Saturday, December 1, 2012

even though husband and wife have obtained a divorce at USA, the Hindu Marriage in India still subsists and wife can file an OP before the competent court at Chennai ....and the wife the claims 1 crore ......




....and the wife the claims 1 crore ......


================ Judgement =================

2011 (4) CTC 20

Manorama Akkineni

vs

Janakiraman Govindarajan


Hindu Marriage Act, 1955 (25 of 1955) – Code of Civil Procedure, 1908 (5 of 1908), Order 7, Rule 11 – Dissolution of Marriage – Legal sanctity of marriage performed as per Hindu rites and custom – Marriage was performed between petitioner and Husband as per Hindu rites and custom in India – Couples again married in USA and  got  certification  under  Laws  of  USA  –  Marriage  between  spouses  was  dissolved  by  Superior  Court  of California, county of Alameda – Wife filed Original Petition in Family Court, Chennai seeking relief of dissolution of marriage, custody of child and permanent alimony of  1 Cr. – Whether Original Petition filed by Wife before Family Court is maintainable in Law – Held, Hindu marriage is sacrament and not contract – Order passed by Foreign Court dissolving marriage cannot be construed as an order dissolving marriage performed as per Hindu rites and custom – Original  Petition filed by wife before Family Court at Chennai seeking  dissolution of marriage  and permanent alimony is maintainable.

Facts:

Petitioner/wife and Respondent/husband married as per Hindu rites and customs in India.  The parties again performed marriage ceremony in USA and got certification of Marriage in USA.  Superior Court of California, dissolved the marriage between the parties.  Petitioner-Wife preferred original Petition before Family Court at Chennai seeking dissolution of marriage, custody of children and permanent alimony.  Respondent husband filed an Application under Order 7, Rule 11 to reject the Petition, Family Court rejected the Petition filed by the Wife.  Aggrieved by the order of the Court below the Petitioner/Wife has filed Civil Revision Petition under Article 227 of the Constitution of India.

Held:

In Hinduism, man and woman represent the two halves of the divine body.  In Hindu dharma, marriage is viewed as a sacrament and not a contract.  Hindu marriage is a life-long commitment of one wife and one husband, and is the strongest social bond that takes place between a man and a woman.  Hindu marriage was strictly based on absolute trust, mutual affection, capacity to adjust and sharing the responsibilities equally.  At every stage of the wedding ceremony when the incantations (Mantras) from the Vedas were uttered, prayers were offered to ensure a smooth life.  The duties were demarcated and freedom given to both.  The union being sacred, the vow did not give room for separation.  The significance of taking seven steps was that the couple should never give scope for differences of opinion and should an occasion arise, both should respect the sentiments of the other, thereby ensuring that no confrontation takes place.  The main objectives behind a Hindu marriage are the follow:

(i) Performance of religious duty - Dharma

(ii)  Giving birth to children – Praja

(iii) Sex satisfaction – Rati.


so ...in effect it was held that a fresh OP could be filed by the wife in India !!!


====================== judgement =======================



 
Madras High Court

Manorama Akkineni : vs Unknown on 30 March, 2011

DATED: 30.03.2011

CORAM:

THE HONOURABLE MR.JUSTICE K.VENKATARAMAN

C.R.P.(PD)No.2170 of 2009

and

M.P.No.2 of 2009

Manorama Akkineni : Petitioner/Respondent

Vs.

Janakiraman Govindarajan : Respondent/Petitioner


Civil Revision under Article 227 of the constitution of India against the fair and decreetal order, dated 18.06.2009, made in I.A.No.1469/2004 in F.C.O.P.No.1886 of 2003 on the file of Learned Principal Family Court, Chennai. For Petitioner : Mr.P.S.Raman,

Senior Counsel for

Ms.Nandini Sriram

For Respondent : Mr.AL.Somayaji,

Wenior counsel for

Ms.Geetha Rameseshan

O R D E R

This civil revision petition is directed against the order, dated 18.06.2009, of the learned Principal Family Court Judge, Chennai, made in I.A.No.1469/2004 in F.C.O.P.No.1886 of 2003.

2.The interesting question that arises for consideration in this Civil Revision Petition is whether the petitioner and the respondent, who are the wife and the husband, having married in India on 11.06.1986 as per Hindu rites and custom and got certification, dated 28.09.1986, of the marriage between them in U.S.A. and had dissolution of the said marriage certification, dated 28.09.1986, before the Superior Court of California, County of Alameda, U.S.A., can maintain an Original Petition before the Family Court at Chennai.

