Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

Lucknow

Faculty of Law

ASSIGNMENT ON

“Conflict of laws in matrimony”

For

PRIVATE INTERNATIONAL LAW

Submitted by

ANVESHA CHATURVEDI

B.Com. LL.B.(Hons.)

Academic Session: 2022-2023

Under the Guidance of

MISS. SHAMBHAVI UPADHYAY

Faculty of Law
Dr. Shakuntala Misra National Rehabilitation University
 ACKNOWLEDGEMENT

Although this project has been prepared by me, but this would not have been
possible without the efforts of some people because of which I have been able
to complete this project of mine. I would like to thank the All mighty because
this fact cannot be contradicted that without his blessings and support anything
is possible under the sky...
 TABLE OF CONTENTS

 Introduction
 Marriage & Divorce
 Matrimonial Problems faced as a result of NRI marriages
 Case Laws that Analysed the matrimonial reliefs under conflict of laws in
India
 The foreign marriage act, 1969
 Conclusion
 Bibliography
 CONFLICT OF LAWS IN MATRIMONY

INTRODUCTION
The institution of marriage gives rise to obligations, conjugal relations and certain rights
between the spouses and this is the reason why law seeks the discharge of those marital
obligations. In India, conjugal right is believed to be inherent in the very institution of
marriage and not a mere creation of statute. But in cases where foreign element, i.e. Private
International Law, is involved, then for the purpose of resolution of Conflict of laws, the
Courts resort to the Principles of Comity or Courtesy and in some cases, the Courts also use
the Principle of reciprocity.

In India there are other different acts that govern the parties who are solemnizing their
marriage in their personal due to the conflict arising because of the difference in the religions
of the parties. The acts are the special Marriage Act 1954 which is considered as civil
marriage that can be performed between any two persons irrespective of their religion.

And the main essential is that the parties to solemnize their marriage under Special Marriage
Act, 19541 are that the validity of their marriage does not depend upon the domicile or the
residents of the other states. The parties of the marriage who are solemnizing under the
special Marriage Act should be residing in particular place for 30 days and then they acquire
eligibility for the solemnization of the marriage, and there is another act called Foreign
Marriage Act,1969 that allows the marriage can be solemnized in a foreign country but the
parties must be the citizens of the India.

And a provision in the foreign marriage act that explains, and marriage can be prohibited if it
is being inconsistent with the international laws according to the country where they are
solemnizing the marriage.

There are many rules that have been adopted by the judiciary of the country over a period of
time where dirt helps to resolve the matrimonial disputes with respect to the foreign countries
where the citizens of India has been solemnized their marriage under the international laws.
There are different case laws that that explains the evolution of Indian matrimonial relieves
with accordance to the foreign laws which helps in minimizing the conflict of laws that have
been arisen. But Till date, there is no specific and cogent legislation in India with regards to
NRI marriages and there is an urgent need of legislative intervention in this matter as
delivering Justice to all by way of legislation is far more satisfactory way of dispensing
Justice, than delivering Justice on a case-by-case basis.

Transformed by the advent of globalization, and the increasing movement of individuals and
families across national borders, international family law has become a significant subject,
bridging the traditional boundaries of public and private international law.

1
Section 4, Special Marriage Act,1954.
MARRIAGE & DIVORCE

The basic belief relating to marriage is that it is a sanctified union which joins two individuals
for life. Divorce is a serious issue which devastates the interest of the parties involved and
therefore the courts should make every attempt to save the marriage and should insist on the
performance of marital obligations.

Sharing of common life, including all the happiness and misery associated with it, is the
essence of marriage. Living together is a symbol of sharing such aspects of marriage, while
living apart indicates disruption of the essence of marriage and if this disruption goes on, then
it has the tendency of causing breakdown of marriage.

The institution of marriage gives rise to obligations, conjugal relations and certain rights to
both the spouses and therefore the law seeks the discharge of these marital obligations.
Withdrawal from state of things is considered to be violation of marital obligations and
duties.2 Marital obligations are safeguarded and protected because they are considered to be
the foundation of a family. In every family system, divorce is discouraged to a large extent
and is permitted only in grave circumstances and that too in a manner specified by law.

