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SAVEETHA SCHOOL OF

LAW
SAVEETHA UNIVERSITY

Topic: Dissolution of Marriage


Subject: Private International Law
Submitted by: M.Alfiya
Submitted to: Asst. Prof. Mr. kannapan

CONTENT

Abstract
Introduction
Objective
Review of literature
Hypothesis
Limitation
Chapterization :
Chapter 1:Jurisdiction in divorce and nullity suits .
Chapter 2:Dissolution of marriage under Muslim law.
Chapter 3:Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations.
Chapter 4: Recognition of foreign divorce.
Chapter 5: Mode of Matrimonial Alliance in NRI Marriages.

Conclusion.

Bibliography .

Abstract :

The article basically focuses on the marriage as a contract which is sui generis along with the
opinion of various Judges though the judgments in different cases. However it also talks about
the position, legal formalities along with the validity and capacity of the parties to marriage and
the choice of law rules governing such marriages in England and other common law countries
though out the world. On the other hand the author has also focused on the matrimonial causes
like polygamous marriages; divorce, judicial separation, nullity of marriage in different
countries. Towards the end of the article it talks about the jurisdiction and the choice of law for
solving such causes after marriage and the recognition of foreign divorces in other countries. The
present study had been undertaken with the basic objective to analyse and examine the position
of the remedy of divorce under different international matrimonial laws and to make sincere
efforts to critically evaluate the general statutory provisions of divorce including the judicial
approach towards the comparative provisions regarding dissolution of marriage under private
international laws.

Introduction:

International matrimonial law is an area of private international law (or conflict of laws in the
United States). The area specifically deals with relations between spouses and former spouses on
issues of marriage, divorce and child custody. In the last 50 years, the States Members of
the Hague Conference on Private International Law have attempted to harmonize domestic
matrimonial laws and judicial rulings across international borders in these areas. Matrimonial
relief is a topic that basically deals with the different solution available to a person who is part of
a frustrated marriage. Marriage maybe a sacred union of man and woman, but it serves no
purpose if the man and woman are incapable of living together. Unhappy marriages are socially
undesirable and are a breeding ground for delinquent children. If the parties can no longer
continue a proper relation, then why have a relation at all. Thus, instead of living a life filled with
regret and remorse, the parties are given an option, they can fist apply for their marital rights to
be reinstated or they can live separately and see if they still want to continue and if that also does
not work, they can go for a divorce which is the final option. Once divorced, the parties are no
longer bound by marital ties , claimed that a London court had ordered the child's return to the
UK. nce a couple marries under the Hindu Marriage Act, they can only get a divorce under the
same law even if they are no longer Indian citizens, the Bombay high court has held.Hearing a
petition filed by a man against his wife, both British nationals of Indian origin and doctors, a
division bench of Justices Vijaya Kapse Tahilramani and V L Achliya recently upheld a family
court order granting interim custody of the couple's 3.5-year-old daughter to the woman. The
daughter too is a UK citizen. "The Court at London is not the competent court of jurisdiction to
decide the issue of dissolution of marriage between two Hindus married in India as per the Hindu
Vedic rites," observed the judges.Dr Seema Deshpande, who had come back to India with her
daughter in 2012, had filed a petition before the Bandra family court seeking divorce and the
child's custody. Dr Vinod Ranade, her husband. "Desertion", for the purpose of seeking divorce
under the Act, means the intentional permanent forsaking and abandonment of one spouse by the
other without that other's consent and without reasonable cause. In other words it is a total
repudiation of the obligations of marriage.

Objective :
Minimize conflict with spouse.

If the petitioner i.e either of the spouse is under cruelty then such situation the
dissolution grounds will provide them a remedy.
Desertion is also the main ground for divorce.
This dissolution process will make either spouse to live freely without any tolerable acts
from their spouse.

Hypothesis :
In India there is separate personal law for the divorce. But if any of the spouse is from India
married to a foreign girl or boy they have their domicile in some other place if they apply for
divorce which country law will be applicable to them was clearly given in the dissolution of
marriage under private international law.

