Commonwealth Law Bulletin

ISSN: 0305-0718 (Print) 1750-5976 (Online) Journal homepage: http://www.tandfonline.com/loi/rclb20

Ancillary relief issues under Hindu law with special

reference to nonresident Indians
Anil Malhotra & Ranjit Malhotra
To cite this article: Anil Malhotra & Ranjit Malhotra (2005) Ancillary relief issues under Hindu
law with special reference to nonresident Indians, Commonwealth Law Bulletin, 31:4, 37-50,
DOI: 10.1080/03050718.2005.9986725
To link to this article: http://dx.doi.org/10.1080/03050718.2005.9986725

Published online: 12 Aug 2010.

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ANCILLARY RELIEF ISSUES UNDER HINDU LAW

WITH SPECIAL REFERENCE TO NON-RESIDENT
INDIANS
Anil Malhotra & Ranjit Malhotra*
Introduction

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This article primarily looks at the ancillary relief issues for family law matters under Hindu
law, along with the relevant penal provisions as applicable in India. Very recently, the
Supreme Court of India, in the matter of BP Adala Anan v S Appi Ready and another,1 in a
Bench led by the Honourable Mr Justice RC Lahoti, then the Chief Justice of India, highlighted the importance of marriage and ancillary issues related thereto, describing marriage
as a sacramental union under Hindu law. Paragraph 23 at page 326 of the judgment reads as
follows:
It has been held in India that right to maintenance arises out of the status as a wife and not
by way of a contract or otherwise.
In Sri Raja Bommadevara Raja Lakshm't Devi Amma Gam v Sri Raja B Naganna Naidu Bahadur
Zamindar Garu? Spencer, officiating CJ, stated:
The obligation of a husband to maintain his wife is one arising out of the status of marriage. It
is a liability created by the Hindu law, in respect of the jurai relations of a Hindu family. When
there is no contract between the parties to a marriage, as among Hindus, a suit for maintenance
is not a suit based upon contract, but it is a suit arising out of a civil relation resembling that of
a contract, which is specially provided for in Article 128 of the Limitation Act
The reiterating of a 1925 ruling of the Madras High Court by the Supreme Court of India in
the year 2005 clearly demonstrates that despite, changes in the social fabric of the Hindu
society, the traditional nature of marriage as a sacramental union remains unchanged.
The focus in this article is mainly on Hindu law, given the fact that the legislation pertaining to the provisions of the Hindu Marriage Act 1955 (HMAI955) has extraterritorial application because a Hindu carries the personal law of marriage. This issue
assumes added significance, because part of the Indian population of Hindu origin who were
married in India under the provisions of Hindu law, before their migration, are now resident
overseas. On 7 January 2005, the Prime Minister of India, in his inaugural speech at the
Pravasi Bhartiya Divas, an annual function for interaction with the Indian diaspora, which had
delegates from 61 countries, acknowledged the contribution of 25 million Indians resident
abroad. It may be the case that couples of Indian origin resident overseas, popularly termed

Anil Malhotra and Ranjit Malhotra, Malhotra & Malhotra Associates, International Lawyers, Chandigarh,
India. Ranjit Malhotra was the first Indian lawyer to be awarded the prestigious Felix Scholarship t o read
for the LLM degree at the School of Oriental and African Studies, University of London. Anil Malhotra
has been a practising advocate at the Punjab and Haryana High Court, Chandigarh, India since 1983. He
obtained his LLM Degree from the University of London. He studied Comparative Family Law at the
London School of Economics. This article was originally presented as a paper at the 50th anniversary
Commonwealth Law Conference, London, 11-15 September 2005. Reprinted with permission of the
Commonwealth Lawyers' Association.

Reported as 2005 (3) Supreme Court Cases 313.

16 AIR 1925 Madras 757.

16 AIR 1925 Madras at 757.

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as non-resident Indians, may choose to litigate on ancillary relief issues in the Indian
jurisdiction, especially in situations where the couple have family ties in India, and assets
both in India and in the foreign country in which they are habitually resident. In this context,
the validity of foreign judgments, sought to be enforced in India, especially regarding maintenance orders and child custody orders, are matters of serious concern. In continuation of
the main discussion on ancillary relief, the article also refers to the validity of foreign court
orders and decrees.
Under all the Indian matrimonial statues, the question of spousal maintenance and all
questions relating to custody, maintenance and education of children are considered
ancillary matters. 4

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Maintenance, Disposal of Property and Custody of Children

