Mr Michael Graham Prince vs Mrs Nisha Misra
2022 Latest Caselaw 3189 Kant

                         1

 IN THE HIGH COURT OF KARNATAKA, BENGALURU
                                                        R

  DATED THIS THE 24TH DAY OF FEBRUARY, 2022

                      BEFORE

   THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

   WRIT PETITION NO.15356 OF 2020(GM-FC)

BETWEEN:

MR. MICHAEL GRAHAM PRINCE,
AGED ABOUT 49 YEARS,
S/O TERRY GRAHAM PRINCE,
R/AT A017, SOBHA CORAL,
JAKKUR, BANGALORE - 560 064.
                                        ... PETITIONER
(BY SRI.KIRAN SEBASTIAN ROZARIO, ADVOCATE)

AND:

MRS. NISHA MISRA,
AGED 51 YEARS,
W/O MR.MICHAEL GRAHAM PRINCE,
R/AT GA REGENCY ALANDON,
2 WARE ROAD, FRAZER TOWN,
BANGALORE - 560 005.
                                       ... RESPONDENT
(BY SMT. JAYNA KOTHARI, ADVOCATE FOR
    SRI. ROHAN KOTHARI, ADVOCATE FOR C/R
        (CP NO.10716/2020)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER ON IA NO.4 DATED 25.9.2020 IN MC
NO.1761/2018 PASSED BY THE HONBLE 1ST ADDL. PRINCIPAL
JUDGE FAMILY COURT AT BENGALURU VIDE ANNEXURE-A
AND ALLOWING THE PRAYER OF THE PETITIONER IN IA NO.4
IN M.C.NO.1761/2018 AND ETC.,

     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
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                           ORDER

What Justice Oliver Wendell Holmes in his book 'The

Common Law' (1881) at the very first page had said, should

prelude this judgment:

"The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow- men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become..."

2. The estranged spouses are fighting this legal battle.

Respondent - wife has filed MC No.1761/2018 u/s. 27(1)(a) &

(d) of the Special Marriage Act, 1954 r/w Sec.18 of the

Foreign Marriages Act, 1969 seeking a decree for dissolution

of marriage and for the retention of child custody. Petitioner

- husband had filed application in I.A.No.4 u/s. 151 of CPC,

1908 "to dismiss/reject the divorce petition"; learned 1st Addl.

Principal Judge, Family Court, Bangalore, dismissed the same

vide order dated 25.09.2020 holding that the native court has

jurisdiction to try the subject matrimonial cause. Aggrieved

thereby, petitioner is knocking at the doors of Writ Court.

3. After service of notice, respondent - wife having

entered appearance through her counsel has filed the

Statement of Objections on 09.03.2021 resisting the Writ

Petition. Learned Senior Advocate appearing for the

respondent makes submission in justification of the impugned

order and the reasons on which it has been constructed.

Having argued additional reasons, she seeks dismissal of the

petition as being devoid of merits.

4. FACTS IN BRIEF:

(a) Petitioner - husband, is a 'Christian by faith' and

Respondent - wife is a 'Hindu by faith'; both they are British

nationals; their marriage was solemnized on 20.02.2000

according to 'Hindu Arya Samaj rites & customs', in the

presence of family members & friends at Mumbai;

subsequently, a civil marriage ceremony was undertaken on

18.03.2000 in United Kingdoms; a Certificate of Registration

evenly dated has been obtained by them.

(b) For a few years, their married life went well and

the couple begot a girl child namely Tiya on 21.04.2006 in

UK; this child too happens to be a British national; after this

new arrival to the family, the couple has been residing in

India, is not in dispute. Both they are employed too; the

respondent obtained 'Overseas Citizens of India Card'

(hereafter OCI Card) on 27.06.2006 u/s. 7B of the Citizenship

Act, 1955; similarly, petitioner also obtained OCI Card on

13.07.2017; the temperamental and other differences having

cropped up between the couple, the respondent filed

M.C.No.1761/2018 seeking a decree for dissolution of

marriage on 03.04.2018. Petitioner had filed the subject

application seeking dismissal of the M.C. on the ground of

lack of jurisdiction contending that it is only the English

Courts that have it; the same has been rejected vide

impugned order.