The Supreme Court in Bipin Chander Jai Singh Bhai Shah v Prabhawati 3 observed that
withdrawal from a state of things, i.e. “the home”, is desertion. For desertion to be a ground
of Divorce under Section 13(1) (ib) of the Hindu Marriage Act, 1955, two conditions need to
be fulfilled. Firstly, there has to be intention to bring the cohabitation to an end permanently
(animus deserendi) and secondly, there must be factum of separation. Also, with regard to the
deserted spouse, another two essential conditions, i.e. absence of consent and absence of
conduct giving reasonable cause to the other spouse to form intention to desert the
matrimonial home, has to be proved by the complainant.4

Justice Chandrachud in N.G. Dastane v S. Dastane 5 said that the court has to take into
consideration the particular couple that has approached the court, and not the ideal couple
because ideal couple will probably not approach the court for the resolution of differences
between them.

Lord MacDermott in Preston Jones v. Preston Jones6 observed that, while dealing with cases
involving the issue of divorce, there should be strict enquiry conducted and the marriage
bond should not be left aside lightly as it involves the status of parties. This observation is
still relevant in Indian context and therefore every possible efforts should be made in order to
save the marriage and bring about reconciliation between the parties.

Public policies with respect to marriage have been a concern of international human rights
law since at least 1948, when the Universal Declaration of Human Rights was adopted,
including this language in Article 16: “Men and women of full age, without any limitation
due to race, nationality or religion, have the right to marry and to found a family. They are
entitled to equal rights as to marriage, during marriage, and at its dissolution.”

2
Bipin Chander Jai Singh bhai Shah v Peabhawati, AIR 1957 SC 176.
3
Id.
4
Mulla Hindu Law, 20th ed., India.
5
AIR 1975 SC 1534.
6
[1951] A.C. 391, 417.
MATRIMONIAL PROBLESM FACED AS A RESULT OF NRI MARRIAGES

In India, over the years, the issue of NRI marriages has gained substantial importance by
virtue of it assuming alarming dimension due to the fraudulent trappings of Indian Women by
the People of Indian Origin (PIOs) and Non-Resident Indians (NRIs). Since there is not any
specific and cogent legislation with regard to NRI marriages in India, there is an urgent need
of legislative intervention.

Matrimonial disputes are already one of the most complex areas for legal intervention and it
becomes more complex when one of the parties of the marriage belong to an area beyond the
borders of India. Such marriages then enter into a maze where there is a conflict of laws of
different nations.

There are some typical issues that arise in NRI marriages which are pointed out by the
National Council for Women after conducting research on actual cases in different nations.
Some of them are:

 Abandonment of women by her husband after being taken to the foreign country.
 Brutal assault, battering and abuse of women, both mentally and physically, by the
husband and his family members.
 Capturing and holding of the women in the foreign nation for the sake of huge sum
of money as dowry.
 Giving false information relating to the job, salary and property to the family
members of the women before marriage, and later conning the women into marriage.
 Hiding of the status of pre-existing marriage by the husband.
 Husband who has obtained divorce from women through an ex-parte decree by
making false representations without her knowledge in other legal systems.
 Women encountering jurisdictional obstacles in Indian Courts due to unavailability
of cogent legislation in this regard.

CASE LAWS THAT ANALYSED THE MATRIMONIAL RELIEFS UNDER

CONFLICT OF LAWS IN INDIA
The legal issues which are involved in the matrimonial relationship of the parties who are
residing outside India with respect to the conflict of laws, jurisdiction of the countries.

The validity of the foreign court orders and the jurisdiction of Indian courts has been
mentioned in the section 13 and 14 of CPC7 which explains that the foreign court judgments

7
Section 13 ,Civil procedure code,1908;

Section14,Civil procedure Code,1908.

Can we apply to any matter by the competent court and uh such decrease passed by the
foreign codes that is not found to be prima facie and if it is not objecting the rules of natural
justice then it is not considered to be breach of law in India. Many of the parties who are
residing outside the India are taking advantage of the Indian laws which are strict in nature In
comparison with the laws of The land where they are staying.