Under Hindu
The Hindu husband has a statutory liability to maintain his wife under the provisions of the
HMA 1955, the Hindu Adoptions and Maintenance Act 1956 (HAMA 1956) and the Indian
Code of Criminal Procedure 1973 (CrPC 1973). The crucial distinction is that, under ss 24
and 25 of the HMA 1955, the wife is entitled to ask for maintenance only in the event of any
matrimonial litigation under the provisions of the HMA 1955. But there is no such restriction imposed by the provisions of the CrPC 1973. The wife, while invoking the jurisdiction
under the CrPC 1973, can claim maintenance if she is living separately from the husband and
in the absence of any matrimonial litigation, provided that she qualifies under the conditions
stipulated in s 125 of the CrPC 1973.
Additionally, in certain circumstances the Hindu wife can also claim maintenance under
s 18 of the HAMA 1956 in the absence of any matrimonial proceedings. The Bombay High
Court, however, restricted this right under s 18 of the HAMA to a wife whose marriage was
subsisting. The Court held, in Panditrao Chimaji Kalure v Gayabai, that once there is a divorce
the wife has to seek relief under s 25 of the HMA 1955, or under the provisions of s 125 of
the Indian CrPC.
Section 26 of the HMA 1955 deals with provisions for the custody of children, while
s 27 of that Act provides for disposal of the property of the parties to the litigation. There
is also the Hindu Minority and Guardianship Act 1956 (HMGA 1956), which is supplemental
to the earlier Guardians and Wards Act 1890 (GWA 1890), that provides for laws relating
to minority and guardianship among Hindus.

Maintenance Under the Provisions of the Hindu Marriage

Act 1955
Interim maintenance and litigation expenses may be awarded in any proceedings under the
provisions of the HMA 1955, subject to other conditions. In the matter of Shiva Kumar v
Pushpa Rekha, reported as AIR 2004 253, it was held that the grant of relief under s 24 of
the HMA 1955 is not dependent on the ultimate success of the petition.
4
5

See Surinder KumarvKamlesh, AIR 1974 Allahabad 110.

AIR 2001 Bombay 445.

Ancillary Relief Issues under Hindu Law

Sections 24 and 25 of the HMA

24.

39

1955 provide as follows:

Maintenance pendente lite and expenses of proceedings

Where in any proceeding under this Act it appears to the court that either the wife or
the husband, as the case may be, has no independent income sufficient for her or his
support and the necessary expenses of the proceeding, it may, on the application of the
wife or the husband, order the respondent to pay to the petitioner the expenses of the
proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be
reasonable.
[Provided that the application for the payment of the expenses of the proceeding and
such monthly sum during the proceeding, shall, as far as possible, be disposed of within
sixty days from the date of service of notice on the wife or the husband, as the case may
be.]

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25.

Permanent alimony and maintenance

(1) Any court exercising jurisdiction under this Act may, at the time of passing any
decree or at any time subsequent thereto, on application made to it for the purpose
by either the wife or the husband as the case may be, order that the respondent
shall [***] pay to the applicant for her or his maintenance and support such gross
sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any,
the income and other property of the applicant [the conduct of the parties and
other circumstances of the case], it may seem to the court to be just, and any such
payment may be secured, if necessary, by a charge on the immovable property of
the respondent
(2) If the court is satisfied that there is a change in the circumstances of either party at
any time after it has made an order under sub-s ( I ), it may at the instance of either
party, vary, modify or rescind any such order in such manner as the court may deem
just.
(3) If the court is satisfied that the party in whose favour an order has been made under
this section has re-married or, if such party is the wife, that she has not remained
chaste, or. If such party is the husband, that he has had sexual intercourse with any
woman outside wedlock, [it may at the instance of the other party vary, modify or
rescind any such order in such manner as the court may deem just].

Recently, the Supreme Court of India, in a peculiar case, Amarjit Kaur v Harbbajan Singh and
another,6 held that the Court cannot make an order granting interim maintenance with a
condition that a DNA test of the child be conducted in view of doubts raised by the husband
about the child's parentage. The apex court was of the opinion that if the report of such a
test goes against the wife, she would not be entitled to maintenance. The Court was of the
firm opinion that such a condition is wholly extraneous to the grant of maintenance and is
per se unreasonable.
The Court ruled, in para 9 at pp 232 and 233 of the judgment, that
[T]he law in the matter governing the consideration and passing any order in respect of a
claim for a DNA test has sufficiently been laid down by this Court and if a party to a proceeding cannot be compelled against his/her wish to undergo any such test, we fail to see how the
Court on its own could have imposed a condition without any consideration whatsoever of
any of the criteria laid down by this Court, by adopting a novel device of imposing it as a
6

2003 (10) Supreme Court Cases 228.

