Foreign Court Can’t Give Divorce to Indian Domiciled Couple

Divorce granted by a foreign court to a couple who has Indian domicile and is governed by the Hindu Marriage Act is not valid, the Bombay High Court ruled. The court observed, while hearing the case of a Dubai-based man who had divorced his wife, that the foreign court does not have jurisdiction even if the couple was residing in that country.

A division bench of Justice Abhay Oka and Justice Anuja Prabhudessai struck down the order of a Bandra family court that had dismissed the plea of the wife for divorce and maintenance for the couple’s two children on the ground that the Dubai court had already given them a divorce decree in 2012.

Foreign Court’s Jurisdiction in Matrimonial Cases of Indians

Calling the divorce granted by the Dubai court “not binding” in India, the bench said,  “It is not in dispute that (the woman and her husband) are Indian nationals and Hindus by birth and are governed by provisions of the Hindu Marriage Act. Consequently, the divorce petition filed by the woman before the family court could not have been dismissed on the basis of the Dubai court judgment, which is not binding and enforceable in India.”

The Bombay HC pointed out that a foreign court would have jurisdiction in a matrimonial case involving Indians only if it met the three criteria specified by the Supreme Court of India: if the spouse against whom the petition had been filed gives consent for the case to be heard by the foreign court; or submits to the jurisdiction; or if the person is domiciled or permanently resides there.

“Both are Indians and in the absence of the averments as well as material to endorse the claim of being domicile of Dubai, the presumption under (that the foreign court had jurisdiction) stands dislodged,” said the judges, the Times of India reported.

Marriage Registered in Mumbai

The couple had got married in the year 2000 as per Hindu vedic rites, and the marriage was registered in Mumbai. They moved to Dubai the same year. Their children were born in 2001 and 2008, after which the woman moved back to India. She filed a case for divorce and maintenance in the family court in 2014, following which the man produced a Dubai court’s divorce order to thwart her petition. The family court dismissed her petition last year and the woman then appealed in the high court.

The high court bench observed that the Dubai court did not take into consideration the possibility of desertion, and ruled only on the grounds that the couple was living separately for over two years. “The woman had not been given an opportunity to contest the petition filed in Dubai by the husband,” it said. “The judgement of Dubai Court does not indicate that husband had ensured effective contest by making all necessary provisions for the wife to defend petition, including the cost of travel, residence, and litigation. Thus it cannot be held that principles of natural justice were followed.”

The HC restored the wife’s petition in the family court, and asked both the parties to appear before the family court on September 18.