Bhakta & Konda

In the matter of *Bhakta & Konda*, heard by Turnbull J, the applicant, Mr Bhakta, sought a divorce order, while the respondent was Ms Konda. The core of the dispute revolved around the validity of the parties' marriage, which had been solemnised in India, and the potential conflict between Australian divorce proceedings and ongoing nullity proceedings in an Indian Family Court.

The court was required to determine whether section 52 of the *Family Law Act 1975* (Cth) prevented the Australian court from making a divorce order, given the pending Indian proceedings concerning the annulment of the marriage. Additionally, the court considered the relevance of section 88D(4) of the *Marriage Act 1961* (Cth) in relation to the recognition of foreign marriages, particularly the distinction between void and voidable marriages, and how these provisions applied to the present circumstances.

Turnbull J reasoned that section 52 of the *Family Law Act* applies to conflicts between competing applications under that Act, which was not the case here. The court noted that an annulment by the Indian Family Court would be recognised in Australia under section 104(3)(d) of the *Family Law Act*, provided the respondent was a national of India at the relevant time. The court also examined section 88D(4) of the *Marriage Act*, which states that a foreign marriage will not be recognised as valid while it is voidable under local law. However, the court found that the Hague Convention, which underpins Part VA of the *Marriage Act*, does not contemplate the concept of "voidable marriages" and limits the grounds for refusing recognition. Furthermore, the court determined that neither party had the standing to seek an annulment in English courts, rendering section 88D(4) inapplicable to the voidable nature of the marriage under local English law, and by extension, not a bar to recognising the Indian marriage as valid.

Ultimately, Turnbull J concluded that the court had the power to grant the divorce order as the application was in proper form and section 52 did not present an impediment. The Indian proceedings, dealing with property and the potential annulment, could be handled separately. While acknowledging the potential conceptual problem of granting a divorce for a marriage that might later be annulled in India, the court found that allowing the Australian divorce proceedings to continue would not, in itself, create "serious and unjustified trouble and harassment." The court indicated that if the Indian Family Court had already annulled the marriage, this would likely prevent the Australian court from making a divorce order, as such an annulment would be recognised under section 104(3) of the *Family Law Act*.