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condition for the grant of the interim maintenance, with a default clause, which as rightly
contended for the appellant, will have the inevitable consequence of predetermining the claim
about the parentage with serious consequences even at the preliminary stage ...
It is pertinent t o mention that ss 24 and 25 of t h e HMA 1955 pertaining t o maintenance
pendente lite7 and permanent alimony, respectively, are distinct and independent of each
other. The Madhya Pradesh High Court, in the matter of Ajay Ahuja v Manju Ahuja,6 held, in
paras 14 and 15 of t h e judgment, as follows:

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14. Section 25 of the 'Act' deals with the grant of permanent alimony and maintenance. It
provides that the Court exercising jurisdiction under the 'Act' at the time of passing any
decree or at any subsequent time thereto, an application made to it by the husband or
the wife order that the respondent shall pay to the applicant for his or her maintenance
and support such gross sum or such monthly or periodical sum, as it may seem reasonable. It has been laid down in the said section that the Court may consider the respondent's own income and other property if any, the income and other property of the
applicant, the conduct of the parties and other circumstances of the case while granting
permanent alimony.
5S. It would, therefore, be clear that under Section 24 of die 'Act' maintenance 'pendente
lite' is to be granted while under Section 25 of the 'Act,1 provision has been made for
grant of permanent alimony for a period after the passing of the decree. The above provisions are, therefore, distinct and independent of each other.

Divorced Wife's Right to Residential Accommodation

The Bombay High Court, in two rulings reported as Ajit Bhagwandas Udeshi v Kumud Ajit
Udeshi, and Sunita Shankar Salvi v Shankar Laxman Salvi, ' held that the divorced wife cannot
be left without a roof over her head. In the case of Udeshi, the tenancy of the flat was for
the benefit of the family and the wife occupied the flat as a member of the family. While the
case of Salvi is important fronvthe point of view that, irrespective of the financial contribution or joint ownership on record, the courts in India are concerned about providing
residential accommodation to a divorced wife who has no resources of her own.

Award of Maintenance to Wife and Child out of Void Marriage

In Ramesh Chandra Rampratapji Daga v Rameshwari Ramesh Chandra Daga,** t h e Supreme
Court of India gave a positive interpretation t o t h e meaning of s 25 of the HMA, 1955. The
facts of this case are as follows:
T h e appellant husband was a widower with three children. The respondent wife's first
marriage was dissolved by the execution of a document of dissolution in terms of the community practice. On t h e strength of the deed of dissolution, which was also registered, the appellant married the respondent. T h e marriage lasted for nine years and resulted in the birth of
a daughter; thereafter, matrimonial discord developed between them. The respondent

7
8
9
10
11

Pendente lite refers to funds paid by a husband to his wife while their divorce case is being pursued.
2000 (2) HLR 666.
AIR 2003 Bombay 120.
AIR 2003 Bombay 431.
Judgments Today 2004 (10) Supreme Court 366.

Ancillary Relief Issues under Hindu Law

41

sought judicial separation alleging ill-treatment by the appellant. The appellant sought that
the marriage with the respondent be declared a nullity on the grounds that on the date of
the second marriage the respondent's marriage with her previous husband had not been
dissolved by any court Sadly, the respondent also disputed the parentage of the daughter.
The family court granted judicial separation and awarded maintenance to the respondent
wife. However, the High Court held that the marriage between the appellant and respondent
was null and void under s 11 of HMA (1955) and granted a decree in favour of the husband
setting aside the decree of judicial separation granted to the wife by the lower court Nonetheless, the High Court maintained the grant of maintenance. The appellant and the respondent filed cross appeals against the decision of the High Court

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The apex Court dismissed both the appeals and held that the High Court was correct
in holding the second marriage to be a nullity and granting a declaration in favour of the
appellant Further, the Court held, that the appellant and respondent had lived as husband
and wife for nine years and therefore the family court and the High Court were fully justified
in holding that the respondent wife was entitled to a grant of maintenance.
The above view of the apex Court was based on the interpretation of s 25 of HMA
1955 which finds a mention in para 21 at p 373 of the above judgment. It reads as follows:
Section 25 is an enabling provision. It empowers the Court in a matrimonial case to consider
facts and circumstances of the spouse applying and decide whether or not to grant permanent
alimony or maintenance.
The Court looked at the circumstances in the round, and gave a positive, meaningful interpretation to section 25 of the HMA 1955.
Furthermore, s 16 of the HMA 1955 lays down the provisions for the legitimacy of children of void and voidable marriages. These provisions confer legitimacy and all the succession rights on children of void marriages. In this regard, the law laid down by the Supreme
Court of India in Rameshwari Devi v The State of Bihar may be quoted in support
In this
particular case a Hindu government employee had contracted a second marriage during the
subsistence of his first marriage. There were children born out of the second marriage.
Although the second marriage itself was void, the children born out of the second marriage
were held to be legitimate and also entitled to family pension.
It may further be added that the Supreme Court of India, in PEK Kalliani Amma v K
Dew',13 clearly laid down that the provisions of s 16(1) of HMA (1955), which are intended
to confer legitimacy on children born of void marriages will operate with full vigour in spite
of s II, which nullifies only those marriages which are held after the enforcement of the Act
and in the performance of which s 5 of HMA (1955) is contravened. Therefore, Indian law
does not discriminate against children, and by a legal fiction they are treated as legitimate
notwithstanding that the marriage was void or voidable.

