Jasmit & Jasmit

[2014] FCCA 972

FEDERAL CIRCUIT COURT OF AUSTRALIA

JASMIT & JASMIT [2014] FCCA 972

Catchwords:
FAMILY LAW – Divorce – Jurisdiction – whether Court should exercise jurisdiction – forum non conveniens – appropriate forum – whether clearly inappropriate forum – where parties were married in India – whether divorce proceedings should be heard in India or Australia – Australia a clearly inappropriate forum.

Legislation:
Family Law Act 1975
Hindu Marriage Act, 1955 ss.13, 13A, 13B, 10

Bartlett v Bartlett [1933] HCA 53; (1933) 50 CLR 3
BC Galleries (VIC) Pty Ltd v Commonwealth of Australia [2012] FMCA 742
Dane & Kabrig [2012] FMCAfam 547 (and on appeal [2013] FamCAFC 113)
Hari Narayanan v Meenakshi Narayanan [2007] INTNHC 1593
Henry v Henry [1996] HCA 51; (1996) 185 CLR 571
Hughes & Hughes [2014] FamCA 12
Forster v Forster [1970] Eng. R 2536; (1790) 161 E.R. 504, at p. 508; (1790) 1 Hagg. Con. 144, at p. 154
Mehra & Bose (No.3) [2013] FCCA 2273
Reynold Rajamani & Anr v. Union of India & Anr [1982] INSC 58; AIR 1982 SC 1261; 1983 (1) SCR 32; 1982 (2) SCC 474; 1982 (1) SCALE 566
Technip SA v SMS Holding (P) Lyd & Ors (2005) 5 SCC 465 (India)
Y. Narasimha Rao & Ors Vs. Y. Venkata Lakshmi & Anr [1991] INSC 145; 1991 (2) SCR 821; 1991 (3) SCC 451; 1991 (3) JT 33; 1991 (2) SCALE 1

Applicant: MR JASMIT

Respondent: MS JASMIT

File Number: DGC 1201 of 2013

Judgment of: Judge Riethmuller

Hearing date: 15 November 2013

Date of Last Submission: 11 April 2014

Delivered at: Melbourne

Delivered on: 12 June 2014

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: There being no appearance by or on behalf of the Respondent

ORDERS

1. A divorce order be made, such divorce order to take effect and thereby terminate the marriage on thirteenth day of July 2014.

IT IS NOTED that publication of this judgment under the pseudonym Jasmit & Jasmit is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DANDENONG

DGC 1201 of 2013

MR JASMIT

Applicant

And

MS JASMIT

Respondent

REASONS FOR JUDGMENT

1. The Husband brought an application for a divorce filed 9 May 2013.  He and the wife were both born in India. The husband commenced living in Australia in 2006.  He says that he regards Australia as his home and intends to live here indefinitely and has ordinarily lived in Australia for the 12 months prior to the filing of the application.  The wife neither lives in Australia nor regards it as her residence.

2. The parties were married on (omitted) 2011 at (omitted), India.  The husband alleges that they separated on 27 February 2012 and have not lived together since.  There are no children of the relationship.

3. The husband deposes to the fact that the wife’s name on the certificate of marriage is different to that used in the application to explain why the marriage certificate he has provided has a different name for the wife. 

4. The husband served the wife by registered post and filed an affidavit enclosing a delivery certificate to confirm delivery of the material to the wife.  This would not have been sufficient service in the ordinary course however in this case the wife has filed a response.

5. On 8 July 2013, the wife filed a response asking that the husband’s application be dismissed.  The wife opposes the divorce on a number of grounds:

   a)the wife alleges that the husband has not disclosed that there are pending family law proceedings in India; and

   b)that the Australian courts would not have jurisdiction as the parties were married in accordance with Hindu religious rites and last resided together in India.

6. The fact that the parties may have married in accordance with the Hindu religious rites in India, lived together there and separated in India does not of itself, create a bar to the Australian courts having jurisdiction if one of the parties is resident or domiciled in Australia, as is the husband in this case: see s.39(3) of the Family Law Act 1975.  However, such factors are relevant in determining the appropriate court for this application.

7. Similarly, the fact that proceedings are pending in a court of a foreign jurisdiction does not of itself create an immediate bar to jurisdiction in Australia, but again is a relevant factor.

8. Thus, I must determine whether or not Australia is a clearly inappropriate forum for the divorce application to be heard and determined.

Appropriate Forum

1. The test for determining the forum has been discussed by the High Court in Henry v Henry [1996] HCA 51; (1996) 185 CLR 571, where it was determined that the appropriate test is to determine whether Australia is a “clearly inappropriate forum”.