There’s a question which arises on the validity of the divorce which was obtained by one of
the parties in the foreign countries where they solemnized the marriage under the personal
loss or the special laws which are enacted in India. In the case of Anubha v. Vikas
Agarwal8,The facts of the case are the plaintiff the wife who was deserted and abandoned by
the husband seeks for the maintenance in her favour what subjected to cruelty by her
husband, she pressed charges on husband in the court of law of USA seeking for the degree
of maintenance elsewhere the husband filed a divorce petition in the Supreme court of India,
when the suit filed by the wife was pending in the courts of US. And the plaintiff has gone to
the court for the retainment of such action which was filed by the husband in the court of
Connecticut, US, for the 30 days Period of time. After the restraining order passed by the
court in spite of that the husband went on for the proceeding of no-fault divorce petition any
courts of US. When this matter of proceedings was brought to the quotes in India where the
decree of Retainment passed, the Indian court passed an order saying that the defendant
should be recording a statement under the CPC for his failure to appear in the proceedings,
and the defense of the defendant was not considered and the court ordered for the contempt
proceedings in the court to be initiated.

So here the question of law was the given facts of this case and the circumstances such As the
decree of divorce filed by the husband is valid or not in the law of India. The court gave a
judgment that the ground on which these proceedings were filed in the courts of US that the
Grounds of the divorce was not under the Hindu Marriage Act where the marriage of the
parties was solemnized. Hence9 the dissolution of marriage is not dissolved by the grounds on
which the petition was filed under the provisions that are mentioned in the Hindu Marriage
Act and the decision given by the US court is neither recognizable nor enforceable in India.

In the case of Deepak Banerjee v. Sudipta Banerjee 10,The question of jurisdiction of Indian
court has been raised by the husband for the proceedings which was initiated by the filing of
the case off maintenance under the section 125 of the criminal procedure act 1973 which
talks about the maintenance also called as alimony in the case of desertion by the husband.

Further the husband explained that the jurisdiction of Indian courts is not applied in this case
because the citizenship of the husband is residing in the US and where the wife’s domicile is
also considered by his domicile after this solemnization of marriage. Hence the conflict of
laws has been arrived in this case on the basis of the jurisdiction and the court held that there
is conflict of laws in every case in the case of solemnization of the marriage in India and
other decree of divorce filed in US but the rules of private international law is applied in such
conflict and that can be adopted by the Indian courts for the resolution of the dispute.

The essential purpose and the importance of the section 125 of criminal procedure code 1973
has been applied in this case and the jurisdiction of Indian court was upheld because the wife

8
Smt. Anubha vs Shri Vikas Aggarwal And Ors. AIR 2002 SC 1796
9
M. Suneel Kumar, NRI Marraiges-Issues dealing with Special reference to custody of children.
10
Dipak Banarjee v Mrs. Sudipta Banerjee Anr. 1988 CriJ 1627.
who has filed the case in India is ordinarily resided in India. So in this case the conflict of
laws that has been arisen, and the Indian laws have the jurisdiction over the foreign courts.

In the case of Jagir Kaur v. Jaswant Singh11 the Supreme Court laid down the rules which
are very essential to understand the Term reside and the jurisdiction of the court irrespective
of the stay in India. The facts of the case are stated as Jagir Kaur was married to Jaswant
Singh in the year 1930.The plaintiff was residing in Paternal House of the husband in a
village called Ludhiana.
After being married to Jaswant Singh for 7 years, he came to visit her for 5 months and got
married to another wife and took her to the Africa, where he was residing from the initial
stage of marriage. After 6 years, he gave a temporary visit to the village and took Jagir Kaur
to Africa with him. Later on, Jagir Kaur gave birth to the daughter, as there were disputes
among the parties he sent back the appellant and the second appellant back to the village
giving a promise of sending maintenance .But he did not intend to send the maintenance for
the appellant as well as the second appellant who is a minor. So, Jagir Kaur filed a petition
under section 488 of the CrPC, in the jurisdiction of Ludhiana. The respondent questioned the
court saying that he was residing in Africa and the jurisdiction of the Ludhiana court doesn’t
apply to this proceeding. But the court laid down such rules which gives the broad
interpretation of words ‘resides’ and ‘where he last resided with his wife’.

