Gujarat High Court ruled that “Foreign law cannot dissolve marriage under Hindu Marriage Act.” The judgment clarifies that divorces obtained abroad have no legal effect in India for marriages registered under the Hindu Marriage Act, 1955.
The Gujarat High Court ruled that foreign law cannot be applied to dissolve a marriage conducted under the Hindu Marriage Act, 1955 (HMA).
This decision was made in response to two appeals by a wife who challenged the rejection of her plaint under Order 7 Rule 11 of the Civil Procedure Code, 1908 (CPC).
A Division Bench, consisting of Justice A.Y. Kogje and Justice N.S. Sanjay Gowda, stated,
“The Apex Court in Y Narasimha Rao’s case (supra) has clearly held that marital disputes arising out of marriages which have taken in India can only be governed by the provisions of the law under which the marriage has taken place, thereby meaning the applicability of a foreign law to dissolve a marriage which has been performed under the provisions of the HMA is impermissible. In the light of this declaration of law, the reasoning of the Family Court to the effect that the Australian Court possessed the jurisdiction to dissolve the marriage and the wife had no cause of action to seek for restitution or for a declaratory decree regarding the judgment of the Australian Courts would be erroneous and the case set up by the wife would have to be examined in the light of this declaration of law.”
The court emphasized that the plaint could not be dismissed for failing to disclose a cause of action, as the wife had clearly asserted that the divorce decree from the Australian Court lacked jurisdiction and was therefore null and void. She argued that only Indian courts had the authority to dissolve the marriage as per the HMA.
Advocate Aaditya D. Bhatt represented the Appellant/Wife, while Advocate Kshitij M. Amin represented the Respondent/Husband.
The couple married in 2008 in Ahmedabad following Hindu traditions, and their marriage was registered under the Gujarat Registration of Marriages Act. Shortly after the marriage, the husband returned to Australia, where he was a permanent resident.
The wife moved to Australia three months later, and in 2011, the husband became an Australian citizen. They had their first child in 2013, but marital discord arose in 2014, leading the husband to return to India.
A year later, he obtained an Overseas Citizenship of India (OCI) card, while the wife also gained Australian citizenship.
In 2016, the husband initiated divorce proceedings in the Federal Circuit Court of Australia and sought custody of their child. Meanwhile, the wife filed a petition under Section 125 of the Criminal Procedure Code, 1973 (CrPC) and a suit for restitution of conjugal rights in the Family Court of Ahmedabad.
After the Australian Court granted the divorce, the wife sought a review, which was ultimately dismissed. She then filed a suit in India, claiming the Australian divorce decree was null and void.
The Family Court rejected her plaint in 2023, prompting her appeal to the High Court.
The High Court noted that the plaint could not be rejected on the grounds of lack of cause of action, as the wife clearly contended that the Australian divorce decree was issued without jurisdiction. The court stated that the Australian Court itself acknowledged uncertainties regarding its jurisdiction and that it could not be deemed the competent court for adjudicating marital disputes arising from a marriage conducted under the HMA.
The court further indicated that when parties to a marriage performed in India return to India, they cannot initiate proceedings in a foreign country based on their acquired citizenship if they intend to retain their original domicile. The acquisition of OCI cards by both parties suggested they did not intend to permanently abandon their birthplace.
Additionally, the court referenced Section 13 of the CPC, which outlines when a foreign judgment is not conclusive. It emphasized that a marital dispute involving a marriage conducted in India must be resolved according to Indian law, specifically the HMA, and not by foreign law.
The court concluded that the wife had a legitimate cause of action and rejected the Family Court’s assertion that the marriage had already been dissolved. It reiterated that any matters concerning matrimonial status should be addressed by the Family Court.
Consequently, the High Court granted the appeals and overturned the previous orders.
Case Title: ABC v. XYZ (Neutral Citation: 2025:GUJHC:49833-DB)
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