2. In the recent decision of Hughes & Hughes [2014] FamCA 12, Macmillan J stated:

   [20] InHenry v Henry [1996] HCA 51 (‘Henry’), the High Court held that the “clearly inappropriate forum” test in Voth is the test the court should apply in proceedings in this Court for a stay of proceedings. The High Court in Henry identified the following principles:

   (a) the party seeking a stay of Australian proceedings bears the onus of establishing that the Australian jurisdiction is “clearly inappropriate”; and

   (b) the determination of whether Australia is a “clearly inappropriate forum” is based upon the general circumstances of the case, taking into account the true nature and full extent of the issues involved.

   [21] The matters to be taken into account include, inter alia:

   (a) whether, if both courts have jurisdiction, each will recognise the other’s orders and decrees;

   (b) which forum can provide more effectively for complete resolution of the matters involved in the parties’ controversy;

   (c) the order in which the proceedings were instituted, the stage which they have reached, and the costs that have been incurred;

   (d) the connection of the parties and their marriage with each of the jurisdictions and the issues on which relief may depend in those jurisdictions; and

   (e) whether, having regard to their resources and their understanding of language, the parties are able to participate in respective proceedings on an equal footing.

   [22] Although whether an overseas proceeding or a proceeding in Australia was commenced first is a relevant matter to be taken into account, it is not determinative of the question of whether Australia is a “clearly inappropriate forum” (Henry per Brennan CJ, [18]-[19]). Cases in which the Family Court of Australia has held that Australia is not a clearly inappropriate forum in circumstances where proceedings in a foreign court have been instituted first in time include:Cashel & Carr [2005] FamCA 765; [2005] FLC 93-232 at 79,868; Porto & Porto [2007] FamCA 454 at 31,47; Garrett & Cowell[2007] FamCA 778; and Khademollah & Khademollah [2000] FamCA 1045; [2000] FLC 93-050 (‘Khademollah’).

   [23] In the matter of Steen v Black (2000) FLC 93-005 O’Ryan J referred to the learned author P.E Nygh’s Conflict of Laws in Australia, 6^th ed. 1995 at pp 107-108 discussion of the relevant factors the court must consider in determining whether the forum is “clearly inappropriate”. The learned author, having said that the relevant factors are to be balanced against each other and that no one factor is conclusive by itself, identified the following matters to be considered:

   (a) any significant connection between the forums selected and the subject matter of the action and/or the parties, such as the domiciles of the parties, their places of business and the place where the relevant transaction occurred or the subject matter of the suit is situated;

   (b) any legitimate substantial juridical advantage to the plaintiff, such as: greater recovery, more favourable limitation period, better ancillary procedures, or assets within the jurisdiction against which any judgement can be enforced;

   (c) the availability of an old alternative forum and whether it will give the plaintiff adequate relief; and

   (d) whether the law of the forum will supply the substantive law to be applied in the resolution of the subject case.

Relevant Factors in this case

1. In this case, in addition to the matters set out above at para.5, the Wife says that she does not have the financial means nor a valid visa to attend the court hearing in Australia.

2. At paragraph (j) of her affidavit the Wife says that the parties did not separate until she left Australia to return to India on 27 February 2012. She left Australia after he had asked for a divorce.

3. This divorce application, however, was not filed until May 2013, more than 12 months after the date that she says that she left Australia. However, she says that she remained the Applicant’s Hindu wife, living with his parents in (omitted) until 2 August 2012 when it became intolerable for her to continue living with his parents. On her case, as late as 20 June 2012 the husband sent her a visa application form so she could apply for a visa to join him in Australia. Thus, she denies that they have been separated for the requisite period of 12 months. She does not set out in her material when she believes separation occurred. However, it appears clear that at least by the time she left Australia, after he had asked for a divorce, that the parties had separated, (and I note here that separation can occur by the conduct of any one of the parties: see s.49 of the Family Law Act 1975). 

4. The Wife annexes a copy of a petition filed in the Family Court at (omitted) pursuant to s.9 of the Hindu Marriage Act, 1955.  The petition seeks an order for the restitution of conjugal rights, the payment of alimony at 50,000 rupia per month, together with the costs of the application.  There is a further document which appears to be a judgment for an order restraining the Husband from leaving India.  Unfortunately, the copies of the documents that have been provided in the affidavit contain only three pages, which do not appear to be consecutive pages of the documents, and from which it is difficult to ascertain precisely what the court documents in the pending proceedings in India disclose.