3.The short background of the matter is set out hereunder.

(a)The petitioner/wife has filed F.C.O.P.No.1886 of 2003 before the Principal Family Court, Chennai, against the respondent/husband, for dissolution of the marriage solemnized between them on 11.06.1986, by a decree of divorce, grant of permanent custody of the minor son Arjun to the petitioner and for a direction to the respondent to pay her permanent alimony of Rs.1 crore.

(b)The case of the petitioner is that she married the respondent, according to Hindu rites and custom, on 11.06.1986 at Chennai. After marriage, as the respondent was working in USA, the petitioner joined with him and lived in USA. Thereafter, the respondent ill-treated her, which forced her to approach the Superior Court of California, County of Alameda, U.S.A. in 1989 for divorce and for orders restraining the respondent herein from interfering with her personal life. On 21.03.1991, a son was born and he was with the petitioner. Though restraining order was granted immediately, after negotiations, the respondent agreed to allow the petitioner to return to India if the petition for divorce was not pressed and also agreed that the custody of the minor would remain with her if the respondent was granted reasonable visiting right when he comes to India. With the said agreement, the petitioner returned to India on 8th August, 1995.

(c)Thereafter, in December, 2002, the respondent reopened the case on the file of Superior Court of California, County of Alameda, U.S.A., for declaration that the matrimonial home, stands in the joint name of the petitioner and the respondent, is the sole and absolute property of the respondent. When the petitioner resisted the said matter, the respondent wanted to re-open the question of custody of the minor son in order to pressurize her. The petitioner was forced to leave the matrimonial home because of the behaviour of the respondent. With the above averments, the petitioner filed FCOP 1886/2003 before the Principal Family Court at Chennai for the reliefs set out earlier.

4.In the said original petition, a Counter affidavit was filed by the respondent stating that the petitioner, who has approached the Superior Court of California, County of Alameda, against the respondent for dissolution of the marriage based on the Certification, dated 28,.09.198, having obtained an order of divorce cannot maintain a petition before the Family Court at Chennai, India and hence the petition preferred by the petitioner is not maintainable. The judgment of the Superior Court of California, County of Alameda, USA, operates as a res judicata. Even on merits also. the respondent filed a detailed counter denying various allegations made by the petitioner.

5.In the said Original Petition, the respondent herein filed an application in I.A.No.1469 of 2004 under Order VII Rule 11 CPC to reject the Original Petition. The said application was allowed by the learned Principal Judge, Family Court, Chennai, by his fair and final order dated 18.06.2009 and the present civil revision petition has been directed against the said order of rejection of original petition.

6.The learned Principal Judge, Family Court, Chennai, came to the conclusion that the O.P. filed by the petitioner is not maintainable. The reasons set out by the learned Principal Judge, Family Court, Chennai, are:

(i)The reliefs that have been sought for by the petitioner were comprehensively settled by mutual agreement between the parties in USA.

(ii)The judgment delivered by U.S.Court on the basis of mutual agreement is a binding force between the petitioner and the respondent and further the judgment of the foreign court binds both the parties.

(iii)Having obtained divorce from a competent court at USA, the petitioner/wife cannot maintain an Original Petition before the Family Court at Chennai, India.

7.I have heard Mr.P.S.Raman, learned senior counsel, appearing for the petitioner and Mr.AL.Somayaji, learned senior counsel, appearing for the respondent.

8.Learned senior counsel appearing for the petitioner contended that when the petitioner and the respondent got married at Chennai, India, according to Hindu rites and custom, on 11.06.1986, even assuming that they got divorce before the Superior Court of California, County of Alameda, U.S.A., the same was pertaining to the marriage certification between them which took place on 28.09.1986 in U.S.A. and hence the present O.P. that has been filed by the petitioner for dissolution of the marriage between herself and the respondent on 11.06.1986 could be maintained at the Family Court at Chennai. However, it is contended by the learned Senior Counsel appearing for the respondent that when once the petitioner has obtained divorce before the Superior Court of California, County of Alameda, U.S.A., she cannot maintain a petition before the Family Court at Chennai for dissolution of the marriage.

