INTRODUCTION
Conflict of laws in the matrimonial field has been a phenomenon in India since time immemorial, dating back to conflicts between the laws of Shia and Sunni sects in the Muslim community. In the period preceding 1857, ecclesiastical courts enjoyed jurisdiction over matrimonial causes in India. As the jurisdiction of these ecclesiastical courts extended to all Christians, problems related to conflict of laws did not arise. It could be enjoyed by the courts so long as the parties were resident within their jurisdictional territory. In turn, this also meant that the domicile or nationality of the parties was not a cause of concern for the church.[1]
However, the rapid advances of the English society in the eighteenth and nineteenth centuries made the recognition of divorce essential. This came in the form of Matrimonial Causes Act, which not only repudiated notions of indissolubility in marriage, but also transferred the jurisdiction to the civil courts of the country in entirety.
Subsequently, the Supreme Court of Judicature Act, 1925 defined matrimonial causes to include nullity of marriage, divorce, judicial separation, and restitution of conjugal rights. These causes were introduced in India by the Hindu Marriage Act, 1955 for all citizens except Muslims. Among Muslims, wives are allowed to seek divorce on the grounds specified under the Dissolution of Muslim Marriages Act, 1939. The essay examines the first two of these grounds viz. nullity of marriage and divorce in extensive detail.
DISSOLUTION OF MARRIAGE
In England, the consent and breakdown theories of divorce are both partially accepted. However, the Matrimonial Causes Act, 1973 accepts no other ground for divorce except irretrievable breakdown of marriage. The situations where such a breakdown would ensue are statutorily defined by Section 1 (2), and include factors such as the commission of adultery, desertion or separation for a continuous period immediately before the suit.[2]
In India in contrast, the Indian Divorce Act, 1869 stands as a testament to colonial times, whereas the Special Marriage Act, 1954 shows the insensitivity of putting guilt as a ground for divorce alongside mutual consent and breakdown. The former recognizes few grounds such as adultery and conversion by the husband.[3]
It is the latter statute, however, which calls for our attention: it re-enacts each of the three theories of divorce in Sections 27 and 28. Many fault grounds are recognized, including lengthy imprisonment, incurable insanity, leprosy, presumption of death, over and above traditional fault grounds such as adultery and cruelty. This broad outlook is reiterated by the Hindu Marriage Act, 1955.
JURISDICTION IN ENGLISH LAW
Several fundamental changes have been effected by the Domicile and Matrimonial Proceedings Act, 1973, following which the jurisdiction of English courts has been limited to two grounds- domicile and habitual residence. According to the statute, the first of these grounds is satisfied if either party is domiciled in the country on the date of initiation of proceedings. Moreover, a subsequent change in domicile would not alter the jurisdiction already enjoyed by the English courts.[4] The second ground of habitual residence has been recognized in light of the Hague Conventions regarding the same. At the same time, the term has not been defined, but left to be determined by factual elements instead. This idea has been underlined by the Council of Europe on Fundamental Legal Concepts thus: “in determining whether a residence is habitual, account Is to be taken of the duration and the continuity of the residence as well as other factors of a personal or professional nature which point to durable ties between a person and his residence.”[5]
JURISDICTION IN INDIAN LAW
The matrimonial laws in India vary from one community to another, yet statutory enactments have been made for most of these. Under none of these religion-specific laws is either nationality or domicile considered relevant for the purpose of determining jurisdiction in a matrimonial cause. Instead, they choose to accord centrality to ‘residence’, which in turn has been defined in a broad sense.[6] The Hindu Marriage Act, 1956, serves as a case in point: it recognizes, among others, ‘residence’ at the time of marriage and presentation of petition as valid factors for determination of jurisdiction.
Courts have been quick to point out that whether a spouse is resident in a particular place or not depends upon the facts of the case. This mixed question of law and fact was handled by the Supreme Court in Jagir Kaur v. Jaswant Singh thus, “…we would define the word ‘resides’ thus: a person resides in a place if he through choice makes it his abode permanently or even temporarily; whether a person has chosen to make a particular place his abode depends upon the facts of each case.”[7] Additionally, Subba Rao, J. observed that the word ‘residence’ would not include “a casual stay in, or a flying visit to, a particular place”.
However, it is possible that the parties may have failed to establish a matrimonial home during the period of marriage. In such cases, jurisdiction is accorded to the last place of residence, even when the duration of such stay is remarkably brief. Tara v. Jaipal Singh[8] serves as a useful illustration: in this case, the parties had not set up permanent residence anywhere, choosing to live at several places for short time periods instead. It was held that they were living in Darjeeling simply because it was where they had resided during the week immediately preceding the breakdown.
