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Domicile and Divorce - What's the Link?

This post is in connection with the recent Mumbai High Court order which stated:

1. Domicile in India of both parties to a marriage is a pre-requisite for the applicability of the Hindu Marriage Act 1955
2. Time of determining the domicile of the parties is the date on which the 'knot' was tied
3. A wife can acquire a domicile independent of the husband
4. The domicile of origin revives if the domicile of choice is abandoned and no new domicile of choice has been acquired
5. The Personal Laws under which the parties are married (e.g. HMA) is the only act that governs the dissolution as well

The article in the Times of India (11th May 2005, New Delhi edition) on the Mumbai High Court judgment was the first to introduce this topic to the public. Unfortunately, the TOI journalist did not provide any value to the article by way of commentary or critique and instead simply did a cut and paste from from the information made available to her.

First and foremost it is important to be aware that the Mumbai HC was dealing with a Family Court appeal involving the determination of Jurisdiction and Maintainability of a Petition for Judicial Separation under the HMA in the context of Conflict of Laws.

The approach that the Mumbai HC should have taken was to first determine whether the FC Mumbai had the jurisdiction to entertain an application for Judicial Separation at all - irrespective of whether the petition was filed under HMA or not. As the case involves legal systems of 3 countries, the parties involved are foreign nationals who are not domiciled in India, the Mumbai HC should have determined what was the "connecting factor" to determine jurisdiction. In this particular case, several "connecting factors' were in play but the HC completely ignored it. The Common Law countries following the PIL rule that it is the Courts of Domicile that have jurisdiction to entertain petitions seeking releifs in matrimonial causes. The court upon concluding that the Mumbai FC had jurisdiction should then have determined whether the FC was not the most inappropriate forum to adjudicate the matter. Only upon further concluding that the FC was not the most inappropriate forum should the HC have embarked on the determination of which choice of substantive law would apply to this case - HMA or some other foriegn Act?

Instead of the above approach, which is in line with the rules of Private International Law, the Mumbai HC straightaway went into determining whether the HMA was applicable to the parties or not. In doing so, the HC made a clear and correct link that for the HMA to be applicable, domicile in India was a pre-requisite condition. Where it erred, in my opinion, is in the determination of the time factor. The HC went against the norms of all rules of Private International Law when it said that the domicile of the parties, in matrimonial causes cases, should be determined at the time when the parties got married.

The Mumbai HC then ruled that the Hindu wife's domicile can be independent from that of the husband. There is no doubt that with the society of modern times, most civilised countries have indeed changed their domicile laws so that a wife, if she had the same domicile as her husband after marriage, can "acquire" an independent domicile of her own choice. The consequences of making such a change in the Indian context can be huge. The way most countries have transitioned the change is to have the National Law Commission of their country to make the recommendations to the legislature after taking into account all the areas that are impacted by the change. An arbitrary ruling in a case cannot be the basis of such an important change.

In so far as the Domicile Law of India the only source of codified law is in the Indian Succession Act 1925. In matters dealing with Domicile the rule is always Lex Fori. The Lex Fori on Domicile for India should be what is codified in the ISA. Unfortunately, the HC has taken a narrow view on this and erred in borrowing partially from the Domicile Laws of England. Many countries now follow the rule of presumption in continuance of domicile of choice until a new one has been acquired. Even the ISA Sec 13 is constructed on the basis of continuance of domicile of choice. "Resumption" - not - "Revival" of domicile of origin can only happen through an explicit action.

The issue of Personal Laws as defined and understood in India is significantly different than those in other countries. In India Personal Laws are driven by the religion of the individual whereas in other countries Personal Laws are driven by Nationality or Domicile (varies between Civil and Common Law countries). The choices of religion and domicile are the fundamental rights of an individual and cannot be imposed upon by a State and even less so in the case of two foreign nationals in India even though they may be Hindu's by religion. For the Mumbai HC to make a categoric observation that the Personal Laws of individuals as relating to laws that will determine the rights and obligations of a married couple will always be determined by the law under which the marriage was celebrated is completly against the rules of PIL.

Finally, the Mumbai HC seems to arbitrarily rely upon Sec 19 iii (a), the new amendment to the HMA in an attempt to link domicile and residence. This is wholly incorrect. Sec 19 is a procedural rule that needs to be applied only after the choice of substantive law has been decided upon.

Does India Condone International Parental Child Abduction?

India is going global! The opportunities for multi-national marriages or persons of Indian origin adopting new nationalities are on the rise. Children are born overseas and attain foriegn nationality. Some marriages end up on the rocks!! One parent decides to unilaterally abduct or retain the minor child in India against the wishes of the other parent (or sometimes the child). How does the left-behind parent seek redressal?

India is not a signatory to the Hague Convention on International Parental Child Abduction. Indian courts are still very gender biased (towards the mother of course). The judiciary is overloaded with backlog of variety of cases and does not have the time or opportunity to educate itself in the modern lines of thinking regarding children's welfare. I am referring to concepts such as shared parenting, effects of parental alienation syndrome, location issues and so on.

Bulk of the decisions on children so abducted to India result in court battles that languish for years by which time the children would have been "settled" in thier new land, the left-behind parent would have depleted his/her financial resources, flushed his/her career down the toilet and go home empty handed.

Questions: What's the way out? How can the issues of Rights of the Child and Rights of the Parent become part of the Indian political agenda? Should India sign the Hague Convention? Should the Judiciary for family matters and special cases be organized differently than today?