Report No. 65
V. Whether both Parties Should Satisfy the Test
14.25. Test of habitual residence etc. of either party, whether to be adopted.-
We shall now discuss the Question whether it is enough if the jurisdictional requirement is satisfied in respect of one of the spouses, or whether that requirement should be satisfied as regards both the spouses. This aspect has caused some concern to us, and has received our anxious consideration since any decision we may take, would vitally affect the parties.
14.26. Difficulty of deciding the basis of recognition.-
It may be noted, at the outset, that it is always a difficult question to decide whether a particular basis for recognition should be adopted in the wider form or in the narrower form. Against the desirability of recognising only divorces where the parties have a real social connection with the country of its own there must be weighed the need to avoid situations where the parties are regarded as being married in one country and not married in another.1
However, the difficulty is in the application of this broad principle. In what cases can we assert without fear of serious contradiction, that there is a real social connection? This is a difficult question to answer, and there is a room for divergence of approach, as is illustrated by the course adopted in the English Act as contrasted with the course adopted in the Convention. Under the English Act, it is enough if either spouse (i.e., one of the spouses), satisfies the prescribed2 test. We have already noted this provision.
1. Report of the Royal Commission on Marriage and Divorce (1956), Command Paper No. 9678, pp. 12 and 13.
2. Section 3(1)(a)(b) and section 3(2), 1971 Act, para. 10.3, supra.
14.27. Article 2, Hague Convention.-
The Hague Convention1 is more restrictive in this regard, and lays down a number of conditions to be fulfilled where both the parties do not satisfy the jurisdictional test. Article 2 of that Convention2 makes a distinction between the respondent and the petitioner. The habitual residence of the respondent within the territory of the state of the divorce or separation is, by itself, a sufficient ground of jurisdiction, under Article 2(1). This is likely to be the most convenient forum from the respondent's point of view, and was therefore admitted, at the Convention, with little discussion. But there was more reluctance to admit the habitual residence of the petitioner as a ground of jurisdiction. Some delegates apprehended that such a head of jurisdiction might favour "forum-shopping".
The delegates of the Scandinavian countries, however, having in mind the case of Scandinavian woman deserted, say, by an Italian husband, insisted upon the inclusion of a forum based on the habitual residence of the petitioner-apparently to secure recognition for divorces granted to the deserted Scandinavian women in a Scandinavian country. In the result, the Conference admitted the petitioner's habitual residence in a state as a ground of recognition but only when coupled with such "fortifying" elements as the length of the petitioner's residence, the fact that the spouses last habitually resided together in that State, and the fact that the petitioner was also a national of that State. It was argued by the Belgian delegate in 1967 that the fact that the spouses had their last conjugal residence in a State should, by itself, found the competence of that state in matters of divorce and separation, but this suggestion was ultimately rejected.
1. Article 2, Hague Convention.
2. Para. 9.3, supra.
14.28. Question of nationality.-
Some difficulty also arose, in the debates preceding the Convention, as to the admission of nationality as a ground of jurisdiction. Since nationality is the basic ground of jurisdiction in most civil law countries, there was no objection to applying it in general. It was argued, however, by certain delegates that the political the of nationality did not always point to a sufficiently close connection between a person and a State, to justify, in relation to the person, its assumption of jurisdiction in divorce. It might lead, for example, to the application to a person, against his will, of the laws of a State which he had long abandoned.
This reasoning was so far accepted that the mere nationality of the respondent is never, by itself, a recognised head of jurisdiction1 under the convention. Nationality of the petitioner suffices only when it is coupled with such "fortifying" elements as-(1) the petitioner's own habitual' residence within his national State, (2) his habitual residence there for a continuous period of one year falling, at least in part, within the two years preceding the institution of the proceedings, and (3) the respondent's also possessing the nationality of the State of the divorce.
