TRIMESTER – XII

SAVEETHA SCHOOL OF LAW

VALIDITY OF FOREIGN MARRIAGES BEFORE INDIAN COURTS – A STUDY

UNDER THE ESTEEMED GUIDANCE OF:

DR. ANITA FABYOLA

SUBMITTED BY: M. AMUDHA

DATE OF SUBMISSION: 10.09.15

SUBJECT: PRIVATE INTERNATIONAL LAW

A PROJECT ON

Table of ContentsCHAPTERISATION...........................................................................................................................2

CASES REFERRED...........................................................................................................................3

RESEARCH PROBLEM:...................................................................................................................4

HYPOTHESIS:....................................................................................................................................4

LIMITATION......................................................................................................................................4

REVIEW OF LITERATURE.............................................................................................................4

RESEARCH METHODOLOGY.......................................................................................................4

CHAPTER - 1......................................................................................................................................5

CHAPTER – 2.....................................................................................................................................7

CHAPTER – 3...................................................................................................................................12

CHAPTER – 4...................................................................................................................................24

CHAPTER - 5....................................................................................................................................29

BIBLIOGRAPHY..............................................................................................................................30

CHAPTERISATIONCHAPTER – 1 (INTRODUCTORY)

Introduction

Meaning of ‘Marriage’

CHAPTER – 2 (MARRIAGE)

Formal validity of marriage – position in England and other countries

Essential validity of marriage / capacity to marry

Choice of Law rule

CHAPTER – 3 (NRI MARRIAGES)

Concept of Non-Resident Indian Marriages and legal issues

Application of marriage Acts in Non- Resident Indian Marriages

Validity of Non- Resident Indian Marriages

Indian courts Scenario and International law

CHAPTER – 4 (JURISDICTION)

Divorce and judicial separation

Nullity of Marriage

Recognition of foreign Divorces

CHAPTER – 5 (CONCLUSION)

Conclusion

CASES REFERRED1. Abdur Rahim Undre v. Padma Abdur Rahim, AIR 1982, Bom. 341

2. Anil Kumar Mahsi v. Union of India, (1995) 1 SCJ 90-94.

3. Berthiaume v. Dastous [1930] AC 79,

4. Brook v. Brook (1861), 9 H.L.C. 193

5. Cristofaro v. Cristofaro (1948) VLR 163

6. Davison v. Sweeney (2005) 255 D.L.R.

7. De Reneville v. De Reneville, [(1948) P 100]

8. Hyde v. Hyde, (1866) LR 1 P & D 130

9. Jacintha Kamath v. Padmanabha K., AIR 1992 Kant 372. 32

10. Lakshmi Sanyal v. S.K. Dhar, AIR 1972 Goa 2667.

11. Lawrence v. Lawrence [1985] 1 All ER 506.

12. Le Mesurier v. Le Mesurier, [1895] A.C. 517

13. Levett v. Levett and Smith [1957]

14. Madhubala v. Jagdish Chandera, (1978) 4, All LR 457.

15. Mariamonia P. v Padmanabham, AIR 2001 Mad. 350.

16. Marian Eva v. State of H.P., AIR 1993 HP 7

17. Mrs. Anoop Beniwal vs. Dr. Jagbir Singh Beniwal; AIR1990 Delhi305

18. Prem Singh v. Dulari Bai, AIR 1973 Cal WN 535

19. Ramesh Kumar P. v. Secretary, Kannapuram Gram Panchayat, AIR 1998 Ker 95.

20. Sanjay Mishra v. Eveline Joe, AIR 1993 MP 54.

21. Sarla Mudgal, President Kalyani v. Union of India, AIR 1995 SC 1531

22. Satya vs. Teja Singh (1975)1SCC120

23. Shaw v. Gould, (1868) 3 H.L. 55

24. Sottomayor, otherwise De Barros v. De Barros, (1877) 3 PD 1

25. Vinaya Nair v. Corporation of Kochi, AIR 2006 Ker.275.

26. Vishwanathan v. Abdul Wajid, AIR 1963 SC 158

27. Way v. Way [1949] All ER 959.

28. Y. Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi and Anr;(1991)3SCC451

RESEARCH PROBLEM:This paper aims to make an elaborate study on the determination as to the legal recognition

given to the marriage held or solemnized in other countries between either Indian citizen and

other national or between Indian citizens or between foreign nationals whose validity is

challenged between Indian courts.

HYPOTHESIS:The marriage held in foreign countries is recognized by the Indian courts.

LIMITATION

This research is done relying mostly on articles and essays published by authors

online and few on books written on the concept of marriage, its validity in case of cross

border issues, its relevance under English law and Indian Law. Though such books are

referred they do not contribute to the bulk of the research and my research is mostly confined

with the online sources. The area of research is only restrained to the concept of marriage and

enforcement of same under Private International Law.

REVIEW OF LITERATURE

The existing literature on this research work mainly revolves around the published

works of foreign as well as Indian authors pertaining to the subject matter, well decided cases

cited in Indian Journals and cases cited from other countries and the articles published in

websites.

RESEARCH METHODOLOGY

The research methodology adopted for the purpose of this project is the doctrinal

method of research. The various library and internet facilities available for Saveetha School

of law has been utilized for this purpose. Most of the information is, however, from the

internet.

VALIDITY OF FOREIGN MARRIAGES BEFORE INDIAN COURTS – A STUDY

CHAPTER - 1INTRODUCTION:

“Marriage is the very foundation of the civil society, and no part of the laws and institutions

of a country can be of more vital importance to its subject than those which regulate the

manner and condition of forming, and if necessary of dissolving, the marriage contract.” The

formal requirement of the marriage will be governed by the law of the country where the

marriage is celebrated. A marriage can be celebrated if the parties meet the substantive

requirement of the domestic law of the country where the marriage is celebrated, and one of

the parties is a national of that state, or habitually resides there; and each party satisfies the

substantive requirements of the law applicable to the parties in accordance with the conflict

of law rules of the place where the marriage is celebrated. This article basically focuses on

the marriage as a contract which is sui generis along with the opinion of various Judges

though the judgments in different cases. However it also talks about the position, legal

formalities along with the validity and capacity of the parties to marriage and the choice of

law rules governing such marriages in England and other common law countries though out

the world. On the other hand the focus on the matrimonial causes like polygamous marriages;

divorce, judicial separation, nullity of marriage in different countries has also been made.

Towards the end of the article it talks about the jurisdiction and the choice of law for solving

such causes after marriage and the recognition of foreign divorces in other countries. The

conclusion part tries to give an overall view along with the present scenario on the subject.

