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Case of the Month (from CFLR Monthly)

February 2024
[Archive]

Husband and wife's wedding ceremony in India did not establish marriage under Hindu Marriage Act_. . .

 

In a partially published opinion, the Sixth District held that substantial evidence supports trial court's finding that husband did not volunteer to subject himself to India's Hindu Marriage Act and, thus, a wedding ceremony in India in 2010 did not result in a valid marriage; instead, the date of the parties' marriage was the date of a civil marriage ceremony that occurred in Illinois in 2013.

 

In re Marriage of V.S. and V.K.

(November 15, 2023)

California Court of Appeal 6 Civ H050105, 97 Cal.App.5th 219, 315 Cal.Rptr.3d 255, 2023 FA 21110, per Lie (Grover, Acting P.J., and Bromberg, J., concurring). Santa Clara County's Towery, J., affirmed. For V.S. (Appellant): Charles Marriott Kagay and Claudia Nan Ribet. For V.K. (Respondent): Pro Per. CFLP §C.0.1.

 

Wife and husband were both born in India and met in 2009 in Illinois, where they both lived at the time. On December 15, 2010, wife and husband participated in a marriage ceremony (Phera) in India. The parties later participated in a civil marriage ceremony in Illinois on July 5, 2013.

In July 2019, wife filed a petition for dissolution of marriage. Notably, wife alleged the date of marriage was December 15, 2010. In his response, husband also indicated the date of marriage was December 15, 2010, although husband later argued that the date of marriage was July 5, 2013.

The trial court bifurcated the issue of the date of marriage and set the matter for a separate trial. At issue in the bifurcated trial was whether the Phera ceremony in India in 2010 established a valid marriage under the Hindu Marriage Act. The trial court heard testimony from two expert witnesses, both attorneys licensed in India. Husband's expert, Prashant Kenjale, testified that the Hindu Marriage Act "'only applies to Hindus who are domiciled in India.'" Kenjale further testified that the Supreme Court of India interpreting the issue of the application of the Hindu Marriage Act had ruled that a person of Hindu faith who is domiciled in another country is not subject to the Act unless that person volunteers to be subject to the Act. Kenjale opined that this requirement involves "'not only an active step [but] an official step'" beyond participating in the Phera ceremony. Wife's expert, on cross-examination, conceded the accuracy of this interpretation, although he added that "'it [is]_a reasonable presumption that a Hindu not domiciled in India who participates in a Phera has voluntarily submitted to the Hindu Marriage Act and that this presumption may be rebutted by 'negative indicia'-for example, a 'nondomicile person has to do an overt act that he is not subjecting himself to the applicability' of the Act."

Husband testified that he did not consider the parties to be married after the Phera ceremony and, in fact, he communicated to wife before the ceremony that he did not intend to legally marry her until she signed a prenuptial agreement. After the Phera ceremony, husband declined on two occasions to register the parties as married. First, he refused his father's offer of a registration form to register their marriage. And second, he declined to complete a registration form provided to him by the Indian consulate during a visit to renew wife's passport. Husband also noted that his tax returns for the years 2010, 2011, and 2012 indicated his status was single. Husband also testified that a month after the Phera ceremony wife renewed her U.S. exchange visitor visa rather than apply for a spousal visa. When discussing the reason that he initially indicated the date of marriage was December 15, 2010, husband said that at the time he was a "'broken-down man'" who hoped the case would settle.

Wife testified that she believed she and husband were married after the Phera ceremony in 2010. As support for this position, wife noted the parties started discussing marriage in 2009 and that the parties had a wedding ceremony in India several days after the Phera ceremony. Regarding her tax returns for the relevant years in question, wife conceded that the returns indicated her status was single but said that she did not review them carefully before approving them.

In its statement of decision, the trial court (Santa Clara County's Towery) concluded the parties' date of marriage was July 5, 2013, after finding that husband had met his burden of proof that the Phera ceremony did not establish a valid marriage under the Hindu Marriage Act. Specifically, the trial court found that husband was not domiciled in India and he did not take any overt action to subject himself to the Hindu Marriage Act. The trial court further concluded that wife was not a putative spouse after the Phera ceremony, noting that she did not "'believe honestly, genuinely, and sincerely'" that she was married after December 15, 2010. Wife appealed, but the Sixth District affirmed in a partially published opinion.

 

Parties' date of marriage was a legal conclusion, not a factual allegation. . .
Before turning to the principal issue on appeal, the panel concluded that husband's admission in his early pleadings that the parties' date of marriage was December 15, 2010, did not in fact establish the date of marriage as a judicial admission. The justices noted that despite the doctrine of conclusiveness of pleadings [a pleader is bound by well pleaded material allegations or by a failure to deny well pleaded material allegations], legal conclusions may not be treated as judicial admissions. In other words, "'the mistaken conclusion on the part of a pleader should not preclude a trial of the issues on its merits.'" Here, the justices found husband's assertion of the parties' date of marriage was a legal conclusion since the matter turned on an interpretation of the Hindu Marriage Act. In further support of this conclusion, the justices cited In re Marriage of Elali & Marchoud (2022) 79 Cal.App.5th 668, 294 Cal.Rptr.3d 804, 2022 FA 2038 [holding trial court properly ruled that parties' Lebanese marriage was void despite both parties' allegations that they were married].

