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
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
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.
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.
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…
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- AGLC
- Jasmit & Jasmit [2013] FCCA 2273
- Case
- [2014] FCCA 972
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate forum for the divorce proceedings, specifically whether the Australian court should exercise jurisdiction given the marriage took place in India. This involved considering the principles of *forum non conveniens* and whether Australia was a clearly inappropriate forum for the dissolution of this marriage.
Judge Riethmuller reasoned that while section 13(1A) of the *Family Law Act 1975* (Cth) might appear to grant a right to divorce after 12 months of separation, this right is contingent on a prior decree for judicial separation. Such a decree, under section 10, is limited to grounds specified in section 13. The court noted that the Hindu Marriage Act 1955 (India) does not recognise irretrievable breakdown as a ground for divorce, and while divorce by mutual consent exists, there was no consent from the wife in this case. Although desertion was a ground under the Indian Act, the court was not persuaded that this would lead to the recognition of an Australian divorce for a marriage solemnised in India, referencing expert evidence in *Mehra & Bose (No.3)* which relied on Indian case law concerning the recognition of foreign judgments where laws differed only marginally.
The court ultimately made a divorce order, to take effect on 13 July 2014.
Orders
Orders of the court
1.
A divorce order be made, such divorce order to take effect and thereby terminate the marriage on thirteenth day of July 2014.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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. 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. 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. 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. 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.