MARRIAGE:

The dictum in Shaw v. Gould1 states marriage as “Marriage is the very foundation of the

civil society, and no part of the laws and institutions of a country can be of more vital

importance to its subject than those which regulate the manner and condition of forming, and

if necessary of dissolving, the marriage contract.” In English law, a marriage though a

contract, is a contract sui generis. Each legal system determines the attributes of a marriage;

at Common Law in England, it is in essence a consensual union of a man and a woman. A

marriage was a voluntary union for life of one man with one woman to the exclusion of

1 (1868) 3 H.L. 55 : 37 L.J. Ch. 433 : 18 L.T. 833 : 148 R.R. 214

others2. This decision was the foundation of the rule that polygamous marriages were not

recognized in England but the situation has been changed and such marriages are now

recognized in England.

Meaning of Marriage

Marriage is a contract by which a man and a woman express their consent to create the

relationship of husband and wife. This contract, however, differs fundamentally from a

commercial contract in the following ways:

As a general rule, it can only be concluded by a formal public act.

It can only be dissolved by a formal public act.

More importantly, it creates a status which is taken into account in relation to, for

example, succession, tax, legitimacy of children, and to some extent in relation to

immigration laws3.

According to Tomlin’s Dictionary, “Marriage is a civil and religious contract, whereby a man

is joined and united to a women, for the purpose of civilized society”4.

Each legal system determines the attributes of a marriage in a different way. English law

considers marriage as a contract, whereas in India, among Hindus marriage has always been

regarded as sacrament, whilst in Mohammedan Law, it is a contract. Hence the perception of

marriage differs from different legal entity, the practice of religion etc. as the case may be.

2 See Hyde v. Hyde, (1866) LR 1 P & D 1303 See Cheshire & North, Private International Law, thirteenth edn, p. 741.4 See S.R.Myneni, Private International Law, first edn, p.250.

CHAPTER – 2 Conditions for Validity of Marriage:

Two conditions are to be fulfilled to constitute validity of marriage:

1. Parties to Marriage should have the capacity to marry, which in Private International

Law called as the question of essential or material validity.

2. Parties to Marriage must have performed necessary rites and ceremonies, which in

Private International Law called as the question of Formal Validity.

The above two conditions should be fulfilled for the marriage to be valid.

In De Renville v. De Renville5, the hon’ble court laid down conditions for conferment of

status of marriage as:

1. That the marriage conforms in its essentials with the law of each party’s domicile at

the time of marriage; and

2. That it has been performed in accordance with the formal requirements of the law of

the place where the ceremony takes place, generally called Lex loci celebrationis.

Essential validity of marriage / capacity to marry:

Essential validity involves three elements:

1. An agreement, which may be affected by mistake, duress, undue influence or fraud;

2. Capacity to marry in the narrow sense (herein called capacity), i.e., legal ability to

marry at all; and

3. Freedom from legal prohibitions of the particular intermarriage (herein called

prohibitions)6.

Capacity to Marry

Essential validity covers all questions of validity other than formal validity. Capacity to

marry is a category within essential validity. Capacity to marry ought strictly to be confined

to rules which lay down that a particular class of person lacks a power to marry which other

people possess (for instance, rule that a person below a certain age may not marry). In

practice, however, capacity to marry also includes cases where the reason for the invalidity, is

that such a marriage relationship is objectionable in the eyes of law (for instance, rules

5 [(1948) P 100]6 CONFLICT OF LAWS-ESSENTIAL VALIDITY OF MARRIAGE, By Geoffery Sawer, LL.M.,Barrister at law., senior lecturer in law at the University of Melbourne.

prohibited marriages between relatives of certain degrees). Capacity to marry does not,

however, cover the whole field of essential validity; it does not include the consent of the

parties or the non-consummation of the marriage.

There is general agreement that this terminology includes matters of legal capacity such as

consanguinity and affinity, bigamy and lack of age. Consideration is given later to a law to

govern matters of consent and physical incapacity. The fact that capacity as a term

encompasses a wide range of matters does not necessitate the conclusion that all matters of

capacity should be subject to the same choice of law rule- a matter to which we shall return.

A further preliminary point which ought to be borne in mind is that, provided that a person

has capacity under the relevant law, the fact that he is, for example, under age according to

English law will not invalidate the marriage in the eyes of English law as the law of the

forum at least if the marriage is not in England.

There are two main views as to the law which should govern capacity to marry-

The dual domicile doctrine, and

The intended matrimonial home doctrine.

Consent of Parties

The rule states that no marriage is valid if by the law of either party’s domicile he or she does

not consent to marry the other7. There appears to be no specific authority in England on the

subject though observation by the Court of Appeal, in a case where the issue was whether a

marriage by proxy was valid, observed that the mode of giving consent, as opposed to the fact

of consent would be governed by the lex loci celebrationis. It was also held that the consent is

governed by the law of the domicile of the parties.8 The question that arises is as to which lex

domicilii has to be considered, of both parties, or of the party whose consent is in question.

The consensus seems to be, though there is no decision on the subject, that is should be

domiciled of the person who is alleged to have lacked consent. In Davison v. Sweeney,9 it was

held that alleged absence of consent was a matter for a domicile of the party concerned.

In Canada, consent is regarded as a part of essential validity of a marriage and depends on the

ante nuptial domicile of the parties.

The Choice of Law Rule

7 Hartley, ‘The Policy Basis of the English Conflict of Laws of Marriage’ (1972) 35 MLR 571.8 Way v. Way [1949] All ER 959. 9 (2005) 255 D.L.R. (4th) 757 (BC)

Formal validity is governed by the law of the country where the marriage is celebrated, that

law is not generally thought appropriate in the English conflict of laws to govern the essential

validity. This is because the marriage may be celebrated in a country which in other respect

has no connection with the marriage or the parties. Neither of the parties may be domiciled

there before the ceremony and they may not establish their home there after it. The choice of

law rule doctrines are as under:

1. Dual Domicile Doctrine

According to the dual domicile doctrine rule is that a person’s domicile at the date of the

marriage has to be considered. For marriage to be valid, each party must have capacity by

the law of his or her domicile to contract the marriage. This rule commands most in

English law, has several advantages. In terms of principle, it is appropriate that people be

governed by the law of their existing domicile. The main rationale of this rule is that a

person’s status is a matter of public concern to the country to which he belongs at the

time of marriage; and therefore the domiciliary law of each party has an equal right to be

heard. Another advantage of this doctrine is that it is easy to apply in prospective

situation.

In Brook v. Brook10, the House of Lords dealt with the question of essential validity and

held that the marriage of a man to his deceased wife’s sister in Denmark was invalid

because such a marriage was within the prohibited degrees of affinity under English law,

the law of the parties’ ante-nuptial domiciles, though not under Danish law.

