Women residing in India temporarily, OCI cardholders entitled to relief under Domestic Violence Act: Madras High Court

The Madras High Court Wednesday said that persons who were living temporarily in India and foreign citizens who are Overseas Citizenship of India (OCI) cardholders are entitled to invoke the Protection of Women from Domestic Violence Act of 2005 (DV Act) before Indian courts. .Justice SM Subramaniam of the Madras High Court further said that there is no bar on an American citizen holding an OCI card from approaching an appropriate court of law in India for alleged abuse and domestic violence that might have taken place in America.The Court said that the DV Act is a welfare legislation and, therefore, a woman, residing in India could not be denied access to its provisions. It also said that since the woman in the present case was residing in India now, the cause of action arose in India. "Section 27 (of the DV Act) 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," Justice Subramaniam said. .The Court was hearing a revision petition filed by an American citizen, seeking that the DV Act proceedings initiated by his estranged wife before a Mahila Court in Chennai be quashed. The husband told the Court that the woman, an OCI card holder, and their twin sons had come to India last year in the pretext of a short visit to Chennai, but had stayed back in India, never to return to USA. He also said that during this period, an American court had granted an ex parte divorce decree and had granted him the custody of the twin boys. He, therefore, argued that all connected proceedings that the woman had initiated in India cannot be sustained. It was also pointed out that he had filed a habeas corpus petition before the Madras High Court last year and the High Court in January this year, had said that the boys should go back to America and live with their father. He argued that in view of such order, the single-judge cannot re- examine the boys. The woman, however, argued that she was a victim of physical and emotional abuse at the hands of her estranged husband and she had no intention of returning to America..The twin boys, who are 15 years old, also told the Court that they wished to stay with their mother in India. The High Court then said that the foreign court's order will not act as a bar on statutory courts in India to adjudicate over the woman's pleas. Justice Subramaniam said that merely because a foreign court had taken a particular view on an aspect concerning the welfare of the minors, courts in India do not need 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," the High Court said. The Hindu Marriage Act and Domestic Violence Act are the welfare legislations for women, the Court underscored."The rights of the parties to get reliefs under the Special Enactments / Personnel Laws need not be denied by the Courts. The Hindu Marriage Act and Domestic Violence Act are the welfare legislations for women and therefore, the respondent / 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. The nature and scope of 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," the HighCourt said. The Court also said that its "conscience" could not permit it to forcibly send the two boys to America. Besides, the Court is bound by law to protect the interests of OCI card holders, it said.Senior counsel G Rajagopalan appeared for the petitioner-husband. The woman appeared in person.