Maintenance Under the Indian Code of Criminal Procedure 1973,

Section 125
It will be noted that the ambit of s 125 of the CrPC 1973 also extends to maintenance of
children and parents. The relevant extract of s 125 reads as follows:
12 (2000) 2 SCC 431.
13 AIR 1996 SC 1963.

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125. Order for maintenance of wives, children and parents

(I) If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or

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(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or
injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first
class may, upon proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such child, father or mother,
at such monthly rate, as such magistrate Maintenance, Disposal of Property and
Custody of Children under Hindu Law 81 thinks fit, and to pay the same to such
person as the magistrate may from time to time direct...

Maintenance of the Wife Under the Provisions of the Hindu

Adoptions and Maintenance Act 1956
Section 18 of the HAMA 1956 operates as an additional relief for a Hindu wife, enabling her
to live separately without having to forego her right to maintenance. The provisions of this
section read:
18. Maintenance of wife
(1) Subject to the provisions of this section, a Hindu wife, whether married before or after
the commencement of this Act, shall be entitled to be maintained by her husband during
her lifetime.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her
claim to maintenance (a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause
and without her consent or against her wish or wilfully neglecting hen
(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her
mind that it will be harmful or injurious to live with her husband;
(c) if he is suffering from a virulent form of leprosy;
(d) if he has any other wife living;
(e) if he keeps a concubine in the same house in which his wife is living or habitually
resides with a concubine elsewhere;
(f) if he has ceased to be a Hindu by conversion to another religion;
(g) if there is any other cause justifying living separately.
(3) A Hindu wife shall not be entitled to separate residency and maintenance from her
husband if she is unchaste or ceases to be a Hindu by conversion to another religion.
The Delhi High Court, in Neelam Malhotra v Rajinder Malhotra, held that, after considering
the status of the husband, the wife should be awarded maintenance pendente lite, even
though there is no separate provision in the HAMA 1956 for grant of maintenance pendente
Ute. The obligation to maintain the wife remains on the husband even though the wife might
14 AIR 1994 Delhi 234.

Ancillary Relief Issues under Hindu Law

43

be living separately. The Court was conscious of the fact that the suit for maintenance under
s 18 of the Act might take a long time before it was decided, hence the wife in the first
instance cannot be subjected to starvation and then subsequently granted maintenance from
the date of filing of suit The court was of the opinion such a restrictive view would be
against the letter and spirit of s 18 of the Act. Section 19 of the H AMA I9S6 provides for
maintenance of a widowed daughter-in-law and is reproduced below for easy reference.
19. Maintenance of widowed daughter-in-law
(1) A Hindu wife, whether married before or after the commencement of this Act, shall be
entitled to be maintained after the death of her husband by her father-in-law: Provided
and to the extent that she is unable to maintain herself out of her own earnings or other
property or, where she has no property of her own, is unable to obtain maintenance
(a) from the estate of her husband or her father or mother, or

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(b) from her son or daughter, if any, or his or her estate.

(2) Any obligation under sub-s ( I ) shall not be enforceable if the father-in-law has not the
means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law.
It was held, in Chhabila Naik v Kanchani Patel, that an award of maintenance under the
provisions of s 125 of the Indian CrPC does not come in the way of s 18 of the HAMA 1956
when a court finds that the former award is inadequate.
Section 19 of the HAMA 1956 deals with the right of a widowed daughter-in-law to
claim maintenance from her father-in-law, subject to fulfilment of certain conditions.

