What after desertion
By Nonika Singh

ACCORDING to the sociological viewpoint, marriage is a contract between two individuals for sex, procreation and other social functions. Marriage is also essentially a union between two souls and the cliched sentiment that marriages are made in heaven continues to pervade our collective conscience. But what happens when one partner (husband) turns exploiter, acts to satiate personal avarice and displays criminal traits? Especially when he evades social censure and enjoys immunity because of his geographical location? Here are some examples:

l A school teacher in India ties the nuptial knot with a non resident Indian. The marital ‘bliss’ starts with repeated bouts of physical abuse by an alcoholic husband. A few months later, he brings her back to India, somehow convinces (blackmails) her into signing not only divorce papers but also an adoption document of their only son, thus stripping her of all rights over him as well as her only child. The hapless woman continues to live as a bonded slave with her in-laws, nursing false hopes till the grim realisation dawns on her that the promise of remarriage will never ever fructify.

lYet another woman learns to her despair that her visa process has come to a grinding halt. Her spouse in the USA has withdrawn sponsorship. Repeated pleas with the embassy officials to grant her a visa so that she can fight her case in the US fall on deaf ears.

lA forlorn woman whose husband has flown Down Under with his passport proclaiming his marital status — single — is clueless. Where and how can she initiate proceedings against her other half — the father of their daughter?

Now this isn’t an indictment of Indians living abroad. In a strange way, though marriage paves way for society’s most intimate and lasting bond, the relationship is at the same time fraught with danger. Sure enough, marriage is a gamble in which the dice is invariably loaded against the gentler sex. But few marriages in India, no matter what the final outcome, are conducted with fraudulent intent. However, a fairly large percentage of marriages between Indian girls and grooms based in distant lands are steeped in deceit. Scores of women, especially in rural Punjab, are simply dumped behind by their dollar-earning spouses. Many discover that these citizens of developed nations actually hark back to the Dark Ages and that bigamy is very much alive and kicking.
Can she turn to law to bring such transnational offenders to book?

After May 18, 1955,when the Hindu Marriage Act came into being, bigamy is not allowed to Hindus and it has been made a penal offence. Though certain nations have done away with restitution of conjugal rights as they consider it contrary to personal freedom and liberty, under the Hindu Marriage Act either partner can claim this right. Says Harmohan Singh Sethi, a lawyer, "She can file a criminal case in India. After the case is filed, warrants are issued against the alleged offender. Bailable warrants are followed by non-bailable ones. Thereafter, he is declared a proclaimed offender and brought to book." Too perfect to be true!

The actual legal process is tortuous, to put it mildly. Serving summons to a person based in a foreign country is by itself a tall (near impossible) order. If the man in question happens to be an Indian citizen, his passport can be confiscated, but if he has acquired foreign citizenship he is governed by the law of the land in which he is domiciled. Sethi adds," But the offence has been committed in India and Indian courts are within their right to prosecute and seek extradition". Navkiran Singh, who has fought several human rights cases, rues, "In effect, the extradition process is dotted with so many pitfalls that even hard-core criminals are rarely extradited".

It isn’t as if in times when the "world is becoming a small place", nations aren’t connected. Each nation has its own judicial system and labyrinthine laws. Nevertheless, in the domain of private issues, private international provides a legal link between countries. No country can, however, boast of having an exhaustive private international law. In India, it is still in its nascent stage. Paras Dewan wrote in his book on the same subject, "In whatever form the matrimony may be performed or whatever be the concept of marriage, the status and obligations arising out of marriage should be accorded recognition all over the world".

Under private international law, a marriage’s validity is dependent upon two equally vital factors. Material validity calls for capacity to marry and formal validity refers to ceremonies and rites accompanying marriage. Thus, marriage in another country is recognised through Lex Loci Celebrations.

But private international law is rather a grey, nebulous realm of judiciary in which there are no cut and dried laws. As Dewan elucidates," World over, marriage is considered a union between two individuals. Beyond this, there are grave differences". Problems are further compounded as the domestic laws of communities are divergent. For instance, in Ogden vs. Ogden case parental consent was considered by French law as related to material validity, while the English law referred to it as formal validity. The unhappy consequence was that the woman was considered as married in the UK and divorced in France. In the Mehta vs. Mehta trial, the marriage was held void since the ceremony that the woman underwent was that of marriage, whereas all the while she believed it was an engagement function.

As a rule, in case of a conflict, national law takes precedence over international law, but the judgements are confounding. Often, ingenuous Indians manipulate international laws to obtain ex-party divorces and wriggle out of unwanted situations by twisting their community laws. As it happened in Chetti vs Chetti case where an Indian domiciled Hindu married an English woman domiciled in London. When the wife petitioned for judicial separation on grounds of the husband’s cruelty, the later argued that marriage was null and void since the Hindu law did not permit him to marry a non-Hindu. The court, however, refused to give effect to this disability.

