SAVEETHA SAVEETHA SCHOOL OF LAW LAW
SAVEETH SAVEETHA A UNIVERSITY UNIVER SITY
Topic: Dissolution of Marriage Subject: Private International Law Submitted by: M.Alfiya Submitted to: Asst. Prof. Mr. kannapan
CONTENT
Abstract Introduction Objective Review of literature Hpot!esis Li"itation #!apteri$ation % #!apter &%'urisdiction in divorce and nullit suits . #!apter (%Dissolution of "arriage under Musli" law. #!apter )%#onvention of & 'une &*+, on t!e Recognition of Divorces and Legal -eparations. #!apter % Recognition of foreign divorce. #!apter /% Mode of Matri"onial Alliance in 0RI Marriages.
Conclusion.
Bibliograpy .
Abstract :
1!e article basicall focuses on t!e "arriage as a contract w!ic! is sui generis along wit! t!e opinion of various 'udges t!oug! t!e judg"ents in different cases. However it also talks about t!e position2 legal for"alities along wit! t!e validit and capacit of t!e parties to "arriage and t!e c!oice of law rules governing suc! "arriages in 3ngland and ot!er co""on law countries t!oug! out t!e world. On t!e ot!er !and t!e aut!or !as also focused on t!e "atri"onial causes like polga"ous "arriages4 divorce2 judicial separation2 nullit of "arriage in different countries. 1owards t!e end of t!e article it talks about t!e jurisdiction and t!e c!oice o f law for solving suc! causes after "arriage and t!e recognition of foreign divorces in ot!er countries. 1!e present stud !ad been undertaken wit! t!e basic objective to analse and e5a"ine t!e position of t!e re"ed of divorce under different international "atri"onial laws and to "ake sincere efforts to criticall evaluate t!e general statutor provisions of divorce including t!e judicial approac! towards t!e co"parative provisions regarding dissolution of "arriage under private international laws.
!ntroduction:
International "atri"onial law is an area of private international law 6or conflict of laws in t!e 7nited -tates8. 1!e area specificall deals wit! relations between spouses and for"er spouses on issues of "arriage2 divorce and c!ild custod. In t!e last /, ears2 t!e -tates Me"bers of t!e Hague #onference on Private International Law !ave atte"pted to !ar"oni$e do"estic "atri"onial laws and judicial rulings across international borders in t!ese areas. Matri"onial relief is a topic t!at basicall deals wit! t!e different solution available to a person w!o is part of a frustrated "arriage. Marriage "abe a sacred union of "an and wo"an2 but it serves no purpose if t!e "an and wo"an are incapable of living toget!er. 7n!app "arriages are sociall undesirable and are a breeding ground for delin9uent c!ildren. If t!e parties can no longer continue a proper relation2 t!en w! !ave a relation at all. 1!us2 instead of living a life filled wit! regret and re"orse2 t!e parties are given an option2 t!e can fist appl for t!eir "arital rig!ts to be reinstated or t!e can live separatel and see if t!e still want to continue and if t!at also does not work2 t!e can go for a divorce w!ic! is t!e final option. Once divorced2 t!e parties are no longer bound b "arital ties 2 clai"ed t!at a London court !ad ordered t!e c!ild:s return to t!e 7;. nce a couple "arries under t!e Hindu Marriage Act2 t!e can onl get a divorce under t!e sa"e law even if t!e are no longer Indian citi$ens2 t!e
ear>old daug!ter to t!e wo"an. 1!e daug!ter too is a 7; citi$en. ?1!e #ourt at London is not t!e co"petent court of jurisdiction to decide t!e issue of dissolution of "arriage between two Hindus "arried in India as per t!e Hindu =edic rites2? observed t!e judges.Dr -ee"a Des!pande2 w!o !ad co"e back to India wit! !er daug!ter in (,&(2 !ad filed a petition before t!e
Objecti"e :
Mini"i$e conflict wit! spouse.
