THE LONG ARM OF PRIVATE INTERNATIONAL LAW

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In the bid to find the perfect traditional bride or bridegroom many things can go wrong, but for the dynamism and beauty of Australian law.
Prakash and Anita are two highly educated Indian professionals working in different countries (US and Middle East respectively) drawing fat pay cheques. But along with it came the high pressure of getting married. So it was through a popular website that the families found their match, and satisfied that the two were compatible on social, economic and educational criteria they fixed a date for marriage. It was held in India with pomp and show.
After two weeks in India and being together for very little time, the couple returned to their respective countries of work. Interestingly neither Prakash nor Anita was a permanent resident of India except for the two-week period spent during the time of marriage celebration. And both held Indian passports. But already the marriage appeared to be on shaky grounds with visible personality and individuality issues. Prakash wanted to reconcile differences and so travelled to the Middle East to seek some social mediation. It did not work.
Back in the US, Prakash who had applied for permanent residency in Australia got his papers and moved bag and baggage here. In the meantime, Anita travelled to India and initiated proceedings against Prakash by making allegations of dowry and harassment. Prakash and his old parents were totally taken aback. Prakash filed an application for divorce in the Indian jurisdiction. Interestingly Anita filed an application for restitution of conjugal rights (an interesting recourse available to a spouse seeking direction against other spouse to live together in matrimony).
The issue dragged on. By then Prakash completed a year of stay in Australia, which meant he could claim domicile in Australia, withdraw his application in India and file an application in Australian courts. When he did withdraw his case in India, it was a big surprise for Anita who then withdrew her application for restitution of conjugal right, which showed her objective was to harass the boy to defeat his application for divorce, say observers.
But it did not end there. To begin life on a clean note, Prakash filed for divorce in an Australian court, which Anita contested on various grounds including lack of jurisdiction in Australia and mala fide. But before the date of the hearing she withdrew her case and Prakash was granted divorce.
Interestingly, many non-resident Indians who get married in India think they can file divorce in India which is an anomaly, says Gurpal Singh, who has been practising international law since 1992. “This is an issue that many are not aware of. You are required to be living at the place, which means you have to be a resident to file an application for divorce. In the above case neither of the parties lived in India and were travelling to India for the sake of litigation.”
The story of Prakash and Anita is not one-off. In the course of his practice as a lawyer in India, Australia and New Zealand, Gurpal says there are many such complex interesting litigation faced by the Indian community especially in the sphere of marriage, separation, divorce, criminal matters, property, child custody/abduction and estate litigation. The private international law defines the governance of different rules and that part of the law that is
administered between private citizens of different countries or is concerned with the definition, regulation, and enforcement of rights in situations with an element of conflicting foreign law.
In some cases, the marriage solemnised in India has been declared as annulled by the Australian court(s) on different grounds of equity including that consent of one of the party to the marriage was obtained under duress or without free will. “It is quite interesting when we are talking about the annulment on the basis of duress,” says Gurpal, whose many credentials include working with top American law firm Ropers, Majeski, Kohn & Bentley (RMKB) based in San Jose and specialising in International commercial and IT laws.
Take the case of second-generation couple Vikas and Sunita. To fulfil their dream of the big fat Indian wedding, the families travelled to India from Australia and solemnised the marriage in New Delhi. Sunita, who already had a love interest which was spurned by her family because the boy belonged to a different caste, felt compelled to give her consent to the arranged marriage.
So after she got back from India, Sunita filed an application in an Australian court alleging her consent was obtained under duress. She did not ask for divorce but annulment of the marriage because there was no cohabitation and no genuine consent by her to the marriage. The Australian court declared the marriage, which was performed in India, annulled.
“So what happens is, the court would consider that there has to be a real consent. And interestingly, this is the type of litigation we are facing,” says Gurpal, adding it is a controversial issue. He believes that children who are born in Australia or those who have migrated at a very young age go to multicultural schools in Australia and learn modern values including equality and respect to mankind, learn to treat individuals as equals and are brought up with a different belief systems that, at times, generally works at odds with the parents.
Gurpal explains that unlike Christianity other religions such as Hinduism or Sikhism have no provision for consent. “The marriage is solemnised after going around the fire or the nuptial rounds. The concept of seeking consent is not there, it is assumed that you have consented and that’s how you come before the Guru Granth Sahib to perform the Laava. Even as per the Hindu ritual, that concept of ‘I do’ is missing. But courts have gone a step further.”
Another example of private international law is where the court restrains a party to initiate any proceedings against the spouse in India or elsewhere. “We have seen cases where the Australian court injuncted the parties from initiating any case in India. There was this interesting dispute between a husband and wife. Both parties filed their financial settlement documents in Australia and then the husband apprehended that the girl might initiate the provisions of dowry act in India, which is a very serious issue. But the Australian Family Law is diverse and well equipped with all the situations which may occur. The court considers all these issues,” says Gurpal.
Under such a scenario, the Australian court can invite both parties and ask them to file affidavits and prove their case well. It will ask if one intends to lodge a case in India what would be one’s evidences. And if there is no plausible evidence to prove dowry demands, the court can and have in real situations restrained a party from going ahead with any case in India, says Gurpal, adding “This is a critical issue because courts in India could rely on the fact the marriage took place in India and hence say they have jurisdiction over the matter even though both partners/spouses live in Australia.”
Gurpal believes Australian law is dynamic but such knowledge is not available to the public. “It is only when somebody approaches us that we take interest. This is the reach of private international law.”
There is one thing Gurpal advises his clients against – organising marriage in India so as to not be entrapped into a situation where the family including father, mother and siblings are making uncalled multiple trips to India in one year to attend to the cases thrown on them for no fault of theirs. He cites the case of a client whose marriage in India failed as the bride refused to come to Australia but she went on to assert her claim over a family property in New Delhi and another property in Ludhiana by levelling allegations of sodomy and dowry. On initial advice of others, the client’s parents travelled to India on good will to solve the matter but ended up taking an anticipatory bail because of the hostility of the bride’s family and implication in false criminal cases. They returned to Australia without informing the court because of sheer ignorance. Now the chances of all family being declared proclaimed offenders is high because they didn’t inform the court and failed to be present in the court on further hearings. “Things can get pretty complex.”
Gurpal stresses that the laws in Australia are beautiful, all people need to have are a proper advice. And there is help available especially in today’s world where relationships are fragile.

(Names changed on condition of anonymity)