Canadian divorce laws have certain rules that are quite different when it comes to how an Indian couple shall take divorce in Canada, knowing about the issues and conflicts that are prevalent. The divorce laws are just as different in cases where a Canadian seek divorce in India. Matrimonial laws have always been not so common everywhere. The issues faced by couples, are when the parties have the domicile of one country and one of them tries to seek matrimonial relief in a foreign country.
Another confusion arises with the term domicile. It is something that determines the law that will be applicable to an individual. There can be chances of people being residents and citizens of a country, with domicile of somewhere else. There could be multiple domicile possibilities such as having domicile in India, even after the person acquired foreign citizenship. Mutual divorce has rare issues and chances of mutual conflict. Court is involved when one of the spouses wish to seek divorce and other does not.
FOREIGN PERSPECTIVE
Generally such foreign court judgements are not binding towards Indian Courts since they are not conclusive proof. Indian marriage solemnisation is usually under the personal or customary rituals and provision of civil statutes are also determined. Indian penal provisions and civil procedures are also capable of being interpreted in the foreign judgement context.
An NRI whenever seeks a mutual consent divorce, he or she can do that by filing a petition in India or in the country where both of them reside. Since the residence or the matrimonial home of NRI couple will be a foreign country, the couple can file for divorce petition either in India or in any such foreign country as per per the matter.
Also, whenever a couple wishes to file divorce petition in any foreign country, they do so on the basis of power and authority that’s been given to them as per the Indian law. Indian laws do not apply to the foreign courts and in such cases, foreign courts pass decree in accordance with their domestic procedures. Similarly, when it comes to the Indian courts, they do not recognise the decree passed by foreign courts either, unless the decree so made, is conclusive and in conformity with section 13 of Civil Procedure Code, 1908. Any of such inconclusive decree is considered to be not propounded by a court of competent jurisdiction and doesn’t rely over the merits of the case.
Sometimes, such decrees are propounded over an incorrect idea and view of international law or rejection of Indian legal predicaments. There are cases where principles of natural justice and humanitarian laws are also not taken care of. People find it easy filing divorce petition in India since it’s considered to be a simpler and safer way. NRI couple can file petition for mutual consent divorce and the court shall record each statement and shall take further action. In case of absence of one party, power of attorney can also be accorded and court can proceed with the process.
Joint divorce petitioners are given a chance to rethink and reconsider their decision within a period of 6 months. Either of the parties have complete privilege of withdrawing the petition if they feel and this is the reason why this period is called the intervening period. However, if by any reason, neither of them withdraw the petition, the court shall resume the procedure and thus they move to the second stage. Contentions are heard and that’s how the court grants divorce. Divorce decrees passed by Indian courts are valid in foreign courts.
INDIAN JURISDICTION
When it comes to joint property matters in foreign countries, the couple needs to make sure that the divorce decree is made recognised in the respective country. The statutes related to matrimony, in India, have some set jurisdictional rules. Any jurisdictional debate involves two primary questions:
- At which place was the petition filed
- In which court, the petition or suit in any such matrimonial cause was filed.
The jurisdictional requirements are somewhat similar to Hindu Marriage Act of 1955 and Special Marriage Act of 1954. Whenever the divorce petition is presented to the court, if the marriage was solemnised within the local limits of whose original civil jurisdiction. However, the applicability of Special Marriage Act is not restricted to Indians. Divorce petition’s maintainability is disputed only in cases where couples have been residing outside but were married in India and now have entered into matrimonial disputes. The Supreme Court of India hasn’t adjudicated on this issue, and the state views have highlighted a situation that domicile in India is held to be a necessary requirement for application of Indian Matrimonial Statutes.
Whenever we have cases where husband and wife start living in different territories, jurisdiction of more than one court could be invoked. The competency of courts is, thus, taken into consideration and is decided which court is best suited and therefore competent to exercise the jurisdiction. There could be chances of multiple forums, in which the court considers the appropriate forum to address and carry forward the case. The basic agenda is to maintain the convenience standards and to alleviate inconsistencies in such matters.
The divorce cases and other related matrimonial disputes are considered in India in cases where both the parties consent towards taking mutual divorce and they attend divorce proceedings with foreign court granting divorce on grounds that are permitted grounds of provisions of concerned personal or civil statutes of India. Indian perspective of divorce decree revolves around conformity with the penal provisions and associated contentions.
