HC: Divorce given to NRI by Dubai court invalid here

Source – indiatimes.com

MUMBAI: Divorce given by a Dubai court to an NRI man against his wife who has moved back to Mumbai was not valid and could not be enforced in India, ruled the Bombay high court.

Striking down a Bandra family court‘s order dismissing the Worli woman‘s plea for divorce and maintenance for the couple’s two children, a division bench of Justice Abhay Oka and Justice Anuja Prabhudessai said, “It is not in dispute that (the woman and her husband) are Indian nationals and Hindus by birth and are governed by provisions of the Hindu Marriage Act. Consequently, the divorce petition filed by the woman before the family court could not have been dismissed on the basis of the Dubai court judgment, which is not binding and enforceable in India.”

The family court had cited the 2012 order of the Dubai court granting divorce to the man on the grounds of desertion.

The couple had got married in 2000 in Coimbatore as per Hindu vedic rites and then registered the marriage in Mumbai. They later moved to Dubai, where they had a son in 2001 and a daughter in 2008. Soon after the birth of their daughter, the woman returned to Mumbai with the children and lived in Worli. In 2014, she filed a petition for divorce and maintenance for her children before the family court. The man furnished a divorce order obtained from the Dubai court to counter her application. In 2016, the family court dismissed the woman’s plea, following which she approached the high court.

The HC held that the Dubai court would have no jurisdiction to entertain the petition in accordance with provisions of the Hindu Marriage Act, unless it met the three exceptions carved out by the Supreme Court—in a matrimonial case involving Indians, if the spouse against whom the petition had been filed consents to have the case decided by the foreign court; or submits to the jursidiction; or when the person is domiciled or permanently resides there.

The high court said, in this case, the wife had not consented or submitted to the jurisdiction of the Dubai court. The bench further pointed out to the documents filed by the man before the Dubai court and said that nowhere was it mentioned that she was a resident of Dubai or had domicile. Neither had an averment been made that the wife had abandoned her Indian domicile. The husband too had not claimed he had made Dubai his permanent abode, said the court.

“Both are Indians and in the absence of the averments as well as material to endorse the claim of being domicile of Dubai, the presumption under (that the foreign court had jurisdiction) stands dislodged,” said the judges, while ruling that the Dubai court order was neither conclusive nor binding. “The Dubai court has not considered the aspect of intention to desert and has granted divorce solely on the grounds that the parties were living separately for more than two years. It is evident that the Dubai court had not considered the real controversy and hence, it can’t be said to be a judgment on merits of the case,” the HC said.