Indian Hindu personal law marriages said to be made in heaven, solemnized on Indian soil being in the nature of a sacrament find an uphill road if sought to be broken on earth and dissolved on principles of irretrievable breakdown of marriage in foreign jurisdictions. This is so because divorce on fault grounds before competent Courts in India under personal law of parties do not permit irretrievable breakdown as a ground for divorce in India. Consequently, such marriages dissolved abroad create an anomalous situation. Thus, parties are divorced abroad but continue to be treated as married in India. These marriages are called as limping marriages, as was held in Satya vs Teja Singh.1
Divorce by mutual consent in India requires both spouses to jointly file the petition in the Court and maintain the unanimous decision to part for at least six months from the date of first hearing before the competent Court. In Amardeep Singh Vs. Harveen Kaur, 2 the Supreme Court held that where the Court dealing with the matter is satisfied, the statutory period of one year separation of parties before filing the petition and the second statutory period of six months waiting before filing the second motion can be waived if all efforts of mediation/conciliation have failed and parties have genuinely settled their differences including alimony besides child custody issues. It was held that this is a discretionary relief as the waiting period is not mandatory but directory and the waiting period ought not to prolong the agony of the parties, but Article 142 of the Constitution of India should not be exercised contrary to the statutory provisions to dissolve marriages. In Shilpa Sailesh Vs. Varun Sreenivasan, 3 a Constitution Bench of the Supreme Court is examining the jurisdiction of the Apex Court under Article 142 of the Constitution to dissolve a marriage between consenting parties without referring them to the Family Court, to wait for the mandatory period prescribed under Section 13-B, Hindu Marriage Act, 1955 (HMA).
However, when a traditional marriage of a Global Indian breaks up overseas, the anxiety to dissolve it expeditiously is preferred to be done in the foreign matrimonial home of the spouses. Vexed question which then crops up frequently before Indian marital Courts is whether to accord recognition to such foreign divorce decrees or not as invariably such overseas dissolution is based on the ground of irretrievable breakdown of marriage which is not a ground for divorce under HMA. The Apex Court in its celebrated decision in Y. Narashimha Rao v. Y. Venketa 4 case had laid down authoritative principles for recognition of foreign matrimonial judgments by settling 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.” Culling out exceptions when parties voluntarily and unconditionally submit to the jurisdiction of a foreign Court, where the contested decision is on a ground available under the law under which parties are married, the Supreme Court afforded protection to spouses to ensure that they were not saddled with ex parte decisions based on foreign law. The Supreme Court further in Neerja v. Jayant 5 case went to the extent of advocating of the feasibility of an Indian legislation being made to safeguard interests of women so that no marriage between an NRI and an Indian woman solemnized in India may be annulled by a foreign Court.
In another perspective, the Supreme Court in Sondur v. Sondur 6 case, has whilst interpreting the extra territorial application of the HMA, authoritatively held that where both parties are Hindu by religion and have a permanent domicile in India, a matrimonial cause of action would be maintainable in India even if they reside outside India. It has been settled that the extra territorial application of the HMA is linked to Hindus domiciled in India under the scheme of the HMA and hence provisions of HMA will apply to them.
In Sivasankaran v. Santhimeenal,7 the Supreme Court held that “living together is not a compulsory exercise” when a couple had not lived together for a single in 20 years of their marriage and used its powers under Article 142 of the Constitution to note that divorce was “inevitable” to do complete justice to the parties. In earlier decisions in R. Srinivas Vs. R. Shametha 8 case and in Munish Kakkar v. Nidhi Kakkar,9 the Supreme Court dissolved marriage under Article 142 to grant divorce to litigating parties. The Apex Court in the case of Vishnu Dutt Sharma v. Manju Sharma,10 and in Neelam Kumar v. Dayarani,11 have held that since irretrievable breakdown of marriage is not a ground for divorce recognised by statutory law, no marriage can be dissolved on this ground under the HMA and it is for Parliament to enact or amend the law on the subject.
Therefore, any foreign court matrimonial decree dissolving a Hindu marriage on the breakdown principle does not find recognition in India. Consequently, whenever any such foreign divorce decree is thrust before an Indian matrimonial court in an attempt to avoid a matrimonial litigation of a divorce petition preferred by the local spouse on conventional fault grounds under HMA, the lack of maintainability has to be tested on judicial principles settled by the Apex Court. Invariably, attempts to avoid divorce trials in India on the basis of a foreign matrimonial decree do not find favour.
With the influx of foreign matrimonial judgments being thrust before Indian Courts by a 32 million NRI population in 208 countries abroad, Parliament in its wisdom could well consider enacting a simplified irretrievable breakdown ground hedged with safeguards if one or both parties are resident abroad. Shifting the adjudicatory forum on Indian soil will aid and assist spouses to peacefully bury the hatchet on an equitable settlement fair to both parties on home turf without putting parties to expensive litigation abroad. This would also resolve the application of personal law issues being adjudicated by competent courts in India without a conflict of jurisdictions. Once India adapts to international practices of incorporating irretrievable breakdown as a ground for divorce under Indian statutory law, then further options can be explored for accession to International Convention for recognition of divorce decrees and settlement of ancillary disputes. This further demonstrates that all International Conventions in the realm of international private law have a pivotal role in improving family relations and the betterment of the welfare of the families and securing the best interest of the children.
by Anil Malhotra* & Ankit Malhotra**
*IAFL Fellow, Managing Partner, Malhotra & Malhotra Associates,India..
Email: anilmalhotra1960@gmail.com, Website: https://www.anilmalhotra.co.in,
Blog: https://www.anilmalhotra.co.in/blog
**Advocate, Malhotra & Malhotra Associates, India. Currently, LL.M [London]&Felix Scholar, School of Oriental &African Studies, University of London, London.
Email:ankitmalhotra97@gmail.com, Website :https://www.ankitmalhotra.co.in
1AIR 1975 SC 105, 2AIR 2017 SC 4417, 3TP (C) No. 1118 of 2018, 41991 (3) SCC 451
5(1994) SCC 6 461, 62013 (7) SCC 426, 72021 All SCR 2007, 82019 (9) SCC 409
9AIR 2020 SC 111, 10JT 2009 (7) SC 5, 11AIR 2011 SC 193