5. The Wife filed a formal response annexing a complete copy of her application to the Family Court of (omitted).  In that document, she outlines that the parties lived together as husband and wife in India until the Husband left for Australia on 30 April 2011, promising to send all necessary papers and documents and make suitable arrangements for her to join him.  She came to Australia between 17 November 2011 and 27 February 2012. In the response, the Wife also sought orders for the restitution of conjugal rights, spousal maintenance and to restrain the Husband from leaving India. The Wife remains opposed to any divorce. Orders were made restraining the Husband from leaving India, although it seems that he must have left at least before formal notice of the orders was given.

6. The Husband, in an affidavit filed 29 October 2013, sets out that he commenced the relationship with the Wife in March 2011, and that they were married on the 28^th of that month.  He says that they lived together in India for one month before he returned to Australia in April of 2011, leaving the Wife in India.  He says that they were living together in Australia from November 2011 until she returned to India in February 2012, and that he regarded the marriage as over a month later. 

7. The Husband says that in February 2013, he went to India to attend his brother’s wedding, during which time he attended a mediation with the Wife.  He explains that he left earlier than planned.  He was concerned that the Wife may seek to have orders made in India to stop him leaving the country (an event that appears to have come to pass). 

8. The Wife says that he was not aware of the proceedings in India when he left and therefore was not in breach of the orders, although clearly on the affidavit material he was expecting proceedings in India and left early to avoid them.

9. Whilst the Husband maintains in paragraph 33 of his affidavit that the Wife’s rights under the Hindu Marriage Act 1955 are not applicable to these proceedings it appears to me that her rights under that Act, which she is entitled to pursue in the Family Court at (omitted), are a relevant consideration in determining whether or not Australia is a clearly inappropriate forum in this particular case.

10. Turning, then, to consider the relevant factors in determining whether or not Australia is a clearly inappropriate forum, I find that:

    a)There are appropriate courts with family law jurisdiction in both Australia and India able to hear and determine the matter according to law with appropriate judicial processes.

    b)The Husband lives in Australia and has been a permanent resident visa holder since 2012.  He has lived here since 2006. 

    c)The Wife has at all material times lived in India and continues to live in India, having been in Australia only for a very short period.

    d)The Husband and the Wife commenced their relationship in India.

    e)The Husband and Wife married in India.

    f)At the point of separation, at least on the Husband’s case, the Wife was living in India.

    g)The material indicates that the Wife does not have the financial capacity, and indeed may not even be able to obtain the requisite visas, to come to Australia to litigate.

    h)The Husband clearly has the capacity to travel to India should the litigation take place in India.

Recognition of an Australian Divorce in India on the facts of this case

1. There is a real question as to whether or not a divorce granted by an Australian court would be recognised in India under the Hindu Marriage Act 1955.  The refusal of a foreign court to recognize an Australian order is not determinative of the matter, just a factor to be taken into account.  Ordinarily a refusal by a foreign jurisdiction to recognise a divorce order granted by an Australian court would not be of such significance as to lead the Australian court to refuse to grant relief by way of a divorce.  If the law were otherwise, many Australian Citizens (particularly the thousands of Indian Hindus who have emigrated to Australia) would be denied benefits and protections of Australian law simply because they happened to marry in another country.  However, one must not lose sight of the reasons for the law of India being in its current form, as is explained in the Indian Supreme Court authority referred to below. 

2. In the context of this case, the question is of greater substance than a purely academic question about the recognition of a divorce order made in Australia in a foreign jurisdiction.  The Wife, because she is a Hindu citizen of India continuing to reside in India, requires a divorce recognised under the Hindu Marriage Act if she is to be able to remarry in India. 

3. There was no sworn expert evidence placed before me by the parties as to the law in India on the recognition of foreign divorce decrees, however given that they are unrepresented this is unsurprising. The decisions of the Supreme Court of India are available on the website ‘LII of India’, India’s equivalent to The content of that site, as with the other sites listed in WorldLII are clearly a ‘reliable source’ as contemplated in s.174 of the Evidence Act 1995, and may therefore be admitted into evidence (see also BC Galleries (VIC) Pty Ltd v Commonwealth of Australia [2012] FMCA 742).

4. After identifying apparently relevant decisions I directed my Associate to provide copies to the parties and to invite any further submissions or evidence. Further submissions were provided by the husband. The wife provided a further affidavit repeating much of her evidence and stating merely that the Indian cases were relevant.

