Even foreigners are entitled to invoke Domestic Violence Act before Indian courts: Madras High Court

Justice S.M. Subramaniam of the Madras High Court refused to strike down a complaint of physical, mental and economic abuse filed by an American citizen holding an Overseas Citizenship of India card, against her husband in the United States

February 01, 2023 04:29 pm | Updated 04:58 pm IST - CHENNAI

Photograph used for representational purposes only

Photograph used for representational purposes only | Photo Credit: Getty Images

When even foreigners are entitled to invoke the Protection of Women from Domestic Violence Act of 2005 before the Indian courts, an American citizen holding an Overseas Citizenship of India (OCI) card is certainly entitled to approach the courts of law here for alleged economic abuse and physical as well as mental harassment meted out by her husband in the United States, the Madras High Court has held.

Justice S.M. Subramaniam pointed out that Article 21 of the Constitution guarantees the fundamental right to life and personal liberty not only to citizens but also to foreigners. Further, Section 27 of the 2005 Act states that even a temporary resident within the territorial jurisdiction of a judicial magistrate and metropolitan magistrate could approach them seeking appropriate relief under the law.

“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 were passed while refusing to entertain a civil revision petition filed by an American citizen of Indian origin to strike off a complaint lodged against him by his estranged wife, also an American citizen, before a Mahila court in Chennai under the Domestic Violence Act. The judge also dismissed another plea by the litigant to strike off a petition filed by the woman before a Family Court here for restitution of conjugal rights.

Though the petitioner contended that he had obtained an ex-parte decree from the Circuit Court of Fairfox County in the United States for a divorce as well as custody of their twin children, aged 15 years now, Justice Subramaniam said, simply because a foreign court had taken a particular view on an aspect concerning the welfare of the minors was not enough for the courts in India to shut out an independent 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 observed.

The judge said, the 15-year-old twins were “matured minors” and not “mere minors” and therefore their willingness to reside along with their mother in India could not be brushed aside lightly. He pointed out that the children had deposed before a Division Bench of the High Court in a habeas corpus petition filed by their father last year seeking their custody. Then, they had accused him of having harassed their mother both physically and mentally.

Despite such a deposition, the Division Bench had ordered that the children must be sent back to the United States but such an order was in consonance with the Supreme Court’s dictum to give due consideration to the interests of children in custody cases, Justice Subramaniam said. “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.

Though the children too were American citizens by birth, the judge took note that they had come down to India along with their mother in December 2020 and were happy to reside with her family here and attend online classes at a school in the United States. Therefore, the judge granted interim custody of the children to their mother until the conclusion of the matrimonial as well as domestic violence proceedings initiated by her.

The orders were passed after hearing a designated senior counsel representing the children’s father and the woman who contested the two revision petitions in person without engaging a lawyer. The woman said that she married the petitioner in 1999 in Chennai before they migrated to Virginia in the United States where she owned a computer systems consulting business. She accused her husband of having been interested only in her money.

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