In the landmark case, it was held by the court that NRI Husband can file the objection under the divorce proceedings pending in India. It was further held husband citizen and Domicile Of the USA can raise objections on Divorce proceedings Filed by the Wife in India. Objection NRI Divorce India

Facts of the Case

Husband and Wife had gotten married as per the Sikh rites and Hindu Vedic rites and ceremonies.

Appellant a US citizen had moved to that country with his parents in the year 1994. After the marriage, the respondent/wife applied for permanent resident status.

Petition for Divorce Objection NRI Divorce India

Appellant/husband and respondent/wife came to India with their child, while they were in India, respondent/wife filed a divorce petition under Section 13(1)(I–a) of the Hindu Marriage Act.

Husband/appellant on returning to the USA alone filed for a divorce petition in Chicago, USA. He was granted an ex parte divorce on the ground of an irretrievable breakdown of the marriage.

Custody of Child Objection NRI Divorce India

Appellant/Husband also approached the Circuit Court of Cook County, Illinois, USA for the custody of the child which was granted to him ex parte.

Writ of Habeas Corpus Objection NRI Divorce India

Further, the appellant/husband had filed a writ petition in Delhi High Court for issuance of a writ of habeas corpus for the production and custody of the minor child.

Also Read: NRI Marriage Registration in Punjab

On being aggrieved with the above, the wife approached the Supreme Court which was allowed with directions to the parties to appear before the Family Court for the decision in regard to the custody of a minor child.

Order VII Rule 11 CPC

Appellant/Husband had moved an application under Order VII Rule 11 CPC for seeking rejection of the said petition on the plea that the provisions of the Act would apply to persons who are outside the territory of India only if they are domiciled in India. Objection NRI Divorce India

Since the husband/appellant was domiciled in the USA, only the wife/respondent was domiciled in India, the Act is not applicable to them.

FAMILY COURT HELD

Family Court had dismissed the application filed by the appellant/husband under Order VII Rule 11 CPC and stated that the appellant/husband cannot be allowed to selectively refer to the pleadings of the respondent/wife.

Further, the family court held that it is for the Court to determine as to whether the facts of a case conclusively establish that the respondent/wife had acquired US Domicile, Family Court rejected the stand of the appellant/husband that the divorce petition filed by the respondent/wife is barred by law.

COURT DECISION

A meaningful reading of the entire plaint must be conducted for the court to satisfy itself as to whether the averments made therein if taken to be correct in their entirety, would result in a decree being passed.

For the above-stated position, several Supreme Court’s Decisions were relied on including  in T. Arivandandam v. T.V. Satyapal,  Popat and Kotecha Property v. State Bank of India Staff Assn.,  2005 7 SCC 510

There cannot be any compartmentalization, dissection, segregation, and inversions of the language of various paragraphs in the plaint. Objection NRI Divorce India

Hardesh Ores (P) Ltd. v. Hede & Company, 2007 5 SCC 614

The averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense.

In the instant matter, it has to be determined as to whether the divorce petition filed by the respondent/wife deserves to be rejected or not.

Section 19 of the Hindu Marriage Act offers multiple options as to the local District Court where a Divorce petition can be presented. It includes the place where the marriage of the parties was solemnized or where the respondent resides at the time of presentation of the petition or in case the wife is the petitioner, where she is residing on the date of presentation of the petition or where the petitioner is residing at the time of presentation of a petition in a case where the respondent at that relevant point in time, is residing outside the territories to which the Act extends, as contemplated in Section 1(2).

Concept of ‘Resident’ and ‘Domicile’:

Union of India v. Dudh Nath Prasad,  2000 2 SCC 20

The classical division of domicile is well known. There is the domicile of origin, the domicile of choice, and the domicile of dependence. There has been little change in the essential concept of these three domiciles…

In view of the above, the concept of “domicile” as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, “Domicile” and “Residence” are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statute in which these words are used.”

The Hon’ble bench stated that under Order VII Rule 11, CPC, the court can only scrutinize the contents of the plaint taken as a whole but it cannot consider the evidence, if any, or the pleas taken in the written statement.

In the instant matter, the respondent/wife categorically stated in her petition that she wanted to reside in India. After the amendment to the Act in the year 2003 and on insertion of sub-clause (ilia) in Section 19, it cannot be said that Family Courts in Delhi are not vested with the jurisdiction to try and entertain the divorce petition filed by the respondent/wife.

DELHI High Court: A Division Bench of Hima Kohli and Subramonium Prasad, JJ., while observing a matrimonial application, held that the appellant/husband cannot raise an objection to the respondent/wife initiating proceedings of divorce in India under the provisions of the Act only because he is a US citizen and domiciled in the USA.

In the instant case, the respondent/wife remains a citizen of India and therefore, is a domicile of India for all intents and purposes. She has chosen to approach the courts in India for obtaining a decree for divorce.

The divorce petition filed by the respondent/wife read as a whole, does disclose a valid cause of action that can be entertained by the Family Court in India.

This article has been written and prepared by Advocate Ishmeet Kaur, from Patiala. 

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