5. In Y. Narasimha Rao & Ors Vs. Y. Venkata Lakshmi & Anr [1991] INSC 145; 1991 (2) SCR 821; 1991 (3) SCC 451; 1991 (3) JT 33; 1991 (2) SCALE 1 the Supreme Court of India (per Sawant J) considered the recognition of foreign divorce decrees in a case involving a Hindu Marriage, concluding that:

   13. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows:

   (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married;

   (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married;

   (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

   The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife's domicile follows that of her husband and that it is the husband's domiciliary law which determines the jurisdiction and judges the merits of the case.

6. Whilst the passage preceding this quote is lengthy, it is necessary to examine it in order to properly understand the conclusions.  The preceding passage says:

   12. We believe that the relevant provisions of Section 13 of the [Code of Civil Procedure 1908 (India)] are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.

   Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression ``competent court'' in Section 41 of the Indian Evidence Act has also to be construed likewise.

   Clause (b) of Section 13 states that if a foreign has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.

   The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.

   Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are file by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) may be held to have been satisfied.

   The provision of clause (e) of Section 13 which requires that the courts in this country will not recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh, (supra) it must be understood that the fraud need not be only in relation to the merits of the mater but may also be in relation to jurisdictional facts.

1. It appears that the Hindu Marriage Act 1955 (India) does make extensive provision for divorce.  Sections 13 to 13B provide:

   13. Divorce. (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

   (i) has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse ; or

   (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

   (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

   (ii) has ceased to be a Hindu by conversion to another religion; or

   (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

   [Explanation.-In this clause,-

   (a)     the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

   (b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it require or is susceptible to medical treatment; or]

   (iv) has been suffering from a virulent and incurable from of leprosy; or

   (v) has been suffering from venereal disease in a communicable from ; or

   (vi) has renounced the world by entering any religious order; or

   (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.

   [Explanation.-In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

   (1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-

   (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

   (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

   (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-

   (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition ; or

   (ii)that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or [bestiality; or]

   (iii) that in suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956, (78 of 1956.) or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974.) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898), (5 of 1898.) a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;

   (iv) that her marriage (whether consummated or not) was Solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation.-This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976.] (68 of 1976.)

   13A. Alternate relief in divorce proceedings.
   

   In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

   13B. Divorce by mutual consent.     (1)    Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976.) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

   (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

2. Whilst at first blush s.13(1A) appears to provide a petitioning husband a right to a divorce after a separation of 12 months, the relevant period must commence with a decree for judicial separation.  Such a decree is provided for in s.10 which limits the grounds for obtaining such a decree to those set out in s.13.  It is in the following terms:

   10.    Judicial separation. (1)    Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented

   (2)    Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

3. The court in Y. Narasimha Rao & Ors Vs. Y. Venkata Lakshmi & Anr (supra) also pointed out (in para 1) that irretrievable breakdown is not one of the grounds for divorce recognized in the Hindu Marriage Act 1955 (India).  Divorce by mutual consent (not irretrievable breakdown) under the Hindu Marriage Act was referred to in Reynold Rajamani & Anr v. Union of India & Anr [1982] INSC 58; AIR 1982 SC 1261; 1983 (1) SCR 32; 1982 (2) SCC 474; 1982 (1) SCALE 566, however there is no consent to divorce by the wife here.

4. Thus, whilst the Husband could sue for divorce in India there appears to be no basis for obtaining a divorce on the grounds of an irretrievable breakdown of the relationship or other basis similar to that available to the Husband under the Family Law Act 1975 in Australia.

5. The husband argued that divorce on the ground of desertion is available under the Hindu Marriage Act after 2 years (see s.13(1)(ib)). Whilst on the facts of this case a finding of separation for 12 months and desertion for 2 years may be open, the grounds remain different. I am not persuaded that this is an argument likely to lead to the recognition of an Australian divorce with respect to a Hindu marriage entered into in India.

6. I have considered the findings in Mehra & Bose (No.3) [2013] FCCA 2273 at [64] where expert evidence was accepted that an Australian divorce order may be recognised in India. Significantly, it appears the expert was relying upon Technip SA v SMS Holding (P) Lyd & Ors (2005) 5 SCC 465 (India). Technip concerned the differences between French law and Indian law with respect to ‘the prescribed limits of shareholding for control by one company over another’. Not surprisingly, the Supreme Court of India took the view that the French law was “no less rigorous and differed only marginally.” The Court applied the French law as the appropriate law by reason of the corporation’s place of domicile.

7. The applicability of foreign law to foreign domiciled commercial corporations for the purpose of determining control by one corporation of another in a cross border commercial dispute seems unlikely to alter the courts view on jurisdiction for divorce cases under the Hindu Marriage Act. In any event the Wife is not domiciled in Australia, nor is she a resident or citizen. Most importantly, Technip makes no reference to Narasimha and the only relevant Supreme Court or High Court authority in India on divorces decided after these two cases, Hari Narayanan v Meenakshi Narayanan [2007] INTNHC 1593 applies Narasimha at para. 10 and makes no reference to Technip.   

