DATES FACTS
Sunita and Mahesh (a Major in Indian Army), both residents of
Jalandhar, belonging to Ravidasia community of Punjab and are
Hindus by religion.
8th June, 2007 They got married in 2007 in Anand Karaj form of marriage,
which is the marriage ceremony of Sikhs. The couple got their
marriage registered as per the provisions of the Hindu Marriage
Act, 1955 and in effect a marriage certificate was issued by the
authorities.
D.O.B.
7th May, 2008
: 1st child
4th Feb, 2011
:2nd Child
1st Jan, 2008 Mahesh took retirement from Indian Army.
Mahesh went to England for higher studies and stayed there for
two years.
1st Feb, 2010 Mahesh moved to Canada and called his wife to join him along
with their first child.
1st May, 2010 Sunita reached Canada
8th Feb, 2011 Mahesh went to New York. Thereafter he asked Sunita to go back to India.
10th Mar, 2011 Sunita along with her children came back to Punjab (India) to Mahesh’s ancestral property.
After moving to New York, Mahesh severed all his contacts
with Sunita. He has developed an extra marital affair with a lady
named Elizabeth Prescott.
Jan , 2012 Sunita wrote a letter to Mahesh expressing her willingness to join Mahesh in New York. Mahesh in reply wrote to Sunita that she should not come to New York, as he was interested in getting their marriage dissolved.
5th April, 2012 Mahesh filed a petition for divorce in Trial Court of New York on the ground that his marriage has irretrievably broken down.
Sunita could not contest these proceedings, she having no
means to go to New York.
10th July, 2012 The Trail Court of New York granted a divorce decree in favour of Mahesh. Further, the court ordered that the husband would
pay to the wife and children an amount of Rs. 50,000 per month
for their maintenance. Since Mahesh failed to pay maintenance to wife and children
30th July, 2012 Sunita approached the Trial Court of New York through a letter and prayed that she be provided legal aid. Thereafter,
proceedings were initiated and warrants of arrest were issued
against Mahesh. She further said that the ex parte decree of
divorce obtained by the husband was not binding on her and was illegal and that she continues to be the wife of Mahesh. She further asserted that as per the provisions of Hindi Marriage Act, 1956, the grounds of divorce (on the basis of adultery,
cruelty and desertion) under Section 13 of the Act are available to the wife under the given set of
circumstances. In fact, she is
the actual victim, who was being further victimized by the order
of the New York, Trial Court.
10th Oct, 2012 Date of decision- not in her favour.
20th Apr, 2013 Sunita filed a petition under Section 9 of the Hindu Marriage Act, 1955 for Restitution Of Conjugal Rights in the District
Court, Jalandhar, Mahesh appeared in the court and filed an application for dismissal of petition. He did not file any written statement and he referred to the decree of divorce granted by the Trial Court of New York and said that despite of notice, Sunita did not consent the same and by not raising any objection she is
deemed to have accepted the jurisdiction of Foreign Court in
trying the petition and thus making the decree nisi-absolute by
the Foreign Court and is thus stopped from filing the present
petition (Under Section 11 read with Section 151 of Code of
Civil Procedure, 1908).
The case is pending for adjudication in District Court,
Jalandhar.
LEGAL ISSUES:
1. Whether the marriage of Sunita and Mahesh is valid as per the provisions of Hindu Marriage Act, 1955?
2. Whether non-contest by wife of divorce petition filed by the husband in a
Foreign Court implied that she had conceded to the jurisdiction of the Foreign Court?
3. Whether the principle of Res-Judicata under Section 11 of Code of Civil Procedure, 1908 is applicable to the proceedings being initiated in District Court, Jalandhar?
The issue regarding Jurisdiction shall be claimed on Section 13 of Code of Civil
Procedure, 1908 and section 19 of Hindu Marriage Act, 1955.