Factors Governing Quantum of Maintenance

Section 23 provides that it shall be at the discretion of the court to determine the amount
of maintenance, if any, payable; and in doing so the court shall be guided by the considerations set out in s 23(2) or (3) of the HAMA 1956, as set out below.
23. Amount of maintenance
( I ) It shall be in the discretion of the Court to determine whether any, and if so what, maintenance shall be awarded under the provisions of this Act, and in doing so, the Court
shall have due regard to the considerations set out in sub-section (2), or sub- section (3),
as the case may be, so far as they are applicable.
(2) In determining the amount of maintenance, if any, to be awarded to a wife, children or
aged or infirm parents under this Act, the following factors shall be taken into account
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether the claimant is justified in doing so;
(d) the value of the claimant's property and any income derived from such property, or from
the claimant's own earnings or from any other source;
(e) the number of persons entitled to maintenance under this Act.
(3) In determining the amount of maintenance, if any, to be awarded to a dependant under
this Act, regard shall be had to

15 AIR 2003 Orissa 27.

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(a) the net value of the estate of the deceased after providing for the payment of his
debts;
(b) the provision, if any, made under a will of the deceased in respect of the dependant;
(c) the degree of relationship between the two;
(d) the reasonable wants of the dependant;
(e) the past relations between the dependant and the deceased;
(f)

the value of the property of the dependant and any income derived from such property, or from his or her earnings or from any other source;

(g) the number of dependants entitled to maintenance under this Act

Section 25 of the HAMA 1956 also provides that the amount of maintenance may be altered
on a change of circumstances.
The Delhi High Court, in a recent ruling reported as Radhika v Vineet Rungta,*6
lamented the practice of parties to litigation not disclosing their actual income. In a terse
ruling. Justice Vikramjit Sen held, in para 3 at page 208 of the judgment, as follows:

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3.

Cases where the parties disclose their actual income are extremely rare. Experience,
therefore, dictates that where a decision has to be taken pertaining to the claim for maintenance, and the quantum to be granted, the safer and surer method to be employed for
coming to a realistic conclusion is to look at the status of the parties, since whilst incomes
can be concealed, the status is palpably evident to all concerned. If any opulent lifestyle
is enjoyed by warring spouses he should not be heard to complaint or plead that he has
only a meagre income. If this approach had been followed, it would have been evident
that the warring spouses enjoy an affluent lifestyle. It has already been noted that the
learned trial Court has not discussed the Husband's income. While granting maintenance
it is incumbent on the Court to make such monetary arrangements as would be conducive
to the spouses continuing a lifestyle to which they were accustomed before the matrimonial discord. In the application under Section 24 of the Hindu Marriage Act, it has been
categorically pleaded that the Husband is getting a salary of US$ 72,000 per annum which
is equivalent to R.s.30,24,000/- per annum along with the perquisites. A mention is made
of the receipt of interest of approximately US$ 1,000 per month as also accounts in various
banks. It is pleaded that the Husband is a joint owner of properties valued at over
Rs.2,00,00,000/-. The wife has pleaded that since 5-10-1998 she has been living at the
mercy of her parents; that she has no movable or immovable properties or other assets
in her name except a nominal amount of interest from deposits. It has been categorically
stated thatthe Wife has no income to support herself and to meet her necessary expenses.

The Court concluded, in the penultimate paragraph of the judgment at p 209, t h a t

By adopting this approach an effort has been made to balance the income and the earnings of
the Husband against the income of the Wife, and ensuring that the normal lifestyle and status
can be preserved in some measure.

Custody of Children Under the Hindu Marriage Act 1955,

Section 26
Although the HMA 1955 primarily deals with the provision of relief to only the parties of a
matrimonial relationship, the Act also ensures protection for any children resulting from the

16 2004 (2) HLR 207, AIR 2004 Delhi 323.

Ancillary Relief Issues under Hindu Law

45

relationship. Section 26 of the HMA 1955 provides for custody of children of the parties to
the litigation, and is reproduced below:
26. Custody of Children

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In any proceeding under this Act, the court may, from time to time, pass such interim
orders and make such provisions in the decree as it may deem just and proper with
respect to the custody, maintenance and education of minor children, consistently with
their wishes, wherever possible, and may, after the decree, upon application by petition for
the purpose, make from time to time, all such orders and provisions with respect to the
custody, maintenance and education of such children as might have been made by such
decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and
provisions previously made: [Provided that the application with respect to the maintenance
and education of the minor children, pending the proceeding for obtaining such decree,
shall, as fer as possible, be disposed of within sixty days from the date of service of notice
on the respondent]

