A recent judgment of the Bombay High Court setting aside the parallel proceedings for divorce of the Family Court, Pune and upholding a divorce decree passed by the Court of Oakland, State of Michigan, USA, dissolving a Hindu Marriage on the principle of breakdown, has evoked a new stream of thought with which the author respectfully differs. The verdict, Kashmira Kale v. Kishore Kumar Mohan Kale , 2011 (1) Hindu Law Reporter (HLR), 333, lending sanctity to a US Divorce decree in preference to proceedings under the Hindu Marriage Act between the same parties upsets the settled law.
The parties married in Mumbai in 2005 according to Hindu rites, lived in the USA and intermittently visited Mumbai and Pune. In September 2008, the wife filed divorce proceedings in the US whose jurisdiction was challenged by the husband in the US. Simultaneously, in October 2008, the husband filed a divorce petition in the Pune Family Court, claiming it to be the competent Forum for adjudication of their dispute. The husband did not pursue the wife's divorce petition in the US any further and in January 2009, the US Court dissolved the marriage and divided the assets of the parties. However, the Family Court in Pune in September 2009 held that it still had the jurisdiction to try the husband's petition for divorce in India. In appeal, the Bombay High Court set aside the order of the Family Court, Pune, and upheld the US Divorce Decree dissolving the Hindu marriage.
The conclusions drawn by the Bombay High Court that the parties were domiciled in the US and hence the Hindu Marriage Act (HMA) cannot apply to them is per se erroneous. Furthermore, the non-application of the HMA to Hindus was misconstrued and the application of the breakdown principle without considering the written statement of the husband challenging the jurisdiction of the US Court were factors which did not lend an imprimatur to the foreign decree which did not take into consideration the provisions of the HMA under which the parties were married.
Noticing that section 1 (2) of the HMA applies only to Hindus in the territories to which the HMA applies but not considering that it also "applies to Hindus domiciled in the territories to which this Act extends who are outside the said territories" left the contention only half noticed. To add to it, section 2 of the HMA prescribing application of the Act to Hindus, irrespective of domicile, nationality or citizenship, renders the decision of the Bombay High Court fallacious. Earlier precedents on the point enunciated by different High Courts stipulate that HMA applies to all Hindus irrespective of domicile or residence if they have married in India according to Hindu rites. Thus, it has been held that HMA has extra territorial application as a Hindu carries with him his personal law of marriage and Courts in India have jurisdiction to try their matrimonial disputes regardless of change of nationality or new domicile.
The Bombay High Court in Sondur Rajini v . Sondur Gopal , 2006 (2) HLR 475, had held that the provisions of the HMA do not cease to apply on change of domicile which is determined when the parties tie the nuptial knot under the HMA and not on the date when an application is made for matrimonial reliefs. In Naveen Chander Advani v . Leena Advani, 2005 (2) HLR 582, the Bombay High Court held that the family Court in Pune wrongly declined to entertain a matrimonial petition relating to a marriage where parties who last resided and married in the USA according to Hindu rites and ceremonies as the Family Court has jurisdiction to deal with matters under the HMA/SMA. The Delhi High Court had earlier echoed similar views in Harmita v. Rajat, 2003(2) RCR 197 holding that in consonance with the principles of private international law, a US divorce decree would have to be confirmed by a Court in India. Even in Moina v. Amardeep, AIR 1986 Delhi 399, it had been held that under section 1(2) of the HMA, the Canadian domicile of the husband could not be a ground to decline jurisdiction of the Delhi Courts.
Equally flawed is the view of the Bombay High Court that since the parties last resided together in Michigan, USA, the U.S Court has territorial jurisdiction to decide their divorce dispute. This conclusion falls foul of the settled law laid down by the Supreme Court in Jagir Kaur v . Jaswant Singh, AIR 1963 SC 1521 that prescribing the limits of jurisdiction, speaking of last residence of a person with his wife, can only mean his last residence in the territories of India. It cannot obviously mean his residing with her in a foreign country for an Act cannot confer jurisdiction on a foreign Court. The Bombay High Court in Meera v. Anil Kumar, 1992 (2) HLR 284 also held that "last resided" in section 19 of the HMA means last residence in India and the High Court in India within whose jurisdiction the parties last resided together can take cognizance of the matter. Flowing from the same stream of thought, the Punjab and Haryana High Court has held that any temporary residence would confer jurisdiction to try the matrimonial dispute. This settled view militates against the erred conclusion of the Bombay High Court that temporary stay at Pune or Mumbai could not mean last residence in India as parties last resided together in the USA.
Above all, the view of the Bombay High Court disagrees with the celebrated view of the Apex Court in Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991 (3) SCC 451 clearly holding the rule 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. Three exceptions were culled out to this rule by the Supreme Court. Firstly, permanent foreign residence and invoking of relief on a ground available in matrimonial law under which parties were married. Secondly, voluntary submission to foreign jurisdiction coupled with contest on merits abroad on grounds available under matrimonial law under which parties were married. Thirdly, parties unconditionally consent to grant of relief although jurisdiction of Foreign Court is not in accordance with provisions of matrimonial law of parties. The Apex Court in Neerja Saraph v. Jayant Saraph, 1994 (6) SCC 641, thereafter had even suggested feasibility of a legislation to hold that "no marriage between an NRI and an Indian woman which has taken place in India may be annulled by a foreign court". Not noticing the above precedents of the Apex Court, the recent view of the Bombay High Court per se appears to be disagreeable if not per incuriam .
With due deference, the verdict of the Bombay High Court neither agrees with precedent on the point, does not adapt to Hindu law of marriage of the parties, nor is it conclusive. Parties may be treated as divorced in the USA and still married in India. Confusion confounded. In this breath, the line of action adopted in a number of matrimonial disputes in the Punjab and Haryana High Court is most useful to quote. Limping marriages are taken before the Mediation and Conciliation Centre at the High Court premises where the hatchet is peacefully buried and matters are amicably compromised to convert the matrimonial feuds to divorce petitions by mutual consent. Matters thereafter rest without contest on written settlements. Warring claims are put to sleep harmoniously. This is the better path than allowing foreign courts to decide Hindu Marriage Disputes without conflict of laws. Indian Courts are better suited to decide them without foreign interference. Domestic law must prevail.