India vs Australia: Family court in Delhi hearing Shikhar Dhawan divorce case rebuffs comments by Australian court about Indian courts

While the cricket teams of India and Australia are battling it out on the cricket pitch, another battle is playing out inside courtrooms and with a cricket connection too..A family court in Delhi hearing the divorce petition filed by Indian Cricketer Shikhar Dhawan against his estranged wife Aesha Mukerji made some scathing observations against an Australian court for its condescending remarks on Indian courts and judiciary. Family court Judge Harish Kumar said on Thursday that foreign courts should shed the attitude that courts in India are still in the pre-independence era."Indian Court are conducting its proceedings through video conference, wherever, such is the requirement. It is to be borne in mind that India got its independence in 1947 and since then it has made tremendous improvement in application of technology in all walks of life. Hence, no one should remain under misconception that Indian Courts are still in pre-independence era," the judge said in the nine-page order. .He was prompted to makes these observations after the Federal Circuit and Family Court in Australia had, on February 2, asked Dhawan to submit to its jurisdiction and withdraw the proceedings initiated by him against his wife in the Family Court in Delhi's Patiala House Court. Mukerji is a Melbourne based kickboxer and had moved the Australian court for maintenance. Dhavan moved the family court in Delhi for divorce and custody of child. In its order, the Australian court had stated that it had no idea how courts in India function and adjudicate parenting disputes or custody matters. It had also opined that since both Dhawan and his wife Aesha understand English, they can continue to pursue their litigation in Australia instead of India as the former uses video conference. The Australian court had, therefore, asked Dhawan to pursue the child custody and divorce petition before the Australian Court. .Taking objection to the observations made by the Australian court, the Indian court said that the same reflected an "inappropriate understanding of the law of India qua parenting and conditions prevalent in India."Judge Kumar stated that Indian courts pass parenting orders keeping in mind the best interest of the child. "The paramount consideration in such petition has always been the best interest of the child. Hence, to say that since it is not known to Australian court as to how parenting disputes are determined in India, therefore, court in Australia would have better jurisdiction is nothing but reflection of inappropriate understanding of the law in India," the order said. Further, to say that parties to the litigation are fluent in English therefore, Australian court is better for adjudicating the parenting dispute again shows lack of knowledge of the Indian court, the judge said."Almost all courts in India, particularly courts in New Delhi conducts its proceedings both in English as well Indian language prevalent. Hence, respondent herein would not have any difficulty in understanding and participating in the proceedings in India," the judge underscored.Specifically on the merits of the territorial jurisdiction, Judge Kumar opined that since both Dhawan and Aesha are Hindu by religion and their son Zoravar, is also a Hindu, the couple must pursue their litigation in Delhi. "Marriage between the parties was solemnised in New Delhi in accordance with Sikh rites, governed by Hindu Marriage Act, 1955. Their marriage was registered in India. All marriages performed in India under Hindu Marriage Act has to be dissolved under Hindu Marriage Act, 1955 by courts in India or by foreign court applying Hindu Marriage Act provided both parties have subjected to the jurisdiction of foreign court," the judge observed. .Further, the judge noted that Mukerji had not objected to the proceedings for divorce under the Hindu Marriage Act and subjected herself to the jurisdiction of the court under the said Act."It is not within her right to pick and choose proceedings qua the reliefs under Hindu Marriage Act, 1955. The Hindu Marriage Act applies thoroughly for all the subject/issues governed by it," the Court said. .Lastly, the Court noted that Aesha had initially filed plea before the Australian court for maintenance and other financial assistance and she amended her plea only after the family court in Delhi passed orders touching upon parenting and custody issues."The court in Australia respecting Indian Law, Indian courts and taking into the account that all matrimonial dispute between parties is governed by Hindu Marriage Act, should not have restrained the petitioner (Dhawan) herein. Be that as it may, since order of the court in Australia reflects clear non-recognition of Indian law and of other factors prevalent in India, therefore, he is not bound by the order directing him not to proceed with parenting proceedings before this court in India," the Court said..Therefore, Judge Kumar held that Aesha has to submit herself to the jurisdiction of the family court in Delhi for the disputes related their child's custody and also for divorce. .Advocate Aman Hingorani appeared for Dhawan.