If t!e petitioner i.e eit!er of t!e spouse is under cruelt t!en suc! situation t!e dissolution grounds will provide t!e" a re"ed.
Desertion is also t!e "ain ground for divorce.
1!is dissolution process will "ake eit!er spouse to live freel wit!out an tolerable acts fro" t!eir spouse.
#ypotesis % In India t!ere is separate personal law for t!e divorce.
$imitation of study : 1!e concept of "arriage under private international law !as wider scope I !ave li"ited " stud onl for so"e countr and b giving t!e grounds for application and recognition and also b "entioning t!e provision given under t!e convention. And also I !ave co"pressed " stud of privet international law onl in Indian courts.
%e"ie& of literature : 1!e aut!or paras diwan !as given !is different views about t!e "arriage under private international law and also t!e Dissolution of "arriage related law w!ic! are under international perspective of law and t!e are so"e li"itations and procedures in dealing wit! "arriage and t!e dissolution of "arriage @!ic! are referred fro" private international law .
Capterisation : Capter ':()%!S*!CT!ON !N *!+O%CE AN* N)$$!T, S)!TS.
It !as been necessar to consider t!e 9uestion of do"icile at so"e lengt! on account of its i"portance as a jurisdictional basis in divorce. 1!e Roal #o""ission:s Draft #ode avoids a c!ange in t!e substantive law of do"icile b c!anging t!e jurisdictional basis% !ence2 to escape fro"2 in particular2 t!e difficulties w!ic! arise due to t!e dependence of t!e wife:s do"icile on t!at of !er !usband2 t!e #o""ission:s #ode provides t!at t!e #ourt s!all !ave jurisdiction to entertain divorce proceedings on t!e bases of 6a8 t!e petitioner:s do"icile in 3ngland at t!e co""ence"ent of t!e proceedings2 6b8 t!e fact of t!e petitioner:s presence) in 3ngland at t!e co""ence"ent of t!e proceedings2 w!ere t!e last residence of t!e parties was 3ngland4 and 6c8 t!e residence of bot! parties in 3ngland at t!e co""ence"ent of t!e proceedings. 1!e #ourt "a not2 !owever2 grant a divorce on t!e latter two bases unless t!e personal law of t!e parties recogni$es as sufficient ground for divorce or nullit a ground substantiall si"ilar to t!at on w!ic! a divorce is soug!t in 3ngland2 or t!e personal law of t!e parties would in t!e circu"stances of t!e case per"it t!e petitioner to obtain a divorce on so"e ot!er grounds.
Capter -:*issolution of marriage under muslim la& : 7nfortunatel2 divorce seldo" proceeds s"oot!l. It usuall results fro" an aggressive be!avior2 "ostl caused b a "o"ent of rage2 against t!e "anner prescribed b t!e BurCan and -unna!. 1!e pronounce"ent of t!ree divorces in one breat! is a co""on practice2 in addition to abuse and c!aracter assassination. @o"en are generall denied t!eir Isla"ic rig!t to acco""odation and "aintenance during t!e idda! i.e. t!e prescribed waiting period before a wo"an "a ,
re"arr after divorce. During t!e idda! of a revocable divorce2 t!e parents of t!e divorced wife usuall do not let !er re"ain in !er !usbandCs !ouse2 ignoring t!e BurCanic teac!ings according to w!ic! t!e couple s!ould re"ain under t!e sa"e roof so t!at t!ere is "a5i"u" likeli!ood of resu"ption of t!e "arital relations!ip. 1!e wit!!olding of dowr and ot!er belongings of t!e divorcee is also a co""on practice in societ. #ustod and "aintenance of c!ildren are t!e two "ost contentious issues between separating couples. #o""onl2 suc! "atters are taken to t!e courts.
