Hindu marriages made in heaven and solemnized in India are now wantonly dissolved abroad. Sad but true! A prelude follows. Over 30 million overseas Indians are domiciled in 130 countries abroad. The parallel adjudication of their matrimonial disputes in Courts simultaneously in India and abroad activates a new inter se marital discord. This clash of jurisdictional battles also germinates a conflict amongst authority of Courts. Foreign Courts often impose penal sanctions oblivious of prior directions of existing Indian Courts of superior hierarchy. Rules of Private International Law offer little resolution. Spouses, children and extended families bear the brunt of multi-faceted parallel directives of Courts of different overseas territories.
The Supreme Court in NeerjaSaraph vs. JayantSaraph (1994) proposed feasibility of enacting a legislation to ensure that no marriage between a NRI and an Indian which has taken place in India may be annulled by a foreign Court. Earlier in Y. NarasimhaRao vs. Y. Venkata Lakshmi (1991), the Apex Court had spelt out guidelines for recognition of foreign Court matrimonial judgments to decide as to when Hindu marriages solemnized in India were said to be dissolved by unenforceable foreign decrees.
The Bombay High Court in SondurRajini vs. SondurGopal (2006) ruled that a foreign domicile of parties will not take away the jurisdiction of Indian Courts to decide the annulment of their ceremonial Hindu marriage solemnized when they were domiciled in India. In NavinChander vs. Leena (2006), the matrimonial dispute of a ceremonial marriage of Hindus celebrated in USA, was held by the Bombay High Court to be amenable for adjudication by the Family Court in Pune. The Delhi High Court inVeenaKalia vs. JatinderKalia (1996), ruled that an ex-parte decree of divorce of a foreign Court being a nullity, would not bar a subsequent petition for divorce in India, even though, maintenance had been accepted under the foreign judgment. In Harmeeta Singh vs. RajatTaneja (2003), the Delhi High Court temporarily restraining the foreign Court divorce proceedings held that even if the Hindu marriage is dissolved in USA, it would still have to be confirmed by an Indian Court. In Moina vs. Amardeep (1996), a foreign domicile was held by the Delhi High Court to be no deterrent to a divorce petition preferred in India to dissolve a Hindu marriage celebrated here.
These authoritative and laudable verdicts clearly reflect that Indian Courts rightly have a prerogative to adjudicate matrimonial disputes falling in their domain.
The issue of anti-suit injunction in custody matters has some unique dimensions. There are a large number of cases filed in the Indian courts after parental abduction, where one parent brings the child away from the natural habitat and jurisdiction of ordinary residence in foreign country, to India and seek custody here so as to keep the child away from other parent. For example, a person living in UK brings the child to India with intent to avoid the jurisdiction of UK courts and gets a custody order from the Indian court to keep the child. This situation raises a conflict of jurisdiction which gets further complicated when the other parent gets custody order from the foreign country of residence.
In India, there are two lines of cases to deal with such a situation. The first line of cases would emphasize the welfare of the child, where even if, there is an order of the foreign court, the Indian court is enjoined to independently judge, what would serve best for the welfare of the child? This may give rise to a conflicting set of orders, as what may be considered best for the welfare of the child by the Indian court may not accord with the view of the foreign court. The second line of cases, propound that, the welfare of the child should be considered only by the court where the minor normally resided before coming to India and emphasize comity of courts on the assumption that all the courts the world over would always give paramount importance to the welfare of a minor child. In these cases, the other parent is spared of disadvantage of non-participation in custody proceedings or having a decree of the court which cannot be enforced.
The Law Commission of India, in its 218th Report, has also recommended that it is high time that India should become part of the Hague Convention in matters of child custody which provides for mutual obligations between countries to enforce the orders passed in the matters of custody. Consequent to adoption of Hague Convention, the Indian courts would be obliged to honour and enforce the decrees in custody matters and similarly the decrees passed by the Indian courts would also be enforceable in the foreign courts. Considering the far and wide spread of the Indian Diaspora, the Hague Convention would integrate India with wider comity of courts.
