The Indian laws are more stringent than the western countries in respect of divorce. The husbands who are residing western countries are take advantage of the laws where they are residing to avoid the Indian laws and obtain divorce decree. A question would arise about the validity of the divorce obtained from foreign countries, when the marriage was performed on Indian soil and as per the provisions of Hindu marriage act.
“No Fault Divorce Petition” proceedings in the US.
In Anubha v Vikas Aggarwal (100 (2002) DLT 682). Where in the plaintiff, the young wife, was seeking decree of declaration that she was entitled to live separately from her NRI husband, the defendant. She also sought for a decree for maintenance in her favour besides the pendent lite expenses as she had been deserted and abandoned by him very soon after the marriage, after being subjected to cruelty. During the pendency of the suit when the wife learnt of divorce petition having been filed by the husband in the USA, she also approached the court to restrain that action from proceeding in the USA. Whereupon the Court passed the order restraining the defendant from proceeding further in the Court in the State of Connecticut, USA for a period of thirty days. However, in spite of the order the husband proceeded with the “No Fault Divorce Petition” proceedings in the US. When this fact was brought to the notice of the Court in India, the Indian Court passed an order asking the defendant for recording of the statement under Order X of the CPC and on his failure to appear, his defense was struck off and contempt proceedings were initiated. After the husband obtained the decree of divorce despite all these,
the question that arose foremost for determination was whether the decree of divorce obtained from the Court at Connecticut in the USA during the pendency of the proceedings of the case in India in the given facts and circumstances was enforceable in law or not.
Decree obtained in US Courts without the consent of the Spouse not recognised and enforeceable in India.
The Court held that the ground on which the marriage of the defendant was dissolved is not available in the Hindu Marriage Act. The parties were Hindus, their marriage was solemnised according to the Hindu rites. Their matrimonial dispute or relationship was, therefore, governable by the provisions of Hindu Marriage Act. Since the plaintiff did not submit to the jurisdiction of the USA Court nor did she consent for the grant of divorce in the US Court the decree
obtained by the defendant from the Connecticut Court of USA was held to be neither recognisable nor enforceable in India. Therefore even the NRI’ husbands approaches the courts where they residing and obtained divorce it will not bind if the grounds on which they obtained is not available in Indian laws.
In Dipak Bannerjee v Sudipta Bannerjee (AIR 1987 Cal 491) the husband questioned the jurisdiction of Indian court to entertain and try proceedings initiated by wife under Section 125 for maintenance, contending that no Court in India had jurisdiction in international sense to try such proceeding as he claimed to be citizen of United States of America and his wife’s domicile also followed his domicile. The Court held that where there is conflict of laws every case must be decided in accordance with Indian Law and the rules of private international law applied in other countries may not be adopted mechanically by Indian courts. The Court felt that keeping in view the object and social purpose of Sections 125
and 126, the objection raised by husband was not tenable and the jurisdiction of Indian Court was upheld as it was the court within whose jurisdiction she ordinarily resided. Therefore, when there was conflict of laws the Indian laws prevail over foreign laws. The efforts of NRI’s to go away from the Indian
laws are only futile exercise