Mumbai: Once a decree of divorce is granted by a foreign court after the parties submit to its jurisdiction and contest the case, the marriage stands validly dissolved, the Bombay High Court has held.
"As such nothing further survives in the marriage. Therefore the conjugal rights cannot be restituted and hence the petition for conjugal rights or even any other petition cannot proceed and must be dismissed as infructuous," ruled Justice Roshan Dalvi recently.
The Judge observed this while quashing an order of a family court in India which had dismissed husband`s petition for rejecting wife`s plea for restitution of conjugal rights.
"It is an abuse of legal process to adjudicate upon matters already decided by foreign Courts which are conclusive under the Indian Laws," Justice Dalvi noted and set aside the family court`s order of July 31.
In this case, the parties were residing in the state of Texas in the US when the wife submitted to the jurisdiction of the Judicial District Court of Harris County.
Kaustubh Sudhir Mestry and Praveena Lakshmanan married in 2006 and moved to the US thereafter. They lived there together until 2010. In the meantime, they had disputes. While residing there, the husband filed the petition for divorce on the ground of irretrievable breakdown of marriage and also cruelty.
The wife filed a counter claim wherein she contested the charge of cruelty. She also consented to the interim order passed by signing the interim order herself and also by her attorney. She further consented to the grant of relief by that court, Justice Dalvi observed.
"This being the law, the impugned order of the Family Court in India would deserve to be interfered with. Though it is seen that the learned Judge has painstakingly considered the law relating to conclusiveness of foreign judgments, the view taken by the Judge in the impugned order seems to be erroneous," the High Court observed.
The husband and wife applied for, opposed and
ultimately accepted an interim order of the foreign court by consent. The parties appeared in person as also through their respective attorneys in the Judicial District Harris County.
The interim order restrained the parties from entering upon their respective places of residence. The order directed the husband to pay house rent, car and motorcycle loan and phone bill upto the end of July, 2010, the order having been passed on 14th July, 2010.
The parties were directed to pay their personal debts. There was a temporary restraint order already passed which both the parties agreed to continue until further orders of the court.
The husband was directed not to do anything with the visa of the wife until the final decree of divorce. The wife was directed to allow the husband to get his books and personal belongings from their residential premises.
After the interim order was passed the wife came to India on August 22, 2010. She filed the petition for restitution of conjugal rights and an application under the Domestic Violence Act against the husband and his parents.
The wife instructed her attorney to withdraw counter claim in Texas court and sent emails to that court on August 30 and 31, 2010. Hence, divorce petition filed by the husband proceeded without the counter claim and without her defence. She did not appear in Judicial District Harris County and the decree of divorce was passed. The interim order, therefore, merged in the final decree of divorce.
Upon the decree of divorce being granted, the marriage of the parties stood dissolved. Hence the husband applied in the family court, Mumbai, for dismissal of the petition of restitution of conjugal rights as it would not then survive. That application was dismissed. Being aggrieved, he filed a petition in the Bombay High Court.
The wife contended that the Texas Court had no
jurisdiction and decree of divorce passed would not become a final judgement conclusive upon both the parties. This is on the premise that she did not appear before the Texas Court.
The High Court, however, felt that her contention was incorrect as she had submitted to the jurisdiction of foreign court and argued her case on merits. This, the court said, was clear from the counter claim filed by her attorney as also the interim order which had been signed by her.
Her contention that the grounds of divorce were different in the US courts and hence no decree of divorce can stand in India was also rejected by the High Court which felt that irretrievable breakdown of marriage and cruelty, cited as reasons for seeking divorce in this case, were acceptable also in Indian courts.
The wife contended that she and her husband were domiciled in India and hence Hindu Marriage Act, 1955, would apply. On this the High Court noted that as they last resided in Mumbai before moving to the US temporarily, their domicile continued and only courts in Mumbai would have jurisdiction over such matters.
"However, this would be if the wife did not submit to the jurisdiction of any other court," the High Court observed.
The High Court further held that judgement obtained by the husband from a foreign court being the decree of divorce was conclusive because it had been pronounced by the court in the state where they then lived. It had been given on the merits of the case because the wife opposed the interim application.
"It is not founded upon any breach of any law in force in India because it is for a decree of divorce on the ground of cruelty which is in terms of the law in force in India," the court said.