Overseas Citizens, Persons Temporarily Residing In India Entitled To Seek Relief Under Domestic Violence Act: Madras High Court

Justice SM Subramaniam said upon Section 27 of the Protection of Women from Domestic Violence (DV) Act "unambiguously stipulates that aggrieved person temporarily residing or carrying out business or employed is also falling within the ambit of the Domestic Violence Act, 2005. Therefore, a person, who is temporarily residing in India or Overseas Citizen of India, if abused economically by the spouse, who is residing in other country, is entitled to seek relief under the Act. The cause of action arouses in India, since the aggrieved person is residing in India."

The court was hearing a plea of a husband who relied on a recent division bench order granting him custody of his minor  children and directed the wife to take the kids back to the USA. Based on the order, the petitioner prayed for "striking off" the petition filed by the wife for restitution of conjugal rights, and the domestic violence complaint.

The husband had moved a Habeas corpus petition for custody of the two minor boys who were taken to India by the wife in 2020. The division bench had directed the wife to take immediate steps to return back to United States of America (USA) along with the twin children. Relying upon this order, he contended that the wife was trying to dilute the orders of the division bench by continuing these litigations.

Further, he submitted that the woman is an OCI card holder and thus for all purposes, she is a foreigner and does not have any domiciliary right in the country. She does not have any right to institute any matrimonial proceedings in Indian Courts under the Hindu Marriage Act, 1955 or the Domestic Violence Act, it was argued.

The court, relying upon various decisions of the Apex court and the high courts, noted that an American Citizen, who has an Indian origin and is an Overseas Cardholder, is entitled to institute proceedings under the Domestic Violence Act, if she is able to establish cause of action.

"In the present case, the children are pursuing their education by residing at Chennai. They are allegedly subjected to economic abuse and the children are not supported by their father for education and for other activities. While-so, they are entitled to institute proceedings under the Domestic Violence Act and the issues are to be adjudicated," the court said.

The court said The Hindu Marriage Act and Domestic Violence Act are the welfare legislations for women and therefore, the wife need not be deprived off from getting reliefs under the Acts, for which, she is entitled. 

"In the present case, the respondent and the twin children aged about 15 years are residing at Chennai for more than two years and raising several allegations against the revision petitioner / husband and more so, the respondent alleges that they are being harassed by the revision petitioner, who is not maintaining the children as of now and further, economic abuse is also alleged," said the court.

The court said the nature of the habeas corpus petition is incomparable with the proceedings under the Hindu Marriage Act and Domestic Violence Act. "Thus, right to seek relief under the Special Enactments by the aggrieved woman shall not be taken away and in the event of preventing the woman, the same would result in infringement of her basic rights under the Constitution and the Special Enactments," it added.

It further said the allegations relating to custody of children and matrimonial disputes are continuing cause and, therefore would not preclude the woman from seeking reliefs under the Domestic Violence Act and Hindu Marriage Act, which is independent and the nature of proceedings and the procedures contemplated are distinct and different.

"Thus, the order passed in the Habeas Corpus Petition by this Court cannot be a bar for seeking further or other reliefs contemplated under the Domestic Violence Act and the Hindu Marriage Act. Though facts are identical, the continuing cause of action are to be taken into consideration," it said.

In respect of petition under the Hindu Marriages Act, 1955, the court further said that ex parte decree of divorce granted by the US Court, cannot be a sole bar for the respondent to institute matrimonial proceedings in India.

"Thus, it is for the revision petitioner to contest the case instituted by the respondent before the Indian Courts and such petitions cannot be held as not maintainable, since the marriage between the petitioner and the respondent was solemnised at Chennai and it was registered under the provisions of the Hindu Marriages Act, 1955," it added.

The court also took into consideration the deposition of the minor children and also the decision of the woman to continue to reside at Chennai, India as Overseas Cardholder. "This Court has no hesitation in arriving a conclusion that the respondent is entitled to institute and maintain matrimonial proceedings, DVC proceedings and any other proceedings under the relevant Statutes in Indian Courts having jurisdiction for appropriate reliefs," it said.

Case Title: KC v. UK

Citation: 2023 LiveLaw (Mad) 40