Essay: Matrimonial law – conflict of laws

CHAPTER I INTRODUCTION
Frontiers are much more than mere intangible boundaries. They represent significant obstacles due to differences in procedure and law. Marriages, which are susceptible to follow traditions and social practices of a particular region, naturally stand to take very diverse forms in various countries and religions. In the matter of divorces, these challenges manifest themselves by resulting in ‘limping marriages’ – a term used to describe divorces granted by one state and not afforded recognition in other states due to deep-set differences in law. The inevitable outcome is that the situation is mired in uncertainty and is stuck in legal limbo. Issues relating to children, re-marriages and marital aid – which are often elements of a divorce proceedings, only lend to further complications and no easy solutions.
The problem relating to the recognition of foreign civil court decisions involving matrimonial matters (particularly divorce) in India and other countries has been widely recognized: at the turn of the 19th century itself, issues relating to conflict of laws and jurisdiction were identified and sought to be remedied by way of the Hague Convention on divorce matters and separation, in 1902. In India, more than four decades ago, the Supreme Court observed that the legislature must find a solution to such “schizoid situations” (in reference to jurisdictional challenges in divorce matters).
Yet, as is the case with most matters of contemporary conflict in private international law, a solution has not immediately followed the identification of the problem. Consequently, the result has been a judicial void bereft of certainty and consistency. The presently operational Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations [hereinafter, “Hague Convention” or simply, “Convention”] sought to incorporate contemporary changes to the law in these fields. Although India broadly follows the common law rules prevalent in the English legal system in relation to solving conflict of law matters, India has not ratified the Convention unlike the UK – which passed an Act in 1971 to give effect to the rules formulated under the Hague Convention.
The Supreme Court, in Satya v. Teja Singh, itself suggested that the Hague Convention of 1970 could serve as a model on account of its ‘comprehensive scheme for relieving the confusion caused by differing systems of conflict of laws…’. It, however, entered a caveat that any such law must necessarily include provisions for non-recognition of foreign decrees obtained as a result of fraud, and also non-recognition of foreign decrees that would be contrary to foreign policies.
This Project has been tasked with evaluating the merits and de-merits of India becoming a member state to the Hague Convention. To undertake this, we must first attempt to comprehensively understand the law under the Convention itself [Chapter II]. We must then observe the law in India, both under the statute as well as its interpretation through case law [Chapter III]. The overlaps, differences and the lacunae must then be identified so as to determine the compatibility of two bodies of law with similar objectives and ideals. This is crucial as it lays down both the width and length of the bridge that must be crossed in order to reconcile the Convention with Indian law [Chapter IV]. Finally, we will, in the light of all the observations, evaluate whether it is in India’s best interests to sign and ratify the Hague Convention. The project will also attempt to list down reservations that India may adopt to better facilitate a possible transition to another legal regime in relation to the recognition of divorces and legal separation [Chapter V].
 
CHAPTER II: LAW UNDER THE HAGUE CONVENTION
OBJECTIVE AND SCOPE
The Hague Convention remains a focal point in any discussion on unification or harmonization initiatives in relation to recognition of divorce and legal separation in foreign countries. The primary objective of the Hague Convention is to ensure that divorced or separated couples are able to maintain their marital status in the same way as determined in the country where the order was obtained. The Preamble notes that the Convention seeks to ‘facilitate the recognition of divorces and legal separations’. Although stated simply, this is important in the context of legitimacy afforded to remarriages and status of children borne out of subsequent relationships. In such matters, the importance of certainty and consistency in status cannot be undermined.
It is important to note that the Convention does not concern itself on the merits of the divorce or legal separation order. The enforcement of such an order is also beyond the scope of the Convention – it is up to the recognizing state to determine what procedures need to be adopted in order to achieve effective enforcement. Instead, the Convention’s ambit is both broad and narrow. It is broad as it is not restricted in application to merely those cases of divorce where the order or decree is granted by a civil court. The Convention takes into account varying social factors and patterns of different communities, and recognizes divorces granted as a result of legislative, administrative or religious action.
On the other hand, the Convention is undoubtedly narrow insofar as it relates only to recognition of the divorce or legal separation in another member state to the Convention. The Convention places a straightforward obligation on member states – subject to certain conditions listed in the Convention, member states must recognize divorces and legal separations obtained in the domestic courts of another contracting state. In countries such as India and United States where different states may have different personal laws, the conditions existing at the exact territory where the decree was obtained must be followed.
