Legal Rights available to Women against Cruelty and Harassment committed by their Husbands on Foreign Soil: Lawyers Advice
When a court or other competent body legally dissolves a marriage then it is known as divorce. In a country like India, where marriage is considered to be a sacred institution, divorce is often perceived as the complete failure of the institution of the marriage. There is a lot of stigma attached to divorce and divorcees, especially divorced females.
In a land as diverse as India, the divorce laws are varied. While Hindus, Buddhists, Sikhs and Jains may seek divorce under the Hindu Marriage Act, 1955, the Muslim, Christian, Parsi communities have their own set of laws. In case the spouses belong to different communities, the Special Marriage Act, 1954 will be applicable and if either partner belongs to another nationality, the Foreign Marriage Act, 1969 will apply.
There are two major categories that divorce can be classified into and they are as follows-
- Divorce by Mutual Consent: in such cases, both husband and wife agree to the divorce and approach the courts by filing a petition for the same. In order to ensure mutual consent, the husband and wife must agree upon the amount of alimony or maintenance, if any, in case they have a child then the child’s custody and lastly, the property and how it is to be distributed between them.
- Divorce without Mutual Consent/ Contested Divorce: it is not necessary for the husband and wife to mutually agree in order to file for divorce. Grounds for contested divorce include physical or mental cruelty, adultery, desertion, conversion to another religion, communicable disease, unsoundness of mind, presumption of death or renunciation of the world.
In India, where the laws favour the man more than the women, divorce is not only a tough process to go through but is also looked down upon. However, the provisions for divorce are clearly mentioned in the relevant acts along with punishments for the same as mentioned in section 498A of the Indian Penal Code, 1860. Whereas, for an Indian woman who is living abroad after marriage in India and seeking a divorce, there is no clarity on the applicable law.
It is therefore essential to look at the rights available to a woman during cruelty and harassment committed by their husband on foreign soil and rights for divorce as a result of the same.
It is essential to remember that the law governing the marriage dispute will be the same law under which the parties got married and other related rights such as adoption, custody of child, and inheritance will also be governed by said law.
According to the Ministry of External Affairs’s Scheme for providing legal / financial assistance to Indian women deserted by their overseas Indian / foreigner husbands, in cases where a wife is harassed by her husband or husbands family for dowry or they treat her with cruelty, the wife can approach the Indian Embassy or Consulate where they can out the wife in touch with Non-Government Organisations or help in approaching the local police and provide legal assistance as well. This scheme also provides further steps that a wife may take in order to seek her remedies.
Section 3 of the Indian Penal Code, 1860 provides criminal jurisdiction to courts to try for an offense committed by a person beyond the territory of India provided such person is subject to Indian laws, including those governed by special laws that bring them under Indian jurisdiction such as the Special Marriage Act, 1954 and Hindu Marriage Act, 1955. According to Section 4 of the Indian Penal Code, 1860 the code applies to offences committed by citizens of India in any place without and beyond India.
In cases where both the spouses are Indian and have travelled abroad after their marriage in order to settle or temporarily reside there, and the actions or behaviour of the husband or his family institute cruelty, the wife can seek divorce where she is residing. For example, if the couple is in the United States of America after getting married in India, the wife can seek divorce in the United States. The decree if awarded by the courts of the United States will be applicable in India. However, in order for this to be possible, it is necessary for both partners to either contest the divorce or mutually consent to it, as ex parte decrees are not permitted under Indian Law.
Where to file for divorce?
A question that causes concern when it comes to divorce is its jurisdiction and where is one supposed to file for divorce. Section 19 of the Hindu Marriage Act,1955 and Section 31 of the Special Marriage Act, 1954 both provide that a petition may be filed within the local limits of where the parties last resided. As the last residence of the couple will be in a foreign country, they may file for divorce petition in India or in said foreign country, where the court will pass a decision in consonance with their laws. However, in order for the judgement to be held valid in India, it is necessary that the decision is in accordance with the laws of India. in case it is not in accordance with the principles on which an Indian court would grant the divorce, it may be made null and void as per Section 13 of the Code of Civil Procedure, 1908.
In the case of Y. Narasimha Rao v. Y. Venkata Lakshmi [1991 SCR (2) 821], the Hon’ble Supreme Court of India held that a court of competent jurisdiction would be one which is recognised by the law under which the parties are married and any other court, unless agreed upon by both parties will not have jurisdiction.
