By Dr Chandrika Subramaniyan and Sheryl Dixit
We see marriage scenarios in Indian movies all the time, some dramatic, some ridiculous and in the more slapstick films, outrageous unions based on convenience, blackmail and delusion. The villain is usually the perpetrator, and the hapless victim is generally rescued in the nick of time by the hero/heroine, accompanied by a homily on love, the true meaning of marriage and these endings are invariably happy.
We leave the theatre with a sense of being entertained, but how many of us would accept that some of these situations do happen in real life and are not the least bit funny? In fact, they are stressful, full of rancour and take a lot out of the parties involved.
Making of a marriage
India is a country where marriage is considered as sacred, and until recently, divorces were minimal because of due consideration being given to traditional values, family honour and social structure. However at present, marriages are increasingly failing in India and overseas, for a range of reasons. Some of these are because of the globalisation, migration and economic independence of women, thanks to increased employment and education opportunities. The role of partners has changed drastically, and with this comes a change of perception which is not easily accepted in a traditional society. Economic freedom and changed employment conditions with options of working shifts and 24/7 hours have caused a shift in the paradigm in which men are breadwinners and women are homemakers. Now in marriages, partners seek equal opportunities in the workplace, income and care of children. And while many of these marriages usually work, like everything else there are exceptions to the rule that are solely based on self gain and greed.
Break, not make
Of late, it has become evident that that an increasing number of marriages are ending in divorce. Alarming statistics support this presumption and the reasons are not usually those of abuse or incompatibility, but of a much deeper, darker reason. In some cases and a majority of these relate to the female gender, the concept behind the marriage is a desire to leave behind the constraints of one’s homeland and family for a more indulgent, freer life in Australia. Or so it seems. However, when confronted with reality, many women endure the two year process that
rewards them with a permanent residency status and then simply walk out of the marriage, leaving behind a bemused spouse. Their purpose is clear, to get their PR status and go back to being independent and constraint free.
Other situations have been exposed in which students, unable to manage a PR during their study tenure, knowingly or unknowingly woo an Australian partner to continue living here and when their PR papers come through, drop the marriage and relationship like a hot potato.
Some partners treat the matrimonial episode as an opportunity to extract whatever they can in terms of financial gain from their spouse whom they claim is defaulting in their duties or is abusive. The partner is susceptible to this bait as it involves a sum of money to help save face and standing within community circles; however things are known to get complicated when the partner doesn’t keep their word or word leaks out somehow.
There’s no doubt that the rising number of frauds in the business of marriage and divorce had coerced the Australian government to take a closer look at the system, but they have merely touched the tip of the iceberg. On investigation, its apparent that the issue is much deeper and more rampant than expected. And while we can argue that there are two sides to every story, in some cases, the evidence of culpability is blatantly obvious.
Indo-Oz marriage laws
matrimonial According to Indian laws, marriages are conducted and accepted according to religious customs, with different laws on divorce for different religions and communities such as the Hindu Marriage Act (1955), Indian Divorce Act 1869 & The Indian Christian Marriage Act, 1872.
In India, one can file for divorce only in the case of adultery, desertion, cruelty, impotency or chronic disease. A number of legal marriages are conducted in India, and these reasons are then cited as opportunities to file for divorce. As one partner is overseas, there is no clear evidence available other than claims of the injured party, which may or may not be true.
The divorce process in India extends for almost a year and in some special cases of disputes the procedure may continue for years. Divorce can be granted by mutual consent or contested divorce, and naturally for the spouse overseas, the option of mutual consent is always preferred. However, this is where the partner can try and gain the maximum advantage. For instance, Rahul* and Anita* married in India and moved to Australia, where they began experiencing difficulties in their marriage
after a year. Rahul, a second generation Australian citizen comes from a family that is well settled here. One day he returned from a work trip to rural NSW to find that Anita had left for India, taking her jewellery, clothes and all the cash from their joint account. Since returning to Delhi, Anita has filed for divorce citing cruelty and mental abuse. As a part of their divorce settlement, she is demanding that one of the three houses the family owns in Australia should be granted to her as compensation. Rahul was willing to settle for a reasonable financial payout to end the marriage, but is adamant that she will not take advantage of him and his family.
The story took a sordid turn when a private investigative agent hired by him found out that his wife had been in a live-in relationship prior to her marriage, and on returning to India, had blatantly moved back in with her old partner. Confronted with this evidence, Anita was compelled to accept a lump sum payment, that didn’t come close to the original amount she desired. After three years of this drama, the divorce went through via mutual consent.
This is just one of the many cases that showcase how marriage is being used for ulterior purposes, in which the innocent partner has to pay the price and it is a fairly common occurrence. Often the families choose to pay to avoid the scandal and move on with their lives, while the perpetrators get away with a tidy sum.