9.While carefully considering the submissions made by the learned senior counsel for the petitioner and the respondent, I am of the considered view that the petition for dissolution of the marriage filed at Superior Court of California, County of Alameda, U.S.A., was pertaining to the Certification of Marriage, dated 28.09.1986, between the petitioner and the respondent, which was obtained in U.S.A.

10.Yet another interesting aspect that has to be considered is when the petitioner and the respondent got married at Chennai on 11.06.1986, according to the Hindu rites and custom, whatever be the reason for their marriage again at USA on 28.09.1986 cannot be considered to be a valid marriage at all. When the marriage between the petitioner and the respondent is subsisting in view of their marriage at Chennai on 11.06.1986, the certification of the marriage, dated 28.09.1986, between them obtained in USA may not have any sanctity at all. May be, the petitioner and the respondent, in order to solve the problem pertaining to VISA, etc., could have got certification of the marriage at USA. However, in the eye of law, it can only be a second ceremony of their marriage at USA. When that is the factual aspect, merely because the Superior Court of California, County of Alameda, U.S.A., has granted divorce, it cannot be said that the said order covers the dissolution of the marriage between the petitioner and the respondent which has taken place at Chennai on 11.06.1986, according to Hindu rites and custom.

11.In Hinduism, man and woman represent the two halves of the divine body. In Hindu dharma, marriage is viewed as a sacrament and not a contract. Hindu marriage is a life-long commitment of one wife and one husband, and is the strongest social bond that takes place between a man and a woman. Hindu marriage was strictly based on absolute trust, mutual affection, capacity to adjust and sharing the responsibilities equally. At every stage of the wedding ceremony when the incantations (Mantras) from the Vedas were uttered, prayers were offered to ensure a smooth life. The duties were demarcated and freedom given to both. The union being sacred, the vow did not give room for separation. The significance of taking seven steps was that the couple should never give scope for differences of opinion and should an occasion arise, both should respect the sentiments of the other, thereby ensuring that no confrontation takes place. The main objectives behind a Hindu marriage are the follow:

(i)Performance of religious duty - Dharma

(ii)Giving birth to children - Praja

(iii)Sex satisfaction - Rati.

12.It is true that with India moving at a fast pace towards Westernization, the status of the average Indian women is also changing gradually. As a greater percentage of women become better educated, financially secure and independent, their ideas and expectations as to what a marriage should be are also undergoing a change. Westernization has greatly affected our traditions, custom, morals, ethics, relationships, bonds and values. Concepts which were earlier a trademark of Indian society are now slowly becoming redundant such as the concept of joint families. Individualization is on the rise and it is taking the society in its entirety. However, the Hindu marriage has not lost its sanctity and sacredness and even today the Hindu marriage is viewed only as a sacrament and not a contract.

13.While so, the petitioner and respondent, who got married in India as per Hindu rites, on getting divorce of the subsequent second ceremony at U.S.A., cannot plead that the marriage took place between them in India, as per Hindu rites, has also been dissolved without a proper decree of divorce in India as per the provisions of Hindu Marriages Act dissolving the marriage took place between them in India.

14.One more aspect that has to be considered is that the petitioner has not only sought for dissolution of the marriage between herself and the respondent and granting custody of the minor son Arjun but, also sought for a direction to the respondent to pay to the petitioner a sum of Rs.1 crore as permanent alimony. Even assuming that the petitioner cannot main the relief of dissolution of marriage and grant of custody of the minor child, it cannot be said that the petitioner cannot maintain the other relief, namely a direction to the respondent to pay her permanent alimony of Rs.1 crore. This relief has not been sought for by the petitioner before the Superior Court of California, County of Alameda, U.S.A. Before the Superior Court of California, County of Alameda, U.S.A., the petitioner and the respondent have settled among themselves only the dispute regarding the properties owned by them. In such circumstances, it cannot be pleaded on behalf of the respondent that the petitioner cannot maintain an original application at all before the Family Court at Chennai. The relief pertaining to permanent alimony could be maintained before the Family Court Chennai.

15.Even assuming that the petitioner cannot claim other reliefs except the relief of permanent alimony, the original petition cannot be rejected partially. In this connection, it is useful to refer to the following Judgments.

(i)AIR 2006 SC 1828 - Mayar (H.K.) Ltd. and others vs. Owners and Parties, Vessel M.V.Fortune Express and Others.

