The Indian marriage laws include a provision known as judicial separation, which gives both the husband and the wife the option to consider whether to give their marriage another try before indulging into a divorce process. If a judicial separation order has been passed, the spouses must live apart for a specified period of time in order to have enough privacy, independence, and time to consider resuming their marriage. Both parties will continue to have the same legal status as husband and wife throughout this phase, but they will live separately. The two-year judicial separation term allows one to introspect, to resolve marital issues, and reconciliation by the couple.
There problems with respect to an NRI seeking judicial separation arises when it comes to filing the petition for the same. Although a foreign Courts decree can be valid but in the events when one of the spouses lives in India and the other in a foreign country then it give rise to a conflict on the competence of foreign Court’s decree pertaining to judicial separation.

An NRI can file a petition for judicial separation in an Indian court having jurisdiction to preside over the matter. A petition for the same can also be filed in a foreign Court but there are certain issues pertaining to the validity of such Court’s order in India.
A foreign judgement should be conclusive in India as per Section 13 of the Code of Civil Procedure, except for certain circumstances mentioned in this section. An international Court’s decree should therefore be recognised in India. But this provision is understood in general phraseology and when it comes to specific laws like the Hindu Marriage Act, 1955, this provision seems to have little application because of the overriding effect of the HMA act over this provision of CPC.
There are various issues with a NRI seeking judicial separation in a foreign court as laid by the High Court of Bombay in the case of Sondur Rajini v Sondur Gopal in which the court said that every petition filed by the wife whose husband moves from one country to another for the purposes of job or for any purpose whatsoever, he would be competent to aggravate a petition brought by the wife by changing his domicile even between the filing of the petition. Therefore, it is always advised for an NRI to seek judicial separation in an Indian Court of competent jurisdiction.

According to Section 10 of the Hindu marriage act, 1955 any person can file the petition in the court to seek judicial separation on the bases of the grounds mentioned in Section 13(1) of the act. Some of the grounds on which Judicial Separation can be granted are as follows:

  • If either of the spouse has committed Cruelty, or has committed rape, sodomy, or bestiality.
  • If either of the spouses is not alive or has not been reported as being alive for seven or more years.
  • If either of the spouses is forced to convert his/her religion, then the aggrieved party can seek for the decree of separation.
  • If either of the spouses is suffering from any incurable diseases such as leprosy, cancer, Ebola, etc. The other spouse can seek for the decree of separation.
  • In case if one of the spouses is suffering from sexual diseases such as HIV, AIDS, etc., then the other spouse can seek for the decree of separation.
  • If one of the spouses has renounced the world on religious or spiritual grounds, then the other spouse can seek for the decree of separation.

In order to understand the concept of judicial separation in NRIs we will analyse the case of Sondur Rajini v Sondur Gopal (2005 (4) MhLj 688)

Facts and contentions of parties:
In the High Court of Bombay a petition was filed by a woman seeking judicial separation under Section 10 of Hindu Marriage Act. The NRI husband of the woman took the objection that the petition filed by the wife was not maintainable on the ground that the parties were citizens of Sweden and they are not domiciled in India and, therefore, the jurisdiction of the Family Court was barred by the provisions of Section 1(2) of Hindu Marriage Act.
It is to be understood that acquisition of citizenship and domicile are independent of each other and therefore it could not be said that by acquiring citizenship of a foreign country they also acquired domicile in that country.
It was contented by the appellant wife that if the requirement of Indian domicile is held to be necessary for applicability of Hindu Marriage Act, it will lead to great hardship to a Hindu wife as she will have to go from place to place wherever her husband takes her and that will also lead to very serious social problem as at the time of seeking judicial separation she might be in the resident country of the husband.
It is to be understood that the Marriage Laws (Amendment) Act, 2003 provided the Family Court with the jurisdiction to entertain the petition of wife where she is residing at the time of presentation of the petition.

The Court held that the residence of a wife with her parents at the time of filing of a judicial separation petition would be enough to attract the jurisdiction of Court.
The court further held that, if the Hindu Marriage Act applies, at the time of marriage it would continue to apply till the marriage exists and therefore for dissolution of the marriage provisions of this act will apply. It is to be understood that as the HMA act has an overriding effect over section 13 of CPC, the Indian Court might not entertain a judicial separation decree of a foreign court.
Therefore, it was said by the Court that even if a party to the matrimonial petition establishes that after marriage he acquired domicile of a foreign Country, it would not take away the jurisdiction of the Court in India if he were domiciled in India at the time of the marriage.

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