Duryodhana & Chawla - [2018] FamCA 1089

FAMILY COURT OF AUSTRALIA

DURYODHANA & CHAWLA

[2018] FamCA 1089

FAMILY LAW – NULLITY – where a declaration of a valid marriage in India is sought – where a declaration of a marriage in Australia is null and void is sought – where the wife has not attended – where the wife has been served with documents – where the court is satisfied the matter proceed on an undefended basis – where the court is satisfied the parties entered into a valid marriage in India in early 2010 – where the parties subsequently married in Australia in mid 2010 – declaration made that the marriage between the parties conducted in Australia is null and void – declaration made that the marriage entered into by the parties in India is a valid marriage.

Family Law Act 1975 (Cth) s 51
Marriage Act 1961 (Cth) ss 23B, 88C, 88G, 113

Kapadia & Kapadia (1991) FLC 92-245
Zau & Huang [2015] FamCA 873

APPLICANT:

Mr Duryodhana

RESPONDENT:

Ms Chawla

FILE NUMBER:

MLC

4657

2016

DATE DELIVERED:

16 November 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

13 November 2018

REPRESENTATION

AGENT SOLICITOR

FOR THE APPLICANT:

Ms Silwaraju

SOLICITOR FOR THE APPLICANT:

Sekhon Lawyers

THE RESPONDENT:

No Appearance

Orders

IT IS DECLARED

That the marriage entered into by Mr Duryodhana and Ms Chawla on … 2010 in India is a valid marriage.
That the marriage between the applicant and the respondent conducted at Adelaide on … 2010 is declared null and void.

AND IT IS ORDERED

That the files numbered MLC4657/2016 and MLC8128/2017 be consolidated.
That the Initiating Application filed 31 May 2018 be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duryodhana & Chawla has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4657 of 2016

MR DURYODHANA

Applicant

And

MS CHAWLA

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the application of the husband, Mr Duryodhana for a decree of nullity of marriage in respect of the marriage entered into between the husband and the wife in Adelaide in mid 2010.
The husband and the wife married in early 2010 in India (“the first marriage”). Following the first marriage the parties commenced living in Australia. The husband deposes that as the first marriage was a religious ceremony, he did not believe that it was a marriage that would be recognised in Australia. As a result, the parties married at the Registry Office in Adelaide…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duryodhana & Chawla

Details

AGLC: Duryodhana & Chawla [2018] FamCA 1089
Case: [2018] FamCA 1089
Decision Date: 16 November 2018

CaseChat Overview and Summary

In the matter of *Duryodhana & Chawla*, heard before Johns J, the dispute concerned the validity of two purported marriages. The applicant, Mr Duryodhana, sought declarations regarding the status of his marital relationships with Ms Chawla.

The court was required to determine whether the marriage solemnised in India in 2010 between Mr Duryodhana and Ms Chawla was valid, and whether a subsequent marriage ceremony conducted in Adelaide in 2010 between the same parties was valid, or alternatively, null and void. The court also had to consider the consolidation of related files and the dismissal of an Initiating Application.

Johns J declared the marriage entered into by Mr Duryodhana and Ms Chawla in India in 2010 to be a valid marriage. Consequently, the court declared the marriage between the applicant and the respondent conducted in Adelaide in 2010 to be null and void, on the basis that a valid marriage already subsisted. The court also ordered the consolidation of the files numbered MLC4657/2016 and MLC8128/2017, and dismissed the Initiating Application filed on 31 May 2018.

Orders

Orders of the court

IT IS DECLARED

That the marriage entered into by Mr Duryodhana and Ms Chawla on … 2010 in India is a valid marriage.

That the marriage between the applicant and the respondent conducted at Adelaide on … 2010 is declared null and void.

AND IT IS ORDERED

That the files numbered MLC4657/2016 and MLC8128/2017 be consolidated.

That the Initiating Application filed 31 May 2018 be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.