In the case of Satya v. Teja Singh [AIR 1975 SC105], the respondent in the matter instituted a proceeding in a foreign court in the jurisdiction of which the applicant never stayed. The respondent had also made various false representations such as that of him being a bone fide resident of the State. It was held that the foreign court had no jurisdiction in the matter as the respondent’s representations were fraudulent. Section 13 of the Code of Civil Procedure, 1908, should therefore not be violated.
Where to file complaint for cruelty?
In cases where a couple that was married in India and now resides abroad, an important factor is the right of the wife against cruelty. If the husband or his family is cruel to her in a foreign land, where can the wife seek remedies against the same?
Section 3 of the Indian Penal Code, 1860 provides criminal jurisdiction to courts to try for an offense committed by a person beyond the territory of India provided such person is subject to Indian laws, including those governed by special laws that bring them under Indian jurisdiction such as the Special Marriage Act, 1954 and Hindu Marriage Act, 1955. According to Section 4 of the Indian Penal Code, 1860 the code applies to offences committed by citizens of India in any place without and beyond India. Therefore, if the husband or relative of the husband of a woman subject her to cruelty, they will be punishable under Section 498-A of the Indian Penal Code, 1860. Additionally, according to Section 188 of the Code of Criminal Procedure, 1973, when an Indian citizen commits and offence outside India he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found, however, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
In the case of Muralikrishna v. State (S.I. Of Police) [(2014) 1 LW 994], the court held that since the offence was committed as per Section 498-A of the Indian Penal Code, 1860 in India as well as in the United States of America (continuing offence), the husband could be tried for the offence in India and as a part of the offence was committed in India, the proviso to Section 188 of the Code of Criminal Procedure, 1973 for requiring previous sanction from Central Government will not arise.
How to claim maintenance?
There are various laws under which a woman can claim maintenance such as Section 125 of the Code of Criminal Procedure, 1973 and Section 18 of the Hindu Adoption and Maintenance Act, 1956. A wife can be awarded maintenance as per these laws if she is treated with cruelty by her husband. As per Section 126 of the Code of Criminal Procedure, 1973, proceedings against the husband may be taken in any district, where he is, he or his wife reside or where he last resided with his wife. Therefore, a wife being treated cruelly by her husband abroad can also claim maintenance in an Indian court, both interim and permanent. For interim maintenance, a separate application needs to be made.
How to claim rights over children?
Like divorce and maintenance, there are various laws that govern the custody of a child during and after a divorce. Section 26 of the Hindu Marriage Act, 1955 and Section 38 of the Special Marriage Act, 1954 are both applicable and can be used by the woman in order to prove that the child’s best interest lies in staying with her. Section 19 of the Hindu Marriage Act,1955 and Section 31 of the Special Marriage Act, 1954 both provide that a petition may be filed within the local limits of where the parties last resided. Therefore, the woman can file a case in the foreign country or even India.
Legal recourse on foreign lands.
In case an issue related to cruelty towards a wife, desertion of the wife and so on arises on foreign land, the Ministry of External Affairs’s Scheme for providing legal/ financial assistance to Indian women deserted by their overseas Indian / foreigner husbands can be helpful. The schemes object is to provide help in the form of financial or legal assistance to Indian women who are in distress overseas through various Non-Governmental Organisations and legal organisations with the Indian embassy or consulate. In addition to the various relevant provisions discussed above, one can also file a case in India from a foreign country through a lawyer by giving Special Power of Attorney. However, this can only be done to file the case, both parties have to be physically present for the hearing.
Recourse in case husband destroys or confiscates the wife’s passport or visa documents.
In case the husband has stolen, confiscated, hidden or destroyed the wife’s passport or visa documents, her first act of recourse may be to approach the Indian embassy and report a missing or stolen passport or visa document and make an application for a new one. The facts of the case must be reported to a local police station to the nearest Indian mission. The wife can also come to India on the basis of an “Emergency Certificate” and in order to attain this certificate the wife will need to approach the respective mission or post of the country.
Therefore, after having a look at the recourses available to married Indian women who have shifted abroad, it is evident that there is no concrete law. This proves to be a major issue as these matters are very subjective in nature and the facts of each case are extremely important. It is therefore important the law remains dynamic and up to date with the times that we live in. It is also essential to seek expert legal help in such cases.
Authored By: Adv. Anant Sharma & Suvigya Buch