In the Explanatory Note to the Convention, it is noted that the Convention does not seek to promote divorce or legal separation but merely recognizes the rise of this “unfortunate phenomenon” and attempts to provide a platform for uniform application of laws. The Note, in fact, highlights the multi-dimensional problems that might arise from the breakdown of marriage and states that these problems are only compounded when there is the involvement of more than one nation. These challenges include forum shopping, alternatively called as ‘migratory divorce’, which lead to the rise of the ‘divorce industry’.
APPLICABILITY
One of the primary determinants to test the applicability of the Convention is to check whether the divorce or legal separation is ‘legally effective’ in the state which passed it (henceforth referred to as the “state of origin”). In addition, these proceedings must be judicial or officially recognized in that state. These may be, however, said to be subsumed in one broad test: whether the authorities of the state of origin have the jurisdiction to pass an order of divorce or legal separation.
The Convention applies only to member states – divorces or legal separations obtained in third states cannot be sought to be made applicable in a member state through the Convention. The Convention also applies without any restrictions regarding the date on which the divorce or legal separation was obtained at the state of origin (states are free to enter a reservation to restrict the scope of this temporal field of application).
SUBJECT MATTER OF THE CONVENTION
Article 1 of the Convention limits the scope of the Convention by making it inapplicable to pecuniary matters or to the custody of children. The framers seem to have been aware of the consequences of allowing such matters within the scope of the Convention – the foreign court tasked with recognition would be driven to consider merits of the case outside the scope of divorce and legal separation.
While this may, prima facie, appear to be beneficial, there are certain downfalls to the restrictive scope of the Convention: in cases where additional aid is granted by a foreign court, that aid may not be immediately available to one party in another state as it would be beyond the scope of this Convention. It is also unclear whether the Convention stands to be more effective and practical if it allowed recognition of annulment of marriages, which are currently not within the ambit of the Convention. Scholars remain divided about the restrictive scope of the Convention – if the Convention was made too broad, it would certainly result in more reservations by states and a multiplicity of reservations is always ‘harmful to the unity of a text’.
In any case, it must be borne in mind that the exclusions are merely obligatory, a foreign court does not have an obligation to recognize or give effect to ancillary or pecuniary matters, but it may choose to do so if it feels the need.
Both ‘divorce’ and ‘legal separations’ have not been defined in the Convention due to the difficulty in arriving at a mutual consensus on their meanings. Instead, it only places the two requirements of proceedings and official recognition. A result of this is that certain religious practices, like the “talaq” system of divorce in Islamic practices cannot be entirely brought into the Convention because there is no intervention by any public or religious authorities and there are no ‘proceedings’ as such. Another form of divorce that possibly remains outside the scope of the Convention is mutual divorce, and there is opinion to support the notion that ‘a divorce or legal separation by mere agreement between the spouses without the intervention of any authority…would not satisfy the requirements of Article 1’.
JURISDICTION OF THE FOREIGN COURTS UNDER THE CONVENTION
The jurisdiction of the foreign courts under the Convention is one of the most controversial aspects with regard to possible adoption by India. This is due to the simple reason that the Convention regards a court as having jurisdiction on different parameters in comparison to Indian courts.
As per Article 2 (1) of the Convention, the respondent’s habitual residence is the primary determinant and jurisdiction results from residence and not from domicile. Nationality may be used to confer jurisdiction where both spouses are nationals of that particular state on the date of institution of proceedings.
Article 3 of the Convention aims to reconcile the varying degrees of priority given to habitual residence and domicile. Article 3 states that the domicile will be the test of jurisdiction where the state of origin uses the concept. There is no corresponding provision on this matter for the state where recognition is finally sought. The result is that a decree of divorce or legal separation given by a court in the UK after having decided that it was conferred jurisdiction on the ground of domicile, must be recognized by other member states to the Convention.
GROUNDS OF REFUSAL OF RECOGNITION
In order to ensure greater flexibility and greater acceptance among member states, the Convention itself permits certain grounds for refusal of recognition of an order of divorce or legal separation. Articles 7-10 broadly cover these grounds of refusal. Article 7 states that if both parties were nationals of a state which did not provide for divorce at the time it was obtained, then the recognition can be refused.
Article 8 states that if adequate notice of the divorce or legal separation proceedings were not provided to the respondent, or if the respondent did not have a sufficient opportunity to present his or her case, then the order may be refused recognition. Article 9 lists the ground of incompatibility with a previous decision determining the marital status of the spouse as a reason for refusing recognition. The decision must have been rendered in the state where recognition is sought.
