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Article Published in the Express Magazine Dated
June 17, 2001
General Attorney : Rajiv K. Luthra
Members of my family, who were married under
Hindu Marriage Act, are living abroad and want to
get a divorce there. Will this be valid in India?
Sanjeev Ahuja, Chandigarh
The validity of a foreign decree depends on
various issues, among which arises the question of
the right jurisdiction of the Court. Section 13 of
the Code of Civil Procedure, 1908, provides that a
foreign judgment shall be conclusive if it has
been pronounced by a Court of competent
jurisdiction.
Under the provisions of the Hindu Marriage Act,
1955, in a case where the respondent is at the
time residing outside the territories to which the
Act extends, a petition can be entertained only
the district Court under whose original civil
jurisdiction (a) the marriage was solemnized, or
(b) the respondent, at the time of the
presentation of the petition resides, or (c) the
parties to the marriage last resided together, or
(d) the petitioner is residing at the time of the
presentation of the petition.
The Hon'ble Supreme Court has laid down rules to
recognise a foreign matrimonial judgment in India.
The jurisdiction assumed by the foreign court as
well as the grounds on which relief is granted
must be in accordance with the matrimonial law
under which the parties are married, except (a)
where the matrimonial action was filed in the
forum where the respondent is domiciled or
habitually and permanently resides and that relief
is granted on the ground available in the
matrimonial law under which the parties were
married, (b) where the respondent voluntarily and
effectively submits to the jurisdiction of the
forum as discussed above and contests the claim
which is based on the ground available under the
matrimonial law under which the parties were
married, or (c) 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.
The only law that can be applicable to the
matrimonial dispute is the one under which the
parties were married. Therefore, in cases where
the foreign court by its own rules of
jurisdiction, has rightly entertained the dispute
and granted a valid decree of divorce according to
its law, the same would only be recognized by the
Indian Courts if it complies with the rules laid
down by the HonŽble Supreme Court of India.
I came across an article in a magazine about
two women getting married to each other. Are same
sex marriages valid under the Hindu Marriage Act?
Is there any kind of penalties imposed on the
parties involved?
Sandeep Kapoor, New Delhi
Same sex marriages have become prevalent in
certain countries around the world, but are still
not a part of the Indian law and custom. The Hindu
Marriage Act, 1955, deals with offences like
bigamy, polygamy and child marriage, but does not
deal with same sex marriages. Marriages under the
Act are solemnized in accordance with the
customary rites and ceremonies of either party and
must fulfill the conditions of Section 5 of the
Act. This section does not expressly prohibit or
permit marriage between the same sex. But,
'marriage', as defined, is a legal union of one
man and one woman as husband and wife. Therefore,
even though the two women followed the customary
rights under the Act resulting into marriage,
their association does not entitle them to any
rights which would normally arise from a valid
marriage under the Hindu Law. Since the Act does
not recognize a marriage of the same sex, there
are no provisions for any kind of penalties. There
are also no specific penalties under the Indian
Penal Code that pertain to a marriage between two
women.
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