Conflict of Law And Matrimonial Relief In Light Of Recent International Private Law Rulings By Supreme Court Of India

Introduction                                                   

The law that governing the marriage in India is essentially a personal law where it consists of the religious community where the parties belong and without consideration of their domicile and the nationality. India has major communities that are divided into Hindus and the minor community is the Muslims and the  other communities like Christians, Parsis and Jews who has a personal law which only includes their communities.

The registration of marriage and the matrimonial relief that are applied according to the personal lives of the communities that are situated in India not only the persons who are situated in India but the people who are living outside the India also have the access to the personal laws of that communities.

These personal laws don’t only include solemnization of marriage and divorce but it also includes the custody of the children who are arrived out of their wedlock and the properties which they have acquired during the period of the marriage. There are such situations where the the conflict between the entire community please and during the conversion of religions.

In India there are other different acts that govern the parties who are solemnizing their marriage in their personal due to the conflict arising because of the difference in the religions of the parties. The acts are the special Marriage Act 1954 which is considered as civil marriage that can be performed between any two persons irrespective of their religion.

And the main essential is that the parties to solemnize their marriage under Special Marriage Act, 1954[1] are that the validity of their marriage does not depend upon the domicile or the residents of the other states. The parties of the marriage who are solemnizing under the special Marriage Act should be residing in particular place for 30 days and then they acquire eligibility for the solemnization of the marriage, and there is another act called Foreign Marriage Act,1969 that allows the marriage can be solemnized in a foreign country but the parties must be the citizens of the India.

And a provision in the foreign marriage act that explains, and marriage can be prohibited if it is being inconsistent with the international laws according to the country where they are solemnizing the marriage.

There are many rules that have been adopted by the judiciary of the country over a period of time where dirt helps to resolve the matrimonial disputes with respect to the foreign countries where the citizens of India has been solemnized their marriage under the international laws. There are different case laws that that explains the evolution of Indian matrimonial relieves with accordance to the foreign laws which helps in minimizing the conflict of laws that have been arised.

 Case Laws That Analysed The Matrimonial Reliefs Under Conflict of Laws In India

 The legal issues which are involved in the matrimonial relationship of the parties who are residing outside India with respect to the conflict of laws, jurisdiction of the countries.

The validity of the foreign court orders and the jurisdiction of Indian courts has been mentioned in the section 13 and 14 of CPC[2] which explains that the foreign court judgments

Can we apply to any matter by the competent court and uh such decrease passed by the foreign codes that is not found to be prima facie and if it is not objecting the rules of natural justice then it is not considered to be breach of law in India. Many of the parties who are residing outside the India are taking advantage of the Indian laws which are strict  in nature In comparison with the laws of The land where they are staying.

There’s a question which arises on the validity of the divorce which was obtained by one of the parties in the foreign countries where they solemnized the marriage under the personal loss or the special laws which are enacted in India. In the case of Anubha v. Vikas Agarwal[3],The facts of the case are the plaintiff the wife who was deserted and abandoned by the husband seeks for the maintenance in her favour what subjected to cruelty by her husband, She pressed charges on husband in the court of law of USA seeking for the degree of maintenance elsewhere the husband filed a divorce petition in the Supreme court of India, when the suit filed by the wife was pending in the courts of US.

And the plaintiff has gone to the court for the restraintment of such action which was filed by the husband in the court of Connecticut, US, for the 30 days Period of time. After the restraining order passed by the court in spite of that the husband went on for the proceeding of no fault divorce petition any courts of US. When this matter of proceedings was brought to the quotes in India where the decree of Restrainment passed, the Indian court passed an order saying that the defendant should be recording a statement under the CPC for his failure to appear in the proceedings, and the defense of the defendant was not considered and the court ordered for the contempt proceedings in the court to be initiated.

So here the question of law was the given facts of this case and the circumstances such As the decree of divorce filed by the husband is valid or not in the law of India. The court gave a judgment that the ground on which these proceedings were filed in the courts of US that the Grounds of the divorce was not under the Hindu Marriage Act where the marriage of the parties was solemnized. Hence[4] the dissolution of marriage is not dissolved by the grounds on which the petition was filed under the provisions that are mentioned in the Hindu Marriage Act and the decision given by the US court is neither recognizable nor enforceable in India.