Article 10 provides for the refusal of recognition on the ground that such recognition is “manifestly incompatible with their (the state where recognition is sought) public policy.”
GROUNDS OF RESERVATION
Articles 19, 20, 21 and 24 provide member states with options to exercise reservations in relation to certain aspects of the Convention. Article 19 allows for a state to reserve the right to refuse recognition on the ground that the parties, being nationals of only that state where recognition is sought, obtained the order through application of a law other than the one indicated by the recognizing state’s rules of private international law.
Article 20 allows for states to reserve the right to refuse recognition on the ground that one of the spouses was a national of a state whose laws did not provide for divorce. Similarly, Article 21 permits a state to take similar action for legal separations. Article 24 allows states to determine the date from which the Convention would be applicable.
CHAPTER III: THE POSITION IN INDIAN LAW
As the Convention does not deal with matrimonial law as such, but merely the recognition of orders of divorce or legal separation, it is not necessary to delve into the grounds of divorce or legal separation in any of the personal laws in India. Thus, we shall confine ourselves with merely discussing the law relating to recognition of foreign judgments in India, and whether such law extends in application to matrimonial matters as well.
PROVISIONS FOR RECOGNITION OF JUDGMENTS RELATING TO MATRIMONIAL MATTERS
The only provisions that relate to recognition of foreign judgments are generic and non-exclusive to matrimonial matters. S. 13 of the Civil Procedure Code, 1908 states that a foreign judgment will be conclusive as between the parties, except in certain conditions. These exceptions include instances where the court that has pronounced the order does not have competent jurisdiction, or where the case has not been decided on the merits. Other exceptions also include proceedings opposed to natural justice or orders obtained by fraud. S. 41 of the Indian Evidence Act, 1872 relates to relevancy of foreign judgments.
Although the 65th Law Commission Report is regarded as a pioneering work on the treatment of foreign judgments in matrimonial matters, no specific statutory provision has been enacted in India addressing this lacuna. However, the Law Commission’s Bill – the Recognition of Foreign Divorce and Legal Separation Bill, 1976 is of relevance, academically.
The Bill provided for the recognition of divorces or orders of legal separations passed abroad if “at the time of institution of proceedings in a country, either spouse was habitually resident in that country, or either spouse was a national of the country, or both spouses were domiciled in that country”.
Clearly, the Bill, inter alia, proposes that the ‘habitual residence’ test should be the primary determinant for jurisdiction, along the lines of Hague Convention and the English Law. This test would be followed by the nationality or domicile tests. The recognition would be refused only under certain grounds, including, firstly, if under Indian law, there would be no valid or subsisting marriage between the parties; secondly, if the order (of divorce) was obtained without giving notice to the spouse; thirdly, if reasonable opportunities were not provided to the parties to take part in the proceedings and contest claims made by the other party; fourthly, if the order had been obtained by fraud, and finally, if the recognition of the order would be manifestly contrary to public policy.
The Bill is certainly a marked departure from decisions of the SC which have historically stated that any marriage between Indian nationals conducted under any Indian personal laws must be governed only by Indian law. The Bill did not incorporate this suggestion and merely states that recognition could be withheld the Indian court decided that recognition would be against Indian public policy. In addition, the Bill also departs from the Indian courts’ preference of domicile as the determinant test for deciding jurisdiction of courts as opposed to habitual residence. This is discussed in greater detail in latter stages of this Project.
The Bill, however, allows for the recognition of ancillary matters such as maintenance, custody of children and disposal of property when the order for divorce or legal separation is granted if either party submits an application for the recognition of the same. On receipt of such application, the court would become entitled to adjudicate and settle the ancillary matters.
Examples of instances where recognition would be refused include situations where the respondent was served notice of the proceedings, but was unable – financially or otherwise, to effectively take part in such proceedings.
The current law that is applied in India is S. 13 of the CPC, 1908 as the Bill was never given effect. The courts apply S. 13 with necessary modifications as mandated by the Supreme Court and various High Courts. For example, in determining the competency of the foreign court, it is necessary to observe whether the court must be regarded as a competent court under Hindu law or the Indian personal law under which the parties entered into marriage. In the case of Hindu marriages, the foreign court must therefore, be a competent court under the Hindu Marriage Act, 1955. This court would also derive jurisdiction if both parties to the proceedings voluntarily and unconditionally submitted to its jurisdiction. Finally, the court will deemed to be competent if the divorce is obtained as a result of mutual consent.