GOVERNING MATTERS OF CAPACITY TO MARRY:

Consent of parties

Non-Age

Prohibited degrees of relationship

2. Intended Matrimonial Home Doctrine

An alternative approach is that the law of the intended matrimonial homes governs the

essential validity of a marriage.11 This provides a basic presumption in favour of the law

of the country in which the husband is domiciled at the date of the marriage. This

presumption can be rebutted if at the time of the marriage the parties intended to establish

10 (1861), 9 H.L.C. 193, 1 E.R. 70311 See Cheshire & North, Private International Law, seventh edn, p 276.

a matrimonial home in a different country and if they implemented that intention within a

reasonable time.12

3. Real and Substantive Connection

Another possibility is that the essential validity of marriage should be governed by the

law of the country with which the marriage has its most and real and substantial

connection. As with the intended matrimonial home doctrine this rule is trying to connect

the marriage with the country to which it belong. Normally, the country with which a

marriage is most closely connected will be the country where the matrimonial home is

situated13. Further, while the real and substantial connection test has its supporters, it is,

in reality, a question- begging test. The question in which, choice of law rule will best

lead to the application of the law to which the parties and marriages

„belong‟. This test does not answer the question, but rather simply restates the problem.14

4. Validity of either Party’s Domiciliary Law

Under this test a marriage would be regarded as essentially valid if it were valid under

either party’s ante nuptial domiciliary law. This proposal has the advantage that it would

promote the policy in favour of validity of marriage, but has little else to commend it.15

5. A Variable Rule

In order to determine the most appropriate choice of law rule, one should examine why a

particular impediment exists and which law has the most interest in the validity of the

marriage. On this basis, the modified intended matrimonial home rule proposed above

seems the more appropriate to govern in capabilities which are imposed to protect the

public interest of countries, rather than the interest of the parties to the marriage.16

Formal validity of marriage – position in England and other countries:

Position in England

In recent years, the Common Law rules have been considerably varied by statute; such

changes are not discussed as the statutes would have no application outside England or

12 Cook, The Logic and Legal Bases of the Conflict of Laws (1942) p448.13 Lawrence v. Lawrence [1985] 1 All ER 506. 14 Davie, The Breaking Up of the Essential Validity of Marriage Choice of Law Rules in English Conflict of Laws’ (1994) 15 Hartley, ‘The Policy Basis of the English Conflict of Laws of Marriage’ (1972) 35 MLR 571. 16 Jaffey, Topics in Choice of Law (1996) pp 3-7.

United Kingdom. A marriage is formally valid when any one of the following conditions as

to the form of celebration is complied with (that is to say)17:

i. If the marriage is celebrated in accordance with the form required or recognized as

sufficient by the law of the country where the marriage was celebrated18.

ii. If the marriage was celebrated in accordance with the English common law in a

country where the use of the local form is impossible.19

iii. If the marriage, between parties of whom at least one is United Kingdom national is

celebrated outside the Commonwealth in accordance with the provisions of, and the

form required by, the Foreign Marriage Acts, 1892.20

The leading more modern authority in England on the point is Sottomayor, otherwise De

Barros v. De Barros,21 where the Court of Appeal held that, the law of a country where the

marriage is solemnized must alone decide all questions relating to the ceremony by which the

marriage is alleged to have been constituted; but, as in other contracts, so in that marriage,

personal capacity must depends on the law of the domicile; and if the laws of any country

prohibits its subject within certain degree of consanguinity from contracting marriage, and

stamp a marriage between persons within the prohibited degree as incestuous.‟ In

Berthiaume v. Dastous,22 a decision of the Privy Council in an appeal from Canada, held that

a marriage would be regarded as valid if the form adopted by the parties was in conformity

with the law of the country where the marriage took place, even if it was not a proper form of

law of the domicile of the parties.

In English Law, two rebuttable presumptions are drawn presuming the validity of marriage:

a) That if the parties go through a ceremony of marriage and live together, they were

validly married.

b) If the parties cohabit and are reputed to be married, they regarded as validly married;

there must, however, be some evidence that the marriage complied with local form.23

17 Rule 67(1) of Common Law Rules.18 Rule 67(1) of Common Law Rules.19Ibid,Rule 67(2) 20 Ibid,Rule 67(5) 21 (1877) 3 PD 1, p 5.22 [1930] AC 79, p 83. 23 Cristofaro v. Cristofaro (1948) VLR 163.

CHAPTER – 3Concept of Non-Resident Indian Marriages and legal issues:

Definition of Non-Resident Indian

Section 2 of Foreign Exchange Management Act, 1999 (FEMA)24 defines a person resident in

India and a person resident outside India, but does not define the term NRI. Under FEMA, a

person resident in India is one who resides in India for more than 182 days in the preceding

financial year and who comes or stays in India for any purpose. Non-Resident Indian is

defined as a person who is not a resident in India. Therefore, an NRI or Non-Resident Indian

can be summed up as an Indian citizen who is ordinarily residing outside India and holds an

Indian passport. In other words “Non-Resident Indian- NRI” means an individual, being a

citizen of India or a person of Indian origin who is resident outside India. Marriages by and/or

with Non Resident Indians (NRI marriages) are a class apart in matrimonial law. Generally,

the main motive for such a marriage is immigration to a foreign land in pursuit of greener

pastures. Non Resident Indian marriages may be between: -

1. Non-resident female and an Indian male

2. Both Indian spouses who later on migrate to a foreign land either together or separately

3. Both non-resident Indian spouses who marry under Indian marriage laws either in India or

in a foreign country

4. An Indian spouse, male or female, marrying a foreign spouse under Indian marriage laws

either in India or in a foreign country

The spouses in the NRI marriage, like any other Indian Hindu marriage, may be between:

(i) Both parties being from the same caste

(ii) Parties may be from different caste–inter-caste marriage.

(iii) One of the parties may be a non-Hindu–interfaith marriage, with or without

conversion to mutual faith.

(iv) With or without surrendering the overseas citizenship if married in India or

acquiring or not acquiring a foreign citizenship if married abroad.

(v) Similarly NRI groom or NRI bride who comes to India for marriage with a native

spouse may be a foreign citizen of a foreign country either by adoption or by

birth; a green card holder; on a work permit or on a temporary visa or may have

dual citizenship as an ‘Overseas Citizen of India’

(vi) These marriages may be between bachelors, remarriage of both or of either spouse

after divorce or after widowhood

24 Foreign Exchange Management Act 1999, (Act 42 of 1999), Section 2.

(vii) Bigamous or fraudulent marriage based on wrong information regarding job,

matrimony, addiction, illness or even criminal record

Even though this is a gender-neutral term, typically the ‘NRI marriages’ are considered to be

between a woman from India and an Indian man residing in another country (NRI–non-

resident Indian), either as Indian citizen at the time of marriage (when he would legally be

an ‘NRI’) or as citizen of that other country (when he would legally be a PIO–Person of

Indian Origin). PIO means a foreign citizen who any time held an Indian passport; or he/she

or either of his/her parents or grandparents or great grandparents was born in India and was

permanently resident in India or that he/she is spouse of a Indian citizen or Indian Origin.

Indians settled abroad, having acquired foreign citizenship, get married either to Indian

spouses who are 130 themselves citizens of that country or to foreign spouses. They are,

thus, governed by the local civil marriage laws and generally do not pose any legal problems

for Indian Courts.

Application of marriage Acts in Non- Resident Indian Marriages

Marriage laws outline the legal requirements, which determine the validity of a marriage.