Another situation that has arisen too often to be ignored is when a marriage is declared void because of bigamy under Section 11 of Hindu Marriage Act, 1955. Rani* and Kumar* met on a popular marriage dating site and after getting to know each other, decided to marry. Rani, an Australian of Indian origin in her late 30s travelled to India and went through the marriage ceremony. The newlyweds were about to return to Australia when Kumar’s brother approached her a few days after the wedding with the news that her husband was already married and had a family. He showed her photographic evidence, and claimed that he wanted to ‘help’ her. For a substantial sum of money, he would say nothing about the first marriage and they could leave together and carry on with their lives, while he would ‘take care of everything’ in India. Shocked and upset, Rani consulted her sister also living in Australia, who advised her to return immediately and alone. With the help of friends, Rani flew back to Australia the next day, and confronted her ‘husband’ with this information. He prevaricated for a while, before admitting that it was true and agreed that the marriage was void. Clearly Kumar and his brother were in cahoots and Rani’s prompt action helped her avoid an upheaval. Rani now feels grateful for her escape, but is disillusioned and
angry at her helplessness. Kumar continues to keep in touch, in the hope that she may change her mind – some hope!
Marriage and divorce in Australia is an entirely different, and to some extent, simplified solution. In Australia, a ‘no fault’ divorce is one in which you don’t need to prove the wrong doing of the other party. To file for divorce one simply needs to prove valid marriage, severance of the relationship for twelve months, and confirm that one party is domiciled in Australia under Australia Family Law Act 1975. Australia strives to recognise Indian marriages like any other foreign marriage, with immense tolerance to multicultural and multi religious marriages.
The relative ease of the laws pertaining to divorce are taken advantage of by unscrupulous people, mainly students or 457 visas holders who have run out of time as their PR has not come through yet. Some of them knowingly enter a relationship with an Australian, either of Indian origin or not, to obtain permission of continuing to live here via marriage. In some cases they deliberately woo and marry an Australian, and after obtaining their PR, they begin to play up and find excuses to file for divorce.
Some Australians are known to offer the service of a marriage for a fee and the understanding that the relationship will end in divorce after two years and once the partner’s PR has come through. It’s a situation that makes a mockery of marriage, but is unfortunately, a reality of urban times. Radha* wondered why classmate Sushil* was so vigorous in his wooing of her, as they neared the end of a three year catering course. He had not even seemed to notice her in the first two years, but suddenly showed an interest and unfortunately, Radha succumbed to his charms. He insisted that they marry three months before the course ended, and against the advice of her parents, they tied the knot. Sushil’s behaviour towards Radha changed drastically after six months, as his PR paperwork proceeded on track, he became physically abusive and demanding. Radha claims that she endured this treatment for a couple of months because she simply couldn’t admit that she had misjudged Sushil’s motives. But the abuse eventually became too much and Radha filed for a divorce. Because they had been married for under two years, the couple had to attend counselling with Family Dispute Resolution Provider to discuss the possibility of reconciliation where it became clear that Sushil had married for the convenience of extending his stay here until he received his PR. Fortunately the divorce application in Australia is different from any issues relating to the property or children, so Radha and Sushil can divorce without further complications.
Time for action
Of course, there are two sides to every story and the examples cited here are based on personal experiences from one party only. However, the need to protect the truly wronged party is critical, specially when children form a part of the equation. The problem is that Indian and Australian laws in relation to marriage and divorce have few or no commonalities, and their methods of dealing with the granting of divorce are completely dissimilar. In India, there are no exhaustive laws in relation to overseas Indians. The only solution available is for the couple who have not married under HMA in India, as overseas divorces are not recognised in India under the Hindu Marriage Act 1955. Foreign divorces are not considered valid in India unless the grounds and proceedings are in compliance with Indian law, and the verdict needs to be validated in India.
If both husband and wife agree for a divorce even in overseas jurisdictions, they can get the marriage dissolved under the provisions of the concerned marriage act. But in cases where one of the party disagrees and does not want a divorce, a petition seeking to get it declared null and void can be filed in India. Sometimes a grey area is created wherein a couple is legally divorced abroad, but married in India.
It is critical that this issue with all its varying facets is examined carefully by representatives of the law of both countries, so that justice can be done and the wronged party is protected.
Many people within the subcontinent community are aware of the current state of affairs in relation to marriage and divorce, and even have first hand information or experience about these situations. However, tradition and the need to save face is stronger than the need to expose such scam marriages which are becoming a well paying proposition for the unscrupulous.
These situations are not individual to Australia, they are rampant in the United States, the UK and Canada, countries which have large migrant populations.
It is time now for the Australian government to take on the mantle of protector and investigate such scams. It is also the duty of the subcontinent community to come forward and publicise their experiences, so that others can benefit from this knowledge and avoid becoming dupes to the marriage masala and divorce tamasha trend.
*Names changed on request
Compiled by Sheryl Dixit based on research & confidential information received.
Dr Chandrika Subramaniyan, MA MPHIL PHD LLB LLM MAICD MCSD, is a Solicitor of the Supreme Court of NSW and High Court.
The Indian Telegraph Sydney Australia