In India, the courts have stated that for a foreign judgment to be recognizable in India, it must not be inconsistent with the six conditions laid down in S. 13 of the CPC, 1908 (clauses a-f). While there is no obligation on the courts to recognize a judgment, it is “normally recognized … as a matter of comity and public policy”. A judgment of a foreign court creates estoppel or res judicata between the same parties provided the conditions set forth under S. 13 are met.
There are also restrictions applied on the law invoked in the proceedings: if the marriage took place in accordance with Hindu or Indian law, the divorce must be granted in conformity with that law. Thus, for example, divorce cannot be granted on the ground of irretrievable breakdown of marriage, as Hindu or Indian law does not recognize it as a valid ground for divorce or legal separation.
This position of the Supreme Court has come under severe criticism from scholars on the ground that the observations made in the case could not be further from reality – both in the practical as well as the legal sense. S. 1(2) of the Hindu Marriage Act, 1955 makes it clear that the legislation applies only to those domiciled in India or in those territories to which the Act extends. Thus, the interpretation of this section would mean that even if Hindus were temporarily residing outside India, but were domiciled in India, the Act would apply. However, the Act is silent regarding its application to Indians domiciled abroad. It would be incorrect for the SC to conclude that where Indian citizens, married under the Hindu Marriage Act, 1955, are domiciled elsewhere outside the territory of India, the Act would apply. This would undoubtedly result in the extra-judicial application of a law, contrary to legislative intent.
DECISIONS OF THE COURTS
The need to adapt S. 13 to suit the requirements of matrimonial law has been felt by courts before. As a result, in cases relating to recognition of divorce or legal separation, S. 13 is not applied in verbatim. Observations by the SC are considered as additional, but essential, factors in applying S. 13 of CPC, 1908.
The Supreme Court discussed the requirements of a ‘competent court’ in Narasimha Rao v. Venkata Lakshmi, by stating that the “clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise”.
While interpreting S. 13(c) of the CPC, 1908, the SC held that if the foreign court failed to take into account Indian law, then the judgment would not be enforceable. The SC reasoned that any marriages that take place in India are subject to the personal laws of India, and any dispute arising from such matrimonial union must be adjudicated under Indian law. A failure to do so would result in overlooking the applicable law, and the Indian courts would be under no obligation to recognize such a decision by a foreign court.
This was also held in another Supreme Court decision in Neeraja Saraph v. Jayant V. Saraph, where the Court stated that the legislatures must law down a law that protects the rights of Indian women married to NRIs and reside outside India. The SC decision followed a pattern of an increasing number of divorces reported annually abroad, and resulting in the wife not being adequately protected against such action. The SC stated that such orders of nullity of marriages granted outside India should not be recognized by Indian courts and adequate provisions should be made for alimony.
 
CHAPTER IV: CHANGES REQUIRED ON RATIFICATION
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JURISDICTION OF FOREIGN COURTS
Since jurisdiction of the foreign court is an issue of paramount importance in determining its competency, the factors that confer jurisdiction on foreign courts must be observed, both under the Hague Convention as well as in Indian law.
The Hague Convention presupposes two connecting factors that confer jurisdiction on the state of origin for the purpose of application of the Convention. These factors may be habitual residence or nationality. Under the Hague Convention, the ‘simplest and first-mentioned basis for the jurisdiction of the State of origin is that the defendant has his/her habitual residence within its territory.’ Jurisdiction, clearly then, results from residence and not from domicile.
The Explanatory Note to the Convention expressly states that domicile was avoided, as the foreign courts would have to consider a number of factors including family and occupational ties, and the intent of the subject. This is notably more complicated when evaluated in comparison to habitual residence – which requires the satisfaction of two definitive factors: first, the factum of living within the territory of the state in question, and second, doing so with a degree of permanence.
In India, however, the primary test for determining jurisdiction of the foreign court is the domicile of the parties. This has been upheld in numerous cases, including the landmark case of Satya v. Teja Singh, wherein it was observed that “domicile…is a jurisdictional fact” and if the test of domicile remained unsatisfied, the foreign court’s decree would be “subject to collateral attack for lack of jurisdiction”.
While it may seem that this terminological difference between domicile and habitual residence might result in interpretational problems, the SC in Satya v. Teja Singh has described domicile in a very similar manner to the interpretation furnished by the Explanatory Note to habitual residence! In the aforementioned case, the SC relied on a plain dictionary meaning of the term domicile to define it as one’s legally recognized place of residence, coupled with the intention to make it a permanent home.