The NRI marriages may be solemnized under either, The Hindu Marriage Act, 1955, The

Special Marriage Act, 1954, The Foreign Marriage Act, 1969 or any other personal law

governing the spouses.

The law under which the parties have married will determine the law that will be

applicable to the couple. It will also affect their children in respect of rights relating to

inheritance and succession, as also the couple’s right to adopt, to be guardians or to obtain

custody of children. Each of the laws specifies persons who can marry under the provision of

that law. The Hindu Marriage Act, 1955 requires that both the parties who are getting married

must be Hindus. So that if a non-Hindu wants to marry a Hindu under the Hindu Marriage

Act, 1955, the non-Hindu partner will have to get converted to Hinduism before their

marriage can take place. The Muslim law, on the other hand, as applied in India permits a

Muslim marriage between two Muslims or between a Muslim man and a Christian/Parsi

woman but not a Hindu/Buddhist or Sikh woman. The Christian law of marriage permits a

marriage between any two Christians or even a Christian and a non-Christian under it.

The marriage under The Hindu Marriage Act, 1955 can be solemnized only between two

Hindus as defined in Section 2, who are citizens of India. This marriage can be registered

under the same Act under Section 8 or even under the Special Marriage Act, 1954 under

Section 15 but such registration by itself does not confer on the spouses all the rights

guaranteed under the Special Marriage Act, 1954. The Special Marriage Act, 1954 is a

secular Act where religion or caste of the spouses is legally not relevant, as Section 4 has

used the words “any two persons”. This even excludes the need of wedding persons to be

Indian Citizens, so any two foreigners, namely two non-citizens domiciled in India may have

their marriage solemnized under the Special Marriage Act, 1954.25 The Special Marriage Act,

1954 is in reality an Indian Marriage Act, which applies to all Indians irrespective of caste,

creed or religion. The concept of marriage under this Act is monogamous, that is union for

life, dissolvable by judicial authority of law only.

The unique feature of Special Marriage Act, 1954 is that it avoids the conflict of inter-

communal and interreligious laws, which is bound to arise when parties to marriage belong to

different communities or different religions. Even succession to the property of such persons

is also not governed by their personal law i.e. by the law of the community to which the party

belongs; it will be governed by Indian Succession Act, 1925. This is so, even when both the

parties belong to the same community. Inter-religious marriages, which give rise to inter-

personal conflicts will be governed by provisions of this Act, provided such marriages are

performed under this Act or though solemnized under any other law but are registered under

this Act. The entire Act is in the form of a conflict statute in India answering all the issues

arising out of conflict situations due to inter-religious marriages.

The Law Commission26 in its 212th Report has recommended that the word “Special” be

dropped from the title of the Special Marriage Act, 1954 and it be simply called “The

Marriage Act, 1954” or “The Marriage and Divorce Act, 1954”. The suggested change will

create a desirable feeling that this is the general law of India on marriage and divorce and that

there is nothing “special” about a marriage solemnized under its provisions. A provision be

added to the application clause in the Special Marriage Act, 1954 that all inter-religious

marriages except those within the Hindu, Buddhist, Sikh and Jain communities, whether

solemnized or registered under this Act or not shall be governed by this Act.

In some cases the marriage may even be under The Foreign Marriage Act, 1969, which is just

an extension of The Special Marriage Act, 1954 except that marriage under this Act is

between parties one of whom at least is a citizen of India by fulfilling the conditions laid

down in Section 4 of the Act. The Act provides facility for an Indian national to marry abroad 25 Marian Eva v. State of H.P., AIR 1993 HP 7. 26 Law Commission of India, 212th Report on Laws of Civil Marriages in India – A Proposal to Resolve

Certain Conflicts, (October, 2008).

with another Indian national or a national of another country or with a person domiciled in

another country. Such a marriage may have been solemnized in India or before a marriage

officer in a foreign country. This Act too, like other Acts, is a monogamous marriage Act

where bigamy is void and punishable under Section 19.

Under this Act, Foreign marriages solemnized under other laws can also be registered

under Section 17.

For marriages to be celebrated in a foreign country, where at least one of the parties is

a citizen of India, effective and elaborate provisions have been made under the Foreign

Marriage Act, 1969, where parties can proceed to have their marriage solemnized under the

said Act, the question of domicile in India would no longer be relevant.

Considerable uncertainty as to the law governing foreign marriages & the application

of principles of private international law to such marriages is now removed as a result of this

Foreign Marriage Act, 1969. This Act provides that marriages where one of the parties to the

marriage is an Indian citizen and the other party is a non-Indian, would be governed by the

provisions of the Special Marriage Act, 1954. The courts in this country and in some other

countries may therefore, deal with the provisions of the Special Marriage Act, 1954 while

dealing with dissolution of marriages which are covered by the Foreign Marriage Act, 1969,

which is a complete code in itself as it answers all the issues in conflicts.

Parties marrying under their personal law in a foreign country are governed by the law

in force in that country in respect of such marriage for matrimonial relief. Parties marrying in

a foreign country according to the civil law of that country, relief can be claimed in India

under Subsection (1) of Section 18, of Foreign Marriage Act, 1969, which lays,

“Subject to the other provisions contained in this Section the provisions of Chapter IV, V, VI,

and VII of the Special Marriage Act, 1954, shall apply in relation to marriages, solemnized

under this Act & to any other marriage solemnized in a foreign country between parties of

whom one at least is a citizen of India as they apply to marriages solemnized under that Act”.

In the latter situation, (i.e. the parties marrying under civil law) the formal validity of the civil

marriage in foreign country will be governed by the civil law of that country. For

matrimonial relief as envisaged by Section 18 (1), the law of domicile of the parties is

applicable. Section 17 (6) of the Foreign Marriage Act, 1969 being a deeming provision,

makes the provisions of the Special Marriage Act, 1954 applicable to all marriages performed

under the Foreign Marriage Act, 1969 for purposes of matrimonial relief.

Section 17 (6) thus lays, “A marriage registered under this Section shall, as from the

date of registration, be deemed to have been solemnized under this Act”. In view of the

deeming provision found in Section 17 (6) of the Act, registration absolves the parties of

proving that the marriage of the parties was in fact solemnized under the Act.27 A marriage

solemnized under British Marriage Act, 1949, between a Muslim husband and a Hindu wife

in 1966 is a foreign marriage within the meaning of Foreign Marriage Act, 1969. The

marriage is governed by Chapter IV of the Act. The said marriage would be governed by the

Special Marriage Act, 1954 and not by the personal law of the husband.28

Sometimes Non Resident Indians contract civil marriages abroad under foreign laws

without solemnizing ceremonial marital customary rites simultaneously either in India or

abroad nor register their marriage under any of the Indian marriage laws, such marriages do

not come within the ambit of Indian law in any way. However if the couple, in addition take

the precaution of solemnizing their marriage under the Foreign Marriage Act, 1969 in any

Indian diplomatic office abroad, such a marriage can come under the jurisdiction of Indian

courts. Alternatively, NRI spouses may have to choose either their foreign nationality law or

their domicile law abroad to resolve their marital disputes in accordance with such laws.