Satya vs Teja Singh is as interesting example of cheating by Teja, who went to the USA on the pretext of doctorate research work. In the land of the Big Apple, this Adam was tempted by the apple which came in the shape of the simplified Nevada State Law which granted him domicile for a short stay of four weeks. He, thus, obtained an ex-parte divorce. The Indian law of recognition of foreign divorces is rather hazy and Indian courts may or may not accept a foreign decree. Herein, the Supreme Court ruled against the decree and stated that the decree was obtained through fraud. Consequently, the S C awarded Satya a maintenance relief of Rs 500 per month.

According to an eminent lawyer of the city, under the Criminal Procedure Act, section 125, a woman can seek immediate relief. But the amount, a ‘princely’ sum of Rs 500, is by itself a cruel joke. Under the Hindu Marriage Act, however, the compensation can be any amount as deemed fit by the judge. Sethi reveals that the court has the power to attach property and provide for the legally wedded wife’s legitimate share. Alas, the property left behind in India is always ancestral and no court can provide for future settlement.

The Hindu Marriage Act applies to all Hindus, and it is not at all necessary that they be Indian nationals. The Special Marriage Act, too, permits marriage between any two persons, whether performed as a civil marriage or a religious one and irrespective of the fact as to which community or religion they belong. As a result, the provisions of the Act become applicable to the parties and provide for ancillary reliefs. Navkiran quips, "The crux of the matter doesn’t hover around the passing of the decree but in its execution".

Indeed, when criminals go scot-free in this land of "justice delayed is justice denied," how do you expect a man domiciled in an alien nation to be hauled up in Indian courts? Sethi argues that through the passport and security number, the absconding husband can be traced in a jiffy. The stark reality is, however, markedly different. Still, all legal experts advice that women must try their utmost to fight their battles on an alien soil, because the legal process abroad is less cumbersome and favourably inclined towards the fairer sex. The legal fees is exorbitant but, as Navkiran says, "In the U K and Canada there are free legal cells and in the U SA, attorneys are willing to render help on a commission basis."

Sudarshan Sharma’s husband was based in Germany and she was able to extract a hefty compensation package. However, not all are so lucky. Namrata Singh’s shrewd Richie Rich hubby transferred all his property in the U SA in the name of his blood relatives the moment he had an inkling that his wife might sue him for divorce. At the time of divorce, this professional posed as an unemployed person.

Sheila Didi, a lawyer and a crusader for women’s rights, comments, "At times, women have no documentary evidence. They neither have any proof of marriage nor their passport is in their custody." Moreover, the reason cited in the visa are often contrary to their marital status. Since there is an inordinate delay in getting a visa through legitimate means, women fabricate lies to expedite the procedure. The absence of a social-support system in an ethos where they fail to find someone who could lend a helping hand, makes the experience harrowing and unnerving. Still, women must resist the temptation to fly homewards. As Navkiran puts it, "In India, not only is the battle long drawn out, the inimical attitude of courts, where even rape trials are held in the open, stuns any spirit of seeking justice".

Few women would have the patience or confidence to endure court proceedings. There are women like Reena Bains, a lawyer herself, who took to task her US-based fiance Kuldeep Singh when he broke off the engagement a few days prior to the marriage. She recalls," Relatives and friends advised me against it for they felt it would mar my future matrimonial prospects, a fear that wasn’t entirely unfounded". In Reena vs Kuldeep Singh case, she managed a compensation of Rs 2 lakh.

Well, if breach of contract was considered an offence, surely wilful desertion of wife is a grave crime. Navkiran says, "Lone judgements can’t set a precedence for others. Unless laws are laid down in black and white, women sailing in turbulent waters can’t be brought ashore".

The need of the hour is reforms in the judicial system. Besides, creation of family courts, the speedy formulation of visa cases of newly married women, empathetic role of embassies and the Ministry of External Affairs is also a must. The government has to show a sense of urgency in taking up the issue with foreign governments because, ultimately, it is our problem and not theirs.

Peyshi Deewan, co-author Private International Law, feels that it is time to revise our mindset and stop viewing NRI husbands as manna from heaven. "As long as we remain blinded by the lustre of dollars and sterling pounds and continue to use our daughters as passports for self-aggrandisement, the problem can’t be solved." Of course, not all such matrimonial alliances culminate in acrimonious separation, and as someone said, "Marriages that break, create more noise". But the noise, if arising out of transgression of human rights, requires a sympathetic ear.

Allowing the bull in a china shop, where all that is delicate and priceless is already broken, is no big deal. Perhaps we require another bull with sharper horns as a deterrent to ensure that hearts are not broken in the first place.