Jasmit & Jasmit

In *Jasmit & Jasmit*, the Family Court of Australia considered whether it should exercise jurisdiction to grant a divorce. The parties, married in India, sought a divorce in Australia, with the husband arguing for the Australian court's jurisdiction. The central dispute revolved around whether Australia was the appropriate forum for the divorce proceedings, or if India was the clearly inappropriate forum.

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.