Report No. 65
V. Need for Provision for Ancillary Orders
19.13. Effect of recognition of divorce and position as to maintenance.-
Of course, the non-recognition of ancillary orders, which we have recommended above1, may leave a vacuum2. What will be the legal position between the parties on matters on which ancillary orders were or could have been passed? Such problems can arise. The difficulty is illustrated by the English case of Torok v. Torok, (1973) All ER 101: (1973) 1 WLR 1066 which we shall discuss later3.
1. Para. 19.12, supra.
2. See also para. 19.15, supra.
3. See para. 19.24, infra.
19.14. Outline of provision needed to empower Indian Court to pass appropriate order.-
We may, at this stage, state briefly, in outline, the provision that is needed to empower Indip Courts to pass appropriate orders1. Where the foreign divorce or judicial sepaiation is recognised by virtue of the proposed new Act, then, whether the foreign court has or has not passed orders for the maintenance of either party, or orders for the custody, education or maintenance of the children of the marriage, or orders for the disposal of any property of either of the parties or their joint property, or other ancillary orders, either party may apply to the competent court for passing ancillary orders.
In this context, the "competent court" will mean the court-
(a) which, under any law for the time being in force, would have been competent to try a proceeding for divorce or judicial separation, as the case may be, if such a proceeding had been instituted on the date on which the present application is filed, by the party now applying for an ancillary order, on a ground available under that law, and
(b) which, under such law, would have power to pass such ancillary order, (that is, the ancillary order now applied for), on or after termination of the proceedings for divorce or judicial separation.
1. This is not a draft section.
19.15. The need for such a provision arises by reason of the combined operation of the following two factors:-
(a) The divorce granted by the foreign court is to be recognised under the proposed law, and the parties would no longer be husband and wife.
(b) At the same time, since the proposed law is going to provide1(in effect) that the ancillary order passed by the foreign court may not be recognised, the ancillary order will be of no consequence in India.
The result will be that there will be an hiatus2, in regard to matters governed by ancillary orders. It is in order to fill up this hiatus that a provision of the nature suggested above3 is needed.
1. Para. 19.12, supra.
2. Para. 19.13, supra.
3. Para. 19.14, supra.