Custody of Children Under the Hindu Minority and

Guardianship Act 1956
It is important to advert to the provisions of the HMGA 1956, which is an Act to amend
and codify certain parts of the law relating to minority and guardianship among Hindus. The
provisions of the HMGA 1956 are supplemental to the earlier Guardians and Wards Act
1890. The HMGA 1956, like the HMA 1955, has extra-territorial application. It extends to
the whole of India except the State of Jammu and Kashmir.
Under s 4(a) of the HMGA 1956, 'minor' means a person who has not reached the age
of 18 years. A 'guardian' in s 4(b) is defined as the natural guardian or one appointed by will
or declared by a court of law.
In a significant judgment - Githa Hariharan v Reserve Bank of India,17 pronounced by the
Supreme Court of India - Justice Banerjee observed that English law has been consistent
with the principle that the welfare of the child is paramount. Indian law does not depart
from this principle. This can safely lead us to conclude that the best interest of the child is
a universally recognised phenomenon. Any court in any jurisdiction in any country always
makes an earnest effort to stretch and interpret any statute in such a way that the welfare
of the child is secured. If, however, this is not possible, then the court invariably utilises its
judicial powers to do so. The adaptation of the principle of the welfare of the child is indeed
salutary and ought to be pursued irrespective of the rigidity of statute law. This guiding
factor is clear even in cross-border litigation which may emerge from a foreign jurisdiction
or may have been initiated on Indian soil.
In another recent matter decided by the apex court, Kumar VJahgirdar v Chethana}*
the exclusive custody of a nine-year-old female child by her mother, with visiting rights to
the natural father, was upheld on the ground that a female child of growing age needs more
of her mother's company than her father's, and that the remarriage of the mother does not
disqualify her from that role. The apex court, by not subscribing to the general observations
and comments made by the High Court in favour of the mother retaining custody of the

17 1999 (2) SCC 228.

18 2004(1) HLR 468.

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child as opposed t o the father, clearly identified what was in the best interest of the child
without making any generalisations. In the opinion of the authors, such a positive identification of the welfare of the child in deciding matters of child custody is indeed commendable
and laudable.

Maintenance of Children and Aged Parents Under Section 20 of

the Hindu Adoptions and Maintenance Act 1956
Section 20 of the HAMA 1956 places an obligation upon a Hindu to maintain their children
and aged infirm parents. It reads as follows:

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20. Maintenance of children and aged parents. - ( I ) Subject to the provisions of this section
a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.
(2) A legitimate or illegitimate child may claim maintenance from his or her father or
mother so long as the child is a minor.
(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter
who is unmarried extends in so far as the parent or the unmarried daughter as the
case may be, is unable to maintain himself or herself out of his or her own earnings
or other property.
It will be noticed that the scope of the above-mentioned section of the HAMA 1956 also
extends t o aged parents. But, in actual practice, in the prevailing social conditions in the
Indian context, it is very unusual for aged parents t o move court against their children for
the award of maintenance.

Disposal of Property Under Section 27 of the Hindu

Marriage Act 1955
Section 27 of HMA 1955 empowers the court to adjudicate upon the division and distribution of the property of the divorced couple at the time of the passing of the decree. It reads
as follows:
27. Disposal of Property
In any proceeding under this Act, the court may make such provisions in the decree as it
deems just and proper with respect to any property presented, at or about the time of
marriage, which may belong jointly to both the husband and the wife.
The Delhi High Court held, in Subhash Lata v VN Khonno,19 that s 27 of the Act concerns
only property presented at or about the time of marriage and which is alleged t o belong
jointly to both the spouses. It is a pre-condition for obtaining relief that such property must
belong jointly t o both spouses.

19 AIR 1992 Delhi 14.

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47

Enforcement of Judgments and Orders of Foreign Courts in India

as Arising from Family and Matrimonial Matters in Overseas
Jurisdictions

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Despite the ever-increasing population of Indians migrating and settling in foreign jurisdictions, the link with their home country is not severed. Family ties, connections of property
and moveable assets, and other invariable links with some Indian jurisdiction often leads to
cross-border litigation in human relationship matters. Situations abound where non-resident Indians invoke the jurisdiction of the foreign court where they are resident, and
convince the overseas court to pass favourable orders in such matters which are thereafter
sought to be executed in the Indian jurisdiction through the courts of law in India.
Indian law reports contain a number of judgments on matters relating to marriage,
divorce, maintenance, succession, settlement of matrimonial property, child custody, parental abduction of children from foreign jurisdictions in matrimonial disputes and cases relating
to adoption. Foreign court orders, once passed, are sought to be enforced or executed in
India through the medium of the courts. Since there exists no separate provision for the
recognition of foreign matrimonial judgments or other foreign decisions in related matters
in the HMA 1955, Special Marriage Act 1954, Hindu Succession Act 1956, HAMA 1956,
HMGA 1956, or in any other Indian legislation relating to family matters, the only recourse
is to s 13 of the Indian Code of Civil Procedure 1908 (CPC), which is the general provision
of law relating to conclusiveness of judgments by foreign courts.
The provisions of s 13 of the CPC are fully applicable to matrimonial matters
decided by foreign courts. The precedents giving instances of such reported matters are
therefore available only in the form of judicial pronouncements of Indian courts which
have from time to time rendered a laudable service in interpreting foreign court orders in
the best interests of human relationships rather than executing them simplkiter in letter
and spirit The Indian judiciary, in such a pivotal role, is extremely humane and considerate in family matters in that it implements foreign court orders in a practical way rather
than through a mechanical execution of the order or judgment of the overseas court.
Perhaps this openness and fluidity is possible because the Indian courts are not strictly
bound by a foreign court order in family matters, but when asked to implement or
enforce them, the Indian courts apply principles of good conscience, natural justice,
equity and fair play, thereby rendering substantial justice to parties in litigation. This can
best be seen in the decisions of some Indian courts where the court has been asked to
implement or execute a court order or judgment from a foreign jurisdiction. A few
decisions are discussed below.

