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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
R. Sridharan
Versus
The Presiding Officer, Principal Family Court, Chennai
W.P.No.34838 of 2004, W.P.M.P. Nos. 42032 to 42034 of 2004
Decided on : 18-08-2008
HINDU MARRIAGES ACT, 1955-SECTION 19(iii)(a)-Section 1(2)-Availability of jurisdiction of Family Court of India for marriage performed in USA and spouses living there, as contended by husband in matrimonial OP-Plea of absence of jurisdiction by wife since marriage was held in Hindu temple at USA under Hindu rites and customs - Further contention that marriage was not performed before Marriage Officer notifier under Foreign Marriages Act, 1969 nor registered and hence provision of the said Act are not available for the husband - Writ Petition by husband (R1) seeking prohibition by Family Court to proceed with trial (paras 16)- Domicile, meaning of - HELD, concept of nationality and domicile are recognised as 2 different conceptions in India and International Law - It means an Indian by retaining his domicile in India may acquire citizenship of other country - Acquisition of citizenship of some other country will not amount to abandonment of domicile of origin (Para 30).
HINDU MARRIAGES ACT, 1955 - SECTION 2 - Scope of Act - Act has extra territorial jurisdiction to all Hindus, even if any reside outside Indian territory - Section 2 does not stipulate any condition that both parties are to be domiciled in India at time of presentation of Petition before Family Court - HELD, domicile of origin is within jurisdiction of Family Court, Chennai on a conjoint reading of Sections 1(1),2(2) and 19(3) of Hindu Marriages Act and applying the Rule of Harmonious Constitution (para 32).
B. PRIVATE INTERNATIONAL LAW - Special marriages Act - Section 31(1)(4)clause 4 and Section 19(4) of Hindu Marriages Act are pari materia presentation of petition before district court of competent jurisdiction of Family Court, even if the respondent is outside territories to which Hindu Marriages Act extends - Admittedly petitioner is domiciled in India by birth, origin - HELD, Acquisition of domicile of another country by choice or nationality cannot be imported to Section 2 of Hindu Marriages Act - It will not oust the jurisdiction of Family Court/District Court of competent jurisdiction to entertain petition under Hindu Marriages Act or Special Marriages Act (Paras 33, 34).
C. INTERPRETATION OF STATUTES - It is well settled rule of construction that if there are two more provisions in a statute, appearing to be in conflict with each other, HELD - provisions to be interpreted in a manner to give effect to the provisions - Any construction which rendered operation of anyone provision as in effective, not to be adopted, except as a last resort.
INTERPRETATION OF STATUTES - Interpretation of a Statutory provision should be to find out the intention of the legislature and that has to be understood with due regard to the object of the legislation also. The word employed in the Statute will acquire meaning and content depending upon context in which they are used. Word should not be torn out by context and by interpretation, it would make another provision otiose/redundant and such interpretation should not be adopted. Interpretation of the words employed in Section 1(2) of Hindu Marriages Act should be consistent with the working of the enactment, keeping in mind the object of the Act.
WRIT OF PROHIBITION - It is the law of the land that Writ of Prohibition will be issued as soon as inferior court/tribunal proceeds to apply a wrong principle of law when deciding a fact on which jurisdiction depends - Prohibition is primarily and principally preventive rather than remedial remedy. Effect of remedy is an injunction against court or tribunal commanding it to cease from exercise of jurisdiction to which it has no legal claim - Prohibition is not a writ of right granted by ex-debito justice. But one of sound judicial discretion to be granted or withheld according to the consideration of the particular case. When there is entire absence of jurisdiction over the subject matter of adjudication and this is apparent on the face of the proceedings, granting of reliefs by prohibition is not a matter of discretion, but one of absolute right.
The petitioner has sought for a Writ of Prohibition, prohibiting the first respondent from proceeding with the trial in O.P.No.569 of 2004 on its file.
2. Facts leading to the present Writ Petition are as follows:
The petitioner is a domicile in United States of America, since 1992 and is working as a Software Engineer. The second respondent is known to their family since childhood. Marriage between the parties to this lis was arranged by elders. The second respondent, her parents and relatives came to United States and the marriage was performed on 17.04.2002 and registered on 30.07.2002. The second respondent came to India in the second week of January 2003 for a short visit promising to return after completing a dance programme. But she began to act in films and with ulterior motive, she filed O.P.NO.569 of 2004 on the file of the Principal Family Court, Chennai for divorce under the Hindu Marriage Act, alleging cruelty. Since he was residing in United States, summons were not served and therefore, the second respondent obtained an exparte decree of divorce on 19.07.2004. On his application, the order was set aside on 23.09.2004 and the O.P., was restored. Apprehending trial, the second respondent adopted dilatory tactics and filed C.R.P.(PD)No.1695 of 2004, stating that the proceedings of the Family Court should not be published by the Media and obtained an interim stay. The petitioner has filed a counter affidavit, stating that he has no objection for the proceedings be held in camera and did not want any publicity. Therefore, by order dated 210. 2004, this Court vacated the interim stay and the O.P., was ready for trial. Inspite of several adjournments, the second respondent has not appeared and in these circumstances, the petitioner was constrained to file the present Writ Petition for Prohibition, prohibiting the Family Court from proceeding with the trial in O.P.NO.56 of 2004.
3. According to the petitioner, the Family Court has no jurisdiction to entertain the petition for divorce under the Hindu Marriage Act, since the marriage was performed in United States of America. After the marriage, the petitioner and the second respondent were living as husband and wife in U.S.A and the petitioner, being an American citizen, the provisions of the Hindu Marriage Act, 1955 will not apply. The petitioner has further submitted that he is a domicile in United States of America and not in the territory of India and therefore, Section 1(2) of the Act would come into operation and in the above circumstances, the Family Court at Chennai cannot maintain a petition for divorce. The petitioner has further submitted that unless both the parties are domiciled in India, the petition for divorce under the Hindu Marriage Act is not maintainable.
4. The Second respondent in her counter affidavit has submitted that she got married to the petitioner on 17.04.2002 in Balaji Temple, Bridge Water, New Jercy, U.S.A., in the presence of their parents and relatives, as per Hindu Rites and Customs. Therefore, she has submitted that the rights and the obligations of the parties flow from the provisions of the Hindu Marriage Act. As per Section 19(iii)(a) of the Hindu Marriage Act, inserted by Act 50 of the Central Act, with effect from 20.12.2003, she can institute the proceedings for dissolution of the Marriage at the place where she is residing at the time of presentation of the petition and therefore, the Family Court at Chennai, is competent to decide the lis between the parties.
5. The Second respondent, while rebutting the averments made in Paragraph 6(b), 6(c) and 6(d) of the affidavit filed by the petitioner, has submitted that the petitioner has not explained as to how the O.P., is not maintainable. According to her, as the parties are governed by the personal laws applicable to them, the rights and obligations arising there from, can be enforced in the Forums created under the Statutes alone and therefore, the Principal Family Co
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