Monday, August 23, 2010

Women can file for divorce anywhere: SC

High Court order on actor's divorce application upheld

Legal Correspondent

Friday, Aug 20, 2010

New Delhi: The Supreme Court on Thursday declined to interfere with a Madras High Court judgment holding that a family court in Chennai had the jurisdiction to decide the divorce case filed by Tamil actor Sukanya against her US-based husband.

A Bench of Justice P. Sathasivam and Justice B.S. Chauhan dismissed a special leave petition filed by R. Sridharan, challenging the High Court judgment. In a brief order, the Bench said, "We do not find any valid ground to interfere with the High Court order. The SLP is dismissed leaving open the question of law. If the appellant has any grievance he can approach the family court. Since the application [for divorce] is pending since 2004, we direct the family court to decide the matter in four months."

Justice Sathasivam told appellant's counsel K.K. Mani, "The facts are against you. There are many disputed facts. Whether the appellant is a US citizen; if so, when did he acquire US citizenship are all matters which can be adjudicated only by the family court."

Counsel Gita Rama Seshan, counsel for Ms. Sukanya, maintained that the Hindu Marriage Act would apply and the family court in Chennai would have the jurisdiction to decide the divorce application.

Justice Chauhan told counsel, "You [the appellant] have a residence in Chennai. You are visiting the place. Whether you have acquired properties are not, what your intentions are if you have acquired any property can be gone into only by the family court."

Mr. Mani, however, maintained that the house in Chennai belonged to his father and he did not own any property. But Justice Chauhan said, "These things can't be decided by us. Issues have to be framed and evidence has to be let in. There must be proper adjudication. But you did not allow the family court to decide anything. Even the question of jurisdiction could have been raised as a preliminary issue. But you have rushed to the High Court. Let the family court decide."

According to the appellant, his marriage with Ms. Sukanya's took place as per traditional Hindu customs at the Balaji temple in New Jersey, U.S., in April 2002. She returned to India in January 2003 and never went back.

On a writ petition filed by Mr. Sridharan — through his Power of Attorney R.V. Krishnan — challenging the matrimonial proceedings on the ground that he could not be subjected to Indian laws, a single judge and a Division Bench of the Madras High Court had held that Ms. Sukanya was entitled to file the petition in the place where she was staying.

The appellant's contention before the Supreme Court was it was settled law that in order to apply the provisions of the Hindu Marriage Act both parties must be 'domiciles' of India. As the appellant was a U.S. citizen, he could not be subjected to Indian jurisdiction and face the matrimonial proceedings which were not maintainable in law.

He argued that only the Foreign Marriage Act would apply to him.

Courtesy_

Also read the related stories

Foreign citizenship, domicile no bar for courts to take up matrimonial cases

Special Correspondent

Tuesday, Jul 13, 2010

CHENNAI: Indian courts have jurisdiction to take up matrimonial proceedings involving two Hindus governed by the Hindu Marriage Act (HMA) even in cases where the opposite party is a foreign national having his domicile outside India, the Madras High Court has held.

Dismissing an appeal against a single Judge's order, a Division Bench, comprising Justices Elipe Dharma Rao and K.K. Sasidharan, in its judgment said when a wife was given the right to initiate proceedings before the local District Court where she was actually residing, such a provision could not be defeated by taking a technical plea that no such proceedings would lie on account of foreign citizenship of the husband or his domicile in another country.

The substantial issue in the appeal pertained to legality of a matrimonial proceedings initiated by actor R. Sukanya before a family court in Chennai against her husband having his domicile in New Jersey (USA.)

R. Sridharan was an Indian citizen and, on migration to the US, was granted that country's citizenship.

The actor was residing adjacent to his residence in Chennai. Their marriage was solemnised on April 17, 2002 as per Hindu rites and customs at the Balaji temple in New Jersey.

In January 2003, the actor came to India for a short visit promising to return after completing her dance programme. Later, against her promise she started acting in films with no plans of returning to the US. She filed a divorce petition before the Principal Family Court, Chennai, on grounds of cruelty.

Mr. Sridharan was not aware of the proceedings. An ex parte order of divorce was granted in July 2004. After he took steps, the Family Court set aside its order. On his appearance, he filed the counter.

In the meanwhile, Mr. Sridharan filed a petition before the Madras High Court seeking a writ of prohibition contending that the Family Court, Chennai, had no jurisdiction to entertain the divorce proceedings as he was a US citizen. The court in India had no jurisdiction.

The actor countered that the marriage was solemnised with Hindu rites and customs.

Hence, the rights and obligations of the parties ran from the HMA.

A single Judge said the court in India exercising jurisdiction under the HMA had jurisdiction to entertain the divorce petition irrespective of the present residence of the opposite party. He dismissed the writ petition. Hence, the present appeal.

The Bench said that earlier under section 19 HMA (court to which petition shall be presented) it was not possible for a woman to initiate proceedings before the court in whose jurisdiction she was residing. Because of this, serious prejudice was caused to women. Following an amendment, the wife was now entitled to file a matrimonial petition before the District Court in whose jurisdiction she was residing.

The legislation had to be given an extended coverage even outside the territory to which it ran. When the parties were governed by the HMA, the jurisdiction and the grounds for annulling the marriage should be as provided under the Act.

The domicile or citizenship of the opposite party was immaterial in a case like this. It was the wife's residence which determined the question of jurisdiction in case the proceedings were initiated at her instance, the Bench said.

