Dismissed

Jay Vinay Doshi v. Priyanka Gandhi Doshi

Bombay HC30 Nov 2012WP/8874/2012

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging a Family Court order rejecting a wife's divorce application. It held the Mumbai court had territorial jurisdiction under the Hindu Marriage Act and that a foreign ex parte decree based on a ground not recognized in Indian law was not conclusive.

What did the court decide?

Petitioner's writ petition dismissed; impugned order of the Family Court upheld.

Jay Vinay Doshi Vs Priyanka Gandhi Doshi — Matrimonial and Divorce | Bombay HC (2012)

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(1) (11) WP 8874/12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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Amk

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WRIT PETITION NO. 8874 OF 2012

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Jay Vinay Doshi .. Petitioner Vs. Priyanka Gandhi Doshi .. Respondent

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Mr. Vikram Sathaye with Mr. Nishant Sasidharan and Mr. Amish Parmar i/b Mr. Raj Mehta, M/s. RKM Legal Services for the Petitioner. None for the Respondent.

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CORAM : MRS. ROSHAN DALVI, J. Date : 30th NOVEMBER, 2012.

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P.C.

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This petition is filed challenging the order of the Judge, Family Court NO.7, Mumbai dated 28.05.2012 rejecting the application of the petitioner herein for dismissal of the petition filed by the respondent-wife herein upon the ground of lack of the territorial jurisdiction of the Court.

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The parties were admittedly married in Mumbai on 27^th May, 2008. The petitioner, who is stated to be a U.S. national, went back to the U.S.A. in June-July, 2008. Though the petitioner has made a statement in para 8 of the petition that the parties never resided together as husband and wife in any place in India, the statement is incorrect and false on the premise that after his marriage on 27^th May, 2009 he went to the U.S.A. in June-July, 2008. For the few days he was in India prior to the return to the U.S.A., he must be taken to have lived together with his wife in India. Hence the parties had resided in India albeit for a few days after their marriage.

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The petitioner has stated that the respondent came to the U.S.A.

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(2) (11) WP 8874/12

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on 14^th August, 2009 by K3 visa. Thereafter she changed her K3 visa to permanent residency. Since the petitioner-husband was a national of the U.S.A., she applied for social security card and work permit and thereafter even a green card which was issued to her in March, 2010. He has further stated that the parties lived together for 7 ½ months. Thereafter she came to India for 6 months and returned in August, 2010 and after 2 more months returned to India after informing the petitioner-husband that she intended to dissolve her marriage with him.

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The petitioner contends that the wife has changed her domicile from India to the U.S.A., since she took a green card. That is correct. However a person may change his or her domicile more than once. She returned to India informing the petitioner that she wanted to dissolve her marriage which would show that she changed that domicile also.

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The husband contends that the parties are not domiciled in India and hence the Hindu Marriage Act would not apply. That would be under Section 1(2) of the Hindu Marriage Act, 1955. That would relate to inherent jurisdiction of the Courts in India. Be that as it may, the wife has filed the petition for divorce after coming to India in Mumbai Family Court. The Court had to see its territorial jurisdiction under Section 19 of the Hindu Marriage Act. Under that section the petition could be presented where the marriage was solemnized, where the parties last resided together and in case of a wife where she was residing or where she was residing when the respondent was residing outside India being the territories to which this Act extended.

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Consequently under Section 19(i), (iii), (iia) and (iv) the Court would have territorial jurisdiction in this case.

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(3) (11) WP 8874/12

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The petitioner-husband has contended that he obtained a decree of divorce in the U.S.A. That decree/order dated 17^th October, 2011 shows that the summons with notice, verified complaint and affidavit of the plaintiff constituting the facts of the matter were presented before the Court. The wife failed to appear. The Court passed the decree. The decree is ex parte. The petitioner has sought to show the service effected. A copy of the notice is shown stated to have been signed by the wife. The endorsement made by the wife reads :

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“No copy of the petition lodged with the concerned Court has been delivered to me along with summons and this is received without prejudice.

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at 11.30 a.m. On 03 April, 2011, Juhu, Mumbai. sd/- Priyanka Gandhi Doshi.”

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This shows service not properly effected. The wife has not appeared before the Court. The wife has not filed any reply before the Court. The wife was not represented by the Advocate before the Court. The order is, therefore, ex parte.