CHOICE OF LAW IN ENGLAND AND INDIA
English courts invariably apply their own domestic law once their jurisdiction has been determined. This is not negated even when it becomes known that matrimonial misconduct does not constitute a ground for divorce in the foreign country of residence/domicile. While this may find justification in the grounding of English divorce law in domicile, it cannot explain away the insistence of the English courts to apply their domestic law while assuming jurisdiction on the basis of residence of the parties. Special statutory jurisdiction has come to be abolished over time, but English domestic law is still applied in all the cases where the English court has jurisdiction.
In India, once questions of jurisdiction have been entertained and determined, the courts apply the personal law of the parties involved. Thus, the Parsi Marriage and Divorce Act, 1936 would be applied in a case where the parties to the dispute belong to the Parsi community. The Special Marriage Act, 1954 is applied even when both parties belong to the same religion, in situations where the marriage involves a foreign element, or has been performed abroad.[9] It becomes evident, then, that the question is not of applying the lex domicilii of the parties, but their lex fori.
RECOGNITION OF FOREIGN DIVORCES
[A] England
The recognition of foreign divorces in India has come to be codified by the Recognition of Divorces and Legal Separations Act, 1971. Prior to the enactment of this statute, it had been held that a foreign divorce decree would not be recognized unless the judicial pronouncement was made by a competent court in the country of domicile. In Le Mesurier v. Le Mesurier, the court had observed that: “The principle of recognizing the validity of a decree pronounced by the court of the domicile has been long established and forms an essential part of the comity of nations.”[10] Even when such a pronouncement was not made, but only recognized as valid by the foreign court of domicile, the English courts would recognize the divorce. This position changed with Travers v. Holley[11], which laid down that the validity of the basis of exercising jurisdiction before the foreign court, whether domicile or otherwise, would determine recognition of the divorce. This was taken even further by the judgment of the House of Lords in Indyka v. Indyka[12], which qualified real and substantial connection between the parties and the court as a valid ground for seeking divorce before that particular forum.
Following the enactment of the Act of 1971, recognition of foreign divorces is guided by Sections 3 and 6 of the statute. The latter of these provisions has been reconstituted with the passing of the Domicile and Matrimonial Proceedings Act, 1973, which permits the wife to have her separate domicile. The Act of 1971 identifies two new grounds for divorce viz. habitual residence and nationality, and is arguably a step forward in the sense that it retains liberality while injecting fresh certainty.[13] ‘Habitual residence – a whittled down version of domicile – offers an alternative to the concept of domicile, which has developed in a largely erratic manner. ’At the same time, the absence of a clear-cut definition for “habitual residence”, under either statute or case-law, may deprive the law of the requisite clarity.
When any of these grounds contained in sections 3 and 6 exist, the foreign divorce is recognized regardless of whether it has been obtained through judicial proceedings or otherwise.[14] However, at times when this is not the case, it becomes necessary to construe the term “other proceedings” for non-judicial divorces. This issue came to consideration before the House of Lords in Regina v. Secretary of State for the Home Department, Ex parte Ghulam Fatima[15], where a wholesome reading of the provisions of the statute led the court to conclude that a single set of proceedings had to be necessarily instituted in the country where the divorce was obtained.
In 1899, Lindley, M.R. had observed that English courts only needed to look at the finality of the judgment and jurisdiction of the court before recognizing a foreign divorce, provided that English notions of substantial justice were not offended.[16] This viewpoint is reflected in the Act of 1971, which permits refusal on grounds of violation of principles of natural justice and public policy.
[B] India
Each matrimonial law specifies grounds for dissolution of marriage. However, none of these legislations, whether inadvertently or otherwise, state whether a domiciliary/residence qualification is necessitated by a divorce. Consequently, it becomes necessary to look at courts for guidance, and the judgment in Satya v. Teja Singh[17] clarifies the need for a domicile in the location of the court for upholding the validity of the divorce.
Thus, Indian rules for recognition of foreign divorce are not fully developed yet apart from general provisions contained in Section 13 of the Civil Procedure Code. Accordingly, the development of case-law assumes centrality. In Joao Gloria Pires v. Ana Pires[18], the court started with the assumption that the decree was valid, but could not be accepted because it was contrary to public policy. In a later case, recognition was denied on the ground that one of the spouses had misrepresented their domicile before the foreign court.[19]
Indian courts must assume responsibility in developing the law in this regard with or without the aid of legislation. When they themselves can assume jurisdiction on the basis of residence, there can be no logical explanation to refuse it to foreign courts on the same count. In fact, the Law Commission made several important recommendations for addressing this issue in its 65th report, such as provisions of fairness for the other party (whether because of the lack of reasonable notice, opportunity of hearing, et al.) and the irrelevance of non-recognition by a third country as a factor in recognizing a foreign divorce (or otherwise), but no subsequent law has been passed.[20]
NULLITY OF MARRIAGE
Both void and voidable marriages developed in ecclesiastical courts, but were carried over to common law even after these courts ceased. The earliest matrimonial statutes viz. the Parsi Marriage and Divorce Act, 1936 and the Divorce Act, 1869, made no distinction between void and voidable marriages. However, it was adopted by both the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955. With the enactment of the new jurisdictional rules under the Domicile and Matrimonial Proceedings Act, 1973, the distinction has lost much of its significance in England.
