court can never fall within the definition of this “court” as defined in Section 3 of the HMA.

Secondly, and in addition to the above, foreign courts, especially in North America, are usually in the process of granting, inter alia, a “No Fault Divorce“, which would include granting divorce on grounds which are alien, foreign, and certainly not mentioned as grounds for divorce under the provisions of the HMA, to which alone the parties are bound and find themselves confined in jurisdiction. As a result, any such foreign “decree of divorce” can be successfully challenged before a competent court in India if any of the parties, whether voluntarily or involuntarily, suffer from the grant of such a decree of divorce by a foreign court.

Here, I must clarify that even if one of the parties is “deemed” to have consented to the jurisdiction of a foreign court, the said party can still successfully challenge the grant of the said decree of divorce granted by the foreign court here in India before a competent court, as it is a universally accepted legal principle arising from a common law principal that parties cannot confer jurisdiction on a court which inherently lacks the same, for the conferment of jurisdiction on any court stems from legislative competence. Consequently, it cannot be said or stated that the recalcitrant party, now seeking to question the decree of divorce, issued by a foreign court, is estopped from doing so.

The courts in Europe, especially in Germany, France, Cyprus, and Greece etc., like the courts in North America, are also seen to be merrily granting divorces for the asking, assuming unto themselves a jurisdiction they never had to dissolve such a valid marriage, solemnised in India. The jurisdiction in this regard solely vests, solely and only, with Indian courts, apart from these foreign courts, erroneously ending up granting the same on grounds totally foreign and alien to the provisions of the HMA, under which a competent court in India is authorised to grant such a decree of divorce for a valid marriage, solemnised in India.

In summation, marriages between parties, solemnized in India, cannot be dissolved by a foreign court as competent courts in India alone have jurisdiction and the grounds to do so, as are mentioned under the provisions of the HMA. It is high time the Indian diaspora wakes up to this reality and, together, is in a position to put forth a mechanism to stop this factoid of a malpractice which has assumed, unto itself, a “legitimacy” which it never had, does not have, and shall never have, till such time as the provisions of the HMA are not amended to incorporate any such intent on the part of the legislature.

SHAJU FRANCIS, ADVOCATE, NEW DELHI, INDIA

The author is enrolled at the Bar in New Delhi, has his primary place of practise in New Delhi, and has been in active practise for over 26 years. He was awarded a scholarship at the Centre for American and International Law, Plano, Texas, USA, for participating in its Comparative International Course in the summer of 2014, inter alia, on the basis of his work. He is currently challenging a similar decree of divorce passed by a court in Cyprus.