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My attention is drawn to the judgment of this Court in the case of Kashmira Kale Vs. Kishorekumar Mohan Kale 2010(2) B.C.R. 522 to show that even an ex parte order of foreign Court was held to be conclusive. The argument is incorrect. In para 29 the facts of that case show that if an order is obtained without notice, it would be an ex parte order. Such an order is in this case. However in the facts of that case, the Court observed that if the notice was given and the detailed reply was filed on merits and yet the respondent did not appear before the Court whether or not the respondent submitted to the jurisdiction of the Court, it could not be taken as an ex parte order. The reliance upon judgment is misconceived because

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(4) (11) WP 8874/12

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the facts of this case are diametrically different from the facts of that case.

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The husband has relied upon another judgment of this Court in the case of Shiv Indersen Mirchandani of Bombay & Anr. Vs. Natasha Harish Advani @ Natasha Vijaykumar Tolaram Mirchandani & Ors. 2002(2) B.C.R. 436 which deals with domicile. In that case parties applied for divorce by mutual consent. The Court laid down the principles of domicile as follows:

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(i) Nobody is without a domicile;

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(ii) a person cannot have two domiciles; (iii) there is presumption in favour of continuance existing domicile.

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Domicile of a woman follows domicile of her husband. By merely leaving the country even permanently one will not lose his domicile until he acquires new one.

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In this case both the wife and the husband had a domicile. The husband was domiciled in the U.S.A. The wife was domiciled in India. They had one domicile each. The wife's domicile continued until she acquires a new one. When she followed her husband and took a green card in the U.S.A., her domicile changed. However her domicile further changed when she returned to India for good after informing the petitioner-husband that she wanted to dissolve her marriage with him. She no longer followed her husband and hence her domicile no longer followed his. His wife, therefore, continued to be domiciled in India. Hindu Marriage Act is applicable to the wife. Her marriage was solemnized in Mumbai. The parties had lived for few days in Mumbai before the husband went to the U.S.A. She continued to live in Mumbai after she returned. She was in Mumbai though he was in the U.S.A. The territorial jurisdiction of the Court was not ousted.

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The next question is of whether the foreign judgment is

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(5) (11) WP 8874/12

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conclusive. The foreign judgment in this case is ex parte. It would have been another matter if the wife was properly served, submitted to the jurisdiction and had contested the claim or filed her reply. None of this was done.

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Further the foreign judgment is upon irretrievable breakdown of marriage as a ground. The marriage broke down in 7 ½ + 2 months. Such is not a ground in India. The judgment has not recognized the law in India with regard to the divorce. It is contended by the Counsel on behalf of the petitioner-husband that in the case of Naveen Kohli Vs. Neetu Kohli AIR 2006 SC 1675 the Supreme Court observed that when due to irretrievable breakdown of marriage, the marriages are dead, divorce must be granted to release the parties from the matrimonial bond which is beyond repair. In para 71 the Court observed that irretrievable breakdown of marriage is not the ground of divorce under the Hindu Marriage Act and ultimately it is for the legislature to include it as a ground. In para 78 the Supreme Court observed that if the marriage has broken down beyond repair and where there was a long period of continuous separation, such ground may be considered. This is not one such case. In fact it appears to be a fly-by-night marriage which lasted for only nine months. It cannot be stated to be beyond repair. In fact parties should have endevoured to repair their relationship because there was no long period of continuous separation. In such a case the Hindu Marriage Act does not enjoin and the Supreme Court has not observed irretrievable breakdown to be a ground of divorce. The judgment passed ex parte without serving even a copy of the petition upon the wife for the ground which is not present in our system of law cannot be used by the husband. He would have to submit to the jurisdiction of the Court where the petition is filed by the wife upon her domicile at the time of the petition in the Court where she resided.

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(6) (11) WP 8874/12

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As the foreign judgment is not conclusive, the wife is, therefore, not bound by it. She is entitled to get her marriage dissolved in India. She can go only to the Court in Mumbai where can she resided. She has sued in the Family Court, Mumbai. She has correctly sued. The Court has territorial jurisdiction. The impugned order is correct. The writ petition is devoid on merits and accordingly dismissed.

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(ROSHAN DALVI, J.)

Jay Vinay Doshi v. Priyanka Gandhi Doshi

Case brief

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Jay Vinay Doshi v. Priyanka Gandhi Doshi

Case brief

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