The judiciary has not been presented (quite understandably) with an opportunity to compare the Indian domicile requirement with the habitual residence test under the Hague Convention. However, differences between the two concepts can be seen. Domicile, especially in married couples, may be seen with respect to the spouse. This is not possible in the case of habitual residence. For example, the rule previously followed in most cases with respect to a wife’s domicile was that it followed the domicile of the husband. However, the rule has been cast aside on the ground that it “operated as tyrannical, unjust, unrealistic, and inconsistent with the modern trend and international comity”.
 
CHAPTER V: CONCLUDING VERDICT – THE BEST COURSE OF ACTION
The protectionist attitude adopted by the Supreme Court, especially in matters relating to the status of married women and children abroad, may very well be one of the reasons why India is yet to sign or ratify the Hague Convention. India’s reluctance to make applicable the Convention primarily stems from the fact that it would lead to forced recognition of numerous orders of divorce and legal separation of Indian couples residing abroad.
There are restrictions of two kinds that would be imposed on Indian courts on adoption of the Hague Convention: first, restricted supervision over the law applied in the state of origin, and second, supervision over the compatibility of the order with the public policy of the state where recognition is sought. It can be argued that Indian courts enjoy an unrestricted supervision on both these aspects at the moment due to the broad standards under S. 13 of CPC, 1908 which allow the courts to not afford recognition to foreign judgments.
There is a fine line of balance between ensuring that the well-founded objectives of the Convention are not misused, and yet, making sure that India does not fall behind in the global efforts to unify and harmonize private international laws. A dogged resistance to change by India can only be interpreted by other nations as unwillingness to participate in meaningful dialogue – a consequence that our nation must seek to avoid.
Instead, it would be in India’s best interests if the Hague Convention were ratified with necessary reservations such that its operation does not overhaul the existing system of recognition of divorces, while at the same time, not resulting in uncontrolled liberalization of the same.
Possible reservations include ________________________
The SC has already listed down another viable alternative by citing the example of the Foreign Judgments (Reciprocal Enforcement) Act, 1933 enacted by the British Parliament under Section 1 in pursuance of which, the Government of United Kingdom issued Reciprocal Enforcement of Judgments (India) Order, 1958. This would ensure that bilateral recognition of divorces and legal separation could take place without controversy.
However, the SC also suggested measures including the adoption of a provision that “no marriage between a NRI and an Indian woman which has taken place in India may be annulled by a foreign court”. The feasibility of a blanket refusal to recognize divorces between an NRI man and woman simply on the grounds that it could result in injustice for the woman is not convincing. In many cases involving domestic violence and ill-treatment, immediate separation and divorce are two of the most effective actions that would aid the woman. If the woman would be forced to return to India to file for divorce or legal separation, it would undoubtedly result in delay and hardship – which in some cases, could be the determinant factor between life and death.
While it may be argued that a refusal by Indian courts to recognize an order by a foreign court does not, per se, render the foreign court from adjudicating on the matter such that the decision takes effect in that country, it does, in effect, ensure that the foreign courts will be more content with sending the case to India for adjudication.
As a result, the outcome that India must seek to achieve is one of meaningful and selective recognition. By employing the right reservations and determining applicable standards, India can effectively weed out those cases which would be an abuse of process of the court, and instead recognize only those cases of divorce and legal separation that would be just under its own legal system.
One of the noted obstacles to adoption of the Hague Convention is Article 6 of the Convention. Article 6 states that recognition of divorce or legal proceedings cannot be refused on the ground that a “law was applied other than that applicable under the rules of private international law of that State”. Article 6 also states that recognizing courts cannot go into the merits of the case unless required for the application of other provisions of the Convention. In principle, this prohibits a refusal of recognition on the ground that the internal law of the recognizing state or the law applicable according to its conflict of rules, would not allow divorce or legal separation.
The effect of this provision is that Indian courts will effectively be barred from considering the merits of the case and reaching an independent conclusion as to the correctness of the decision of the foreign court. While Indian courts would prefer to reserve onto themselves this right to reopen and adjudicate cases, a word of caution must be sounded against this. The principle of res judicata is widely recognized in international law, and is one of the cornerstones of fundamental principles in conflict of laws including the principle of comity. S. 13 of the CPC, 1908 itself provides that a foreign judgment will be conclusive (except for a violation of the exceptions provided therein). It does not, even prima facie, authorize Indian courts to consider the merits of the case in the absence of a violation of exceptions.
Indian courts would only be permitted to refuse recognition on the ground that recognition of divorce or legal separation would lead to violation of public policy.