Applicability Of Foreign Law To Dissolve Marriage Under Hindu Marriage Act Is Impermissible: Gujarat High Court

The Gujarat High Court held that the applicability of foreign law to dissolve a marriage performed under the Hindu Marriage Act, 1955 (HMA) is impermissible.

The Court held thus in two Appeals filed by a wife challenging the Order passed under Order 7 Rule 11 of the Civil Procedure Code, 1908 (CPC) by which her plaint was rejected.

A Division Bench comprising Justice A.Y. Kogje and Justice N.S. Sanjay Gowda observed, “… the Apex Court in Y Narasimha Rao’s case (supra) has clearly held that marital disputes arising out of marriages which have taken in India can only be governed by the provisions of the law under which the marriage has taken place, thereby meaning the applicability of a foreign law to dissolve a marriage which has been performed under the provisions of the HMA is impermissible. In the light of this declaration of law, the reasoning of the Family Court to the effect that the Australian Court possessed the jurisdiction to dissolve the marriage and the wife had no cause of action to seek for restitution or for a declaratory decree regarding the judgment of the Australian Courts would be erroneous and the case set up by the wife would have to be examined in the light of this declaration of law.”

The Bench said that the plaint could not have been rejected on the ground that it did not disclose a cause of action since the wife had clearly pleaded that the decree of divorce granted by the Australian Court was without jurisdiction and was thereby null and void and it was only the Indian Courts which possessed the jurisdiction to dissolve the marriage as provided under the provisions of the HMA.

Advocate Aaditya D. Bhatt represented the Appellant/Wife while Advocate Kshitij M. Amin represented the Respondent/Husband.

Factual Background

The marriage between the Appellant-wife and the Respondent-husband took place in 2008 at Ahmedabad as per Hindu rites and rituals. Their marriage was also registered under the provisions of Gujarat Registration of Marriages Act. One and a half moths after the marriage, the husband returned to Australia where he was a permanent resident. Three months after the marriage, the wife also moved Australia and joined her husband. In 2011, while the couple stayed there, the husband acquired Australian citizenship. In 2013, they had their first child, however, in 2014, differences cropped up between them and the husband returned to India. A year later, he secured an Overseas Citizenship of India (OCI) Card and his wife was granted Australian citizenship.

Thereafter, she along with son returned to India and in 2016, the husband initiated the proceedings for divorce and the care of child by approaching the Federal Circuit Court of Australia at Sydney. The wife filed a Petition under Section 125 of the Criminal Procedure Code, 1973 (CrPC) and also a suit seeking restitution of conjugal rights before the Family Court, Ahmedabad. The Federal Court granted divorce and the wife then filed an Application seeking review of the same. In 2017, she filed a complaint under the Domestic Violence Act before the Court of Metropolitan Magistrate. Meanwhile, her review application was dismissed by the Australian Court. Hence, she filed a suit seeking declaration that the said decree of Federal Circuit Court is null and void. In 2023, the Family Court rejected the wife’s plaints and hence, she was before the High Court.

Reasoning

The High Court in view of the facts and circumstances of the case, noted, “The plaint could not have been rejected on the ground that it did not disclose a cause of action since the wife had clearly pleaded that the decree of divorce granted by the Australian Court was without jurisdiction and was thereby null and void and it was only the Indian Courts which possessed the jurisdiction to dissolve the marriage as provided under the provisions of the Hindu Marriage Act. The very prayer made by the plaintiff would indicate that she did have a clear cause of action to approach the learned Family Court and therefore, the provisions of Order 7 Rule 11 (a) of CPC would not be attracted and can have no application.”

The Court said that the Australian Court was cognizant of the fact that, as per its own Judgments, there did remain a question as to whether or not a divorce granted by Australian Court would be recognised in India under the Hindu Marriage Act, however, the it ultimately stated that the husband was an Australian Citizen and he was entitled to initiate divorce proceedings under the Australian Laws.

“It would be sufficient to state here that the Australian Court also harboured its own doubts as to whether it possessed jurisdiction and therefore the Family Court could not have concluded that the Australian Court was the court of competent jurisdiction to decide the matrimonial dispute arising between a couple who were married under the provisions of the HMA”, it added.

The Court elucidated that if the parties to a marriage which was conducted in India come back to India and thereby indicate that their origin domicile of birth subsisted, they cannot be permitted to initiate proceedings in a country which had become their domicile by choice.

“The fact that both the husband and wife had secured OCI cards by themselves indicates that it was never their intention to abandon their domicile by birth permanently and they consciously had decided to retain their domicile by birth. It is therefore clear that the husband had no right to initiate proceedings in the Australian courts by taking advantage of the fact that he had acquired Australian citizenship”, it remarked.

The Court further noted that Section 13 of the CPC stipulates as to when a foreign Judgment would not be conclusive and it states that the foreign Judgment would only be conclusive in any matter which has been directly adjudicated upon between the parties except in 6 specific cases. It added that the first exception to this presumption that a foreign Judgment is conclusive, would be when it has not been pronounced by a Court of competent jurisdiction.

“As already stated above, a marital dispute arising out of a marriage conducted in India between two Hindus under the provisions of the HMA can only be entertained and considered under the provisions of the HMA and not by the application of any foreign law. Thus, the rejection of the plaint on the ground that the marriage had already been dissolved by the court of competent jurisdiction would be incorrect”, it observed.

Conclusion

The Court was of the view that it will be open for the wife to contend that the Australian Court had no jurisdiction since they were married under the provisions of the Hindu Marriage Act and hence their marriage, including its dissolution, would have to be decided under the Hindu Marriage Act and not under a foreign law.

“It is therefore clear that the wife did have a clear cause of action and the view of the Family Court that the marriage was dissolved cannot be accepted. … This argument that the validity of the marriage was not an issue between the parties and therefore, the learned Family court possessed no jurisdiction cannot also be accepted”, it also said.

The Court reiterated and concluded that whenever the matrimonial status of any person is the subject matter of any declaration sought for, it is only the Family Court which would possess the jurisdiction to try the suit.

Accordingly, the High Court allowed the Appeals and set aside the impugned Orders.

Cause Title- ABC v. XYZ (Neutral Citation: 2025:GUJHC:49833-DB)

Appearance:

Appellant: Advocates Aaditya D. Bhatt and Chandni S. Joshi.

Respondent: Advocates Kshitij M. Amin and Rahul R Dholakia.

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