2012 Supreme(Mad) 1011

High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R. BANUMATHI & THE HONOURABLE MRS. JUSTICE S. VIMALA
Bhashyam Ramesh @ Rajagopalan rep. by Power Agent V.S. Vhasyam
Versus
R. Saroja @ K.K. Saroja
C.M.A.No.929 of 2002 against O.S.No.38 of 2000
Decided On : 24-02-2012

Ratios
a. Marriage solemnized as per the Hindu Marriage Act could be dissolved only as per the provisions of that Act by the Court competent under that Act.
b. Filing written submission by a party to the proceeding objecting the jurisdiction of that Forum would not mean that such party submitted himself to the jurisdiction of that Forum.

Headnote:(A)Hindu Marriage Act, 1955(25 of 1955)-Sec.13, 14, 19-Hindu law-Marriage-Divorce-Foreign Court-Jurisdiction-Within one year from the date of Hindu marriage between the parties in India, the husband/appellant had filed a petition for divorce in USA-On receiving notice from that Court, the wife had objected the jurisdiction of that Court by filing written submission and stated that she had filed a petition for restitution in Indian Court-Later, when the Court in USA had granted divorce, it was challenged by the wife by filing a suit for declaration of nullity-When the Family Court in India had granted the decree prayed for by the wife, husband filed an appeal-While the husband contended that wife had participated in the proceeding before the USA Court and so she was stopped from challenging its jurisdiction, wife contended that marriage solemnised as per the Hindu Marriage Act in India could be dissolved only by Indian Courts as per that Act-Held, marriage solemnized as per the Hindu Marriage Act could be dissolved only as per that Act-As the husband had filed a petition within one year from the date of marriage which was barred and the divorce proceeding was not initiated as per the Hindu Marriage Act, the decree passed by the Court in USA was not binding on the respondent wife-As the wife had objected the proceedings in USA by her written submissions, she could not be taken as submitted to the jurisdiction of the Court in USA-Judgment under challenge was upheld and the appeal was dismissed.

       (B)Hindu Marriage Act, 1955(25 of 1955)-Sec.13, 14, 19-Hindu law-Marriage-Divorce-Foreign Court-Jurisdiction- Marriage solemnized as per the Hindu Marriage Act could be dissolved only as per the provisions of that Act by the Court competent under that Act.

       Applying the ratio to the facts of this case, it is clear that the moment the appellant/husband herein has married the respondent wife, he has subjected himself to the jurisdiction of the Courts designated (Family Courts), to deal with matrimonial disputes under Section 19 of the Hindu Marriage Act. There is no question of the husband/appellant initiating divorce proceedings before the Superior Court of California as the husband could not have initiated the proceedings, invoking the provisions of Hindu Marriage Act. The marriage between the appellant and respondent herein could be resolved only on the grounds set out under Section 13 of the Hindu Marriage Act. It is not the case of the appellant/husband that application for divorce could be made before the Superior Court of California on the grounds mentioned in the Hindu Marriage Act. Therefore, as contended by the learned counsel for the respondent, the Foreign Court i.e. The Superior Court of California which is not a Court of competent jurisdiction and only the Family Court at Chennai which has complete competency and jurisdiction. Para 6(a)

       (C)Hindu Marriage Act, 1955(25 of 1955)-Sec.19-Indian Evidence Act, 1872(1 of 1872)-Sec.115-Foreign Court-Jurisdiction-Submission-Estoppel-Filing written submission by a party to the proceeding objecting the jurisdiction of that Forum would not mean that such party submitted himself to the jurisdiction of that Forum.

       What is crucial is that the wife has challenged jurisdiction of the Foreign Courts. Only, if a party applies for leave to participate in the proceedings without challenging the jurisdiction one can infer that the party has submitted to the jurisdiction of the Court. But, in this case, the wife on receipt of summons has challenged the jurisdiction of the Foreign Court. While so challenging the wife has categorically stated that due to financial and legal constraints her access to justice has been denied. The contents of written submissions made by the wife to the Superior Court of California itself would clearly go to show that the respondent/wife neither wanted to participate in the proceedings nor subjected herself to the jurisdiction of the Foreign Court, either voluntarily or involuntarily. Under such circumstances, the contention that she has submitted herself to the jurisdiction of the Foreign Court cannot be accepted. Para 7(6)