Section 29 of Hindu Marriage Act, 1955 gives statutory recognition to customary

marriages and divorces. This aspect is very important as far as a certain category of Indian

immigrants are concerned–those men who have migrated abroad from parts of rural India and

have subsequently remarried after divorcing their Indian wives by pleading customary

divorce. Before permanent settlement can be obtained by the Indian immigrant, who has

subsequently remarried a woman of foreign origin and extraction, the immigration authorities

will require evidence regarding the legal validity of the customary divorce obtained in India.

However, custom has to be pleaded and proved that it must be a regular practice in the

community of the parties pleading it. Such a custom should be ancient, certain, reasonable

and not opposed to public policy. The Madras High Court held that customary divorce was

recognized both before and after passage of Hindu Marriage Act, 1955, it is not necessary for

the parties in such a case to go to Court to obtain divorce on grounds recognized by custom.29

For the application of Hindu Marriage Act, 1955 as well as Special Marriage Act,

1954, the parties must be domiciled in India at the time of marriage while the question of

domicile is not relevant under The Foreign Marriage Act, 1969.

27 Kumud Desai, Indian Law of Marriage and Divorce, (Wadhwa and Co. Nagpur, 2004). 28 Abdur Rahim Undre v. Padma Abdur Rahim, AIR 1982, Bom. 341. 29 Mariamonia P. v Padmanabham, AIR 2001 Mad. 350.

Every Hindu domiciled in India shall be governed by the Hindu Marriage Act, 1955

and those whose marriage has been solemnized under the Special Marriage Act, 1954 would

be governed by the Special Marriage Act, 1954.

The Special Marriage Act, 1954 provides for a civil form of marriage, which can be

availed of by any one domiciled in India irrespective of the religion, through registration as

provided in Chapter II of the Special Marriage Act, 1954, by fulfilling the conditions laid

down in clause (a) to (e) of Section 4 of the said Act. Thus the Hindus availing of Chapter II

of the Special Marriage Act, 1954 i.e. Sections 4 to 14 would be outside the pale of the Hindu

Marriage Act, 1955. Having married under the Special Marriage Act, 1954 they cannot be

heard to complain of the rigors.30

A certificate of registration of marriage under the Special Marriage Act, 1954

operates as conclusive evidence of two facts:

(1) The marriage under the Act had been solemnized and

(2) That the formalities respecting signatures of witnesses have been complied with.31

Many NRIs of Hindu origin who have foreign domicile or have acquired a foreign

citizenship, come to India and solemnize their marriage either with an Indian national spouse

or with a foreign domiciled spouse in India in accordance with customary rites and

ceremonies under Hindu Marriage Act, 1955 and have to get their marriage registered in

India for purposes of immigration or entry into their present foreign home country. They are

faced with the dilemma as to whether they should get their marriage registered under Special

Marriage Act, 1954 or under Hindu Marriage Act, 1955. In the first Act, there is a prolonged

process of time i.e. two months’ notice and prescribed objection period before the Certificate

of marriage can be obtained while in the second Act this period is spared. However if one of

the spouses is a foreigner and not Hindu by religion at the time of marriage ceremony, they

will have to get their marriage registered under Special Marriage Act, 1954.

Kerala High Court32 has ruled that Hindu Marriage Act, 1955 has extra-territorial

operation and applies to all Hindus even if they reside in different parts outside India.

However, both parties must be Hindu by religion in any of its forms and they satisfy the

conditions and have performed the ceremonies provided in the Hindu Marriage Act, 1955.

30 Anil Kumar Mahsi v. Union of India, (1995) 1 SCJ 90-94. 31 Madhubala v. Jagdish Chandera, (1978) 4, All LR 457. 32 Vinaya Nair v. Corporation of Kochi, AIR 2006 Ker.275.

There can be no denial by local authorities to register marriages under Hindu Marriage Act,

1955 between Hindus having foreign domicile who have solemnized marriages under Hindu

Marriage Act, 1955.

On the question of marriage between two Hindus, one being not of Indian domicile,

Kerala High Court33 has held that Section 1(2), Hindu Marriage Act, 1955 specifically makes

it clear that the Act extends to the whole of India except the State of Jammu and Kashmir and

also that it applies to Hindus domiciled in the territories to which this Act extends, who are

outside the said territories. Therefore, the Act will apply to a Hindu outside the territory of

India, only if he is a Hindu domiciled in the territory of India. Therefore, only those Hindus

having permanent residence in India will be covered by the Hindu Marriage Act, 1955. There

cannot be a Hindu marriage between a Hindu and a Christian.34

As a Hindu marriage between a Hindu and a Christian is invalid and issuance of a

certificate of marriage does not cure the invalidity.35 On the question of inter-territorial

operation of Section 1(2) of the Hindu Marriage Act, 1955, the Court held, that it applies to

all Hindus, Buddhist, Jains and Sikhs, residing in India, irrespective of the question whether

they are domiciled in India or not unless prohibited by the domestic rule of law of the land to

which one of the parties, a foreigner, may belong, in which case the question of domicile may

assume importance.36

Validity of Non Resident Indian Marriages

Hindu Marriage is essentially a monogamous marriage and the marital bond cannot be

broken without Court intervention. NRI marriages are heterogeneous & problematic group,

involving sensitive and intricate issues of law as well as facts. Here the issue of validity of

marriage assumes great significance.

In matrimonial cases involving the foreign element viz. NRI matrimonial disputes, the

courts have to decide about the validity of marriage. The validity of marriage is judged in two

ways:

The first requirement is the formal validity as to whether a religious or civil ceremony

has been observed; whether due formalities under the relevant marriage Act have been

33 Ramesh Kumar P. v. Secretary, Kannapuram Gram Panchayat, AIR 1998 Ker 95. 34 Jacintha Kamath v. Padmanabha K., AIR 1992 Kant 372. 32 35 Sanjay Mishra v. Eveline Joe, AIR 1993 MP 54.36 Prem Singh v. Dulari Bai, AIR 1973 Cal WN 535.

complied with. These matters are regulated by the lex loci celebrationis i.e the law of the

place where the ceremony takes place. This is also called the rule of locus regit actum.

The second important consideration is the personal laws of parties, because marriage

is a personal matter of the marrying spouses. This is called substantial or essential validity of

marriage.

A person’s capacity to marry is governed by the law of domicile because the religious

traditional laws differ from one region to another in many aspects, more so in the face of

religious conversions for the sake of marriage. This results in inter-personal conflict of laws

in India37.

Supreme Court of India has held that the capacity to marry and impediments in the

way of marriage would have to be resolved by referring to their personal law. Here the Court

has followed the rule of personal law i.e. the law of domicile38.