Limitation of study :
The concept of marriage under private international law has wider scope I have limited my study
only for some country and by giving the grounds for application and recognition and also by
mentioning the provision given under the convention. And also I have compressed my study of
privet international law only in Indian courts.

Review of literature :
The author paras diwan has given his different views about the marriage under private
international law and also the Dissolution of marriage related law which are under international
perspective of law and they are some limitations and procedures in dealing with marriage and
the dissolution of marriage Which are referred from private international law .

Chapterisation :
Chapter 1:JURISDICTION IN DIVORCE AND NULLITY SUITS.

It has been necessary to consider the question of domicile at some length on account of its
importance as a jurisdictional basis in divorce. The Royal Commission's Draft Code avoids a
change in the substantive law of domicile by changing the jurisdictional basis: hence, to escape
from, in particular, the difficulties which arise due to the dependence of the wife's domicile on
that of her husband, the Commission's Code provides that the Court shall have jurisdiction to
entertain divorce proceedings on the bases of
(a) the petitioner's domicile in England at the commencement of the proceedings,
(b) the fact of the petitioner's presence3 in England at the commencement of the& proceedings,
where the last residence of the parties was England; and
(c) the residence of both parties in England at the commencement of the proceedings. The Court
may not, however, grant a divorce on the latter two bases unless the personal law of the parties
recognizes as sufficient ground for divorce or nullity a ground substantially similar to that on
which a divorce is sought in England, or the personal law of the parties would in the
circumstances of the case permit the petitioner to obtain a divorce on some other grounds.

Chapter 2:Dissolution of marriage under muslim law :


Unfortunately, divorce seldom proceeds smoothly. It usually results from an aggressive behavior,
mostly caused by a moment of rage, against the manner prescribed by the Quran and Sunnah.
The pronouncement of three divorces in one breath is a common practice, in addition to abuse
and character assassination. Women are generally denied their Islamic right to accommodation
and maintenance during the iddah, i.e. the prescribed waiting period before a woman may
remarry after divorce. During the iddah of a revocable divorce, the parents of the divorced wife
usually do not let her remain in her husbands house, ignoring the Quranic teachings according
to which the couple should remain under the same roof so that there is maximum likelihood of
resumption of the marital relationship.
The withholding of dowry and other belongings of the divorcee is also a common practice in
society. Custody and maintenance of children are the two most contentious issues between
separating couples. Commonly, such matters are taken to the courts.

Chapter 3:Convention of 1 June 1970 on the Recognition of Divorces and Legal


Separations:

Article 1
The present Convention shall apply to the recognition in one Contracting State of divorces and
legal separations obtained in another Contracting State which follow judicial or other
proceedings officially recognized in that State and which are legally effective there.
The Convention does not apply to findings of fault or to ancillary orders pronounced on the
making of a decree of divorce or legal separation; in particular, it does not apply to orders
relating to pecuniary obligations or to the custody of children.
Article 2
Such divorces and legal separations shall be recognised in all other Contracting States, subject to
the remaining terms of this Convention, if, at the date of the institution of the proceedings in the
State of the divorce or legal separation (hereinafter called "the State of origin") (1) the respondent had his habitual residence there; or
(2)

the petitioner had his habitual residence there and one of the following further conditions

was fulfilled a) such habitual residence had continued for not less than one year immediately prior to the
institution of proceedings;
b) the spouses last habitually resided there together; or
(3) both spouses were nationals of that State; or
(4) the petitioner was a national of that State and one of the following further conditions was
fulfilled a) the petitioner had his habitual residence there; or

b) he had habitually resided there for a continuous period of one year falling, at least in part,
within the two years preceding the institution of the proceedings; or
(5)

the petitioner for divorce was a national of that State and both the following further

