MALIK & JOSHI

This matter concerned a dispute between Mr. Malik and Ms. Joshi regarding divorce proceedings. Both parties resided in Australia, but the wife had initiated divorce proceedings and other applications in India, while the husband had filed for divorce in Australia. This created a forum dispute, requiring the court to determine the appropriate jurisdiction for the divorce.

The central legal issue before the court was whether it had jurisdiction to grant a divorce, given the parallel proceedings in India. This involved considering the admissibility and sufficiency of evidence presented regarding Indian law, particularly concerning the recognition of Australian divorce orders by Indian courts. The court was required to assess whether the wife had adequately adduced evidence of foreign law as required by the Evidence Act 1995.

Judge Harland noted that while the wife referred to Indian legislation and provided copies of two Indian cases, she had not complied with the requirements of section 174 of the Evidence Act 1995 by providing official copies of statutes or reliable publications. Furthermore, the source of the case reports was unclear, and there was no expert evidence on Indian law. The court drew upon the Full Court's observations in *Talwar* and *Sarai*, which emphasised that foreign law is a question of fact that must be established by evidence, and that a court should not conduct its own research into foreign law when such evidence is lacking.

The court directed that the divorce order be made to take effect on 24 June 2019, one month and one day after the decision was handed down.