8. In the High Court of Madras, in the matter of Hari Narayanan v Meenakshi Narayanan [2007] INTNHC 1593, Justice S.Ashok Kumar stated:

   [17] … The marriages which take place in this country can only be under either the customary or statutory law in force in this country.  Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law.  When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the law.  Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country.

   …

   [20] … The jurisidiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.  The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

9. It appears to me to be unlikely that an Australian divorce order with respect to Hindus married in India would be recognized by the courts of India. This finding is consistent with the findings in Dane & Kabrig [2012] FMCAfam 547 (and on appeal [2013] FamCAFC 113). As identified in Mehra & Bose (supra) it seems likely that any Indian divorce order would be recognised in Australia.

The Wife’s domicile and the parties’ capacity to litigate

1. The Wife was resident in India when the Husband married her, and since separation, she has continued to reside in India. 

2. In the circumstances of this case it appears to me that it is likely that the Wife would suffer hardship if she were not able to obtain a divorce from the Family Court at (omitted) India so as to have a divorce recognised under the Hindu Marriage Act. However she opposes a divorce here or in India.

3. There is nothing to stop her from pursuing proceedings in India and in my view she has not submitted to the jurisdiction in Australia.  However, I am mindful of the comments of Sawant J at para. 13 of the judgement quoted above, and the practical difficulty that the wife may have in effecting service upon the husband of the relevant process from the Indian courts, in order to pursue her remedies.

4. There is nothing to prevent the Husband from litigating in India.  Indeed, it seems likely that he has a greater capacity to participate in proceedings in India than the Wife has to participate in proceedings in Australia.

5. Whilst the Husband may not have been formally served with the Indian proceedings, he has set out in his affidavit that he left India 16 days prior to his initial plans as he was quite concerned “the respondent would try to have my passport confiscated”.  It appears to me that in a country such as India the method by which a person’s passport might be confiscated would be the result of a court order as a result of pending proceedings not officials acting outside of the rule of law. It therefore appears to me that the Husband was well aware that proceedings were about to be issued and fled the jurisdiction to avoid being present at the time those proceedings were issued.

Pending proceedings

1. The proceedings in India were commenced prior to the proceedings being commenced in Australia. The Husband was aware of the Indian proceedings (or at least that they were impending) prior to commencing the Australian proceedings.  It is clearly preferable that there is only one case with respect to the marriage, not a case in each jurisdiction. 

2. No arguments have been raised before me about the availability of ancillary relief (particularly maintenance and property settlement) in India, if a divorce is granted in Australia.

Availability of divorce

1. The husband has a right to a divorce in Australia, without having to prove fault or impairment of the other party, simply on the grounds of irretrievable breakdown of the marriage and separation for a period of 12 months. The evidence in this case shows the parties effectively separated when the wife returned to India.

2. Under s.13 of the Hindu Marriage Act it does not appear that the husband has a prima facie basis to obtain a divorce, and the wife opposes a divorce.

3. Thus, the remedy of divorce appears to be available to the husband only in Australia. As a resident of Australia he is entitled to the benefits and protections of Australian law.

Conclusion

1. Considering the matter as a whole and the unusual circumstances of this case, it appears to me that Australia is not a clearly inappropriate forum in which to allow the divorce application to proceed.

2. In the circumstances, I therefore decline to stay the Husband’s application for a divorce.

3. As I am satisfied that the parties’ marriage has irretrievably broken down and they have separated more than 12 months prior to the application for divorce (and more than 2 years since the date of the marriage), the Husband has established the factual basis for a divorce order under s.48 of the Family Law Act 1975.

4. I am not persuaded that there is any prospect of cohabitation being resumed (see s.48(3) of the Act). If a Family Court in India were to Order a resumption of conjugal rights it is difficult to see how such an order could be enforced under Australian law (even though such an order only enforces co-habitation, not intercourse: see Forster v Forster [1970] Eng. R 2536; (1790) 161 E.R. 504, at p. 508; (1790) 1 Hagg. Con. 144, at p. 154 and Bartlett v Bartlett [1933] HCA 53; (1933) 50 CLR 3) as it would be inimical to the sole basis for divorce under the Family Law Act 1975.   

5. I therefore grant the husband a divorce order, which will take effect in 1 month (see s. 55 of the Family Law Act 1975).

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller.

Associate: 

Date:  12 June 2014