Gujarat High Court: Abroad Citizenship or Domicile Doesn’t Affect Hindu Marriage Regulated by Hindu Marriage Act

Introduction

Hindu Marriage is considered as a sacred ritual under Hindu Marriage Acts alien with this the Gujarat High Court directed that the foreign court or the domicile cannot invalidate the Hindu Marriage performed under the Hindu Marriage Act. The High Court Clarified that the marriage must be ruled by the Hindu Marriage Act, and not by outside country law, Court set aside the decree of divorce given by Australian Court.

Background

In 2008, couple got married in Ahmedabad and post marriage moved Australia, where husband was permanent citizen and from wedlock they had one son. However, from 2014 problems started, in the year of 2015 wife became the permanent citizen, and both return the spouse and son return India. Though Husband filed the divorce in court of Sydney Australia. In reply to husband, the wife filed the two petitions in Ahmedabad Under Section 125 of the Criminal Procedure Code, and under section 9 of the Hindu Marriage Act, requested for the Conjugal Rights. In 2016, Australia Family Court granted the divorce, review petition by wife also rejected by the court. The wife filed the petition in Ahmedabad stating that the decree of the foreign Court was null and void. However, the Family Court of Ahmedabad rejected the plea. Therefore, the wife filed the petition in the Gujarat High Court.

High Court Observation

The court observed that if a marriage performed in India under the Hindu Marriage Act (HMA) governed by the law of a foreign country just because the couple obtained the foreign citizenship would lead to "anomalous results." 

However, Court stated that the citizenship under Hindu Marriage is irrelevant. The main thing matter that the spouses chose to perform marriage under Hindu Marriage Act. The Court refers to the case of Narasimha Rao & Ors. vs. Y. Venkata Lakshmi it is held that marriage disputes governed as per the act under which the marriage is solemnized.

High Court held that the wife's petition cannot been dismissed by the Indian Family Court on the base that it lacked a cause of action as wife had mentioned that the divorce decree directed by the Australian court was without proper jurisdiction and hence it is null and void. The court observed that the Australian court had affirmed that there was a question whether the divorce decree would be dealt under Indian law. although, the Australian court proceeded the divorce decree citing that husband has citizen of Australia as he has right to file the divorce case.

The bench added 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," 

Hence, the Court further set aside divorce decree of the family Court and instructed the family court to look the wife's application as per law.

Conclusion in Hindu Marriage Act

The bench clarified that a Hindu marriage which are solemnized in India under the Hindu Marriage Act (HMA) can only be declared dissolved according to an Indian Court, irrespective whether the couple afterwards becomes citizens or residents of another country.

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