When even foreigners are entitled to invoke the Safety of Ladies from Home Violence Act of 2005 earlier than the Indian courts, an American citizen holding an Abroad Citizenship of India (OCI) card is actually entitled to strategy the courts of legislation right here for alleged financial abuse and bodily in addition to psychological harassment meted out by her husband in the US, the Madras Excessive Court docket has held.
Justice S.M. Subramaniam identified that Article 21 of the Structure ensures the elemental proper to life and private liberty not solely to residents but additionally to foreigners. Additional, Part 27 of the 2005 Act states that even a brief resident throughout the territorial jurisdiction of a judicial Justice of the Peace and metropolitan Justice of the Peace may strategy them looking for acceptable reduction beneath the legislation.
“Section 27 unambiguously stipulates that an aggrieved person temporarily residing or carrying out business or employed is also falling within the ambit of the Domestic Violence Act. Therefore, a person, who is temporarily residing in India or a Overseas Citizen of India, if abused economically by the spouse, who is residing in another country, is entitled to seek relief under the Act. The cause of action arises in India since the aggrieved person is residing in India,” he wrote.
The orders had been handed whereas refusing to entertain a civil revision petition filed by an American citizen of Indian origin to strike off a grievance lodged towards him by his estranged spouse, additionally an American citizen, earlier than a Mahila court docket in Chennai beneath the Home Violence Act. The decide additionally dismissed one other plea by the litigant to strike off a petition filed by the lady earlier than a Household Court docket right here for restitution of conjugal rights.
Although the petitioner contended that he had obtained an ex-parte decree from the Circuit Court docket of Fairfox County in the US for a divorce in addition to custody of their twin youngsters, aged 15 years now, Justice Subramaniam stated, just because a overseas court docket had taken a selected view on a facet in regards to the welfare of the minors was not sufficient for the courts in India to close out an unbiased consideration of the matter.
“Objectivity and not abject surrender is the mantra in such cases. Judicial pronouncements on the subject are not on virgin ground. Since no system of private international law exists that can claim universal recognition on this issue, Indian courts have to decide the issue regarding the validity of the decree in accordance with the Indian law. Comity of courts simply demands consideration of any such order issued by foreign courts and not necessarily their enforcement,” he noticed.
The decide stated, the 15-year-old twins had been “matured minors” and never “mere minors” and subsequently their willingness to reside together with their mom in India couldn’t be brushed apart calmly. He identified that the youngsters had deposed earlier than a Division Bench of the Excessive Court docket in a habeas corpus petition filed by their father final yr looking for their custody. Then, that they had accused him of getting harassed their mom each bodily and mentally.
Regardless of such a deposition, the Division Bench had ordered that the youngsters have to be despatched again to the US however such an order was in consonance with the Supreme Court docket’s dictum to offer due consideration to the pursuits of kids in custody instances, Justice Subramaniam stated. “Forcible handing over of the children to their father would result in psychological disadvantages and the minor boys may not be in a position to have peaceful life in the absence of their mother,” he opined.
Although the youngsters too had been Americans by start, the decide took word that that they had come right down to India together with their mom in December 2020 and had been glad to reside together with her household right here and attend on-line lessons at a faculty in the US. Subsequently, the decide granted interim custody of the youngsters to their mom till the conclusion of the matrimonial in addition to home violence proceedings initiated by her.
The orders had been handed after listening to a chosen senior counsel representing the youngsters’s father and the lady who contested the 2 revision petitions in particular person with out partaking a lawyer. The girl stated that she married the petitioner in 1999 in Chennai earlier than they migrated to Virginia in the US the place she owned a pc techniques consulting enterprise. She accused her husband of getting been solely in her cash.