In the case of Deepak Banerjee v. Sudipta Banerjee[5],The question of jurisdiction of Indian court has been raised by the husband for the proceedings which was initiated by the filing of the case off maintenance under the section 125 of the criminal procedure act 1973 which talks about the maintenance also called as alimony in the case of desertion by the husband.

Further the husband explained that the jurisdiction of Indian courts is not applied in this case because the citizenship of the husband is residing in the US and where the wife’s domicile is also considered by his domicile after this solemnization of marriage. Hence the conflict of laws has been arrived in this case on the basis of the jurisdiction and the court held that there are conflict of laws in every case in the case of solemnization of the marriage in India and other decree of divorce filed in US but the rules of private international law is applied in such conflict and that can be adopted by the Indian courts for the resolution of the dispute.

The essential purpose and the importance of the section 125 of criminal procedure code 1973 has been applied in this case and the jurisdiction of Indian court was upheld because the  wife who has filed the case in India is ordinarily resided in India. So in this case the conflict of laws that has been arised, and the Indian laws have the jurisdiction over the foreign courts.

In the case of Jagir Kaur v. Jaswant Singh[6], the Supreme Court laid down the rules which are very essential to understand the Term reside And the jurisdiction of the court irrespective of the stay in India. The facts of the case are stated as Jagir Kaur was married to Jaswant singh in the year 1930.The plaintiff was residing in Paternal House of the husband in a village called Ludhiana.

After being married to Jaswant Singh for 7 years ,he came to visit her for 5 months and got married to another wife and took her to the Africa ,where he was residing from the initial stage of marriage. After 6 years, he gave a temporary visit to the village and took Jagir Kaur to Africa with him .Later on, Jagir Kaur gave birth to the daughter , as there were disputes among the parties he sent back the appellant and the second appellant back to the village giving a promise of sending maintenance .But he did not intend to send the maintenance for the appellant as well as the second appellant who is a minor. So, Jagir Kaur filed a petition under section 488 of the CrPC, in the jurisdiction of Ludhiana. The respondent questioned the court saying that he was residing in Africa and the jurisdiction of the Ludhiana court doesn’t apply to this proceedings. But the court laid down such rules which gives the broad interpretation of words ‘resides’ and ‘where he last resided with his wife’.

The Supreme Court of India held that any person who is abandoned his wife without providing maintenance and leaving his wife and children in the situation where they cannot afford to live ,then the place where he is residing , it may be any district or any place the petition can be filed on such act done.In this particular case he was residing with his wife for 6 months in the last stay before the temporary visit to his village ,so that can be considered as he has an intension to stay in his native with his wife. That can be the ground for residing and the jurisdiction of the Magistrate of Ludhiana can be enforced .

 Conclusion

The validity of the foreign judgements in the jurisdiction of courts in India has been clearly explained in the above cases where the decree of divorce passed by the foreign courts cannot be recognised of they are not delivered by the competent courts of jurisdiction .The decree of divorce cannot be enforced in the courts of India when the grounds on which the case was filed in foreign courts are not the grounds that are available in the laws that are governing the individuals of the country.

The conflict of laws that arise when the two decisions were contradictory in nature .Hence to resolve such conflicts the rules of private international law has been enforced by the Indian courts which has competent jurisdiction ,this has been explained in the section 13 and section 14 of the civil procedure court of India.

The article has been contributed by M. V. Sai Bhavana.

End Notes

[1] Section 4, Special Marriage Act,1954.

[2] Section 13 ,Civil procedure code,1908.

Section14,Civil procedure Code,1908.

[3] Smt. Anubha vs Shri Vikas Aggarwal And Ors. AIR 2002 SC 1796.

[4] M. Suneel Kumar, NRI Marraiges-Issues dealing with Special reference to custody of children.

[5] Dipak banerjee vs Mrs.Sudipta Banerjee Anr. 1988 CriJ 1627.

[6] JagirSingh vs.State Of Punjab ,1968 AIR 1963 SC 1521.