Foreign Law Can't Dissolve Hindu Marriage Performed Under HMA Even If Couple Is Domiciled Abroad Or Acquires Foreign Citizenship: Gujarat HC

The Gujarat High Court has held that a marital dispute between two Hindus whose marriage was conducted in India can be entertained only under the Hindu Marriage Act and foreign family law shall not be applicable even if the couple are domiciled or have citizenship of a foreign country. The court thus underscored that the applicability of a foreign law to dissolve a marriage which has been performed under the provisions of the HMA is "impermissible". The high court passed the order in the wife's appeal against family court order rejecting her to plea to declare the divorce granted by Federal Circuit Court of Australia at Sydney as null and void. She had also filed an appeal against family court order dismissing her plea for restitution of conjugal rights. A division bench of Justice AY Kogje and Justice NS Sanjya Gowda observed,"If the husband and wife were admittedly staying in India and the wife has continued to stay in India on the basis of her OCI card, the initiation of divorce proceedings in Australia and securing a decree of divorce despite the protestations of the wife regarding the jurisdiction of the Australian Courts, would be a legal question which requires serious consideration and therefore the rejection of the plaint, in such a case, would be untenable...a marital dispute arising out of a marriage conducted in India between two Hindus under the provisions of the HMA can only be entertained and considered under the provisions of the HMA and not by the application of any foreign law. Thus, the rejection of the plaint on the ground that the marriage had already been dissolved by the court of competent jurisdiction would be incorrect".It further said:"Hindu marriage conducted in India in accordance with the religious ceremonies and customs will always be governed by the provisions of the HMA and cannot be governed by any other law even if the parties acquire a new domicile or a citizenship of any country in the world. As a consequence, even if the couple live in another country, the courts in that country can deal with their marriage and permit its dissolution only under the provisions of the HMA. The domicile of a husband and wife after the marriage, in law, would be of no consequence to a Hindu marriage.". BackgroundThe couple got married in 2008 in Ahmedabad and moved to Australia where the husband was a permanent resident. They had a child in 2013; in 2014 differences cropped up and the husband returned to India and got an OCI card thereafter in 2015. Wife continued to stay in Australia and got citizenship in 2015. On 10.09.2015, the wife along with son returned to India. In 2016 husband filed for divorce before Federal Circuit Court of Australia at Sydney. On 23.09.2016, the wife filed a petition under Section 125 of the CrPC and also a suit under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights before Family Court at Ahmedabad. On 24.11.2016, the Federal Circuit Court of Australia at Sydney granted the divorce; her review was also dismissed. On 05.07.2017, the wife was granted OCI Card. On 11.07.2018, the wife filed a family suit seeking for a declaration that the decree passed by the Federal Circuit Court of Australia at Sydney is null and void. On 31.03.2023 family court rejected her pleas. FindingsThe court said that if the argument that a marriage celebrated in India under the provisions of the HMA will be governed by a law of a foreign country only because the "parties to the marriage have acquired a citizenship" of another country is accepted it will lead to "certain anomalous results". It said that for Hindu marriage, the citizenship of the parties to the marriage has "absolutely no relevance".The bench emphasized that what is relevant is only the fact that both the parties profess the Hindu faith and agree to bind their marital relationship in terms of the HMA.The bench referred to Supreme Court's 1991 decision in Y. Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi where it was held that the only law applicable to matrimonial disputes is the one under which the parties are married and no other law. It thereafter said: "As already noticed above, the Apex Court in Y Narasimha Rao's case (supra) has clearly held that marital disputes arising out of marriages which have taken in India can only be governed by the provisions of the law under which the marriage has taken place, thereby meaning the applicability of a foreign law to dissolve a marriage which has been performed under the provisions of the HMA is impermissible. In the light of this declaration of law, the reasoning of the Family Court to the effect that the Australian Court possessed the jurisdiction to dissolve the marriage and the wife had no cause of action to seek for restitution or for a declaratory decree regarding the judgment of the Australian Courts would be erroneous and the case set up by the wife would have to be examined in the light of this declaration of ...

Foreign Law Can't Dissolve Hindu Marriage Performed Under HMA Even If Couple Is Domiciled Abroad Or Acquires Foreign Citizenship: Gujarat HC

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