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Navigating Hindu Marriage & Divorce Laws in Australia

Navigating Hindu Marriage and Divorce Laws in Australia

The marriages solemnised under the Hindu Marriage Act 1955 carries a peculiar problem. A marriage under Hindu Marriage Act can only be dissolved on the grounds specified therein to include adultery, cruelty, desertion, ceased to be a Hindu by converting to another religion, has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the one cannot reasonably be expected to live with the other spouse, suffering from a virulent and incurable form of leprosy or venereal disease in communicable form, has renounced the world by entering a religious order, or has not been heard of as being alive for a period of seven years or more, no cohabitation for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which one was a party, no restitution of conjugal rights after the passing of a decree for restitution of conjugal rights, husband since the solemnisation of marriage was held guilty of rape, sodomy or bestiality, the girl repudiated the marriage after attaining the age of eighteen years in a case where the marriage was solemnised before attaining the age of fifteen years.

Hindu marriage and divorce laws in Australia

The law does not recognise the irretrievably broken marriage as a ground for divorce and the cases  where the marriage is dead for all intents.

Though, the Indian courts have on  various occasions, exercised its discretion under the constitution of India and allowed divorce on the  ground of ‘irretrievable breakdown of marriage’. The parliament seems to be totally oblivious of the  urgent need to correct the anomaly of the law and provide much needed support to the cause of people  married under the Hindu Marriage Act and seeking quick and smooth dissolution of the marriage.

This quagmire raises various issues and escalation of dispute between the parties who had made their  home in the countries other than India. One or the other party would take a stand in the court primarily  on the ground that Hindu Marriage Act does not allow the ‘irretrievable breakdown of marriage’ being a  ground of marriage. Such a stand is taken even though the litigating party may be living in the foreign  country and in this situation Australia, enjoying all the amenities being offered by the Australian  government including but not limited to grants, tax benefits, Centrelink benefits and child support etc.

The immediate reaction of such a stand result in inability of the Judicial Registrar to hear the application  for divorce and grant the same in case the conditions of divorce were made out. The matter would then  be referred to the Judge for adjudication on the evidence presented before it.

Often it is seen that the party litigating would appoint some family member as an attorney and initiate the proceedings including criminal proceedings without even going to India while continue to enjoy the  comforts of Australian life merely as a knee jerk reaction or otherwise arm-twisting exercise to extract financial gains which one may not be otherwise entitled. The approach of the Indian courts and  Australian courts in such a situation seems to be in line with the expectations of the private international law which requires that the people of Indian origin should respect the family law jurisdiction of the local court where they ordinarily live rather than implicating each other in multiplicity of litigation.

The Australian courts are cautious of litigious and vindictive nature of litigants from Indian background  who process multiple cases in different jurisdictions merely to cause harassment rather than genuinely  working out the exit strategy from the bad relationship. The Australian courts have over-written the objection to exercise the jurisdiction under Family Law Act and even directed the party litigating to  ensure that the cases filed in India are withdrawn and an affidavit confirming such a withdrawal is filed  in the court. A non-compliance tantamount to contravention of the order and the concerned person can  be punished for contravention of the order.

On the contrary , in stark contrast, the Delhi High Court has unequivocally established that Indian courts possess the authority to issue anti-suit injunctions, effectively halting proceedings in foreign countries, if matrimonial proceedings in such foreign courts involving non-resident Indians are deemed oppressive or vexatious.

global justice

Addressing a case under the Hindu Marriage Act of 1955, a division bench of the Delhi High Court highlighted the increasing trend of one party invoking the jurisdiction of foreign courts while the other party opts for the jurisdiction of Indian courts. The court remarked that Indian courts have the power to issue anti-suit injunctions to a party over whom the court has personal jurisdiction, provided the circumstances warrant such an action.

However, the court emphasized that this power should be exercised sparingly, in deference to the principle of comity. Although an anti-suit injunction is directed against an individual, it invariably interferes with the jurisdictional authority of another court. The issuance of such injunctions is governed by the doctrine of equity, and a critical test for their issuance is whether the foreign proceedings are oppressive or vexatious. Furthermore, the court must determine if the grant of an anti-suit injunction is necessary in the interest of justice.

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