There is a sharp distinction in Private International Law between the formal and

substantial validity of marriage. When the personal law of a party attaches some fundamental

conditions, which are essential for the validity of marriage, compliance with these conditions

makes marriage substantially valid. These fundamentals vary from place to place. In England,

capacity to marry and marriage between consanguinity as prohibited by the statutes are

examples of substantial validity of marriage. In India, amongst the Hindus, now marriage

during lifetime of his or her spouse is void ab initio and this constitutes one element for

substantial validity of marriage. On the other hand when the law of the land where the

marriage is celebrated attaches some formalities for the marriage between persons whether

domiciled in that country or in a foreign land these are called formal validity of marriage. The

formal validity of marriage is not as vital as the essential validity to a particular society. Non-

observance of any formality renders a marriage voidable only, not void.

According to Cheshire there is no rule more firmly established in Private International

Law than that, which applies the maxim locus regit actum to the formalities of marriage.

Whether any particular ceremony constitutes a formally valid marriage depends solely upon

the law of the country where the ceremony takes place.

Section 8(5) of Hindu Marriage Act, 1955 specifically lays down that failure to

register a Hindu marriage does not affect its validity. Even where compulsory registration of

37 Sarla Mudgal, President Kalyani v. Union of India, AIR 1995 SC 153138 Lakshmi Sanyal v. S.K. Dhar, AIR 1972 Goa 2667.

marriage is laid down under the rules, such as immigration rules, non-registration does not

affect the validity of the marriage, but merely entails a nominal fine. Moreover, mere

registration of a marriage under Section 8 will not ipso facto make the marriage valid.

Indian Courts Scenario and International Law

NRI marriages are essentially inter-country marriages with legal ramifications as to:

Validity of marriage, Jurisdiction of Indian courts visa vis Foreign Courts, Recognition of

foreign decrees and Enforcement of Foreign judicial orders.

India has as yet no legislative law to combat matrimonial disputes involving a foreign

element–i.e. where at least one of the spouses is domiciled outside India. Each case has to be

dealt with on the basis of precedents as adjudicated law or judge-made law.

The English law has grappled with similar legal disputes under the category of

“Conflict of Laws” & have enacted ‘Private International Law’. It is a distinct unit in English

legal system and it is always concerned with one or more of four questions, namely:

(a) jurisdiction;

(b) choice of law;

(c) recognition;

(d) Enforcement of foreign judgments.

There is no legislative law in India compared to ‘Private International Law’ or

Conflict of Laws as in some western countries. In family and marriage cases involving NRI

spouses, Indian courts rely upon Sections13 and 14 of the Civil Procedure Code, 1908 and

Section 44 A of the Civil Procedure Code, 1908. While the former deals with the competence

to adjudicate and jurisdiction of a foreign Court as to their conclusiveness, the later deals with

presumption of a decree by a foreign Court for its execution.

Sections 13 and 14 Of The Civil Procedure Code,1908

Section 13: When foreign judgment not conclusive. . .

A foreign judgment shall be conclusive as to any matter hereby directly adjudicated upon

between the same parties or between parties under whom they or any of them claim litigating

under the same title except. . .

Where it has not been pronounced by a Court of competent jurisdiction where it has

not been on the merits of the case.

Where it appears on the face of proceedings to be founded on an incorrect view of

international law or a refusal to recognize the law of India in cases in which such law

is applicable.

Where the proceedings in which the judgment was obtained are opposed to natural

justice. Where it has been obtained by fraud

Where it sustains a claim founded on a breach of any law in force in India.

These six exceptions are concise, precise and comprehensive in wording. This Section is of a

general nature and does not specifically deal with judgments of divorce or matrimonial

matters. Still, this Section has become an effective tool in the hands of Indian Courts in the

absence of Indian legislation comparable to Private International Law in matters of family

law.

Section 13 embodies the principle of res judicata in foreign judgments. It applies to the

plaintiff as well as to the defendant who is equally entitled to non-suit the plaintiff on the

basis of a foreign judgment. However, a foreign judgment is not conclusive as to any matter

directly adjudicated upon, if one of the conditions specified in clauses (a) to (f) of Section 13

Civil Procedure Code, 1908 is satisfied and it will then be open to a collateral attack.

According to Dicey,39 “A foreign judgment is conclusive as to any matter thereby adjudicated

upon and cannot be impeached for any error either (1) of fact; or (2) of law”. Thus, a foreign

judgment can be examined from the point of view of competence but not of errors. Hence, the

Indian Court cannot go into the merits of the original claim.

Section 13 of the Civil Procedure Code, 1908 is the part of procedural law followed in Indian

Courts. It concerns with recognition of the foreign decree only. The decree holder has to

proceed before an Indian Court by filing a regular suit as the first stage of the enforcement

proceedings. The Court after hearing the suit proceedings, may pass a judgment for its

enforcement through an execution petition. Thus, a foreign decree is converted into a

domestic judgment for its enforcement.

Once the Court comes to the conclusion that the foreign judgment is a judgment of competent

Court, it will not go into the question whether the foreign law made a mistake on matters of

law or facts. If the judgment is not a judgment of a Court of competent jurisdiction it would

39 Vishwanathan v. Abdul Wajid, AIR 1963 SC 158.

be given no effect, even if the foreign Court correctly chose the applicable law and correctly

determined the facts of the case.

The questions of competency of the foreign Court is determined by the rules of Private

International Law. Sometimes, in a suit before the Indian Court, a foreign judgment is

pleaded as res judicata then it will be the duty the Indian Court to find out whether the

foreign Court, which rendered the judgment has jurisdiction in the international sense.

Section 14 lays presumptions as to Foreign Judgments. The Court shall presume upon the

production of any document purporting to be a certified copy of a foreign judgment, that such

judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears

on the record; but such presumption may be displaced by proving want of jurisdiction.

In a case the Apex Court,40 held that mere production of a Photostat copy of a decree of

foreign Court is not sufficient. It is required to be certified by a representative of the Central

Government in America.

Section 44 A of Civil Procedure Code, 1908

This Section deals with the execution of decrees passed by courts in reciprocating territory.

Where a certified copy of a decree of any of the superior courts of any reciprocating territory

has been filed in a District Court, the decree may be executed in India as if it had been passed

by the District Court.

Together with the certified copy of the decree shall be filed a certificate from such superior

Court stating the extent, if any, to which the decree has been satisfied under this Section,

being conclusive proof of the extent of such satisfaction or adjustment.

The provisions of Section 47 shall, as from the filing of the certified copy of the decree, apply

to the proceedings of a District Court executing a decree under this Section and the District

Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court

that the decree falls within any of the exceptions specified in clauses (a) to (f) of Section 13.

A foreign decree can be executed under Section 44-A CPC only if all the conditions of

Section 13 (a) to (f) CPC are satisfied.

Unlike Section 13 Civil Procedure Code, 1908, Section 44-A of Civil Procedure Code, 1908,

envisages a direct enforcement of the foreign decree through an executing petition in civil

matters without the necessity of going through initial suit proceedings. This facility of direct

40 Infra note 81.

execution of the foreign decree is available only on the basis of a bilateral understanding on

the basis of reciprocity between India and the country from where the decree has been

delivered. This ensures a speedier disposal.

