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--------------- Print Magazine --------------
  May 2016
  April 2016
No Bull In A China Shop
Anil Malhotra, Advocate

Hindu marriages made in heaven and solemnized in India are now wantonly dissolved abroad. Sad but true. A prelude follows. Over 30 million overseas Indians are domiciled in 130 countries abroad. The parallel adjudication of their matrimonial disputes in Courts simultaneously in India and abroad activates a new inter se martial discord. This clash of jurisdictional battles also germinates a conflict amongst authority of Courts. Foreign Courts often impose penal sanctions oblivious of prior directions of existing Indian Courts of superior hierarchy. Rules of Private International Law offer little resolution. Spouses, children and extended families bear the brunt of multi-faceted parallel directives of Courts of different overseas territories.

The Supreme Court in Neerja Saraph v. Jayant Saraph (1994) proposed feasibility of enacting a legislation to ensure that no marriage between an NRI and an Indian which has taken place in India may be annulled by a foreign Court. Earlier in Y. Narasimha Rao v. Y. Venkata Lakshmi (1991), the Apex Court spelt out guidelines for recognition of foreign Court matrimonial judgments to decide when Hindu marriages solemnized in India were said to be dissolved by unenforceable foreign decrees.

The Bombay High Court in Sondur Rajini v. Sondur Gopal (2006), ruled that a foreign domicile of parties will not take away the jurisdiction of Indian Courts to decide the annulment of their ceremonial Hindu marriage solemnized when they were domiciled in India. In Navin Chander v. Leena (2006), the matrimonial dispute of a ceremonial marriage of Hindus celebrated in the USA, was held by the Bombay High Court to be amenable for adjudication by the Family Court, Pune. The Delhi High Court in Veena Kalia v. Jatinder Kalia (1996), ruled that an ex-parte decree of divorce of a foreign Court being a nullity, would not bar a subsequent petition for divorce in India even though maintenance had been accepted under the foreign judgment. In Harmeeta Singh v. Rajat Taneja (2003), the Delhi High Court temporarily restraining the foreign Court divorce proceedings held that even if the Hindu marriage is dissolved in the USA, it would still have to be confirmed by an Indian Court. In Moina v. Amardeep (1996), a foreign domicile was held by the Delhi High Court to be no deterrent to a divorce petition preferred in India to dissolve a Hindu marriage celebrated here. These authoritative and laudable verdicts clearly reflect that Indian Courts rightly have a prerogative to adjudicate matrimonial disputes falling in their domain.

In this backdrop, a new dimension of matrimonial litigation is coming in practice in the matrimonial arena in the shape of anti-injunction suits which is the remedy against filing of suits at different jurisdictions in respect of the same cause of action. A petition preferred in India for restraining an opposing spouse from pursuing or continuing with a complaint for matrimonial relief in a foreign Court would be such an anti-injunction suit in matrimonial matters. Lack of jurisdiction, both regarding the corpus of the Hindu marriage and the physical presence of an Indian spouse in the territory abroad, are the grounds of such suits in India. However, even the reverse application now finds popular practice.

An extreme view finds enunciation in a judgment rendered on 20th September, 2010 in an anti-injunction suit. The Federal Magistrates Court of Australia at Canberra restrained the wife from taking any action, as also for causing, allowing or assisting any other person, to pursue a complaint in India against the husband under The Dowry Prohibition Act, 1961. Both parties were Australian citizens married according to Sikh rites in India. By Australian consent orders, settlement of maintenance, property and child custody were resolved. The Canberra Court found that on evidence presented, Ms. Singh had not established that a dowry was either requested or paid as alleged. Accordingly, the Court held "that the injunction acts in personam only in relation to Ms. Singh, and does not, either in terms or otherwise, purport to affect the administration of justice in India". The judgment was said to be based on considerations of equity and justice.

In the above backdrop, the thought proposed for conscious deliberation which reverberates in the minds of those who live on home soil is the dire need for evolving an Indian jurisprudence in matrimonial litigation to deal with anti-injunction suits in India. If an American Court imposes a fine of one lac US Dollars a day for not complying a US Court Child custody order contrary to an Indian Court order or a divorce petition on grounds of irretrievable breakdown of marriage is proceeded with in the USA despite a pending Indian divorce litigation, such oppressive litigation must be restrained by the dictates of equity, good conscience and comity of Courts. Such unconscionable acts are estoppel by conduct. If foreign Courts can evolve principles, similar thinking must develop at home too.

In the far reaching repercussions which tend to shake the foundations of strong traditional Hindu marriages, a foreign Court matrimonial order may at times invade the privacy of the home and leave the hapless Indian spouse to abject surrender without a remedy. Surely, Law must come to rescue. The yeoman verdicts of Indian Courts are a big crutch. However, the need for a preventive remedy is stronger than a powerful cure at the end. What can be prevented must be stopped. What should not be suffered should not be endured. Anti-suit injunctions in matrimonial matters in fit cases must deter oppressive foreign Court orders without technicalities. The majesty of Indian law must prevail.


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