Legal Articles

LIMPING MARRIAGES

THE PROBLEM

Hindu marriages 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 fault grounds before competent Courts under personal law of parties. Divorce by mutual consent requires both spouses to jointly petition the Court and maintain the unanimous decision to part for at least six months from the date of first hearing before the competent Court. On August 6, in Shivani Yadav, Punjab and HaryanaHigh Court relaxed the rigor and dissolved the marriage by mutual consent. In Amardeep Singh Vs. Harveen Kaur AIR 2017 SC 4417, 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 should not be exercised contrary to the statutory provisions to dissolve marriages. In Shilpa Sailesh Vs. Varun Sreenivasan, a Constitution Bench of the Supreme Court is examining the jurisdiction of the Apex Court under Article 142 of the Constitution to dissolve a marriage between consenting parties without referring them to the Family Court, to wait for the mandatory period prescribed under Section 13-B Hindu Marriage Act, 1955 (HMA). 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.

IRRETRIEVABLE BREAKDOWN – NO DIVORCE UNDER HMA

A reported verdict of the Delhi High Court in Pritam Ashok Sadaphule Vs. Hima Chugh, 2014 (1) RCR (Civil) 697 (Delhi) refused to give its imprimatur to a decree of divorce obtained by the husband from an English Court in UK. The marriage solemnized in New Delhi according to the Hindu rites was dissolved in UK on the ground of the marriage having been broken down irretrievably. The wife had represented to the English Court protesting that she was in India and was in acute financial difficulty to travel to London to contest the case. She requested the English Court not to grant divorce and had also petitioned the Delhi High Court for grant of a decree of permanent injunction against her husband from continuing with his divorce petition in UK. However, the English Court proceeded with the matter and dissolved the marriage. 

The parties had met in England in 2004 and got married at New Delhi in 2005 to return to UK for work reasons. Developing matrimonial differences, the wife returned to India in 2010 to allege matrimonial cruelty. The husband petitioned for divorce in UK in 2010 and failing to injunct him in Delhi High Court through an anti suit injunction, in 2011 the wife also filed a petition for divorce in Delhi under the HMA on the ground of cruelty. The husband appeared in the Delhi matrimonial Court alleging that since the English Court had already dissolved the marriage, the divorce petition in Delhi was not maintainable. The Delhi matrimonial Court rejected this plea of the husband which was challenged by him before the Delhi High Court. Relying on the Supreme Court judgment in Y. Narashimha Rao’s case (1991) 3 SCC 451, the Delhi High Court rejected the challenge holding that the ex parte English divorce decree was not passed by a competent Court in accordance with Hindu Law and the wife had not submitted to the jurisdiction of the English Court. Hence, the divorce petition before the Delhi matrimonial Court by the wife was held to be maintainable. In Rupak Rathi Vs. Anita Chaudhary, 2014 (2) HLR 96, the UK decree of divorce on ground of irretrievable breakdown was held to be not valid in India. The legal position is that when a Hindu couple ties the nuptial knot according to Hindu rites, they still carry their personal law with them, irrespective of their foreign domicile or nationality.    

PREVIOUS PRECEDENTS

The Apex Court in its celebrated decision in Y. Narashimha Rao’s 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 Saraph’s case (1994) SCC 6 461went 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.    

SUPREME COURT DISSOLVING MARRIAGES

On September 13, 2021, in Sivasankaran Vs. Santhimeenal, 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 2019 (9) SCC 409 and Munish Kakkar Vs. Nidhi Kakkar decided on December 17, 2019, the Supreme Court dissolved marriage under Article 142 to grant divorce to litigating parties. The Apex Court in the case of Vishnu Dutt Sharma JT 2009 (7) SC 5, and in Neelam Kumar AIR 2011 SC 193,have 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. 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 a 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. Parties may be directed to file pleadings and establish facts by leading evidence upon issues being framed by the Indian Court. The crisis only perpetuates the misery of parties who can no longer live together. Law Commission Recommendations in 1978 and 2010 proposed adding irretrievable breakdown as a ground for divorce, but a draft law prepared in 2013 by the Union Government has never seen the light of the day. The stalemate continues. 

A POSSIBLE RESOLUTION

With the influx of foreign matrimonial judgments being thrust before Indian Courts by a 30 million NRI population in 200 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 a 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. Overseas spouses upon being offered a breakdown ground would prefer Indian matrimonial courts to settle issues so that parties are not in collision with law and domestic judgments so obtained would assume finality to conclusively settle aggravated matrimonial disputes without acrimony. Friendly and speedy resolution of warring marital differences ought to be redressed by expeditiously setting up Family Courts under the Family Courts Act, 1984. A friendly law and a congenial atmosphere to resolve marital relationships gone sour is the epitome of any civilised set up. Peace at home brings happiness and stability. No sooner is this done, spouses will stop importing and imposing foreign matrimonial decrees against hapless partners pitted on Indian soil on uncomfortable terrain. A time has come to change for the better by incorporating what Courts offer abroad. 


Anil Malhotra*
*Author of 9 Books, the writer is a Chandigarh based practicing lawyer and can be reached at anilmalhotra1960@gmail.com He is an LL.M from SOAS, University of London and a Fellow of the IAML. Besides, he is Executive Member from India of the Family Law Committee of ILA.

Leave a Comment