Reported Decisions
In India, a common issue that arises pertains to the recognition and indirect implementation
of divorce decrees made by foreign courts and produced by spouses residing in foreign jurisdictions. In this regard, Indian courts have expressed varying views over time. Consequently,
in 1991, the Supreme Court of India laid down fresh, comprehensive guidelines for the
recognition of foreign matrimonial judgments by Indian courts. It may be pertinent to point
out that under Art 141 of the Constitution of India, the law declared by the Supreme Court
is binding on all courts within the territory of India. The apex court, in Y Narasimha Rao v Y

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Venkata Lakshmi, made it clear that Indian courts would not recognise a foreign judgment
if it had been obtained by fraud, which need not be only in relation to the merits of the
matter, but may also be in relation t o jurisdictional facts. By this ruling, the Supreme Court
on the facts of the case declared a divorce decree passed by a US court unenforceable in
India. Interpreting s 13 of the Indian CPC, the court laid down broad principles t o be
followed by Indian courts with a special emphasis on matrimonial judgments.

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In Smt Neeraja Saraph v ayant v Saraph, the apex court came down heavily on the
erring non-resident husband residing in a foreign jurisdiction and who had abandoned his
Indian wife without providing for any maintenance for her. At pp 490 and 491, paras 4 and
5, the court held t h a t
4.

[V]arious submissions have been advanced on behalf of the father-in-law to support the
order of the High Court including his helplessness financially. Is it a case of any sympathy
for the father-in-law at this stage? In our opinion not True the decree is ex porte. Yet it
is a money decree. However, no opinion is expressed on this aspect as the appeal is pending in the High Court. But the order of the High Court is modified by directing that the
execution of the decree shall remain stayed if the respondents deposit a sum of Rs
3,00,000/- including Rs 1,00,000/- directed by the High Court within a period of two
months from today, with the Registrar of the High Court...

5.

Why the facts of this case have been narrated in brief with little background is to impress
upon the need and necessity for appropriate steps to be taken in this direction to safeguard the interest of women. Although it is a problem of private International Law and is
not easy to be resolved, but with change in social structure and rise of marriages with
NRI the Union of India may consider enacting a law like the Foreign Judgments (Reciprocal Enforcement) Act 1933 enacted by the British Parliament under section (I) in pursuance of which the Government of United Kingdom issued Reciprocal Enforcement of
Judgments (India) Order 1958. Apartfrom it there are other enactments such as Indian
and Colonial Divorce Jurisdiction Act 1940 which safeguard the interest so far United
Kingdom is concerned. But the rule of domicile replacing the nationality rule in most of
the countries for assumption of jurisdiction and granting relief in matrimonial matters has
resulted in conflict of laws. This domicile rule is not necessary to be gone into. But feasibility of a legislation safeguarding interest of women may be examined by incorporating
such provisions as:

Possible Safeguards to Protect Rights of Women Married to

Non Resident Indians
(1) no marriage between a NRI and an Indian woman which has taken place in India
may be annulled by a foreign court;
(2) provision may be made for adequate alimony t o the wife in the property of the
husband both in India and abroad;

(3) the decree granted by Indian courts may be made executable in foreign courts
both on principle of comity and by entering into reciprocal agreements like section
44A of the Civil Procedure Code (1908) which makes a foreign decree executable
as it would have been a decree passed by that court, provided the degree has been
adjudicated upon the merits of the matter.

