CHENNAI: In a crucial ruling which is sure to cheer up women fighting divorce cases with husbands residing in a foreign country, the Madras HC has said the family court in India had jurisdiction to try matrimonial litigation even if the husband is a citizen of a foreign country and not an ordinary resident of India.
A division bench comprising Justice Elipe Dharma Rao and Justice KK Sasidharan pointed out that the amended Section 19 of the Hindu Marriages Act extended to outside India. “The fact that the husband is residing outside the territory does not prevent the wife from applying before the local designated court to redress her grievances,” the bench said.
The judges were passing orders on a case involving film actor R Sukanya and her husband R Sridharan, who is an American citizen. The two got married in April 2002 as per Hindu rites and customs at Balaji temple in New Jersey in the US. After nearly a year she returned to India, started to act in films, and also filed a divorce petition in 2004. As her husband did not attend the proceedings, the family court granted her divorce ex parte.
On representation from her husband Sridharan, later the family court reversed its order. He also filed a petition in the HC to restrain the family court from hearing the case on the ground that the court in India had no jurisdiction to take up the matter involving American citizens.
Dismissing his claims, the judges said that when the marriage was solemnised under the Hindu law, the proceedings for divorce also has to be made under the same Act. Referring to the amended Section 19 of the Act, the judges said with effect from December 23, 2003, the wife is now entitled to file a matrimonial petition before a district court in whose territorial jurisdiction she is residing.
The judges rejected Sridharan’s claims of domicile, and said, “when the marriage was solemnised under the Hindu law, the proceedings for divorce has also to be made under the said Act. He cannot take any exception to the proceedings in India under provisions of the Hindu Marriage Act merely on account of his US citizenship or domicile.
Indian courts have jurisdiction to take up matrimonial proceedings involving two Hindus governed by the Hindu Marriage Act (HMA) even in cases where the opposite party is a foreign national having his domicile outside India, the Madras High Court has held.
Dismissing an appeal against a single Judge’s order, a Division Bench, comprising Justices Elipe Dharma Rao and K.K. Sasidharan, in its judgment said when a wife was given the right to initiate proceedings before the local District Court where she was actually residing, such a provision could not be defeated by taking a technical plea that no such proceedings would lie on account of foreign citizenship of the husband or his domicile in another country.
The substantial issue in the appeal pertained to legality of a matrimonial proceedings initiated by actor R. Sukanya before a family court in Chennai against her husband having his domicile in New Jersey (USA.)
R. Sridharan was an Indian citizen and, on migration to the US, was granted that country’s citizenship.
The actor was residing adjacent to his residence in Chennai. Their marriage was solemnised on April 17, 2002 as per Hindu rites and customs at the Balaji temple in New Jersey.
In January 2003, the actor came to India for a short visit promising to return after completing her dance programme. Later, against her promise she started acting in films with no plans of returning to the US. She filed a divorce petition before the Principal Family Court, Chennai, on grounds of cruelty.
Mr. Sridharan was not aware of the proceedings. An ex parte order of divorce was granted in July 2004. After he took steps, the Family Court set aside its order. On his appearance, he filed the counter.
In the meanwhile, Mr. Sridharan filed a petition before the Madras High Court seeking a writ of prohibition contending that the Family Court, Chennai, had no jurisdiction to entertain the divorce proceedings as he was a US citizen. The court in India had no jurisdiction.
The actor countered that the marriage was solemnised with Hindu rites and customs.
Hence, the rights and obligations of the parties ran from the HMA.
A single Judge said the court in India exercising jurisdiction under the HMA had jurisdiction to entertain the divorce petition irrespective of the present residence of the opposite party. He dismissed the writ petition. Hence, the present appeal.
The Bench said that earlier under section 19 HMA (court to which petition shall be presented) it was not possible for a woman to initiate proceedings before the court in whose jurisdiction she was residing. Because of this, serious prejudice was caused to women.
Following an amendment, the wife was now entitled to file a matrimonial petition before the District Court in whose jurisdiction she was residing.
The legislation had to be given an extended coverage even outside the territory to which it ran. When the parties were governed by the HMA, the jurisdiction and the grounds for annulling the marriage should be as provided under the Act.
The domicile or citizenship of the opposite party was immaterial in a case like this. It was the wife’s residence which determined the question of jurisdiction in case the proceedings were initiated at her instance, the Bench said.
As the divorce petition was pending before the Family Court since 2004, the Bench requested the lower court to decide the petition as expeditiously as possible, in any case within two months