Posts tagged ‘jurisdiction’

RECOGNITION OF FOREIGN MATRIMONIAL JUDGEMENTS IN INDIA

In Y. Narashimaha Rao and others V/s Y. Venkatalakshmi and another reported in 1991 SCC (Cri) 626, the Honorable Supreme Court has extensively dealt with the rules for recognizing foreign matrimonial judgments in India.Relying on provision of Sec.13 of CPC and giving a wider interpretation of the same, the Supreme Court held as follows:

1) A foreign matrimonial judgment will not be recognized in India if it is not pronounced by a court of competent jurisdiction. The court shall be that court which the act or law under which the parties are married recognizes as the court of competent jurisdiction to entertain the matrimonial dispute. However if both parties voluntarily and unconditionally subject to the jurisdiction of the foreign court, then the same will be applicable.
For eg, as per the Hindu Marriage Act 1955, the jurisdictional court is the court within whose local limits,
a)The marriage was solemnized.
b)The respondent at the time of the petition resides or
c)Parties last resided together.
Hence a foreign court which does not qualify any of these descriptions cannot be a competent court to decide upon a Hindu marriage.

2) If the foreign judgments is not given on the merits of the case, then the Indian courts does not recognize the same. This is further interpreted as follows:
a) Decision of the foreign court shall be on the ground available under the law under which the parties are married. For instance irretrievable breakdown of marriage is not yet a ground for divorce of Hindu Marriage in India even though the Honorable Supreme Court by exercising powers under article 142 of the constitution has granted divorce in few cases under this ground.Hence to summarize, if a foreign court grants divorce in a Hindu Marriage on the ground of the irretrievable breakdown of marriage, then the same shall not be recognized in India.

b) The Respondent to the matrimonial proceedings shall be duly served and unconditionally submit himself/herself to the jurisdiction of the court and contest the claim or agrees to the passing of the decree with/without appearance.

3) If the matrimonial judgment is based on the refusal to recognize the laws of India in cases where such law is applicable, the decision of the foreign court is not recognized in India. Marriages in India are either under customary or the statutory law in force here. Hence the only law that is applicable to the matrimonial dispute is the one under which parties are married and no other law.

4) A foreign matrimonial judgment will be recognized in India only if the proceedings are not opposed to natural justice. This includes a) Duly serving the respondent with the process of the court.
b) Ascertaining whether the respondent was in a position to present/ represent himself/herself and contest the proceedings effectively.
c) The court shall require the Petitioner to make necessary provisions for the Respondent to defend including the cost of travel, residence and litigation if necessary.

5) If the Foreign matrimonial judgment is obtained by fraud, then the same will not be applicable in India. The fraud may be in relation to the merits of the case or in relation to the jurisdiction of the courts. This aspect was covered by Honorable Supreme Court in the decision Smt.Satya V/s Theja Singh (AIR 1975 SC 105).

6) Similarly if a foreign judgment sustains a claim founded on a breach of any law in force in India the same is not applicable in India.

SOME FAQ’S ABOUT DIVORCE

1) How are children affected by Divorce?
Ans) A Divorce cuts off the relationship between the husband and wife. But no Divorce order can cut off the relationship between the parents and the children. Socially and emotionally, children of divorced parents will have trauma and injury. Irrespective of the custody of children with one parent after Divorce, the other parent will have an access and visitation rights over the children.

2) How to file for a Divorce?
Ans) A Divorce needs to be filed in a jurisdictional family Court, preferably with the assistance of an expert family lawyer. The following points need to be kept in mind before filing of a Divorce petition.
a)Whether the particular court has jurisdiction.
b) Whether any waiting period is there before approaching the court.
c) Whether the petition is under the correct provision of Law.
d) Whether sufficient grounds are urged in the petition.
e) Whether sufficient documents are produced along with the petition.
f) Whether the prayer is properly worded.

3) What are the documents required for a Divorce petition?
Ans) The following are the basic documents required for a Divorce petition in India:
a) Marriage photo
b) Marriage invitation card
c) Marriage certificate (if the same is registered)

4) How long does it take to get a Divorce in India?
Ans) A mutual consent Divorce petition may take about one month if the waiting period of 6 months is dispensed by court. If waiting period is not dispensed, it may take about 7-8 months.
             For a contesting Divorce petition, it may take about 1-1 ½   years to conclude. An exparte Divorce proceeding may conclude within 6-9 months.

5) What is an exparte Divorce petition?
Ans) On filing of a Divorce petition, the Court will issue a notice to the other party for appearance. After the receipt of the notice, if the other side does not appear in the court, the court declares the matter as exparte. Thereafter the matter will proceed purely in a one sided manner and the Court will pass the decree accordingly.

6) How can I find out if a Divorce has been filed?
Ans) By enquiry in the family register of a family court one can find out whether the Divorce has been filed or not.

7) How long should I wait to remarry after Divorce?
Ans) One has to wait for the appeal period to remarry after the decree of Divorce. In India the appeal period is normally 90 days.

8) Are fathers entitled for the custody of children during Divorce?
Ans) A Divorce proceeding normally ends with a decision on the custody of the children. With whom the welfare of the children is best protected, is the yard stick that decides the custody of the children. As per most of the Indian personal Laws, father is the natural guardian of the minor. However mothers are usually preferred by Indian Courts to give the custody of the children. However this does not rule out entitlement of the father to get the custody of the children in appropriate cases.