Protection of Women from Domestic Violence Act, 2005 provides for adequate protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters. The Act extends to the whole of India except for the State of Jammu & Kashmir. Section 27 of the Act talks about jurisdiction and conditions as follows –
We can file the case in the Courts where –
(a) the person aggrieved permanently or temporarily resides or carries on business or is employed; or
(b) the respondent resides or carries on business or is employed; or
(c) the cause of action has arisen.
However, if the wife is a foreign citizen and the husband is an Indian citizen a question arises whether she can file a domestic violence complaint in India while the couple resides in the U.S.?
According to Section 27, as mentioned above, once can file a complaint only in the above three places. In that case, a wife can file a DV complaint only if she permanently resides or carries on business or is employed or where the husband resides, carries on business or is employed or where the cause of action has arisen. The answer lies in Section 498A of I.P.C. Section 3 of I.P.C., deals with the crime committed beyond India in the same way as the crime committed within India. If the husband is an Indian citizen; the wife has the remedy under I.P.C. available to her relief.
Now the question is whether she can file for a divorce under H.M.A., 1956. ?
First, let's talk about the scope and applicability of the Act. Section 1(2) states that the Act extends to the whole of India except the State of Jammu and Kashmir. It also applies to Hindus domiciled in the territories to which this Act extends outside the said territories.
According to Section 2, This Act applies–
(a) to any person who is a Hindu by religion in any of its forms or developments, including a
Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by faith.
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion unless they prove that they are not governed by the Hindu Law or by any custom or usage as part of that law. In such a case, the law shall not pass.
If both the parties are Hindu by religion; their marriage took place according to the Hindu rites, the Hindu Marriage Act applies to the couple. Either spouse can file a divorce petition under Section 13 of the Hindu Marriage Act, 1956.
Reading of the Act in its entirety does not indicate that the provisions would be applicable only if the marriage is solemnized in the territories to which this Act extends, whereas the Act provides for extra-territorial operation. Sub-Section 2 of Section 1 of the Act deals with two aspects, viz., (1) it deals with the territory to which the Hindu Marriage Act extends and
(2) the persons to whom the Act is applicable.
Therefore, in the light of the principle to be followed in construing the word domicile and as laid down in “Dulbnath Prasad’s case in 2002 the place of residence by itself would not establish a domicile of an individual. Still, it should be understood in the context of the Statute, viz., the personal law applicable to the parties. In “D. P. Joshi v. State of Madhya Pradesh and another” reported in A.I.R. 1985 SC 334, the Apex Court observed that citizenship and domicile represent two different conceptions. Citizenship has reference to the political status of a person and domicile to his civil rights. Domicile has a connection to the system of law, and when we speak of the domicile of a country, we assume that the same method of law prevails all over the country.
Section 2 of the Hindu Marriage Act does not stipulate any stringent condition that both parties should be residing within or domiciled in the jurisdiction of India for maintaining a petition under the Hindu Marriage Act. It covers all Hindus who are living outside the territory to which this Act extends also.
As per Section 19(4) of the Hindu Marriage Act, the petition under this Act goes to the District Court, within the local limits of whose ordinary Original Civil jurisdiction, where the petitioner is residing at the time of presenting the petition. If the respondent is, at the time, living outside the territories to which this Act extends or has not heard of as being alive for seven years or more by those persons who would naturally have heard of him if he were alive. The above-said provision enables the presentation of the petition before the District Court of competent jurisdiction or Family Court even if the respondent is residing outside the territories to which the Hindu Marriage Act extends.
In the “Narasimha Rao v Venkata Lakshmi” [1991] 2 SCR 821, the decree of dissolution of marriage was passed by the Circuit Court of St. Louis County, Missouri of U.S.A. The Court assumed jurisdiction over the divorce petition filed by the husband there since the husband was resident of the State of Missouri for 90 days preceding the commencement of the action as the minimum requirement of residence.
Secondly, the decree was passed on the only ground that there remained no reasonable likelihood that could preserve the marriage between the parties and that the wedding had, therefore, irretrievably broken.
