JUDICIAL ATTITUDE ON THE NULLITY OF FOREIGN MARRIAGE

Abstract

There are various case laws is available on the topic of nullity in a foreign marriage in India these are decided by the various High Courts and Supreme Court of India and foreign Courts also.

In the case of Mrs. M. v. Mr. A where an appeal filed in the Bombay High Court by the wife appellant and had prayed for a decree of nullity, her marriage was solemnized at Huston, U.S.A. On the other hand, wife prayed for a decree of divorce on the ground of cruelty. This petition was initially filed before the trial Court under the stipulations of the Special Marriage Act, 1954, which applied to the spouses by virtue of the stipulations of Section 18 of the Foreign Marriage Act, 1969. The trial Court dismissed this petition on the ground that the Court was not vested with the mandatory jurisdiction, as this is an obligation of law that the petitioner must have been residing in India constantly for a period of three years without delay preceding the filing of the petition.

Further, the High Court observed that this Section refers to a time of not less than three years without delay preceding the filing of the petition and that the learned trial Court was not reasonable in having grafted on the word ‘continuously.’ The complexity that had arisen in this case centered on the fact that the petitioner had left India in December, 1986 and returned in August, 1987 and the petition was presented on April, 1988. The Court also took into account the fact that the petitioner had not emigrated from India which was recognized by the fact that, she had gone out of the Country only on a ‘tourist visit’ and she did really come back and has been enduringly domiciled and resident in India all through. The Court said that in marital legislations in this Country, the law confers local jurisdiction on a Court if the party concerned is in fact resident there and not on the basis of casual short- term visits.

The finding in the case of Neeraja Saraph v. Jayant Saraph, was decided in the following facts: the wife appellant who got married to a software engineer working in United States was still demanding to get her visa to join her husband, who had returned after the marriage, when she received the petition for annulment of marriage presented by her husband in the U.S. Court. She presented a suit for damages in such situations as she had suffered not just psychologically and spiritually but had also renounced her job in eagerness of her going away to the US. The trial Court passed a decree of Rs. 22 lakhs and the High Court in appeal stayed the execution of the decree pending concluding disposal on the stipulation of deposit of Rs 1 Lakh in the Court. On the appeal by the wife the Supreme Court customized the High Court’s order in favour of the wife by enhancing the deposit amount to Rs. 3 Lakh.