In cases, courts take a different view than a foreign court, then one cannot enforce the order of a foreign court in India and there is no other way to deport the child. Yet, a parent who abducts the child from other parent should not get the advantage of such abduction. A timely anti-suit injunction, can avoid conflicting set of orders and emotional upheavals created for a conflicted child by parents in war. This would also instil confidence in the international community that, India is a country which respects the judicial processes and judgments of the courts of other countries with equal seriousness. However, an injunction at the instance of one parent, that the other parent, should not file a suit or proceeding for custody, involves pre-judgment on issues in custody dispute and the action for anti-suit injunction becomes the first call for battle to precipitate litigation.
In some of recent judgments, the Supreme Court of India has given greater primacy to the principle of comity of the courts and even ordered the return of the defaulting parent to the foreign country of ordinary residence along with child to fight the custody battle there. This course of action, if, followed consistently, can avoid multiple proceedings including an action for anti-suit injunction.
In this backdrop, a new dimension of matrimonial litigation is coming in practice in the matrimonial arena in the shape ofanti-suit injunction. It is basically a remedy against filing of suits at different jurisdictions in respect of the same cause of action. A petition preferred in India for restraining an opposing spouse from pursuing or continuing with a complaint for matrimonial relief in a foreign Court would be such an anti-suit injunction in matrimonial matters. Lack of jurisdiction, both regarding the corpus of the Hindu marriage and the physical presence of an Indian spouse in the territory abroad, is the ground of such suits in India. However, even the reverse application now finds popular practice.
An extreme view finds enunciation in a judgment rendered on 20 September, 2010 in an anti-suit injunction which is said to be based on considerations of equity and justice. The Federal Magistrates Court of Australia at Canberra restrained the wife from taking any action, as also for causing, allowing or assisting any other person, to pursue a complaint in India against the husband under The Dowry Prohibition Act, 1961. Both parties were Australian citizens married according to Sikh rites in India. By Australian consent orders, settlement of maintenance, property and child custody were resolved. The Canberra Court found that on evidence presented, the wife, Ms. Singh, had not established that a dowry was either requested or paid as alleged. Accordingly, the Court held:
“The injunction acts in personam only in relation to Ms. Singh, and does not, either in terms or otherwise, purport to affect the administration of justice in India.”
In the above backdrop, the thought proposed for conscious deliberation which reverberates in the minds of those wholive on home soil is the dire need for evolving an Indian jurisprudence in matrimonial litigation to deal with anti-suit injunction in India. If an American Court imposes a fine of one Lac US Dollars a day for not complying a US Court’s child custody order contrary to an Indian Court order or a divorce petition on grounds of Irretrievable Breakdown of Marriage is proceeded with in USA despite a pending Indian divorce litigation, such oppressive litigation must be restrained by the dictates of equity, good conscience and comity of Courts. Such unconscionable acts are estoppel by conduct. If foreign Courts can evolve principles, similar thinking must develop at home too.
In my view, today’s world is a very different world from let us say the pre-1980s’ with increased international mobility and inter-state/ inter-country marriages. The disputes have totally shifted from the traditional disputes to private international disputes. We have witnessed some very important and intriguing questions in the area of matrimonial disputes. Some questions have been answered by the courts, and some still remain to be answered. If we start identifying the first and foremost area of dispute in family matters, then we come across issues based upon the grounds available for divorce under family law. In India, we have specific grounds for divorce and we believe in the fault theory. Therefore, we have grounds for cruelty, desertion, impotency and non-conservation amongst others. The principle being that the party has to establish the wrong-doing on the other spouse’s part in order to obtain a decree of divorce. The whole idea is based upon the sanctity of marriage and the fact that once the marriage has been consummated between the parties, you cannot really call it off at the drop of a hat.
