In matrimonial causes precept of ‘spousal–equality’ as necessary facet of ‘gender–equality’ enshrined under Article 14 of Constitution, must be given due recognition: Karnataka HC

Read Order: Michael Graham Prince vs. Nisha Misra

Pankaj Bajpai

Bengaluru, March 2, 2022: While considering the dispute regarding jurisdiction of Indian Courts on the dissolution of marriage of British nationals, the Karnataka High Court has recently noted that in matrimonial causes the precept of ‘spousal–equality’ as a necessary facet of gender–equality enshrined under Article 14 of the Constitution must be given due recognition i.e., ‘truly fair equality of opportunity’ for both persons in the marriage in terms of opting into marriage & opting out, i.e., dissolution of marriage.

The Bench of Justice Krishna S. Dixit observed that allowing the husband to curtail the ‘exit’ option of the wife, on the ground of lack of jurisdiction or such other factors militates against constitutional philosophy as the principle of ‘spousal–equality’ is premised on the provision of effective freedom to both parties to determine the nature of their lives, different styles and ways of living. 

Going by the background of the case, Michael Graham (Petitioner – husband) is a ‘Christian by faith’ and Nisha Misra (Respondent – wife) is a ‘Hindu by faith’ and both are British nationals. Their marriage was solemnized in the year 2000 according to ‘Hindu Arya Samaj rites & customs’ in Mumbai. Subsequently, a civil marriage ceremony was undertaken in United Kingdoms and a Certificate of Registration was obtained by them. In 2006, the couple begot a girl child namely Tiya in UK and after her arrival, the couple has been residing in India. Since, the temperamental and other differences having cropped up between the couple, the respondent – wife sought a decree for dissolution of marriage in 2018. Although the Petitioner – husband pleaded lack of jurisdiction contending that it is only the English Courts that have it; the same was rejected. Hence, present petition. 

After considering the submissions, Justice Dixit observed that the constitution provides for equal protection of the laws under Article 14, which also includes gender equality, elimination of a gender-based differentiation in the pursuit of legal remedies, the right of non–discrimination on the basis of gender under Article 15 and the right to life under Article 21 that includes the right to live with dignity. 

Race, caste, sex, place of birth etc., manifest as organizing categories of an individual’s life, the aim for egalitarianism as emanating from our constitutional paradigm places as an imperative ‘the equal worth of liberty’ and ‘truly fair equality of opportunity’, added the Single Judge. 

Justice Dixit opined that the first contention of the Petitioner that both the parties being foreign nationals, native Courts do not have jurisdiction over the subject matter, is bit difficult to countenance; foreign nationals they are, is not in dispute; however, admittedly the Government of India has issued OCI Cards to both of them; thus, they are not strangers to this country. 

Under the Notifications dated April 11, 2005, November 5, 2007 & January 5, 2009 issued by the Central Government u/s. 7B of the Citizenship Act, 1955, in many aspects the OCI Cardholders are treated on par with Non- Resident Indians (NRI) and Section 7B(2) excludes certain rights from being granted to the OCI Cardholders, noted the Single Judge. 

However, this exclusion does not cover the right to seek matrimonial reliefs at the hands of the native Courts; the subject statutory notifications do not in so many words vest in them such a right to litigate may be true; but, that per se does not divest them of such a right which otherwise avails even to the OCI Cardholders, added the Single Judge. 

Justice Dixit quoted the decision in case of Sarbananda Sanowla vs. Union Of India, 2005 (5) SCC 665, where it was observed that once lawfully admitted to a territory even the foreigners are entitled to certain essential rights that are necessary for a meaningful life. 

Finding from the admission in the pleadings that the parties have undergone marriage ceremony in accordance with the rites & rituals of Hindu Arya Samaj, Justice Dixit noted that the couple had acquired marital status in India and in accordance with lex loci i.e., the Arya Marriage Validation Act, 1937. 

“Section 2 of this Act saves the marriage of the kind subsequently, they got registration of civil marriage in U.K. does not alter their spousal status; far from that it strengthens the same; a subsequent official ceremony of marriage that took place in their country would not replace the existing marital status in rem and create a new one; if marriage has taken place in India in which parties are ordinarily residing, the native Courts have substantive jurisdiction to adjudge matrimonial disputes; parties cannot be asked to go to some other country to have redressal to their grievances; it is more so when the grieving party is the wife”, added the Single Judge. 

The High Court also said that the contention of counsel for the petitioner, that domicile being a pre-condition for the institution of matrimonial cases, the Court below could not have entertained the divorce petition of the wife, does not much come to his aid. 

Section 18 of the Foreign Marriages Act, 1969 and Section 31 of the Special Marriage Act, 1954 prescribe “residence” for invoking the jurisdiction of Family Court, and since the word ‘residence’ is not prefixed by the word ‘ordinarily’, such absence of prefix gives an indication that the word ‘residence’ needs to be given an expansive meaning, elucidated the Court. 

Hence, the High Court dismissed the petition.