If Marriage Is Solemnized Under Hindu Marriage Act, Divorce Can't Be Sought From Foreign Courts: Bombay HC
In a significant ruling, the Bombay High Court has restrained a UK-based Indian-origin man from continuing divorce proceedings before a Family Court in Manchester and held that if a marriage is registered under the Hindu Marriage Act, then relief cannot be sought under English Personal Law.
Justice RD Dhanuka was hearing a notice of motion in a suit filed by the original plaintiff Arunima Takiar. Arunima sought an ex-parte ad-interim injunction against Navin Takiar, her husband restraining him from proceeding further in the divorce proceedings filed by him in the United Kingdom.
According to the plaintiff, on December 12, 2012, the couple got married as per Hindu rites and ceremonies in Shri Ram Mandir, Bandra (East), Bombay. The marriage was registered at Mira Bhayander Municipal Corporation. On December 17, 2012, the defendant along with his daughters from his first marriage left for the UK leaving the plaintiff behind till her visa papers were processed.
Between December 2012 and July 2013, the parties were in regular contact through telephone and email. The plaintiff was regularly calling the defendant. Thereafter, on July 14, 2013, the plaintiff arrived in the UK and was received by the defendant at the airport. And from July 14 itself, the defendant started ill- treating the plaintiff and used to pick up fights with her.
It is the case of the plaintiff that on August 31, 2013, the defendant (husband) arrived at the matrimonial home of the parties along with two policemen asking her to leave the premises. The husband insisted on the plaintiff leaving the premises and put her up at a hotel but only paid for 15 days. Thereafter, the plaintiff had to pay for her stay and by November 2, 2013 she was left with no resources to spare. Thus, the plaintiff was forced to come back to India.
However, she got confirmation on a job she had applied for in the UK on November 22, 2013, so she decided to travel back but was refused entry into the country as the defendant husband had notified the authorities that he had withdrawn the support of the plaintiff. The plaintiff was accordingly sent back to India by the next available flight.
Thereafter, despite several efforts on part of the plaintiff and her family, the defendant husband refused to communicate with them and on June 9, 2014, the plaintiff was informed by the defendant's lawyer via email that divorce proceedings have been filed before Family Court, Manchester, against the plaintiff.
Submissions and Judgment
Advocate Anubha Rastogi appeared on behalf of the plaintiff. She relied on the judgment of the Supreme Court in the case of Modi Entertainment Network vs. WSG Cricket Pte Ltd and submitted that the plaintiff has no capacity to defend the suit filed by the defendant in the Family Court in the UK and the defendant has stopped supporting the plaintiff.
Defendant's lawyer Abhishek Khare submitted that the defendant is a natural citizen of the UK and also domiciled in the UK and thus the provisions of the Hindu Marriage Act, 1955 were not applicable to the defendant. The anti-injunction suit thus filed by the plaintiff is not at all maintainable. Merely because the defendant has filed a written statement in this anti-injunction suit filed by the plaintiff, the same cannot be construed as the defendant submitting to the jurisdiction of the courts in India, Khare said.
After hearing both parties and examining various judgments of the Supreme Court, High Courts and Family Court, Justice Dhanuka observed-
"In my view, the defendant has even otherwise created such a situation for the plaintiff that the plaintiff is not able to defend the said proceedings filed by the husband. Though the defendant filed Divorce petition before the Family Court at UK, no maintenance at all has been paid to the plaintiff by the defendant. When the plaintiff visited UK after marriage with the defendant, the defendant took assistance of police and forced the plaintiff to return to India. The sponsorship of the plaintiff was also cancelled by the defendant. In my view, in these circumstances, this is a fit case for exercising the powers of this Court to grant an order of anti-suit injunction. This matter cannot be considered as a matter of routine as sought to be canvassed by the learned counsel for the defendant."
Further, the court said-
"This Court also considered that the reliefs have been sought by the defendant in the Family Court, UK against the plaintiff not under the provisions of the Hindu Marriage Act, either on the question of jurisdiction or on the question of grounds for dissolution but under the English Personal law, one that does not govern the marriage of the plaintiff and the defendant."
Thus, the notice of motion was allowed.
Read the Judgment Here