Clash of conjugal rights in the courtroom

wedding couple.jpg

THEY married after just 18 days and only lived together for about two months but now he wants a divorce while she wants a court to order that they resume "conjugal rights".

It is clash of cultures that has pitted Indian law against Australian family law.

Magistrate Kate Hawkins had to ask during the start of the couple's contested divorce proceedings in Australia: "What's an application for conjugal rights in India? Can somebody explain that?"

She was told that under the Hindu Marriage Act in India, the courts can force the couple to get back together and have a family.

"I wish to stay with him," the wife, 26, told the magistrate.

The Federal Circuit Court was told that the man, 28, who is in Australia on a temporary working visa sponsored by his employer, married his Indian wife in an arranged marriage in March 2011 just 18 days after their families introduced them. He was home on holiday in Indian at the time.

She followed him back to Australia but during the two months they lived together there was a constant series of arguments, she threatened to kill herself and lied that she was pregnant, the court was told.

He called off a "cultural wedding" back in India and even their respective parents became involved in an argument over money.

The wife has filed an application for Restitution of Conjugal Rights in the Court of Anand, Gujarat in India.

She wants the Federal Circuit Court to block her estranged husband's divorce application in Australia because it could prejudice her case for conjugal rights in India.

However Judge Dominica Whelan in the Federal Circuit Court said she was satisfied that the marriage had irretrievable broken down and made a divorce order. She said the wife had been unable to show that the Australian courts were not the correct forum for this case.

Article courtesy The Daily Telegraph- written by Janet Fife-Yeomans, 9/10/2013

Family Law Accredited Specialist, Adam West explains further ; Under Australian laws, there are no similar powers for the Courts to order couples to re-commence their relationship.

The Court’s powers are limited to granting either an annulment of a marriage (ie that the parties were never validly married) or a divorce. 

Applications for divorce can be made by either party or jointly.  The process of granting the divorce in most cases is relatively straightforward and generally requires the parties to be separated for a period of 12 months before an application can be made to the court. 

There are limited grounds for a party of the marriage to oppose the divorce being granted. A party simply can't argue that they do not consent to the divorce order being made. For more information on the Divorce process and time limitations that apply see our Family Law section. There are also a series of Divorce & separation support articles to read on our FAQ's page.

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