Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. while hearing a matrimonial appeal ruled that remarriage by the opposite spouse during pendency of an application for setting aside ex-parte divorce decree would not render such application as infructuous. 

The appellant-husband was granted an ex-parte divorce decree against which the respondent-wife filed an application to set aside the said decree along with an application for condonation of delay of 48 days. By that time, the appellant had married another woman. Respondent’s submission before the Family Court was that she had delivered a premature baby through cesarean operation during the hearing of case due to which she could not enter her appearance before the court. Appellant’s contention was that he had remarried after the grant of divorce decree and therefore the application for setting aside the ex-parte decree had become infructuous. The Family Court allowed respondent’s applications and set aside the divorce decree, against which order the appellant preferred the instant appeal. 

The High Court refused to interfere with the findings of fact of Family Court and noted that the appellant had remarried after receiving notice in the application for setting aside the divorce decree and during the pendency of that application. Relying on the dictum of Apex Court in Chandra Mohini Srivastava v. Avinash Prasad Srivastava, (1967) 1 SCR 864 the court held that remarriage of a spouse who obtained ex-parte divorce decree would not render the application filed by opposite spouse for setting aside the ex-parte decree, as infructuous and the said application must be considered on its own merits notwithstanding the remarriage. However, Family Court’s observation that remarriage by appellant could amount to bigamy, was dismissed as unwarranted. Thus, the instant appeal was dismissed. [Denny Pazhoor v. Greeta Sunitha Vincent,2018 SCC OnLine Ker 3921, decided on 17-10-2018] 

Case BriefsInternational Courts

European Court of Justice: In a ground-breaking ruling, the European Court of Justice has directed all member States to recognize the residency rights of same-sex spouses, even if the State does not allow same-sex marriages.

The case before the ECJ was involved Mr. Relu Adrian Coman, a Romanian national and Mr. Robert Clabourn Hamilton, an American national, who lived together in the United States for four years before getting married in Brussels in 2010. Mr. Hamilton was, however, denied the right of residence in Romania beyond three months, on the ground that he could not be considered in Romania as a ‘spouse’ of an EU citizen as Romanian law does not recognize marriage between persons of the same sex. The couple then approached the Constitutional Court, Romania, which in turn requested the ECJ whether Mr. Hamilton may be considered as the ‘spouse’ of an EU citizen who has exercised his right to freedom of movement and must, therefore, be granted a permanent right of residence in Romania.

Court observed that in a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States other than that of which he is a national, and, whilst there, has created and strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex. Such person has right to reside in the territory of the Member State of which the Union citizen is a national for more than three months. This derived right of residence cannot be made subject to stricter conditions than those laid down in Article 7 of Directive 2004/38. Further, it noted that recital 31 of Directive 2004/38 inter alia prohibited discrimination on the ground of sexual orientation by the Member States. Court also held that the word ‘spouse’ used in Article 2(2)(a) in definitions in gender neutral. [Relu Adrian Coman v. Inspectoratul General pentru Imigrari and Ministerul Afacerilor Interne, Case C-673/16, dated 12-06-2018]