Lawfarm Team
Asked June 21, 2016

valid marriage with a Pakistani under Hindu Marriage Act?

  • 1 Answer
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My wife is a Pakistani national and we were married under the Hindu Marriage Act for three years. On a visit to Pakistan, my wife told the Pakistani officials that she is unmarried and is in Pakistan now. What do I do now?

Answer 1

The case in question deals with the marriage between an Indian national and a Pakistani national. As per the information given by you it is assumed that your marriage was valid under the Hindu Marriage Act, 1955 and both you and your wife are Hinuds. In the present case most likely the HMA would have extra-territorial jurisdiction, thus the remedies available lie mainly under the HMA, 1955.

The remedies available are:-

1)Restitution of Conjugal Rights: In the present case you can file a petition for restitution of conjugal rights as the wife has withdrawn from the society of the husband without any reasonable excuse.[1] The court once it finds merit in the petition may grant the decree for the same. If the decree is granted then the wife would have to restore the conjugal relations with the husband and cohabit with him and if she doesn’t follow the decree then the court can attach her property and also sell it after a stipulated time to provide compensation to the husband; another measure available in order to enforce the decree of restitution is to detain the wife in civil prison.[2]a suit can be instituted in Pakistan based on such judgement given by the Indian court

2)Divorce:I) In the present case the wife has deserted you and moved to Pakistan and her statement given to the Pakistani authorities can be employed to indicate that she has the intention to bring cohabitation permanently to an end. If this dissertation continues for a period up to 2 years then this will become a ground for divorce. You can get divorce in India and your marriage would be annulled, also if the Indian court grants you a decree of restitution of conjugal rights and the same is not followed by your wife and she remains in Pakistan, the court can attach her property in the manner mentioned earlier, the problem arises if the court seeks to detain her in a civil prison to enforce the decree then you would again have to deal with the Pakistani govt. and court.

 Arbitration: Alternative Remedy:

If both the parties in the case are ready to resolve their differences in an amicable manner then they can refer the matter to arbitration by entering into a an arbitration agreement[4]

Section 9 (1) of the Family Courts Act, provides that the courts at the first instance should try to promote settlement between the parties if possible, also Section 9 (2) provides that the court may adjourn the proceedings if it thinks there is a possibility of the parties reaching at any settlement. Similarly, Section 23 (2) of the Hindu Marriage Act, 1955 contains provisions which provide that before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, to make every endeavour to bring about reconciliation between the parties.

The arbitration award can be recognized and enforced in Pakistan even if awarded in India, as both India and Pakistan are signatory to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 and have ratified it. Thus the Courts in Pakistan shall recognise and enforce the award in the same manner as a judgment or order of a court in Pakistan and it will be binding.[5]

 

[1]S. 9, The Hindu Marriage Act, 1955.

 

[2]Smt. Saroj Rani vsSudarshan Kumar Chadha, 1985 SCR (1) 303; Rule 32 of Order 21 of the Code of Civil Procedure.

 

[3]Section 14, Code of Civil Procedure, 1908 of Pakistan.

 

[4]S. 7, THE ARBITRATION AND CONCILIATION ACT, 1996

 

[5]http://jamilandjamil.com/wp-content/uploads/2010/11/recognitionandenforcement_021606.pdf

 

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