conditions were fulfilled a) the petitioner was present in that State at the date of institution of the proceedings and
b) the spouses last habitually resided together in a State whose law, at the date of institution of
the proceedings, did not provide for divorce.
Article 3
Where the State of origin uses the concept of domicile as a test of jurisdiction in matters of
divorce or legal separation, the expression "habitual residence" in Article 2 shall be deemed to
include domicile as the term is used in that State.
Nevertheless, the preceding paragraph shall not apply to the domicile of dependence of a wife.
Article 4
Where there has been a cross-petition, a divorce or legal separation following upon the petition
or cross-petition shall be recognized if either falls within the terms of Articles 2 or 3.
Article 5
Where a legal separation complying with the terms of this Convention has been converted into a
divorce in the State of origin, the recognition of the divorce shall not be refused for the reason
that the conditions stated in Articles 2 or 3 were no longer fulfilled at the time of the institution
of the divorce proceedings.

Chapter 4: RECOGNITION OF FOREIGN DIVORCES:

This topic is one in which the views expressed depend largely on the extent to which it is thought
desirable that divorces obtained by a wife as petitioner on the basis of her separate residence or
domicile should be recognized. At common law a foreign divorce could not be recognized unless
the marriage had been dissolved by the courts of the husband's domicile, or, if dissolved by the
courts of some other country, unless the courts of the country of the husband's domicile would
recognize the marriage as having been effectively dissolved. A few years ago this rule was
extended, enabling the courts to recognize foreign divorces granted on the basis of the wife's
residence or separate domicile, if the foreign court had assumed jurisdiction on a basis
substantially similar to that on which the English (and therefore also, presumably, the
Commonwealth) courts assume jurisdiction in such an instance. Such a basis is apparently
continuous residence at least for two years or upward. Under this, rule it is, of course, possible
for a husband domiciled in, e.g., England, to obtain a Nevada divorce on the basis of six weeks'
residence, re-salting in his "domicile" there, and the decree would presumably be recognized in
England. A similar result would follow in the case of a wife, whose husband is domiciled in a
country where Nevada decrees obtained on the basis of a wife's separate domicile are recognized.
It is presumptuous, of course, to look on all Nevada divorces as necessarily bad and undesirable:
it would seem, however, that when they are granted to persons whose sole aim in residing in
Nevada at all is to get a divorce without what they regard as any delay apart from that resulting
from Nevada's six weeks residence requirement, the country in which such persons are in reality
domiciled is entitled to say whether or not it will regard such a decree as validly dissolving a
family unit with whose welfare it, and it alone, is in reality concerned. This is in fact the position
which up to now English and Commonwealth courts appear to have adopted,8' by insisting that
the husband 2 must have been domiciled in the jurisdiction granting the decree in the English
sense. This, it would seem, is an adequate safeguard against the recognition of "tourist" divorces
in English and Commonwealth courts. It is true that in the Armitage v. The Attorney-General8 4
type of situation the English court is, in effect, obliged to recognize this type of divorce, but there
can hardly be any complaint here, as the divorce is in fact being recognized because it would be
recognized by the courts of the husband's domicile. Section 7 o the Royal Commission's Draft
Code not only embodies the existing law as stated above, but o one interpretation broadens it
almost beyond recognition. Under its provisions the court must ... recognize as valid a divorce,
obtained by judicial process or otherwise,

(a) which has been granted in accordance with the law of the country in which one spouse was,
or both spouses were, domiciled at the time of the proceedings, or which would be given
recognition by the law of that country; or
(b) which has been granted in accordance with the law of the country of which one spouse was a
national, or both spouses were nationals, at the time of the proceedings, or which would be given
recognition by the law of that country; or
(c) which has been granted in circumstances substantially similar to those in which the court in
England exercises divorce jurisdiction in respect of persons who are not domiciled in
England . . .