(ii)2007(6) MLJ 1813 - Saraswathy Bus Service rep.by its Managing Partner, M.Ravichandran vs. Minor M.Cibiraj rep.by his next friend M.Jayanthi and M.Jayanthi.

(iii)(1982) 3 SCC 487 - Roop Lal Sathi v. Nachhattar Singh Gill.

16.In the judgment in AIR 2006 SC 1828, in paragraph 11, the Hon'ble Supreme Court has held as follows:

" 11. From the aforesaid, it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII, Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint. In the present case, the averments made in the plaint, as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII, Rule 11 of the Code cannot be exercised for rejection of the suit filed by the plaintiff-appellants."

17.In (1982) 3 SCC 487 cited supra, in paragraph 20, the Hon'ble Supreme Court has held as follows:

"The order passed by the High Court directing the striking out of paragraphs 4 to 18 of the election petition can hardly be supported. It is not clear from the order that the High Court proceeded to act under Order 7,Rule 11(a) or under Order 6, Rule 16 of the Code in passing the order that it did. It is rightly conceded that the High Court could not have acted under Order 7, Rule 11(a) of the Code. Where the plaint discloses no cause of action, it is obligatory upon the court to reject the plaint as a whole under Order 7, Rule 11(a) of the Code, but the rule does not justify the rejection of any particular portion of a plaint. " In (2007) 6 MLJ 1813, a learned Judge of this Court, after referring to the judgment of the Hon'ble Supreme Court in D.Ramachandran vs. R.V.Janakiraman and others - AIR 1999 SC 1128, held that Court cannot dissect pleadings into several parts and strike out a portion, which does not disclose cause of action.

18.A plaint can be rejected under Order VII Rule 11 CPC only on certain grounds, namely (a)When the suit has been under valued and inspite of the direction by the Court to pay court fee, the same is not paid. (b)If there is no cause of action. (c)If it is barred by any law. In the case on hand, it cannot be totally ruled out that the petitioner has no cause of action. Lack of cause of action cannot be a ground to reject the suit. In the case on hand, the facts set out earlier would not disclose that there is no cause of action. In such circumstances, I am of the considered view that the original petition filed by the petitioner cannot be rejected at the inception. The parties could let in evidence to substantiate the case put-forth by them.

19.The question that whether the decree of divorce granted by Superior Court of California, County of Alameda, U.S.A., can bind the parties who got married at Chennai, Tamil Nadu, India, is a larger question that has to be decided in the original petition. Both the learned senior counsel appearing for the petitioner and the respondent have submitted that there is no case law on this point. Learned senior counsel appearing for the petitioner could lay his hand only on one judgment reported in 1868 L.R. Volume I page 487 - Birt v. Boutinez. In the said decision, an Englishwoman married a Belgian in Scotland. They afterwards went through a second ceremony of marriage in Belgium. The competent Belgian Tribunal pronounced a decree of divorce on the ground of mutual consent purporting to dissolve the Belgian marriage. She afterwards married another person in England. In such circumstances, it has been held therein that the Scotch marriage between herself and her husband was a valid and subsisting marriage, even though they went through the second ceremony of marriage at Belgium and got divorce at Belgium Tribunal. Thus the marriage between herself and the other person at England held to be invalid. That is the only judgment that could be culled out by the learned senior counsel appearing for the petitioner. Thus, the larger question which is stated above is a matter to be considered by the Family Court at Chennai, after the parties letting in evidence.

20.It is not in dispute that foreign judgment on matrimonial dispute is a binding force between the parties. But, however, as stated already, the question that has to be decided in the Original Petition is whether the marriage took place at Chennai on 11.06.1986 has to be dissolved inspite of the dissolution of marriage certification between the petitioner and the respondent held at USA or not.

21.Thus, looking at from any angle, the order of Family court at Chennai rejecting the original petition at the instance of the respondent herein is liable to be set aside and accordingly the same is set aside. The revision petition stands allowed and the Family Court is directed to take the rejected original petition on its file and dispose of the same in accordance with law. However, I make it very clear that any observation made in this order is only for the purpose of disposing of this civil revision petition and the original petition shall be disposed of by the Judge of the Family Court at Chennai, uninfluenced by any of the observations made in this order. No costs. Connected M.P.No.2 of 2009 is closed.

gb

To:

The Presiding Officer,
Principal Family Court,
Chennai 104