Thirdly, the respondent-wife had not submitted to the jurisdiction of the foreign Court. According to the Court, the decree dissolving the marriage passed by the foreign Court was without jurisdiction. According to the H.M.A. Act, the parties did not celebrate the wedding, the parties have not resided together, and the respondent did not live within that Court's jurisdiction. The decree was also passed on a ground not available under the H.M.A. Act, which applies to marriage.
Further, the husband obtained the decree by representing that he was the resident of the Missouri State when the record showed that he was only a bird of passage. He had, if at all, only technically satisfied the requirement of residence of 90 days with the only purpose of obtaining the divorce.
The Hon’ble Court reiterated that residence does not mean a temporary residence to get a divorce, but “habitual residence” or residence which intends to be permanent for future. Therefore, the final judgment the foreign Court had passed the decree was not following the Act under which the parties were married. The respondent had not submitted to the jurisdiction of the Court or consented to its passing it could not recognize the courts in this country and be unenforceable.
In the case of Anubha v Vikas Aggarwal (100 (2002) D.L.T. 68), 82), the husband obtains a no-fault divorce from a Court of the United States of America (U.S.A.). The Hon’ble Court held that the ground on which the defendant's marriage ends is not available in the Hindu Marriage Act. The parties were Hindus, and they solemnize their marriage according to the Hindu rites. Their matrimonial dispute or relationship was, therefore, governable by the provisions of the Hindu Marriage Act. Since the plaintiff did not submit to the jurisdiction of the U.S.A. Court did not consent for the grant of divorce in the U.S. Court. The decree obtained by the defendant from the Connecticut Court of U.S.A. holds to be neither recognizable nor enforceable in India.
So a Hindu wife being though being foreign Citizen, who got married as per Hindu Vedic Rights and Customs without any doubt to be governed by the personal law, viz., Hindu Marriage Act. Having chosen to accept the said Act as their law, one cannot surrender the same on his free will and fancies and deny the other contracting party the rights and obligations flowing from the Statute. As observed by the Division Bench of the Bombay High Court in Sondur Rajini’s case, it is unjust that a party to a marriage can change his entire system of personal law by his or her unilateral decision. If that is allowed, it will make the position of the wife miserable. Again, as observed by the Supreme Court in Narasimha Rao’s case, the parties know their rights and obligations when they solemnize their marriage, and one of them cannot be allowed to bypass it by fraud. If that is to be permitted by the Courts, it will create chaos in the applicability of the laws. Hence a wife can file a petition under Section 13 of the Hindu Marriage Act in India as that law governs them; the husband still being an Indian domicile would be subjected to the Courts of India.
A critical case in this regard is that of “R. Sridharan vs The Presiding Officer, Principal Family, Chennai” W.P.No.34838 of 2004 According to the petitioner, the Family Court has no jurisdiction to entertain the petition for divorce under the Hindu Marriage Act, since the marriage was performed in the United States of America. Petitioner submitted that the marriage between the parties took place in Balaji Temple, Bridge Water, New Jersey, United States of America. Since the petitioner is not in India, Section 1(2) of the Hindu Marriage Act, which extends to the whole of India, except Jammu and Kashmir, cannot be made applicable to the Hindus, who have settled outside the territories to which the Act extends. Both Indian and International Law recognizes the concept of Nationality and domicile as two different conceptions, which necessarily mean an Indian, by retaining his domicile in India, may acquire citizenship of another country. In other words, merely because a person has acquired citizenship of some other country does not necessarily mean that he has abandoned the domicile of origin. The uncontroverted fact is that the marriage between the parties solemnizes as per Hindu Rites and Customs, and both the parties are Hindus. Though the respondent disputes the marriage registration before the Marriage Officer in the U.S.A., it admits the form of marriage. Section 2 of the Hindu Marriage Act does not stipulate any stringent condition that both parties should be residing within or domiciled in the jurisdiction of India for maintaining a petition under the Hindu Marriage Act. It covers all Hindus who are living outside the territory to which this Act extends also. The above-said provision enables the presentation of the petition before the District Court of competent jurisdiction or Family Court even if the respondent resides outside the territories to which the Hindu Marriage Act extends. In decisions of the Courts concerning matrimonial matters, and the domicile of the disputed parties, the Court holds jurisdiction to convict any dispute between the contracting parties, one of whom is a foreign national, said to have acquired a domicile of his choice.
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