Capter :Con"ention of ' (une '/01 on te %ecognition of *i"orces and $egal Separations:
Article '
1!e present #onvention s!all appl to t!e recognition in one #ontracting -tate of divorces and legal separations obtained in anot!er #ontracting -tate w!ic! follow judicial or ot!er proceedings officiall recogni$ed in t!at -tate and w!ic! are legall effective t!ere. 1!e #onvention does not appl to findings of fault or to ancillar orders pronounced on t!e "aking of a decree of divorce or legal separation4 in particular2 it does not appl to orders relating to pecuniar obligations or to t!e cu stod of c!ildren. Article -
-uc! divorces and legal separations s!all be recognised in all ot!er #ontracting -tates2 subject to t!e re"aining ter"s of t!is #onvention2 if2 at t!e date of t!e institution of t!e proceedings in t!e -tate of t!e divorce or legal separation 6!ereinafter called ?t!e -tate of origin?8 > 6&8 t!e respondent !ad !is !abitual residence t!ere4 or 6(8
t!e petitioner !ad !is !abitual residence t!ere and one of t!e following furt!er conditions
was fulfilled > a8 suc! !abitual residence !ad continued for not less t!an one ear i""ediatel prior to t!e institution of proceedings4 b8 t!e spouses last !abituall resided t!ere toget!er4 or 6)8 bot! spouses were nationals of t!at -tate4 or 68
t!e petitioner was a national of t!at -tate and one of t!e following furt!er conditions was
fulfilled > a8 t!e petitioner !ad !is !abitual residence t!ere4 or
b8 !e !ad !abituall resided t!ere for a continuous period of one ear falling2 at least in part2 wit!in t!e two ears preceding t!e institution of t!e proceedings4 or 6/8
t!e petitioner for divorce was a national of t!at -tate and bot! t!e following furt!er
conditions were fulfilled > a8 t!e petitioner was present in t!at -tate at t!e date of institution of t!e proceedings and b8 t!e spouses last !abituall resided toget!er in a -tate w!ose law2 at t!e date of institution of t!e proceedings2 did not provide for divorce. Article
@!ere t!e -tate of origin uses t!e concept of do"icile as a test of jurisdiction in "atters of divorce or legal separation2 t!e e5pression ?!abitual residence? in Article ( s!all be dee"ed to include do"icile as t!e ter" is used in t!at -tate. 0evert!eless2 t!e preceding paragrap! s!all not appl to t!e do"icile of dependence of a wife. Article 2
@!ere t!ere !as been a cross>petition2 a divorce or legal separation following upon t!e petition or cross>petition s!all be recogni$ed if eit!er falls wit!in t!e ter"s of Articles ( or ). Article 3
@!ere a legal separation co"pling wit! t!e ter"s of t!is #onvention !as been converted into a divorce in t!e -tate of origin2 t!e recognition of t!e divorce s!all not be refused for t!e reason t!at t!e conditions stated in Articles ( or ) were no longer fulfilled at t!e ti"e of t!e institution of t!e divorce proceedings.