In the Western countries, the underlying principle is that the divorces come “dime-a-dozen” and the grounds are, if, I may say, is frivolous and so naive that anybody could get a divorce for the asking. “Irretrievable Breakdown of Marriage” is something which is present in most of the Western jurisdictions, whether it is England, U.S.A. or Europe, on the asking! If you say you don’t want to continue with the marriage you can obtain a divorce, although the other issues remain disputed. In foreign jurisdictions, other issues including division of assets, custody and alimony get hotly contested but the issue of divorce is not as I say, “res-intrega” or “it is done” on the asking. I think the reason behind it happens to be the first problem which arose when the marriages were contracted either in India or parties left for abroad or the marriages took place outside the Hindu customary law or under the Hindu Law as such and then people wanted to opt for divorces. In principle, the male spouse would take advantage of this position and would file divorce petition in foreign jurisdictions. Therefore, some earlier ones came in 1960s’ as seen in Satya vs. Teja and the entire region of law. But, those were fraudulent divorces, as in the Las Vegas and Nevada divorces, wherein people literally flew-at-night and flew-out in the morning and got divorces. Basically, since these were not upheld by the Supreme Court of India, people started contesting on not the ‘overnight divorces’ or ‘fly-by night divorces’ but filing a petition in a foreign court on a ground not available under the Indian law. Forexample, it would be on the ground of Irretrievable Breakdown of Marriage and this is the principal difference today within other jurisdictions as well. The courts would grant divorce and the wife would really not have an opportunity to contest it. Even if she had the opportunity to contest, she would not be able to do so for financial reasons, so, there would be an ex-parte divorce one way or the other or even if, it was on the face of it contested or let us say that the wife received the service but even, thereafter, she would not be able to go. Supposing, she was back in India what would happen in such cases? Once the dispute arises between the parties and the wife would come back to her matrimonial home or her parental home, in which case, she would not be able to go back to her own country for financial reasons and moreso her parents could not afford money to contest the proceedings. In such cases, the decree for divorce was obtained willy-nilly. I think that was what brought the Supreme Court to take into account the increasing hardships being caused to the women.
The judgment in Narasimha’s case in the year 1993 was considered as the parent judgment and it really laid down the law very strongly. In this instant case, Justice Sawant held that, the law on which the divorce is founded should be based both on substantive principles and procedural aspect on the ground available under the Indian law. On this basis he held that, the decree obtained in this case was not binding. Therefore, it would not only mean the grounds available substantively as I mentioned earlier, cruelty, desertion, etc., under section 19 of the Hindu Marriage Act, but also procedural. Thus, in Indian law, the procedure is that, the divorce petition can be filed (a) where the parties have married; (b) where the parties last resided; and (c) where the woman resides.
Today, in fact, the law has made it a little easier for women to contest the proceedings or to pursue proceedings because they are, obviously, considered to be a deprived lot particularly in financial terms and on account of social disadvantage. So, I think, that’s what really laid down the law as far as enforceability or the execution of foreign decrees are concerned, that they must meet the parameters of Indian law by all standards before they can be enforced here. As far as enforceability is concerned, even otherwise, if all these features are met foreign decrees can be enforced in India, only if, the countries have treaties or have signed the reciprocating treaties under Section 44A of the Code of Civil Procedure. But where, for example, US does not have a treaty with India, in that case, you can still file a petition under Section 13 of the Code of Civil Procedure and such a decree could be enforced in India, if it is otherwise meeting all the parameters. Coming to the case of anti-suit injunction, a male spouse may file a petition in England and the wife is in India, even vice versa for that matter, and in such cases the foreign proceedings are:
The result is that, you have parallel proceedings going on and ultimately the foreign proceedings could result in a decree. In case of anti-suit injunction the parameters of family law are meant to restrain proceedings in a foreign court vis-à-vis the party residing in India because the court cannot issue any injunction to a foreign court. The injunction has to be issued against the person who is available in the territory of the concerned court. Therefore, the Indian courts would have to have territorial jurisdiction over the person against whom an injunction is to be issued.
In the far reaching repercussions which tend to shake the foundations of strong traditional Hindu marriages, a foreign Court matrimonial order may at times invade the privacy of the home and leave the hapless Indian spouse to abject surrender without a remedy. Surely, law must come to rescue. The yeoman verdicts of Indian Courts are a big crutch. However, the need for a preventive remedy is stronger than a powerful cure at the end. What can be prevented must be stopped. What should not be suffered should not be endured. Anti-suit injunctions in matrimonial matters in fit cases must deter oppressive foreign Court orders without technicalities. The majesty of Indian law must prevail.
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