Section 3 and Section 108-A of the Indian Penal Code, 1860

It provide for extra-territorial jurisdiction. It is, however, debatable whether these could be

invoked in case of problems in NRI marriages. Section 3 of The Indian Penal Code 1860,

reads as under: Punishment of offences committed beyond, but which by law may be tried

within India.

“Any person liable, by any Indian law, to be tried for an offence committed beyond India

shall be dealt with according to the provisions of this Code for any act committed beyond

India in the same manner as if such act had been committed within India”.

Section 108-A of The Indian Penal Code1860 read as under: Abetment in India of offences

outside India.

“A person abets an offence within the meaning of this Code who, in India, abets the

commission of any act within and beyond India which would constitute an offence as if

committed in India”.

CHAPTER – 4Jurisdiction

Divorce and Judicial Separation

It was held by the Privy Council in Le Mesurier v. Le Mesurier41, that according to

international law, the domicile for the time being of the married pair affords the only

jurisdiction and only true test of jurisdiction to dissolve their marriage. The essence of the

rule in this case was that there should be only one test of jurisdiction and only one court

capable of dissolving a particular marriage, the court of the parties domicile. The

41 [1895] A.C. 517

Matrimonial Causes Act, 1937, provided that the Court should have jurisdiction to grant a

divorce, in proceeding by a wife, notwithstanding that the husband was not domiciled in

England, if she had been deserted by her husband, or the husband had been deported from

United Kingdom, and the husband was immediately before the desertion or deportion

domiciled in England. These enactments were confined to proceeding by a wife. They did not

extend to cross-petition by a respondent husband.42 The exercise of the English Courts

jurisdiction in proceeding for divorce is subject to rules requiring or enabling the court to stay

those proceedings in certain circumstances.43

Nullity of marriage

Before 1974 the jurisdiction of the British Court to entertain petitions for the nullity of

marriages was one of the most vexed and difficult question in the whole of the English

conflict of laws. An enormous simplification of the law was effected by section 5(3) of the

Domicile and Matrimonial Proceeding Act 1973. This provides that the English Court have

such jurisdiction to entertain such petition if (and, subject to section 5(5), on if) either party

to the marriage:

(a) Is domiciled in England on the date when the proceedings are begun

(b) Was habitually resident in England throughout the period of one year ending with the

date, or

(c) Dies before that date and either was at death domiciled in England, had been habitually

resident in England throughout the period of one year ending with the date of the death.

Without this insignificant exception, the bases for jurisdiction in nullity of marriage are now

the same as in divorce and judicial separation. A voidable marriage no longer confers the

husband’s domicile at the date of the marriage.44 The bases for jurisdiction are now same

whether the marriage is alleged to be void or voidable. It is therefore no longer necessary to

consult foreign law i.e. the law of the husband’s domicile at the date of the marriage.45

Recognition of foreign Divorces:

Domicile determines the law that will be applicable to an individual. A person may be

resident and citizen of a country, while his domicile is somewhere else. The general rule is

that “domicile is where the heart is”. In general, we can say that in the case being considered

42 Levett v. Levett and Smith [1957] P. 156 43 Family Proceeding Rules, 1991 44 Section 1 of Domicile and Matrimonial Proceedings Act, 1973. 45 De Reneville v. De Reneville, [1948] P. 100.

by us, the couple remains domiciled in India even though they might have moved their

residence to some foreign land. The domicile may be India even if the person after moving to

the foreign land acquires foreign citizenship. This is often true because first generation

migrants from India retain India in their heart.

In Satya vs. Teja Singh46 where a man domiciled in India moved to USA, got a divorce from

a court at Nevada, USA by pleading domicile of Nevada even though he had not lived in

Nevada and never lived in Nevada after the divorce. The wife challenged the divorce in India

on the ground that the jurisdiction of the Nevada court was obtained by fraud. Supreme Court

of India accepted the plea of the wife and refused to recognize the divorce obtained in

Nevada. The following extract from the judgment makes the position very clear.

Under Section 13(e), Civil Procedure Code, the foreign judgment is open to challenge "where

it has been obtained by fraud". Fraud as to the merits of the respondent's case may be ignored

and his allegation that he and his wife "have lived separate and apart for more than three (3)

consecutive years without cohabitation and that there is no possibility of a reconciliation"

may be assumed to be true. But fraud as to the jurisdiction of the Nevada court is a vital

consideration in the recognition of the decree passed by that court. It is therefore relevant that

the respondent successfully invoked the jurisdiction of the Nevada court by lying to it on

jurisdictional facts.

Divorce Proceedings Not Attended:

It is not uncommon to hear about cases either the husband or the wife filed for divorce

in a foreign court, while the spouse did not attend the proceedings either due to notice not

being served or due to some other reason. In such a situation, the case of Y Narasimha Rao 47

is relevant. Y. Narsimha Rao and Y. Venkata Lakshmi were married in Tirupati, India as per

Hindu customs in 1975. They separated in July 1978. Mr. Rao filed a petition for dissolution

of marriage in the Circuit Court of St. Louis County Missouri, USA. Mrs. Lakshmi sent her

reply from India under protest. The Circuit Court passed a decree for dissolution of marriage

on February 19, 1980 in the absence of Mrs. Lakshmi. Mr. Rao had earlier filed a petition for

dissolution of marriage in the Sub-Court of Tirupati. Later, he filed an application for

dismissing the petition in view of the decree passed by the Missouri Court.

46 Decided on 1 October 1974; MANU/SC/0212/1974, AIR1975SC105, 1975CriLJ52, (1975)1SCC120, [1975]2SCR19747 Y. Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi and Anr.; Decided on 9 July 1991; MANU/SC/0603/1991, 1991(2)Crimes855(SC), II(1991)DMC366SC, JT1991(1)SC33, 1991-2-LW646, (1991)3SCC451, [1991]2SCR821

On 2 November 1981, Mr. Rao married another woman. Hence, Mrs. Lakshmi filed a

criminal complaint against Mr. Rao for the offence of bigamy. The Supreme Court refused to

accept the divorce decree granted by the court at Missouri, USA. While deciding the case the

Supreme Court laid down the law for foreign matrimonial judgments in this country. The

relevant extract from the judgment is as follows:

The jurisdiction assumed by the foreign court as well as the ground on which the

relief is granted must be in accordance with the matrimonial law under which the parties are

married. The exceptions to this rule may be as follows: (i) where the matrimonial action is

filed in the forum where the respondent is domiciled habitually and permanently resides and

the relief is granted on a ground available in the matrimonial law under which the parties are

married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of

the forum as discussed above and contests the claim which is based on a ground available

under the matrimonial law under which the parties are married; (iii) where the respondent

consents to the grant of the relief although the jurisdiction of the forum is not in accordance

with the provisions of the matrimonial law of the parties.