Capter 2: %ECO4N!T!ON O5 5O%E!4N *!+O%CES:
1!is topic is one in w!ic! t!e views e5pressed depend largel on t!e e5tent to w!ic! it is t!oug!t desirable t!at divorces obtained b a wife as petitioner on t!e basis of !er separate residence or do"icile s!ould be recogni$ed. At co""on law a foreign divorce could not be recogni$ed unless t!e "arriage !ad been dissolved b t!e courts of t!e !usband:s do"icile2 or2 if dissolved b t!e courts of so"e ot!er countr2 unless t!e courts of t!e countr of t!e !usband:s do"icile would recogni$e t!e "arriage as !aving been effectivel dissolved. A few ears ago t!is rule was e5tended2 enabling t!e courts to recogni$e foreign divorces granted on t!e basis of t!e wife:s residence or separate do"icile2 if t!e foreign court !ad assu"ed jurisdiction on a basis substantiall si"ilar to t!at on w!ic! t!e 3nglis! 6and t!erefore also2 presu"abl2 t!e #o""onwealt!8 courts assu"e jurisdiction in suc! an instance. -uc! a basis is apparentl continuous residence at least for two ears or upward. 7nder t!is2 rule it is2 of course2 possible for a !usband do"iciled in2 e.g.2 3ngland2 to obtain a 0evada divorce on t!e basis of si5 weeks: residence2 re>salting in !is ?do"icile? t!ere2 and t!e decree would presu"abl be recogni$ed in 3ngland. A si"ilar result would follow in t!e case of a wife2 w!ose !usband is do"iciled in a countr w!ere 0evada decrees obtained on t!e basis of a wife:s separate do"icile are recogni$ed. It is presu"ptuous2 of course2 to look on all 0evada divorces as necessaril bad and undesirable% it would see"2 !owever2 t!at w!en t!e are granted to persons w!ose sole ai" in residing in 0evada at all is to get a divorce wit!out w!at t!e regard as an dela apart fro" t!at resulting fro" 0evada:s si5 weeks residence re9uire"ent2 t!e countr in w!ic! suc! persons are in realit do"iciled is entitled to sa w!et!er or not it will regard suc! a decree as validl dissolving a fa"il unit wit! w!ose welfare it2 and it alone2 is in realit concerned. 1!is is in fact t!e position w!ic! up to now 3nglis! and #o""onwealt! courts appear to !ave adopted2: b insisting t!at t!e !usband ( "ust !ave been do"iciled in t!e jurisdiction granting t!e decree in t!e 3nglis! sense. 1!is2 it would see"2 is an ade9uate safeguard against t!e recognition of ?tourist? divorces in 3nglis! and #o""onwealt! courts. It is true t!at in t!e Ar"itage v. 1!e Attorne>Eeneral tpe of situation t!e 3nglis! court is2 in effect2 obliged to recogni$e t!is tpe of divorce2 but t!ere can !ardl be an co"plaint !ere2 as t!e divorce is in fact being recogni$ed because it would be recogni$ed b t!e courts of t!e !usband:s do"icile. -ection + o t!e Roal #o""ission:s Draft #ode not onl e"bodies t!e e5isting law as stated above2 but o one interpretation broadens it al"ost beond recognition. 7nder its provisions t!e court "ust ... recogni$e as valid a divorce2 obtained b judicial process or ot!erwise2
6a8 w!ic! !as been granted in accordance wit! t!e law of t!e countr in w!ic! one spouse was2 or bot! spouses were2 do"iciled at t!e ti"e of t!e proceedings2 or w!ic! would be given recognition b t!e law of t!at countr4 or 6b8 w!ic! !as been granted in accordance wit! t!e law of t!e countr of w!ic! one spouse was a national2 or bot! spouses were nationals2 at t!e ti"e of t!e proceedings2 or w!ic! would be given recognition b t!e law of t!at countr4 or 6c8 w!ic! !as been granted in circu"stances substantiall si"ilar to t!ose in w!ic! t!e court in 3ngland e5ercises divorce jurisdiction in respect of persons w!o are not do"iciled in 3ngland . . .
On a closer stud2 !owever2 t!e section reveals pitfalls and traps for t!e unwar w!ic! "a not !ave been wit!in t!e conte"plation of t!e Roal #o"> "ission. Firstl2 paragrap! 6a8 e5pressl refrains >fro" saing t!at t!e ?one spouse? w!o "ust !ave been do"iciled in t!e countr w!ere t!e decree was "ade "ust be t!e !usband2 and it see"s to follow t!at t!e #o""ission "ust !ave intended t!at divorces based on t!e wife:s separate do"icil s!ould be recogni$ed.