The Act of 1973 has made radical changes to the jurisdiction of the court in matters of nullity of marriage. The differences between the jurisdictional rules for void and voidable marriages have been removed. Now, under the statute, an English court can enjoy jurisdiction either under domicile, of one or both parties, or through habitual residence for a period of one year before the petition. In turn, they recognize a foreign nullity decree when it is approved by the court of domicile or habitual residence. In Von Lorang v. Administrator of Austrian Property[21], for instance, the House of Lords noted that the court of common domicile of the parties to the dispute has the competence to make a determination regarding questions of status of the parties with finality. As Sir Jocelyn Simon, P. succinctly observed, “If we ourselves claim a ground of jurisdiction we must concede a similar ground of jurisdiction to foreign courts.”[22]
While Indian case laws on this specific issue have been rare, we can conclude that the recognition of foreign nullity decrees will be no different from recognition of divorce decrees. This is because Indian law makes no distinction whatsoever between matrimonial causes on the point of jurisdiction.
LANDMARK CASE-LAW
[1] Rajiv Tayal v. Union of India[23]
In this case, the NRI husband sought to quash the order of the court to join the proceedings before the Metropolitan Magistrate in India largely on the ground that subjecting him to criminal process would constitute an unfair burden on him as he was residing in a foreign country. The court unequivocally held that the acceptance of a plea of this nature would accord a premium to an accused citizen simply because he happened to be abroad, thereby placing him in a position superior to other Indians. By its rejection, in contrast, it could be ensured that the process of law was not misused by the accused.
[2] Narasimha Rao v. Venkata Laxmi[24]
In this case, the decree for dissolution of marriage had been passed by a circuit court in America. The meaning of each of the clauses in Section 13 of the Code of Civil Procedure, 1908 was set out by the Supreme Court. ‘Competent court’, as contained in the first clause, was understood to mean a court to whose jurisdiction the parties had both voluntarily and unconditionally submitted themselves to. ‘Merits’, found in the second clause, were construed as the grounds available under the law under which the marriage took place.
CONCLUSION
After explaining each of the four clauses contained in Section 13, the Supreme Court laid down a golden rule that has been relied upon extensively in subsequent cases. According to this rule, the jurisdiction of the foreign court as well as the grounds for relief must be in accordance with the matrimonial law. At the same time, reasonable exceptions have been carved out, bringing in the benefit of certainty and predictability of law. This rescues the institution of marriage from the uncertain maze of Private International Law rules of different countries in matters of jurisdiction and merits grounded diversely in domicile, nationality, proper law, etc.
At the same time, we must realize that the Supreme Court has had few opportunities to decide cases on conflict of laws on this issue have been few and far between. Courts must not lose track of the fact that the contract for origin of marriage is fundamentally different from a mercantile contract for the reason that it affects both the parties concerned as well as the society to which they belong.[25]
[1] Niboyet v. Niboyet, (1878) 4 P.D. 1
[2] Matrimonial Causes Act, 1973, Section 1(2)
[3] Indian Divorce Act, Section 10
[4] Leon v. Leon, (1966) 3 W.L.R. 1164
[5] “Current Law”, Statutes, 45/5
[6] Panthaky v. Panthaky, 1941 Bom. 330
[7] Jagir Kaur v. Jaswant Singh, 1963 S.C. 1521
[8] (1946) 1 Cal 604
[9] Christopher Neelkantham v. Annie Neelkantham, 1959 Raj 133
[10] (1895) A.C. 517
[12] (1967) 2 All E.R. 689
[13] Hansard, House of Lords, Vol. 315 Col. 485
[14] Recognition of Divorces and Legal Separations Act, 1971, Section 2
[15] [1995] 2 AC 513
[16] Pemberton v. Hughes, [1899] 1 Ch 781
[17] 1975 SCC (1) 120
[18] 1967 Goa 113
[19] Hogan Bhai v. Hariben, 1985 Guj 187
[20] Law Commission of India, Sixty-Fifth Report on Recognition of Foreign Divorces, April 1976
[21] (1927) A.C. 641
[22] Lepre v. Lepre, (1965) A.C. 52
[23] 1991 SCC (3) 451
[24] [1991] 2 SCR 821
[25] G.C. Cheshire, Private International Law, 263 (1965)