The Convention makes yet another concession to the nationality principle. Article 2(5) recognises that a petitioner may seek the remedy of divorce in the state of his nationality if-(a) he was present in that State at the date of institution of proceedings and (b) the spouses last habitually resided together in a State whose law, at the date of institution of the proceedings, did not provide for divorce. This provision is designed to meet the case where, for example, a girl of Swiss nationality who is married to an Italian wishes to obtain in divorce in Switzerland without necessarily taking up or resuming an habitual residence there. Though this provision clearly opens the way to a species of "air ticket divorce" for the wealthy, the delegates of Italy and Ireland were among those who voted in its favour.
1. Its inclusion, though pressed by the delegates of Austria, Belgium, Germany, Greece and Yugoslavia, was rejected by a large majority of States.
14.29. Our approach.-
So much as regards the provision in the Convention. The question now to be considered is, what should be our approach? Should we adopt-(i) the English Act, (ii) the Convention, or (iii) any other course? Adoption of the English Act1 would mean that the jurisdictional test need be satisfied only in relation to one party. Adopting the Convention2 would mean that-(i) both parties must satisfy the test, or (ii) if only one party satisfies the test, certain other requirements should also be satisfied.
1. Para. 14.26, supra.
2. Para. 14.28, supra.
14.30. Peculiar social fact relevant to Indian women with husband's resident abroad.-
In making our recommendation on the subject, we cannot disregard the social fact that many Indian women in India marry young Indians who, soon after marriage, return to a foreign country where they have already taken up their residence, the wives remaining behind. The Indian husband may then obtain a divorce in the foreign country on the basis of, say, his own habitual residence in the foreign country. The wife may not have visited the foreign country, or may not have resided there for a long period.
If, in this hypothetical situation, a court in a foreign country grants, a divorce and the divorce is recognised in India, injustice would be caused to the wife, because, on the facts assumed in the above hypothesis, the wife cannot be presumed to have accepted the foreign country as her legal home. Of course, the same reasoning applies where a husband returns to India, leaving the wife in the foreign country and the wife obtains a divorce in that country. But this situation is not likely to be as frequent as the situation mentioned above.
14.31. Recommendation as to habitual residence etc. of both parties.-
Having regard to what we have stated above, we have, after careful consideration, come' to the conclusion that in order that recognition may be granted by Indian law to a foreign divorce, the proposed law should require that both the parties should satisfy the jurisdictional tests. In coming to this conclusion, we have been chiefly impressed by the fact that if recognition is granted on the basis of the domicile, habitual residence or nationality of one of the parties, injustice would often be caused to the woman, in the special circumstances already mentioned1.
1. Para. 14.30, supra.
14.32. Revision in English Act or Hague Convention not favoured.-
It follows from what we have stated above that we do not consider the provision in the English Act1 as appropriate for India. We may also mention that we are not inclined to adopt the compromise formula adopted in Article 2 of the Hague Convention2. Such a formula might prove rather cumbersome. That article is not a model of pristine simplicity. But, that apart, we are not certain if the formula given in that article will be easily workable in practice, hedged in, as it is, with a number of restrictions which might require the recognising court to satisfy itself about a number of tests.
1. Para. 14.26, supra.
2. Para. 14.28, supra.
14.33. Effect of the recommendation considered.-
We would, therefore, prefer the stricter approach1, namely, that both parties must satisfy the jurisdictional tests. No doubt, such an approach carries certain implications, since it lays down a narrow scope for recognition. If the husband is, say, habitually residence in country X, and his wife is habitually resident in country Y, a divorce obtained in neither country would be recognised in India. The same applies to cases where the parties are domiciled in, or nationals of, different countries.
1. Paras. 14.31 and 14.32, supra.
14.34. However, this is the position .even now under Indian private international law which, following the English rules, requires the domicile of both parties in the foreign country, before the divorce is recognised. In any case, this aspect must be weighed against the possibility of serious injustice, particularly to the woman, as explained above1, if the test of habitual residence etc. of either party is adopted.
1. Para. 14.30, supra.