The key rule laid by the Supreme Court can be summed up as follows: If a couple is

married under Hindu law, (a) the foreign court that grants divorce must be acceptable under

Hindu law; and (b) the foreign court should grant divorce only on the grounds which are

permissible under Hindu Law. The two conditions make it almost impossible for a Hindu

couple married in India to get a legally valid divorce from a foreign court since no foreign

court is an acceptable one under Hindu Marriage Act and also because no foreign court is

likely to consider the provisions of Hindu Marriage Act before granting divorce.

The exceptions that Supreme Court has permitted to the above rule laid by it are as

follows in a case where husband has filed for divorce in a foreign land:

A) The wife must be domiciled and permanently resident of that foreign land AND

the foreign court should decide the case based on Hindu Marriage Act.

B) The wife voluntarily and effectively attends the court proceedings and contests the

claim on grounds of divorce as permitted under Hindu Marriage Act.

C) The wife consents to grant of divorce

Divorce Proceedings Attended

In general, it can be said that if the partner contesting the divorce actively attends the

divorce proceedings in the foreign court, the chances of his or her being able to later

successfully approach Indian courts against an unfavorable judgment of the foreign court are

very low. Indian courts, or for that matters courts anywhere in the world, do not wish to

encourage court-shopping.

The well-accepted universal principle of law can be stated as – If someone has

accepted the authority of a court, it cannot be open to the person to later question the

authority of the court.

A similar matter came up before Supreme Court of India in the matter of Mrs. Anoop

Beniwal48. The lady attended the court proceedings in UK and later contested the divorce

granted by the UK court. Supreme Court refused to grant her any relief. Relevant extract

from the judgment is as follows:

42. Factually the plaintiff herein and the respondent in the proceedings in England did

have the opportunity to defend the suit held against her. She led evidence in those

proceedings. She just happens to have failed to have a decision in her favor. An opportunity

of hearing having been granted, it is not right to assert that the proceedings in England were

opposed to natural justice. Nor is it proper to say that the judgment by a Court of England has

not been given on the merits of the case. In my view, the assertions made in the "Particulars"

annexed to the petition, it has been shown to me, and reproduced here above, could be made

under S. 13(l) (ia) of the Hindu Marriage Act regarding treatment of the petitioner with

cruelty. The claim in the proceedings in England cannot Therefore, be said to be founded on

the breach of law in force in India.

Consequences of Invalid Decree of Divorce

It is not unusual for one of the partners to obtain a decree of divorce from a foreign

court while the other partner is either in India or in some other part of the world. The partner

who has obtained divorce may feel comfortable in the thought that the other partner has

neither protested not contested the decree of divorce. However this comfort may be a false

one.

Assuming that the husband has obtained the decree of divorce from a foreign court,

some consequences that may be faced by the man in due course are as follows:48 Mrs. Anoop Beniwal vs. Dr. Jagbir Singh Beniwal; Decided on 25 October 1989; MANU/DE/0044/1990, AIR1990 Delhi305, I(1990)DMC239, 1989RLR554

a) If he remarries, he may be prosecuted for bigamy. There is no time limit for the

first wife to file a complaint with the police against the husband in the matter of bigamy. We

have seen in the case of Y Narasimha Rao5 that the couple separated in 1978, the man

remarried in 1981 and ten years later, Supreme Court ordered for bigamy proceedings to be

started against the man. Bigamy is punishable under section 494 of Indian Penal Code with

imprisonment of seven years.

b) Wife (divorced as per foreign law) may file for maintenance.

c) In case the man dies without making a will, the first wife will have the right to her

share in the property of the man while the second wife will get nothing because her marriage

will not be considered legitimate.

It may be noted that the above may be faced by the man even though he may have

acquired the citizenship of the foreign country (assuming that his domicile or his heart

remains Indian).

If a women gets divorce from a foreign court and remarries, her new husband may be

prosecuted under section 497 of Indian Penal Code under which he may face imprisonment of

five years. The wife will, of course, be liable for punishment under section 494 of Indian

Penal Code for bigamy.

CHAPTER - 5Conclusion

To sum up one can say that exceptions aside, a Hindu couple married in India must

seek divorce from an Indian court only. The two notable exceptions (when a foreign decree of

divorce is valid) are (a) when the couple decides to take divorce by mutual consent and (b)

when the person who is contesting divorce attends divorce proceedings and the foreign court

grants divorce on grounds that are permitted grounds of divorce under Hindu Marriage Act.

One should not draw comfort from inaction of the person who did not participate in divorce

proceedings. The implications of an invalid divorce may appear many years later and even

may arise after the death of the person who got the invalid divorce from a foreign court.

BIBLIOGRAPHY

BOOKS

1. Cheshire & North, Private International Law, thirteenth edn,

2. S.R.Myneni, Private International Law, first edn,

E-BOOKS

1. Jaffey, Topics in Choice of Law (1996)

2. Cook, The Logic and Legal Bases of the Conflict of Laws (1942)

3. Davie, The Breaking Up of the Essential Validity of Marriage Choice of Law Rules in

English Conflict of Laws’ (1994)

ARTICLES

1. Hartley, ‘The Policy Basis of the English Conflict of Laws of Marriage’ (1972) 35

MLR 571

2. CONFLICT OF LAWS-ESSENTIAL VALIDITY OF MARRIAGE, By Geoffery Sawer,

LL.M.,Barrister at law., senior lecturer in law at the University of Melbourne.

WEBSITES:

1. http://shodhganga.inflibnet.ac.in/bitstream/10603/26528/10/10_chapter%203.pdf

2. https://in.answers.yahoo.com/question/index?qid=20080207174420AACGmRJ

3. http://moia.gov.in/pdf/Marriages_to_Overseas_Indians_a_Guidance_Booklet.pdf

4. https://books.google.co.in/books?

id=UzclIL6onHkC&pg=PA200&lpg=PA200&dq=RECOGNITION+OF+FOREIGN+

MARRIAGES+UNDER+INDIAN+COURTS&source=bl&ots=e6F_tz7zlE&sig=jFV

I7zpyWOBDTm34iJTjbk9U8&hl=en&sa=X&ved=0CEoQ6AEwB2oVChMI6t2C_6

CqxwIVVo6OCh0Row7R#v=onepage&q=RECOGNITION%20OF%20FOREIGN

%20MARRIAGES%20UNDER%20INDIAN%20COURTS&f=false

5. http://www.tcl-india.net/node/74

6. http://www.lawyersclubindia.com/forum/Legal-validity-of-marriage-of-indians-

abroad--61079.asp#.Vc6__vmqqko

7. https://sites.google.com/site/divorcelawsinindia/nullity-of-marriage-in-india

8. http://www.lawsenate.com/dispute-resolution/matrimonial-law-practice.html#

9. file:///C:/Users/amudh_000/Downloads/SSRN-id1762153.pdf

10. http://ncw.nic.in/pdfReports/

Background_Note_Seminar_Issues_Relating_to_NRI_Marriages.pdf