On a closer study, however, the section reveals pitfalls and traps for the unwary which may not
have been within the contemplation of the Royal Com- mission.
Firstly, paragraph (a) expressly refrains -from saying that the "one spouse" who must have been
domiciled in the country where the decree was made must be the husband, and it seems to follow
that the Commission must have intended that divorces based on the wife's separate domicil
should be recognized. But this is impossible if "domicile" is read in the English sense, since the
English common law rule has always been that a wife cannot, during the subsistence of the
marriage, obtain a domicile apart from that of her husband, and no foreign decree obtained on
such a jurisdictional basis will be recognized in England, unless it falls within the Armitage or
Travers v. Holley rules, which are inapplicable here. It can hardly be asserted that the
construction of the word "domicile" in paragraph
(a) is to depend on whether the husband or the wife was the petitioner, and it is suggested that the
conclusion must be drawn that the word is to be construed in the sense in which it was used by
the foreign court granting the decree.
(b) the court could not go behind the foreign court's exercise of jurisdiction on the basis of the
foreign court's notion of domicile, and

A foreign judgment concerning marriage or divorce or any other determination or change of


personal status shall be recognized in Israel upon confirmation by an Israeli Court, in such
manner as shall be prescribed by regulations, that the following conditions are complied with:

(1) the court which gave the judgment had jurisdiction to do so under the law of its country and
the judgment is a final decision according to that law;
(2) the judgment was not obtained in evasion of the jurisdiction of another court or religious
tribunal100 and was not given without affording both parties an opportunity to be heard;
(3) the procedure of obtaining the judgment and its contents are not contrary to the policy of
Israel. On the assumption that the state in which persons have (to use the Israeli term) the centre
of their lives is the only jurisdiction having any real interest in whether or not marriages between
such persons should or should not be dissolved, it is seen that the provisions of the section
constrain much of considerable value. For example, under .186 and 193, read together, the
version of the divorce requirements of such a jurisdiction by means of a quick visit to another
with more relaxed rules is rendered almost impossible. Not only must the foreign court have had
jurisdiction under foreign law, but its country must have been the centre of the parties' lives at the
relevant time.

Chapter 5: Mode of Matrimonial Alliance in NRI Marriages:


Family sources or caste based social links in India or abroad.
Matrimonial advertisements in the newspapers delineating the age, usually beyond 28 or even
30 years; professional or economic status, caste/caste-no-bar, citizenship status; marital
status/divorcee/ widow/bachelor;
Internet mode with broadband facilitated direct interview or exchange of personal particulars.
Personal or professional contact/friendship The considerations of religion, caste, clan and
physical attributes, which normally dominate in local matchmaking, are not strictly adhered to
for foreign grooms, who are viewed to have other potential merits including the power to change
ones destiny profoundly for the better.

Conclusion:
As already stated, it is widely recognized that judicial separation is the lesser of the two evils in
comparison to divorce. It is thus often seen that courts grant a decree for judicial separation in a
petition for divorce, even though no such prayer is made in the petition. Rather than draw a
boundary line between international law and private international law, one ought to explore the
problems of the confines, and reflect on methodological aspects where the rules of international
law and of internal law appear to coincide in substance. Assuming that a legal system does not
simply amount to a pyramid of norms but is a living organism consisting of rules and
institutions, one can easily make out the main difference in methodology between international
law and private international law : while there is a system of international law having its own
institutions, there is no such system of private international law. Even if conflict of-laws rules
originate in international treaties, and however broad the scope of these treaties may be, such
rules are necessarily enforced through the institutions, whether administrative or judicial, of
every State in which the treaties are in force. The internal or international character of the rules
of conflict therefore proves less conclusive than the fact that private international law has no
institutions of its own. The set of solutions envisaged in the previous section may assume at least
three quite different forms and be included either in a private agreement entered into at the time
of celebration of the marriage, or during marriage in anticipation of its dissolution, or even after
the dissolution as a result of it ; or in an agreement approved by the court which dissolved the
marriage ; or in a decision adopted by the same court or by another court in the same other
States.

Bibliography:
www.ips.org.
www.ebic.india.com
private international law by paras diwan
www.westinida.com

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