Tuesday, 3 July 2007

Indian Court restrains US divorce from going ahead

In a move with implications for many Indian couples who married in India but one or both live overseas, an Indian court has restrained a wife from going ahead with her divorce application in the US.


In a rare reiteration of its authority in a prayer for anti-suit injunction
matter concerning a foreign court, the Supreme Court has issued a notice to the
US-based wife of a Panchkula resident, who has filed a special leave petition
(SLP) against the decision of the Punjab and Haryana High Court in dismissing
his plea for restraining his wife from divorce proceeding initiated in New
Jersey court.



The notice was issued by Justice Tarun Chatterji and Justice Dalvir Bhandari on the SLP filed by Rakesh Kumar after the preliminary hearing and the arguments advanced by his counsel in stressing that since his marriage with Ashima Kumar had been solemnised under the provisions of Hindu Marriage Act, 1955, its dissolution could be effected under the same act only.

Rakesh through the SLP has sought setting aside the order of January 27, 2007 of additional civil judge, Panchkula vide which ex parte ad interim injunction had been sought to restrain Ashima Kumar from pursuing/continuing with the complaint for divorce now pending before the superior court at New Jersy or in any other foreign court. The high court had held that no case for injunction was made out and that the petitioner has responded with a detailed reply to the summons from New Jersy court, has in fact amounted to his submission to that court. The petitioner's marriage with Ashima was solemnised at Dehra Dun on January 27, 2000.

A daughter, Devishi, was born out of the wedlock on September 30, 2002 and both Ashima and Devishi are Indian citizens holding Indian passports, hence governed by Indian law. The respondent left her husband's home taking along with the child. She also took away all her clothes, jewellry , valuables and a car. A DDR too was lodged with Panchkula SP in this regard on September 14, 2005. She later left for New Jersy, USA, on a tourist visa along with her daughter and is still residing there.

On December 28, 2006, Rakesh had received summons from the superior court at New Jersy where the Ashmia had filed a complaint seeking divorce, appropriate alimony, custody of the child, distribution of all property both real and personal, acquired by the parties during the course of marriage and allocating as well the material liabilities.

The petitioner's counsel extensively quoted from apex court decision including Y.N.Rao and others versus Venkata Laxmi and others 1991 holding that foreign courts where the husband is not domicile has no jurisdiction to dissolve the marriage and the decree of divorce if granted by such courts would be a nullity and will not have the effect of dissolving the marriage.

The counsel for Rakesh has highlighted that incidence of such cases where divorce proceedings are initiated in foreign courts against Indian citizens are on the rise. He also expressed his apprehension that unless anti-suit injunctions were issued by the courts in India, it would be extremely difficult and expensive for the affected individuals to fight legal battles in foreign courts, an option increasingly being exercised causing mental agony and hardship to the parties to the disputes.

Sources: International Family Law News and Analysis, Times of India

1 comment:

Owen said...

Thank you Stephen! Very helpful for a matter I am working on at present. Much appreciated.