As the divorce petition was pending before the Family Court since 2004, the Bench requested the lower court to decide the petition as expeditiously as possible, in any case within two months.

Courtesy_

Also read the related stories

'Women can file for divorce anywhere'

TNN, Jul 13, 2010, 02.30am IST

CHENNAI: In a crucial ruling that is sure to cheer up women fighting divorce cases with husbands residing in a foreign country, the Madras high court has said that the family court in India had jurisdiction to try matrimonial litigation even if the husband is a citizen of a foreign country and not an ordinary resident of India.

A division bench comprising Justice Elipe Dharma Rao and Justice KK Sasidharan pointed out that the amended Section 19 of the Hindu Marriage Act extended to outside India. "The fact that the husband is residing outside the territory does not prevent the wife from applying before the local designated court to redress her grievances," the bench said.

The judges were passing orders on a case involving film actor R Sukanya and her husband R Sridharan, who is an American citizen. The two got married in April 2002 as per Hindu rites and custom at the Balaji Temple in New Jersey in the US. After nearly a year she returned to India, started to act in films, and also filed a divorce petition in 2004. As her husband did not attend the proceedings, the family court granted her divorce ex parte.

On representation from her husband Sridharan, later the family court reversed its order. He also filed a petition in the high court to restrain the family court from hearing the case on the ground that the court in India had no jurisdiction to take up the matter involving American citizens.

Dismissing his claims, the judges said that when the marriage was solemnised under the Hindu law, the proceedings for divorce also has to be made under the same Act. Referring to the amended Section 19 of the Act, the judges said that with effect from December 23, 2003, the wife is now entitled to file a matrimonial petition before a district court in whose territorial jurisdiction she is residing.

The judges rejected Sridharan's claims of domicile, and said, "when the marriage was solemnised under the Hindu law, the proceedings for divorce has also to be made under the said Act. He cannot take any exception to the proceedings in India under the provisions of the Hindu Marriage Act merely on account of his US citizenship or domicile."

Explaining the rationale behind the amendment, the judges said the original section was causing serious prejudice to women as it was not possible for them to initiate proceedings before the court in whose jurisdiction they are residing.

"Because of the rigid provision, women were compelled to approach the court in whose jurisdiction the marriage was solemnised or the husband resides or the parties to the marriage last resided together. The jurisdiction clause as it stood originally was really unfair to women," the judges said and directed the family court to go ahead with the hearing of the actor's case and conclude it within two months.

Courtesy_

Also read the related stories

Sukanya can pursue divorce as SC rejects hubby's plea

TNN, Aug 20, 2010

BIG RELIEF: Sukanya's husband, a US citizen, had contested the divorce granted by a court here saying it had no jurisdiction over matters involving Americans

New Delhi/Chennai: Clearing the decks for actor Sukanya to pursue her divorce case against her husband, a US citizen of Indian origin, in a Chennai court, the Supreme Court on Thursday declared that the family court in India had jurisdiction to try matrimonial litigation even if the husband is a citizen of a foreign country and not an ordinary resident of India.

A bench comprising Justices P Sathasivam and BS Chauhan, upholding the last month's judgment of justices Elipe Dharma Rao and KK Sasidharan of the Madras HC, however, said it was "keeping open the question of law" to be decided in future cases.

Dismissing the petition filed by Sukanya's husband R Sridharan, the apex court asked the family court in Chennai to dispose of the actor's divorce petition within four months, as the case has been pending since 2004. Sridharan's counsel KK Mani contended that Indian courts had no jurisdiction to entertain the divorce suit filed by the actress as their marriage was performed in the US under the Foreign Marriage Act, 1969.

Sukanya was present in the court during the hearing of the case for the past two days.

The two got married at the Balaji Temple in New Jersey in the US in April 2002 as per Hindu rites and custom. After nearly a year, she returned to India and filed a divorce petition in 2004. As her husband did not attend the proceedings, the family court granted her divorce ex parte.

On representation from her husband Sridharan, later the family court reversed its order. He also filed a petition in the Madeas HC to restrain the family court from hearing the case, on the ground that the court in India had no jurisdiction to take up the matter involving American citizens.

Dismissing the arguments, the division bench of Justice Elipe Dharma Rao and Justice KK Sasidharan had said the amended Section 19 of the Hindu Marriages Act extended to outside India. The judges rejected Sridharan's claims of domicile, and said, "When the marriage was solemnised under the Hindu law, the proceedings for divorce has also to be made under the said Act. He cannot take any exception to the proceedings in India under the provisions of the Hindu Marriage Act merely on account of his US citizenship."

The judges said that when the marriage was solemnised under Hindu law, the proceedings for divorce has also to be made under the same Act. TNN & AGENCIES

Courtesy_

2 comments:

  1. Thank for sharing good and useful information. This information is very valuable.

    Regards.
    Aysia/ hindu matrimonials

    ReplyDelete
  2. Highly pleased to get thought provoking information.

    ReplyDelete

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This Blog Spot is meant for publishing landmark judgments pronounced by the Court of law as we collected from the renowned Dailies, Magazines, etc., so as to create an awareness to the general public and also to keep it as a ready reckoner by them. As such the readers may extend their gratitude towards the Original Author as we quoted at the bottom of each Post under the title "Courtesy". Furthermore, the Blog Authors are no way responsible for the correctness of the materials published herein and the readers may verify the concerned valuable sources.



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