 

Validity of the 2010 Hindu marriage. . .
Next, the justices turned to the validity of the 2010 Hindu marriage, first discussing the applicable law. Per Fam C §308, an out-of-state marriage is valid in California if the marriage would be valid by the laws of the jurisdiction in which the marriage was contracted. The trial court has the responsibility to determine the law of the foreign nation, and appellate courts are "'empowered to consider the applicable statutes, court decisions, and constitutional provisions of foreign nations to determine their legal import without being limited by the findings of the trial court.'"

After a review of the Hindu Marriage Act along with relevant Indian case law, the justices concluded the Act applies to Hindus domiciled in India, but, case law has created an exception that if only one party to the marriage is domiciled in India, the Act may still apply if the other party volunteers to be governed by the Act. In reaching this conclusion, the justices took note of a decision rendered by the Supreme Court of India wherein that high court warned that unless the extra-territorial operation of the Act has some nexus with India, the Act "would be 'vulnerable' to being deemed invalid." The justices also rejected wife's interpretation of two Indian cases that she cited in support of her position that there is no requirement of Indian domicile for the Act to apply. Instead, the justices observed, each case involved a couple attempting "to register their solemnized marriage, despite the extraterritorial domicile of one party[.]" Moreover, this attempt to register the marriage "would appear to constitute 'volunteering' oneself to be subject to the Act, as the Supreme Court in India allowed as an exception to the domicile requirement." The justices lastly rejected wife's argument that the determination of the parties' date of marriage should not turn on the matter of domicile since California does not require such an element to establish a valid marriage. But, the justices noted, "we may not presume_that this state's decision not to impose a particular requirement on marriages contracted in California authorizes us to relieve the parties of such a requirement apparently imposed by India's Parliament, according to India's highest court."

In applying the law to the case at hand, the justices held that substantial evidence supports the trial court's finding that husband did not volunteer to subject himself to the Hindu Marriage Act. As a result, the wedding ceremony in India in 2010 did not establish a valid marriage. First, on two occasions after the Phera ceremony husband declined to register the marriage. Second, husband refused to support a spousal visa application for his wife even though such visa would have been easier to obtain than the renewal of her U.S. exchange visitor visa. Third, husband's expert testified that mere participation in the Phera ceremony is not enough to demonstrate an intent to be subject to the Act. And finally, even under the less-stringent standard set forth by wife's expert that negative indicia must exist to contradict a presumption that the Act applies, such negative indicia existed in this case.

For these reasons, the Sixth District affirmed the trial court's order finding that the parties' date of marriage is July 5, 2013.

 

Wife was not a putative spouse. . .
In the unpublished part of the opinion, the Sixth District concluded that the trial court did not err by finding that wife was not a putative spouse. Per Fam C §2251, a putative spouse is one who "'believed in good faith that the marriage was valid.'" This inquiry requires the court to consider the totality of the circumstances. Here, the justices concluded that several reasons supported the trial court's determination that wife lacked the requisite good faith. First, wife filed her tax returns for the years 2010, 2011, and 2012 as a single person. Second, wife applied for an exchange visitor visa renewal instead of a spousal visa, and later when she renewed her Indian passport after the Phera ceremony, she left blank the space for a spouse's name. And third, husband testified that wife knew that he would not legally marry her without a prenuptial agreement.

 

 

COMMENT:

  

Upon reaching its holding, the panel acknowledged the difficulties of interpreting foreign law, including that "we are interpreting the law of a sovereign nation based upon the limited caselaw that the parties and their experts have supplied, without any other perspective on the Act beyond the 'evidentiary' record, or any competence in Indian jurisprudence and Indian principles of statutory interpretation." Here, it may be helpful to give a quick recap of the evidentiary tools used by the trial and appellate courts. On appeal, the justices took judicial notice of the current and a former version of the Hindu Marriage Act along with several decisions published by Indian courts. See Ev C §452(f) [the law of foreign nation is subject to permissive judicial notice]. The trial court, in addition to taking judicial notice of relevant Indian law, heard testimony from two attorneys licensed in India who had experience litigating issues related to the Hindu Marriage Act. See Ev C §454(b) [where the subject of judicial notice is the law of a foreign nation, the court may consult the advice of persons learned in the subject matter]. The justices also noted that under Ev C §311, if the law of a foreign nation applies but cannot be determined, the court may apply California law or dismiss the action without prejudice, or in the case of a reviewing court, remand the case to the trial court with directions to dismiss the action with prejudice.

 

Library References
11 Witkin, Summary of Cal. Law (11th ed. 2023) Marriage, §50
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶19:1650

 

 

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