Smt.Neeraja Saraph Vs. hri Jayant V. Saraph & Anr.
EmailLaw to protect right and interest of women married to NRI’S (Non Resident Indians) on decree of annulment obtained from foreign Courts – Court suggests to Union of India to enact a law such as Indian and Colonial Divorce Jurisdiction Act 1940 – The court suggests that no marriage taken place in India may be annulled by a foreign court and adequate alimony be granted to wife in property of husband both in India and abroad and – Reciprocal arrangements like section 44A of Civil Procedure Code be made to make executable in foreign courts decrees granted by Indian Courts – High Court order modified to enable the appellant woman to withdraw higher sums from money deposited in Court.
Why the facts of this case have been narrated in brief with little background is to impress upon the need and necessity for appropriate steps to be taken in this direction to safeguard the interest of women. Although it is a problem of private International Law and is not easy to be resolved, but with change in social structure and rise of marriages with NRI the Union of India may consider enacting a law like 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. Apart from it there are other enactments such as Indian and Colonial Divorce Jurisdiction Act, 1940 which safeguard the interest so far United Kingdom is concerned. But the rule of domicile replacing the nationality rule in most of the countries for assumption of jurisdiction and granting relief in matrimonial matters has resulted in conflict of laws. What this domicile rule is not necessary to be gone into. But feasibility of a legislation safeguarding interest of women may be examined by incorporating such provisions as –
(1) no marriage between a NRI and an Indian woman which has taken place in India may be annulled by a foreign court;
(2) provision may be made for adequate alimony to the wife in the property of the husband both in India and abroad. (3) the decree granted by Indian courts may be made executable in foreign courts both on principle of comity and by entering into reciprocal agreements like Section 44A of the Civil Procedure Code which makes a foreign decree executable as it would have been a decree passed by that court. (Para 5)
1. These appeals directed against the interim order passed by the High Court in an appeal filed by respondent no.2 against rejection of an application for setting aside of an ex-parte decree, raises important issue as how to protect the right and interest of women who are deserted by non-resident Indians on decree of annulment obtained from foreign courts.
2. Plight of women and their exploitation both inside and outside the house socially and economically is ancient. Mass of literature has been written to elevate their status. But a new social evil is surfacing. Any matrimonial column of any newspaper or magazine would carry a column that a NRI seeks Indian bride without any demand. The attraction of getting a groom and that too serving or earning abroad without dowry, lures many specially from middle class. Even otherwise parental insistence for Indian bride in the hope that his son is not lost for ever is not uncommon. Result, at times, is matrimonial alliance by a reluctant husband to assuage the sentiments of his parent. Victim is the helpless, poor, educated girl, normally, of a middle class family with dreams of foreign land.
3. To what extent such misfortune may befall on any innocent girl is vividly transparent by this unfortunate case. The appellant M.A., B.Ed. daughter of a senior Air Force officer serving as a teacher and drawing salary of Rs. 3000/- was married to the respondent No. 1, a Doctor in Computer Hardware and employed in United States, at the behest of her father-in-law approached through a common family friend. How the respondent no. 1 met the appellant at Delhi on his own request then picked her from her aunt’s place at Bombay before marriage is not necessary to be stated nor it is necessary to narrate that the marriage was performed with gusto befitting to the status of both the families. The marriage was performed on 6th August, 1989 and the appellant was taken for honeymoon to Goa for few days. Respondent No. 1 returned to America on 24th August, 1989, wrote letters to appellant on 15th September, 20th October and 14th November, 1989 persuading her to give up her job and suggesting the various avenues for her career in America. Appellant believing all that tried for visa and ultimately resigned her job in November, 1989. But from December things started getting cold. And when father of appellant wrote a letter in January, 1990 to the respondent-husband about the sufferings of her daughter, it did not bring forth any favourable response and in June, 1990 the respondent’s brother came to Delhi handed over two envelopes, one petition for annulment of marriage in a USA Court and another a letter from her father-in-law which reads as under:-
“I have no words to express my feelings at Jayant’s decision which is very unfortunate. I was hoping against hope. I have to accept the moral responsibility for Jayant’s decision and apologise Baba and your Mausa, they can squarely blame me for not knowing my son.
