NAHASAPATI & NAHASAPATI

[2009] FamCA 1014

FAMILY COURT OF AUSTRALIA

NAHASAPATI & NAHASAPATI [2009] FamCA 1014

FAMILY LAW – NULLITY – Application for decree of nullity – Parties married in India – Decree nisi of Husband’s prior marriage not absolute at time of Indian marriage – Indian marriage invalid under Hindu Marriage Act 1955 (India) –  Marriage invalid in Australia – Application acceded to – Noted that the parties intend to remarry

APPLICANT: Mr Nahasapati

RESPONDENT: Ms Nahasapati

FILE NUMBER: BRC 6562 of 2009

DATE DELIVERED: 1 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 1 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sharma, Solicitor appeared for the Applicant Husband

SOLICITOR FOR THE APPLICANT: Sharma Lawyers

COUNSEL FOR THE RESPONDENT: The Respondent Wife appeared in person

Orders

IT IS ORDERED THAT:

1. The marriage solemnised in India on 21 January 2009 between the parties is declared to be absolutely null and void.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6562 of 2009

MR NAHASAPATI

Applicant

And

MS NAHASAPATI

Respondent

REASONS FOR JUDGMENT

1. Sometimes applications for a decree of nullity have a degree of complexity about them.  This one appears to be relatively straight forward.  It is, I would note, an order which has no ripple effect, or no consequences, insofar as once I make the decree sought the parties intend to immediately remarry, which they believed was their current status. 

2. I have read the affidavit of the applicant husband in this matter.  He had been previously married in India in August 1996.  That marriage broke down and he has been living in Australia since mid 2006.

RECORDED :  NOT TRANSCRIBED

1. They separated in Australia.  He applied for a divorce and the decree nisi was granted in the Federal Magistrates Court on 13 January 2009.  Of course, under Australian law, one month later, the decree becomes absolute – namely

   
   

   14 February 2009.  It is apparent that the applicant was mistakenly of the view that once the court had made the decree nisi on 13 January 2009, he would be free to remarry.  He then travelled to India where he entered into a ceremony of marriage on 21 January this year, and a copy of the certificate of marriage, dated 22 January 2009, is annexed as annexure C to the applicant’s affidavit filed on 28 July, accompanying his initiating application.

2. In his initiating application he quite properly seeks that an order, or declaration, that the marriage solemnised between the parties in India on 21 January 2009 is void and I am satisfied that the grounds have been established, that under Australian law he was not free to marry, either in Australia or any other country at that particular point in time.  Had he waited a month he would have been free to marry.

3. It matters little that the purported marriage took place in India.  The parties are residing in Australia.  They seek a decree of nullity of the Indian marriage and I propose to make a decree in those terms.  I find that the marriage solemnised between the parties on 21 January 2009 is void and a declaration of nullity of that marriage will issue from the Court.

4. I have read the submissions - helpful submissions I must say - filed on behalf of the applicant and I accept and adopt the thrust of those submissions.  I have read the affidavits of the respondent.  It is a matter where there are going to be no consequences, there is no children of this relationship, and once I have voided their marriage, which occurred in India, they intend to immediately, prior to 8 October, to remarry in Australia.  I assume the requisite notices have been given.

RECORDED  :  NOT TRANSCRIBED

1. That is not a matter that concerns me.  All I am asked to do is make a declaration declaring the marriage void.  I have done that and I issue the decree of nullity in that marriage.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date: 1 October 2009