5. Having heard the learned counsel for the parties

and having perused the petition papers, this Court declines

indulgence in the matter for the following reasons:

(a) What the Apex Court observed as under in

JOSEPH SHINE vs. UNION OF INDIA, (2019) 3 SCC

39 at page 76 has been profitably reproduced:

"...the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building. Individual dignity has a sanctified realm in a civilised society. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter...It is advisable to remember what John Stuart Mill had observed: "The legal subordination

of one sex to another -- is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other." [John Stuart Mill, On Subjection of Women, Chapter 1 (1869).]""

Our constitution provides for equal protection of the laws

under Article 14, this also includes gender - equality,

elimination of a gender-based differentiation in the pursuit of

legal remedies, the right of non-discrimination on the basis of

gender under Article 15 and the right to life under Article 21

that includes the right to live with dignity. Race, caste, sex,

place of birth etc., manifest as organizing categories of an

individual's life, the aim for egalitarianism as emanating from

our constitutional paradigm places as an imperative 'the equal

worth of liberty' and 'truly fair equality of opportunity'. In

bringing about this conducive and egalitarian atmosphere for

its citizenry, there exists a positive duty upon the State as

readily apparent in the context of welfare entitlements

wherein the State must adopt affirmative steps to alleviate

poverty and the major sources of economic and social non -

freedom vide K.S PUTTASWAMY vs. UNION OF INDIA

(2017) 10 SCC 1.

(b) As a necessary corollary of the above, in

matrimonial causes the precept of 'spousal-equality' as a

necessary facet of gender-equality enshrined u/a 14 of the

Constitution must be given due recognition i.e., 'truly fair

equality of opportunity' for both persons in the marriage in

terms of opting into marriage & opting out, i.e., dissolution of

marriage. Allowing the husband to curtail the 'exit' option of

the wife, on the ground of lack of jurisdiction or such other

factors militates against our constitutional philosophy. It is

also pertinent to state that the principle of 'spousal-equality'

is premised on the provision of effective freedom to both

parties to determine the nature of their lives, different styles

and ways of living. At this juncture it would be profitable to

recall what Martha C Nussbaum in her book "Woman and

Human Development: The Capabilities Approach" Cambridge

University Press (2000) at page 69 states:

"...a theory of justice must be cognizant of the different situations of distinct lives, in order to distribute not only liberty, but also equal worth; not only formal equality of opportunity, but also truly fair equality of opportunity...We want an approach that is respectful of each person's struggle for flourishing, that treats each person as an end and as a source of agency and worth in her own right. Part of this respect will mean not being dictatorial about the good, at least for adults and at least in some core areas of choice, leaving individuals a wide space for important types of choice and meaningful affiliation. But this very respect means taking a stand on the conditions that permit them to follow their own lights free from tyranny ..."

(c) The first contention of the Petitioner that both the

parties being foreign nationals, native Courts do not have

jurisdiction over the subject matter, is bit difficult to

countenance; foreign nationals they are, is not in dispute;

however, admittedly the Government of India has issued OCI

Cards to both of them; thus, they are not strangers to this

country. Under the Notifications dated 11.04.2005,

05.11.2007 & 05.01.2009 issued by the Central Government

u/s. 7B of the Citizenship Act, 1955, in many aspects the OCI

Cardholders are treated on par with Non- Resident Indians

(NRI); these notifications are superseded on 04.03.2021, is

beside the point since it is prospective in operation; sub-

section 2 of section 7B excludes certain rights from being

granted to the OCI Cardholders. However, this exclusion

does not cover the right to seek matrimonial reliefs at the

hands of the native Courts; the subject statutory notifications

do not in so many words vest in them such a right to litigate

may be true; but, that per se does not divest them of such a

right which otherwise avails even to the OCI Cardholders.

(d) After all, ubi jus ibi remedium is the operational

principle of our system; once lawfully admitted to a territory

even the foreigners are entitled to certain essential rights that

are necessary for a meaningful life vide SARBANANDA

SANOWLA vs. UNION OF INDIA, 2005 (5) SCC 665. The

constitutional guarantee under Articles 14 & 21 ordinarily

extends to foreigners too vide HANS MULLER OF

NURENBURG vs. SUPERINTENDENT, PRESIDENCY JAIL,

CALCUTTA, AIR 1955 SC 367; if aliens can have certain

fundamental rights almost on par with the natives, it sounds

abhorrent to the rule of law and notions of justice if ordinary

legal rights are not conceded to them; an argument to the

contrary would justify perpetuation of legal injury sans any

remedy to an aggrieved foreigner residing on Indian soil.