The Supreme Court of India held that any person who is abandoned his wife without
providing maintenance and leaving his wife and children in the situation where they cannot
afford to live, then the place where he is residing, it may be any district or any place the
petition can be filed on such act done. In this particular case he was residing with his wife for
6 months in the last stay before the temporary visit to his village ,so that can be considered as
he has an intension to stay in his native with his wife. That can be the ground for residing and
the jurisdiction of the Magistrate of Ludhiana can be enforced.

THE FOREIGN MARRIAGE ACT, 1969

In order to fulfill the assurance of a law that will deal with marriages in which one of the
party is a foreigner, the Parliament came up with the Foreign Marriage Act in the year 1969,
which contained provisions for marriages of Indians who are residing outside the territories
of India, or one of the parties to the marriage is a foreigner. It has borrowed most of the
provisions from the Foreign Marriage Act, 18927 of Britain and Marriage Act, 19618 of
Australia.

Although the Foreign Marriage Act was an improvement in this regard, but it doesn’t contain
any provision which explicitly deals with divorce, nullity of marriage and other matrimonial
reliefs. Also, it has certain loopholes that are critically analyzed hereafter:

11
Jagir Singh v State of Punjab, AIR 1963 SC 1521.
 1. Not overriding: The provisions of this act are additional provisions and do not have
overriding effect over the existing laws which means that it is depended upon the
discretion of the person who is marrying a foreigner or is marrying in a foreign nation,
to decide whether they want their marriage to be solemnized under this Act or not.

2. Incomplete Act: This Act can be said to be an incomplete Act as it deals with only
three factors relating to foreign marriages, i.e. solemnization of marriage, process of
solemnization and the registration of marriage. Apart from these three, there is no
provision dealing with the issue of divorce, nullity of marriage, maintainance,
citizenship of child born out of such marriages, etc.

3. Inadequate Provisions for Penalty: By virtue of Section 19, 20 and 21 of the Act, it
is evident that the punishments and penalties, prescribed under the Act applies only to
the Indian party of such foreign marriages and this has the tendency of limiting the
scope of this Act as in cases like that of desertion, where one of the party files a suit
for desertion and the other challenges the said suit on the ground of marriage not to be
subjected to Indian laws, then anomaly will be created by virtue of Hindu Marriage
Act being only applicable when both the parties are Hindu. So, in such cases, the
foreign party will easily evade the punishment and only the Indian party will be
subjected to the penal provisions of this act.

4. Use of ‘may’ in Section 4 and 17 of the Act: The use of word ‘may’ in Section 4 and
17 makes this Act an enabling legislation. This act does not contain provision that
make the solemnization and registration of marriage, a compulsion. In order to make
it a compulsion, the act should have contained the word ‘shall’ or ‘must’ in the place
of ‘may’.

CONCLUSION
The validity of the foreign judgements in the jurisdiction of courts in India has been clearly
explained in the above cases where the decree of divorce passed by the foreign courts cannot
be recognised of, they are not delivered by the competent courts of jurisdiction. The decree of
divorce cannot be enforced in the courts of India when the grounds on which the case was
filed in foreign courts are not the grounds that are available in the laws that are governing the
individuals of the country.

The conflict of laws that arise when the two decisions were contradictory in nature. Hence to
resolve such conflicts the rules of private international law has been enforced by the Indian
courts which has competent jurisdiction ,this has been explained in the section 13 and section
14 of the civil procedure court of India.

BIBLIOGRAPHY
STATUTES
 The Code of Civil Procedure, 1908.
 Hindu Marriage Act, 1955.
WEBSITES
 https://lawbhoomi.com/conflict-of-law-and-matrimonial-relief-in-light-of-recent-
international-private-law-rulings-by-supreme-court-of-india/
 https://blog.ipleaders.in/conflict-of-laws-in-matrimony/
 https://www.academia.edu/63064384/
Conflict_of_Laws_in_Matrimony_Private_International_Law