The Bombay high court has rejected a Mumbai man’s plea for restraining his estranged wife from filing a divorce petition in Australia and pursuing an assets division suit filed in that country. The court rejected husband’s arguments saying ‘the man expressed his intention to settle down in Australia and also submitted himself to the jurisdiction of Australian courts when he attended joints sessions for deciding parenting plans for their son.’
The couple got married in Mumbai in November 2004 and moved to Australia in 2015 before separating there.
In September 2019, wife sent a notice for assets division seeking a 50℅ share in their property. Two months later, she filed a suit in this regard in a federal circuit court in Australia. The couple agreed to a parenting plan for their son while the husband filed a divorce petition in a family court in Mumbai. The man also moved a plea for an anti-suit injunction against his wife to restrain her from filing divorce proceedings in Australia and pursuing the assets division suit, reported Hindustan Times.
In April 2020, the family court rejected his plea, which prompted the man to approach the high court.
Arguments By Husband in High Court
The man’s lawyer argued in the high court that since the parties are domiciled in India and got married in Mumbai, only courts in the Indian city have the jurisdiction to adjudicate their marital dispute. He argued the family shifted to Australia, but the man never intended to acquire Australian citizenship. The lawyer said the man has never submitted himself to the jurisdiction of Australian courts. He added the courts in that country cannot be allowed to adjudicate the dispute.
Bombay High Court
The court rejected the arguments saying the man expressed his intention to settle down in Australia and also submitted himself to the jurisdiction of Australian courts when he attended joints sessions for deciding parenting plans for their son. The high court noted,
There is nothing brought on record to show how the husband will suffer grave injustice if the anti-suit injunction is refused. Not only the husband has expressed his intention to settle in Australia to the Immigration Specialist, but even has purchased property. Their stay in Australia cannot be regarded as a short stay for a temporary period which otherwise could have been regarded as one of the factors to consider grant of an anti-suit injunction.
When Genders Are Reversed
In 2016, Tripurana Venkataratnam, then Chairperson of Telangana State Women’s Commission, in an interview to The Hindu, categorically expressed how the Indian law is clear and there are Supreme Court judgements stating that for the marriages performed as per the Hindu Marriage Act, divorces cannot be granted in a foreign country. She then quoted,
First of all, the US or the UK or any court in a foreign country can not even entertain a marital dispute case when the marriage was performed as per the Hindu Marriage Act.
But the NRI husbands, though holding Indian passports, were invoking respective domicile laws and issuing divorce notices to their wives back in India, and the overseas courts are granting divorce decrees.
She even added,
Unlike marriage disputes that arise within India, NRI marriage disputes were far more complex governed by Indian personal laws, personal laws of country of residence and private international law. There was no specific legislation with regard to NRI marriages and the laws should be adapted to changing times.
In another case reported in January 2019, Bombay High Court ruled that divorce proceedings in a marriage solemnised as per the Hindu rites and registered in India cannot be initiated in foreign courts.
Justice R D Dhanuka then allowed a petition filed by a woman seeking a stay on the divorce proceedings initiated by her estranged husband, an Indian who is a domicile of the UK, before a family court at Manchester in the UK.
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