This is agonizing experience for you in your life. I cannot say any more.
Please bear in my mind that we share your grief. I earnestly request you to see us when you come here in Bombay and keep friendly relations. God bless you.
Yours affectionately,
Nana.”
4. For the father-in-law it was an unfortunate experiment, an effort, ‘hoping against hope’ forgetting that failure of it would be ruination of the other. For the son it was a pleasure trip. But for the daughter-in-law it was loss of everything, her maidenhood, status, service, dignity and peace. Her dreams stood shattered and she is reduced to nothing. ‘Accepting moral responsibility’, ‘not knowing the son’, ‘sharing the grief’ by the father-in-law are of little avail to the appellant. There is no whisper in the letter that he was willing to compensate for the wrong done to the appellant due to error in his assessment of his own son. It is not the soothing words alone which were needed but some practical solution to the disaster brought by him. In these desperate circumstances, the wife having been forsaken by her husband and having lost the job had no alternative except to file a suit for damages against the husband and father-in-law for ruining her life in forma pauperis. And the father-in-law who has words of sympathy for the appellant contested her claim to sue in forma pauperis vehemently, though without any success. The suit was decreed ex-parte for Rs. 22 lakhs and odd. In an appeal filed by the respondent no.2 the High Court stayed the operation of the decree subject to the appellant, who is respondent no.2 in this Court, depositing a sum of Rs.1,00,000/- within one month from the date the order was passed. It permitted the appellant to withdraw 50% of it. Various submissions have been advanced on behalf of the father-in-law to support the order of the High Court including his helplessness financially. Is it a case of any sympathy for the father-in-law at this stage? In our opinion not. True the decree is ex-parte. Yet it is a money decree. However, no opinion is expressed on this aspect as the appeal is pending in the High Court. But the order of the High Court is modified by directing that the execution of the decree shall remain stayed if the respondents deposit a sum of Rs.3,00,000/- including Rs.1,00,000/- directed by the High Court within a period of two months from today, with the Registrar of the High Court. The appellant shall be entitled to withdraw Rs.1,00,000/- without any security. The remaining Rs.2,00,000/- shall be deposited in a nationalised bank in fixed deposit. The interest accruing on it shall be paid to the appellant every month. If the proceedings are not decided within reasonable time, it shall be open to the appellant to move an application for withdrawal of further amount.
5. Why the facts of this case have been narrated in brief with little background is to impress upon the need and necessity for appropriate steps to be taken in this direction to safeguard the interest of women. Although it is a problem of private International Law and is not easy to be resolved, but with change in social structure and rise of marriages with NRI the Union of India may consider enacting a law like 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. Apart from it there are other enactments such as Indian and Colonial Divorce Jurisdiction Act, 1940 which safeguard the interest so far United Kingdom is concerned. But the rule of domicile replacing the nationality rule in most of the countries for assumption of jurisdiction and granting relief in matrimonial matters has resulted in conflict of laws. What this domicile rule is not necessary to be gone into. But feasibility of a legislation safeguarding interest of women may be examined by incorporating such provisions as –
(1) no marriage between a NRI and an Indian woman which has taken place in India may be annulled by a foreign court;
(2) provision may be made for adequate alimony to the wife in the property of the husband both in India and abroad. (3) the decree granted by Indian courts may be made executable in foreign courts both on principle of comity and by entering into reciprocal agreements like Section 44A of the Civil Procedure Code which makes a foreign decree executable as it would have been a decree passed by that court.
6. The appeals are disposed of accordingly. Any observation made shall not be taken as expressing of any opinion when the case is decided on merits.
