Wednesday, August 4, 2021
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Foreign court can’t decide divorce plea of Indian domiciled

A foreign court does not have the jurisdiction to decide matrimonial matters of a couple who have Indian domicile and are governed under the Hindu Marriage Act, even if the parties were at the time residing in a foreign nation, the Bombay High Court has observed.

A division bench of Justices A S Oka and Anuja Prabhudessai last week quashed and set aside a Dubai courts order allowing a divorce petition filed by an Indian man residing there.

The high court was hearing an appeal (petition) filed by the man’s wife, challenging an order passed by a family court in Mumbai dismissing her plea seeking maintenance for herself and her two children.

The family court, while dismissing her plea, observed that the Dubai court has already adjudicated the matter and granted divorce to the parties.

However, the high court, after perusing the facts of the case, opined that both the parties (husband and wife) are Indian citizens and there was no material to endorse the claim of the husband that they have domiciles of Dubai.

“Under the circumstances, we are unable to hold that the Dubai court was a court of competent jurisdiction to decide the matrimonial dispute between the petitioner (wife) and the respondent (husband),” the high court bench said.

The HC noted that the parties in the present case are Indian nationals, are Hindus by birth, were married as per Hindu Vedic Rights and were governed in the matter of marriage and divorce by the provisions of the Hindu Marriage Act-1955.

“There can be no dispute that the court in Dubai would have no jurisdiction to entertain the petition in accordance with the provisions of the Hindu Marriage Act,” the HC noted.

The bench accepted the wife’s contention that she had neither submitted nor consented to the jurisdiction of the Dubai court to adjudicate the matter.

“The marriage petition filed by the petitioner wife before the family court could not have been dismissed on the basis of the Dubai courts judgement, which is not binding and enforceable in India,” said the high court.

The bench restored the petition filed by the wife before the family court.

The HC and directed both the parties to appear before the family court on September 18.

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