Foreigners can also move Indian courts in domestic abuse case, says Madras HC
The husband had contended that he had obtained an ex-parte decree for divorce as well as custody of their adolescent twin boys from the Circuit Court in Farifax County in the USA.
The Madras high court has said that even foreigners can invoke Domestic Violence Act, 2005 in Indian courts and that the residence of women is immaterial.
A single judge bench was hearing a case of an American couple holding Overseas Citizenship of India (OCI) cards. The court has dismissed a plea moved by the husband seeking quashing of a domestic violence complaint filed by his wife in a Mahila court in Chennai. The husband had contended that he had obtained an ex-parte decree for divorce as well as custody of their adolescent twin boys from the Circuit Court in Farifax County in the USA.
Justice S M Subramaniam observed that Indian courts cannot shut out an independent consideration of the matter just because a foreign court has taken a particular view. The couple had been married in Chennai and it was registered under the provisions of the Hindu Marriages Act, 1955.
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In orders passed on February 1, the court pointed out that under section 27 of the Domestic Violence Act, protection is extended to those who are temporary residents of India and Article 21 of the Constitution of India extends this protection even to a “person” who may not be a citizen of the country. “Thus looking from any angle, the respondent, who is aggrieved, is entitled to get protection under the Domestic Violence Act, 2005,” the court said.
“As far as the ex parte orders of US Courts are concerned, though the foreign judgments are not conclusive, it is only a factor to be decided…” Justice Subramaniam said pointing out that the facts and circumstances would reveal that the mother as well as the 15-year-old boys want to reside in Chennai and that they are not interested in returning to the United States fearing the father. The mother and the twins returned to Chennai in 2020 and she had filed a domestic violence case.
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“In the event of sending them back to the United States, forcibly, they will be practically on the streets in the United States and the conscious of this Court does not permit to take such a decision, since the rights ensured under the Indian Constitution to the OCI cardholders are to be protected,” the justice said. The court cannot compel any OCI cardholder to leave India except by an authority of law, the justice added.
Drawing on various judgments of the Supreme Court and high courts across the country, the justice said that an American citizen, who is of Indian origin and the OCI cardholder is entitled to institute proceedings under the Domestic Violence Act. “Thus, the very contention of the revision petitioner that the alleged incidents occurred in the United States of America (USA) and therefore, the DVC complaint is not maintainable in India is untenable,” the court said.
A person, temporarily residing in India or an Overseas Citizen of India, if abused economically by the spouse, who is residing in another country, is entitled to seek relief under the Act, according to section 27 of the Act. “The cause of action arouses in India, since the aggrieved person is residing in India,” the order read.
“Since no system of private international law exists that can claim universal recognition on this issue, Indian courts have to decide the issue regarding the validity of the decree in accordance with the Indian law. Comity of courts simply demands consideration of any such order issued by foreign courts and not necessarily their enforcement,” the court said.
The justice concluded that considering the decision of the wife to continue to reside at Chennai (as an overseas cardholder) and the deposition of the 15-year-old twin children before the high court, the court was inclined to grant interim custody of the twins to the mother until the matrimonial dispute and the domestic violence proceedings are disposed of.
The court has “no hesitation in arriving at a conclusion” that the mother is entitled to institute and maintain matrimonial proceedings, domestic violence proceedings and any other proceedings under the relevant statutes in Indian courts having jurisdiction for appropriate reliefs.