(e) It is admitted in the pleadings that the parties

have undergone marriage ceremony in accordance with the

rites & rituals of Hindu Arya Samaj; thus, they acquired

marital status in India and in accordance with lex loci i.e., the

Arya Marriage Validation Act, 1937; Section 2 of this Act

saves the marriage of the kind subsequently, they got

registration of civil marriage in U.K. does not alter their

spousal status; far from that it strengthens the same; a

subsequent official ceremony of marriage that took place in

their country would not replace the existing marital status in

rem and create a new one; if marriage has taken place in

India in which parties are ordinarily residing, the native

Courts have substantive jurisdiction to adjudge matrimonial

disputes; parties cannot be asked to go to some other

country to have redressal to their grievances; it is more so

when the grieving party is the wife; this view gains support

from several International Conventions. Articles 15(2) &

16(1)(c) of The Convention on the Elimination of All Form of

Discrimination against Women (CEDAW) read as under:

"15 (2): States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in Courts and tribunals.

16 (1) (c): The same rights and responsibilities during marriage and its dissolution."

(f) It is relevant to state here that this Convention has

been referred to by the Apex Court in SHAYARA BANO vs.

UNION OF INDIA, (2017) 9 SCC 1; ordinarily, the

International Conventions of the kind are treated as a source

of law even in the domestic sphere if they are not inconsistent

with existing corpus juris of our country, vide JOLLY

GEORGE VERGHESE vs. BANK OF COCHIN, AIR 1980 SC

470; at least, while construing the provisions of domestic law,

they need to be adverted to; keeping this in mind, the word

'citizen' occurring in Sections 4 & 18 of the Foreign Marriage

Act, 1969, needs to be liberally construed to include a

foreigner who holds OCI Card and resides in India. It is not

prudent to insist that what the provisions of the statutes

meant to the vision of its makers then, must mean to the

vision of our time. They should be interpreted to meet and

cover changing conditions of social and economic life. The law

states not rules for the passing hour but the principles for an

expanding future. Otherwise, it will not be living law of the

people but would remain as a black letter on a white paper.

Such a purposive construction serves the Parliamentary object

of this Act which vide Section 18 refers to certain provisions of

the Special Marriage Act, 1954. The march of law and more

particularly family law from April to May and to the June of its

life, as of necessity happens in the judicial process in all

civilized jurisdictions where boundaries of nations are loosing

significance in a shrinking globe.

(g) The contention of learned counsel for the petitioner,

that domicile being a pre-condition for the institution of

matrimonial cases, the Court below could not have entertained

the divorce petition of the wife, does not much come to his

aid. Section 18 of the 1969 Act and Section 31 of the 1954

Act prescribe "residence" for invoking the jurisdiction of Family

Court. The word 'residence' is not prefixed by the word

'ordinarily' and thus these provisions are a bit in variance with

usual drafting. The absence of prefix gives an indication that

the word 'residence' needs to be given an expansive meaning;

after all, law is not the slave of dictionaries; words employed

in a statute do not have a fixed meaning; the contours of their

meaning vary with the run of time. Statutes do not suffer

from rigor mortis. Admittedly, the respondent-wife has been

residing within the jurisdictional limits of the Court. Thus,

these provisions are 'citizenship neutral' but 'domicile

centric'; it hardly needs to be stated the domicile involves the

factum of residence and the intent to reside indefinitely; these

ingredients galore in this case. It is profitable to advert to

'Halsbury's Laws of England' (3rd Edn.) Vol. VII at

paragraph 26: "A person's domicile is that country in which he

either has or is deemed by law to have his permanent home".

(h) It is said tritely that the soundness of a proposition

can be adjudged by contemplating consequences of the

opposite; the contention of the husband that the wife should

go to Courts in England to seek dissolution of the marriage

that has been solemnized in India and in accordance with

Indian Law, if countenanced, virtually amounts to denying

matrimonial relief to her and thus compelling her to remain in

the wedlock, which otherwise she could have worked out her

remedy against; it has long been settled that the contention

as to exclusion of jurisdiction of Courts is seen with jealousy

and that a heavy onus lies on the asserter.

In the above circumstances, this Writ Petition being

devoid of merits is liable to be dismissed and accordingly, it

is, costs having been made easy.

Nothing observed hereinabove shall influence the trial of

& decision making in the case.

Learned judge of the Court below is requested to try &

dispose off the subject matrimonial case as expeditiously as

possible.

This court places on record its deep appreciation for the

able assistance rendered by the Law Clerk cum Research

Assistant, Mr.Faiz Afsar Sait.

Sd/-

JUDGE

Snb/