According to the court, a wife cannot exercise her right to live with her husband in the US by invoking the provisions ofrestitution of conjugal rights in a Mumbai court once she has contested and the local court in US has declared them as divorced.

While setting aside the order passed on July 31, the court said, “Once the decree of divorce is granted by a foreign court after the parties submit to its jurisdiction and after contest or agreement, the marriage stands dissolved. Nothing further survives in the marriage. Therefore conjugal rights cannot be restituted.”

The couple married in 2006 and went to the US in the same year. They lived together there until 2010. In the meantime, they had disputes and the husband filed a petition for divorce on the ground of irretrievable breakdown of marriage, and cruelty. The wife filed a counter claim. The parties applied for, opposed and ultimately accepted an interim order by consent.

The interim order restrained the parties from entering each other’s places of residence. The husband was told to pay house rent, car and motor cycle loan and phone bill up to the end of July, 2010.

After this interim order was passed, the wife came to India on August 22, 2010. She filed the petition for restitution of conjugal rights and an application under the Domestic Violence Act against the husband, his father and mother. The wife instructed her attorney to withdraw her counter claim and sent emails to the court in the US. Hence, the petition for divorce filed by the husband was to proceed without a counter claim and without her defence.

The wife argued that the judicial district court in the US would have no jurisdiction and the decree of divorce passed would not become a final judgement conclusive upon both parties. She further argued that the grounds for divorce would be different in the courts of the US and hence no decree of divorce can stand in India. She also said that the parties were domiciled in India and the Hindu Marriage Act, 1955 would apply.

The high court, however, dismissed all her contentions and set aside the family court order, thus holding the divorce granted by the foreign court as correct.