The Bombay High Court ruled that the decree of a foreign court in respect of matrimonial proceedings will be conclusive in India only when it is passed by a Court of competent jurisdiction and is in accordance with the law that governs the matrimonial matters between the parties.
Setting aside a Dubai court’s order allowing a divorce petition filed by an Indian man residing there, a Division Bench of the Court observed that a foreign court would be without jurisdiction in matrimonial proceedings involving Indian nationals unless the case is covered by any of the exceptions carved out by the Supreme Court of India: –
(i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married;
(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married;
(iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
(iv) the decree should not be affected by any of the circumstances enumerated in Clauses (a) to (f) of Section 13 Civil Procedure Code.
The Court held that the as per exception (i), the petitioner was never domiciled or permanently resided in Dubai. “A new domicile cannot be acquired merely by change of residence or length of residence but such change of residence must be with an intention of making it a permanent abode”, the Court observed.
On divorce being granted to the husband on the ground of desertion by Dubai court, the Court further held that under the Hindu Marriage Act, factum of separation and animus [intent] to desert or intention to bring cohabitation to end are essential requisites of desertion.
“The Dubai Court has not considered the aspect of animus deserendi and has granted divorce solely on the ground that the parties were living separately for a period of more than two years. It is therefore evident that the Dubai court had not considered the real controversy between the parties and hence the said judgment cannot be said to be a judgment on merits of the case”, the Court opined.
The Court was hearing an appeal filed by the woman challenging an order passed by a family court in Mumbai (India) dismissing her divorce petition.