Divorce: India

Revision as of 07:07, 25 April 2013

Divorces: India

Wife can stay with husband till divorce

‘Until divorce, wife can stay with hubby’ The Times of India 22/04/2013 TIMES NEWS NETWORK

New Delhi: A trial court has said that a woman and her child have every right to reside in the household she shared with her husband after marriage, till the disposal of any matrimonial dispute between them.

Metropolitan magistrate Rachna Lakhanpal made these observations while passing interim residence order in favour of a woman who had moved the court seeking directions to her estranged husband to allow her to live in the matrimonial house till a dispute concerning domestic violence was decided.

“Complainant (woman) and her child have every right to reside in the shared household till final disposal of the case and the respondents (estranged husband and his mother) are restrained from dispossessing her from the shared household till final disposal of the case without due process of law,” the court said.

While passing the order, the court held the man’s household is to be shared with the complainant since they resided there together after marriage.

The court also said that the husband and his mother, residing in northwest Delhi, would not create any hindrance to the woman using the facilities of kitchen and toilet or interfere with the supply of water and electricity to the portion of the household she would stay.

The magistrate also directed a protection officer to facilitate the woman’s peaceful entrance in the house while the SHO concerned was asked to provide necessary assistance if required. The court also directed the man to provide a maintenance amount of Rs 4,000 to his estranged wife and Rs 1,500 to the child per month.

In her plea for interim maintenance and residence order, the woman had alleged cruel treatment by her husband, whom she married in 2000, and told the court that she was thrown out of the matrimonial house. The allegations were denied by the husband. The court, however, said allegations of cruelty or counter allegations cannot be decided with the application for interim maintenance and interim residence.

Ex parte divorce decree by foreign court invalid: HC

‘Irretrievable Marriage Breakdown Not Recognized Under Act’

Smriti Singh TNN 2013/04/25

The Times of India

New Delhi: In what can have serious implications for divorces involving NRIs, Delhi high court has held that a divorce obtained by an NRI from a foreign court without the spouse’s submission to the jurisdiction of that court is invalid.

The court has also held that a divorce granted by a foreign court on the ground of “irretrievable” breakdown of marriage is not recognised under the Hindu Marriage Act and the dissolution of marriage cannot be valid. The court’s ruling came while rejecting the claim of an Indian-origin UK resident that the Ilford County Court, UK, had in 2011 already granted a divorce.

The man had challenged the trial court’s order which had declared that divorce invalid. He sought dropping of the divorce proceedings against him on his wife’s plea for dissolution of marriage under the Hindu Marriage Act. The woman, through her counsel, Prashant Mendiratta, claimed that the foreign divorce decree was an ex parte decree which she had been unable to contest. “The said decree is not recognised in India, and as such, the petitioner is not entitled to any relief,” the counsel said.

The court cited a Supreme Court judgment which had held that a decree of divorce granted by a foreign court is not valid in India if the ground is not recognised by Indian law.

“Both parties are Indians and the marriage between them was solemnized at New Delhi according to Hindu rites and both are governed by the Hindu Marriage Act (HMA). Their marriage has been dissolved by a court in the UK on the ground of having broken down irretrievably which is not a ground for divorce under HMA ...” Justice Veena Birbal said.

The court also rejected the man’s argument that the UK court had made the decree “absolute” on the ground of “irretrievable breakdown” of marriage and his wife was also informed about the proceedings there.

Accepting the wife’s argument that the divorce granted by the court in the UK was an ex parte divorce decree, Justice Birbal said, “Respondent (wife) never submitted herself to the jurisdiction of the said (UK) court. On June 15, 2011, she had lodged a representation before the Ilford County Court informing that she was in India and had filed a divorce petition here.

“She also informed (the court) that she was in acute financial difficulty (and won’t be able) to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the UK court not to make the divorce decree ‘absolute” ... In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court,” the court said.

REINING IN RUNAWAY GROOMS: HC RULES

An ex parte divorce by a foreign court is invalid

To get a divorce from a foreign court, both parties have to submit to its jurisdiction

Ground of “irretrievable breakdown of marriage” not a ground under Hindu Marriage Act

STANDING INSTRUCTIONS

When faced with ex parte divorce cases, courts in India rely on a celebrated 1991 Supreme Court judgment SC has empowered matrimonial courts to issue non-bailable warrants to enforce attendance of parties In one case, HC prohibited NRI from obtaining one-sided divorce decree from a foreign court If any NRI ignores court stay on ex parte divorce, it’s considered contempt of court