Foreign court's divorce decree can't dissolve Hindu marriage solemnised in India: Gujarat High Court

The Gujarat High Court recently held that a divorce granted by an Australian court cannot dissolve a marriage solemnised in India under the Hindu Marriage Act (HMA).

A Bench of Justices AY Kogje and NS Sanjay Gowda emphasised that rights and remedies under the Hindu Marriage Act remain unaffected by changes in citizenship or domicile, and that jurisdiction over such marriages rests solely with Indian courts.

"...reasoning of the Family Court is fundamentally wrong since the wife had asserted before the Australian Courts that it had no jurisdiction to entertain the petition filed by the husband and the Australian Court had overruled this objection and had granted a divorce. It will definitely be open for the wife to contend that the Australian Court had no jurisdiction since they were married under the provisions of the Hindu Marriage Act and hence their marriage, including its dissolution, would have to be decided under the Hindu Marriage Act and not under a foreign law..."

The Court thus set aside the impugned orders, allowed the appeals and directed the family court to decide the matter on merits.

The husband and wife married in July 2008 in Ahmedabad, and shortly thereafter moved to Australia, where the husband later acquired citizenship. Their first child was born in 2013. By 2014, marital differences arose and the husband returned to India while the wife stayed in Australia to secure citizenship, which she obtained in 2015. Later that year, she too returned to India with their son.

In March 2016, the husband filed for divorce and child custody before the Federal Circuit Court of Australia, which granted him a divorce in November 2016. The wife contested this, filing a review which was later dismissed. She simultaneously pursued multiple proceedings in India seeking relief including a declaration that the Australian divorce decree was null and void.

The husband challenged her Indian suits, arguing that they were not maintainable. In March 2023, the family court allowed his applications and rejected both her suits, one seeking restitution of conjugal rights and the other seeking to invalidate the Australian divorce decree. This led to the present appeals before the Gujarat High Court.

At the outset, the Court observed,

"If the argument that a marriage celebrated in India under the provisions of the HMA will be governed by a law of a foreign country only because the parties to the marriage have acquired a citizenship of another country is accepted it will lead to certain anomalous results."

It held that citizenship of the parties to a Hindu marriage has absolutely no relevance, and that the marriage will be governed by the HMA and not any other law, even if the parties acquire a new domicile.

On the jurisdiction of the family court to hear the wife's plea to annul the Australian court order, the Court said,

"...Hon’ble Supreme Court has in fact clearly stated that whenever the matrimonial status of any person is the subject matter of any declaration sought for, it is only the Family Court which would possess the jurisdiction to try the suit."

The Court observed that Section 13(c) HMA was clearly attracted, allowing the wife to argue that the foreign divorce decree was not conclusive. It held that her family suits must be decided on merits and the plaint could not be rejected.

It further noted that the family court had mechanically held the Australian court’s divorce decree to be valid and conclusive, leaving no cause of action for the wife to approach the family court in Ahmedabad.

With these observations, the Court allowed the appeals.

Advocates Aaditya D Bhatt and Chandni S Joshi appeared for the appellants.

Advocates Kshitij M Amin and Rahul R Dholakia appeared for the defendants.

[Read Order]