Recognition of Hindu Divorce in New York State

Updated 11/21/2019
By Gabriel Sawma Sunday, Aug. 21, 2011 at 3:03

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A Hindu divorce decree obtained in India in accordance with Hindu Marriage Act of 1955 may or may not be recognized and enforced in the State of New York. Such recognition, when it happens, is based on the concept of
‘comity’ in private international law.

Prof. Gabriel Sawma

Comity in Private International Law A Hindu divorce decree obtained in India in accordance with Hindu Marriage Act of
1955 may or may not be recognized and enforced in the State of New York. Such
recognition, when it happens, is based on the concept of ‘comity’ in private
international law. The doctrine of comity is an acceptable solution to the
problem of both respecting territorial sovereignty of the state in which the
foreign judgment is sought to be recognized and enforced and the legal principle
of private international law where no judgments would have any extraterritorial
effect outside the countries where they were issued.
It is important to note that the conception of comity is not an obligation of any state to apply foreign laws. New York along with all other states, apply foreign law as a matter of
international courtesy and good will. Therefore, the application of a foreign
divorce decree would only be declined when the interests of New York State or
its citizens and residents are impaired.
The definition of comity was provided by the U.S. Supreme Court in Hilton v. Guyot in 1895. It laid down in a case on the recognition and enforcement of a French judgment in the United States. The U.S. Supreme Court, in defining the doctrine of comity, stated that
“Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor a mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to rights of its own citizens or of other persons who are under the protection of its laws.” (See Hilton v. Guyot,
Supreme Court of the United States, 1895, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95).
Personal Jurisdiction
The state of New York may recognize a Hindu divorce decree from India provided that the Indian court has personal jurisdiction on the couple seeking divorce. In a recent case, a wife,
resident of Michigan, USA, obtained a divorce from U.S. court. Her husband went back to India and filed for a divorce in an Indian court. The judge of the High Court in Pune, India rejected his petition on the ground that the husband’s domicile is in the U.S., not India. The court ruled that “The man cannot confer jurisdiction on the court of Pune where the couple never stayed together for any length of time in their own matrimonial home (i.e., India), they having had their matrimonial home in the U.S. The HMA [Hindu Marriage Act] itself does not apply to the couple conse-qu-ent upon their domicile in the US and also because
the rights between the parties have been settled by a judgment conclusive between them.” (See The Times of India, March 6, 2010). The husband in this case, presented to High Court in Pune, documents showing that he was domiciled in India; he also submitted his ration card issued in 2001, his driving license obtained in 1999, his 1995 voter identity card and passport with validity up to 2019. But the court was not satisfied with the documents: “None of these documents shows his intention to reside in India permanently; his Green Card shows he intends to stay in the US…It is easy to see that both parties have had the intention of making the US their permanent home even prior to their marriage. Since their parents reside in India, they came to India to be married as per Hindu rites.” (Id.)Domiciliary is an important factor in jurisdiction over divorce in India. Under the Indian Divorce Act, 1969, domicile has great importance. A petition in any matrimonial case may be presented to the District Court or High Court on the basis of residence of the parties within
that jurisdiction (or that the parties last resided within the jurisdiction of the court) or for dissolution of the marriage the parties are domiciled in India at the time of the presentation of the petition.
Recognition and Enforcement of Foreign Divorce in the State of New York
In one case, the husband went to Mexico, not for the purpose of residing there, but for
obtaining a divorce decree. The husband remained at all times a resident and domiciliary of New York State to which he returned promptly and where he continued to reside and practice his profession, and that he was physically present since his return from Mexico, except for vacation or business trips. In this case the court ruled that the unilateral Mexican divorce without the consent of his wife was a “complete nullity.” (Lamb v. Lamb, 61 Misc.2d 1032 – NY: Family Court, 1969).In another case, the Court of Appeals ruled that “In cases where a divorce has been obtained without any personal contact with the jurisdiction by either party or by physical submission to the jurisdiction by one, with no personal service of process within the foreign jurisdiction upon, and no appearance or submission by, the other, decision has been against the validity of the foreign divorce decree.”(See Perrin v. Perrin, 408F.2d 107 – Court of Appeals, 3rd Circuit, 1969). If it appears that neither party to the divorce decree was domiciled in India and the arrangements the parties make to obtain it were collusive and contrary to the public policy of New York in respect to the dissolution of marriage, New York Courts would
consider that divorce decree to be a nullity.Gabriel Sawma is a lawyer with foreign background, member of the Lebanese Bar Association of Beirut; Associate Member of the N.Y. State Bar Association; Associate Member of the American Bar Association. Professor of Middle East Constitutional Law and
Middle East Studies. Expert consultant on recognition and enforcement of foreign
divorce in the U.S.,

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