A foreign judg"ent concerning "arriage or divorce or an ot!er deter"ination or c!ange of personal status s!all be recogni$ed in Israel upon confir"ation b an Israeli #ourt2 in suc! "anner as s!all be prescribed b regulations2 t!at t!e following conditions are co"plied wit!%
6&8 t!e court w!ic! gave t!e judg"ent !ad jurisdiction to do so under t!e law of its countr and t!e judg"ent is a final decision according to t!at law4 6(8 t!e judg"ent was not obtained in evasion of t!e jurisdiction of anot!er court or religious tribunal&,, and was not given wit!out affording bot! parties an opportunit to be !eard4 6)8 t!e procedure of obtaining t!e judg"ent and its contents are not contrar to t!e polic of Israel. On t!e assu"ption t!at t!e state in w!ic! persons !ave 6to use t!e Israeli ter"8 t!e centre of t!eir lives is t!e onl jurisdiction !aving an real interest in w!et!er or not "arriages between suc! persons s!ould or s!ould not be dissolved2 it is seen t!at t!e provisions of t!e section constrain "uc! of considerable value. For e5a"ple2 under GG.& and &*)2 read toget!er2 t!e version of t!e divorce re9uire"ents of suc! a jurisdiction b "eans of a 9uick visit to anot!er wit! "ore rela5ed rules is rendered al"ost i"possible. 0ot onl "ust t!e foreign court !ave !ad jurisdiction under foreign law2 but its countr "ust !ave been t!e centre of t!e parties: lives at t!e relevant ti"e.
Capter 3: Mode of Matrimonial Alliance in N%! Marriages: Fa"il sources or caste based social links in India or abroad. Matri"onial advertise"ents in t!e newspapers delineating t!e age2 usuall beond ( or even ), ears4 professional or econo"ic status2 casteJcaste>no>bar2 citi$ens!ip status4 "arital statusJdivorceeJ widowJbac!elor4 Internet "ode wit! broadband facilitated direct interview or e5c!ange of personal particulars. Personal or professional contactJfriends!ip 1!e considerations of religion2 caste2 clan and p!sical attributes2 w!ic! nor"all do"inate in local "atc!"aking2 are not strictl ad!ered to for foreign groo"s2 w!o are viewed to !ave ot!er potential "erits including t!e power to c!ange oneCs destin profoundl for t!e better.
Conclusion:
As alread stated2 it is widel recogni$ed t!at judicial separation is t!e lesser of t!e two evils in co"parison to divorce. It is t!us often seen t!at courts grant a decree for judicial separation in a petition for divorce2 even t!oug! no suc! praer is "ade in t!e petition. Rat!er t!an draw a boundar line between international law and private international law2 one oug!t to e5plore t!e proble"s of t!e confines2 and reflect on "et!odological aspects w!ere t!e rules of international law and of internal law appear to coincide in substance. Assu"ing t!at a legal sste" does not si"pl a"ount to a pra"id of nor"s but is a living organis" consisting of rules and institutions2 one can easil "ake out t!e "ain difference in "et!odolog between international law and private international law % w!ile t!ere is a sste" of international law !aving its own institutions2 t!ere is no suc! sste" of private international law. 3ven if conflict of>laws rules originate in international treaties2 and !owever broad t!e scope of t!ese treaties "a be2 suc! rules are necessaril enforced t!roug! t!e institutions2 w!et!er ad"inistrative or judicial2 of ever -tate in w!ic! t!e treaties are in force. 1!e internal or international c!aracter of t!e rules of conflict t!erefore proves less conclusive t!an t!e fact t!at private international law !as no institutions of its own. 1!e set of solutions envisaged in t!e previous section "a assu"e at least t!ree 9uite different for"s and be included eit!er in a private agree"ent entered into at t!e ti"e of celebration of t!e "arriage2 or during "arriage in anticipation of its dissolution2 or even after t!e dissolution as a result of it 4 or in an agree"ent approved b t!e court w!ic! dissolved t!e "arriage 4 or in a decision adopted b t!e sa"e court or b anot!er court in t!e sa"e ot!er -tates.
Bibliograpy: www.ips.org. www.ebic.india.co" private international law b paras diwan www.westinida.co"