20 Judgments Today 1991 (3) Supreme Court 33.

21 Judgments Today 1994 (6) Supreme Court 488.

Ancillary Relief Issues under Hindu Law

49

It will be noted that the proposed guidelines in both of the above-mentioned Supreme
Court rulings are meaningful and, if implemented, can mitigate the plight of wives dumped
in India by foreign husbands. Although the apex court has clearly stated the need for suitable
legislation on the subject, as yet no Indian law has been enacted to protect the rights of
deserted and abandoned spouses in India. In essence, therefore, the judicial verdicts of
courts of law are the only available law in India to come to the rescue of hapless Indian
spouses who protest against uncontested foreign divorce decrees invariably obtained by
default by spouses from overseas jurisdictions. Thus, some codified law in India on the
subject is undoubtedly an absolute necessity.
Another frequently litigated issue is in the area of international child abduction, where
an overseas litigating spouse violates a foreign court order and brings their child to India.
The other spouse in turn comes to India and approaches an Indian court to enforce the
foreign court custody order and seeking the return of their children to the foreign
jurisdiction. Again, different Indian courts have expressed different views and, ultimately, the
Supreme Court in Dhanwanti Joshi v Madhav Under followed by the decisions in Sarita

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Sharma v Sushil Sharma23. and Sahiba Ali v State of Maharashatra,24 laid down conclusive

guidelines for matters of foreign child abduction.

It may be pertinent to point out that prior to the above rulings of the Supreme Court,
courts in India were exercising summary jurisdiction, without going into the merits of the
matter, regarding the return of children to foreign jurisdictions when the children were
brought to India in violation of foreign court orders. However, the 1997, 1999 and 2003
rulings now indicate that irrespective of any direction or order of a foreign court, the
present law requires the court to act in the best interest and welfare of the minor child in
child custody matters. Indian courts no longer carry out mere mechanical implementations
of foreign court orders.
As far as the forum for securing the return of children is concerned, it is important to
mention that India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980. Therefore, parents are left with no remedy but to approach
different administrative and judicial authorities or courts of law in India for implementation
of foreign court orders. Even though Pakistan executed a UK-Pakistan Judicial Protocol on
17 January 2003, signed by the President of the Family Division of the High Court of England
and Wales and by the Chief Justice of the Supreme Court of Pakistan, for incorporating and
adopting the effective provisions of the said Hague Convention, India has taken no steps to
adopt the Hague Convention. The Indian courts continue in their tireless efforts to impress
upon parties that the welfare of the child is the paramount consideration in such matters.
Until then, helpless spouses in such cases frantically wait to see if the Indian Parliament
either enacts some legislation in matters of child abduction, or some other judicial mode is
adopted to implement the Hague Convention. The need is undoubtedly dire and urgent.
Something needs to be done quickly about it.
Another very contentious and complicated area involving persons of non-resident
Indians and foreigners is the matter of inter-country adoption in India. When foreign
spouses wish to adopt Indian children, they are faced with a maze of Indian laws and procedures which are both difficult and complicated to follow. Foreign court orders or other
documents from the country of origin of the prospective adopters are of little help and their

22 Judgments Today 1997 (8) Supreme Court 820.

23 Judgments Today 2000 (2) Supreme Court 258.
24 Judgments Today 2003 (6) Supreme Court 79.

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implementation is obviously difficult and at times impossible. The Supreme Court of India
has, from time to time, laid down guidelines governing the principles for inter-country
adoptions. The judgments in Laxmi Kant Pandey v Union of India25 have given repeated
guidelines for matters of inter-country child adoption in the Indian jurisdiction. Looking at
all this, it has been felt that, in the best interests of the children involved, there is now a
clear case for overhauling the existing adoption law in India by bringing uniform, composite
and clear legislation in matters of inter-country child adoption as changes are urgently
required in this jurisdiction to resolve matters pertaining to adoption of Indian children in
foreign jurisdictions.

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Conclusion
As a brief concluding note to this article, it is submitted that, even though sufficient legislation exists in India for providing maintenance and settlement of other ancillary relief, in
actual practice the implementation and enforcement of this beneficial legislation needs
attention. The quantum of maintenance awarded by the courts is generally quite low, and
procedural delays do not provide much succour to a spouse in distress. Issues of settlement
of matrimonial property and custody of children are often overtaken by bitter matrimonial
wrangling between the contesting spouses, and the benevolent purpose of the legislation for
settling the consequences of divorce is overshadowed in the courts where the focus is on
the divorce proceedings only.
The priorities in the courts need to change. Sufficient maintenance must be awarded
and the children's rights need to be set on a higher pedestal. This is perhaps one area which
the courts need to pursue with more vehemence and more generously expedite the settlement of adequate maintenance and distribution of matrimonial property, while providing
quicker justice to the children of a broken marriage. The focus needs to change to ensure
better rehabilitation of the parties and their children.

25 AIR 1984 SC 469, AIR 1986 SC 272, AIR 1987 SC 232.