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In re Marriage of Murugesh

Court of Appeals of Illinois, Third District

August 8, 2013

In re MARRIAGE OF DEEPALAKSHMI MURUGESH, Petitioner-Appellee, and MURUGESH KASILINGAM, Respondent-Appellant.

Rehearing denied September 9, 2013

Held [*]

The certified question as to whether the Illinois action filed by the wife of a couple who were citizens and domiciliaries of India and were married in India, but lived in Illinois, should be dismissed pursuant to section 2-619(a)(3) of the Code of Civil Procedure because the husband filed a divorce action before the wife filed her action or pursuant to the doctrine of forum non conveniens, principles of comity or Illinois’s policy of avoiding duplicative litigation was answered in the negative, since section 2-619(a)(3) should not be used to dismiss an Illinois action in favor of an Indian action, the relevant factors did not favor a dismissal under the forum non conveniens doctrine, Illinois’s legitimate and substantial relationship to the action precluded dismissal pursuant to the principles of comity, and nothing in the policy of avoiding duplicative actions required dismissal of the wife’s petition in favor of the husband’s Indian action.

Appeal from the Circuit Court of Will County, No. 09-D-452; the Hon. Robert P. Brumund, Judge, presiding.

Sarane C. Siewerth and Shannon R. Burke (argued), both of Schiller, DuCanto & Fleck LLP, of Chicago, and Timothy M. Daw, of Schiller, DuCanto & Fleck LLP, of Wheaton, for appellant.

Jared B. Pinkus, Howard A. London (argued), and Katherine A. Grosh, all of Beermann Pritikin Mirabelli Swerdlove LLP, of Chicago, for appellee.

Justice Carter concurred in the judgment and opinion.

OPINION

LYTTON, JUSTICE.

¶ 1 Petitioner Deepalakshmi Murugesh (Deepa) and Murugesh Kasilingam (Murugesh) were married in India in early 1999. By September 1999, both parties were living in Illinois. In March 2009, Murugesh filed a petition for dissolution of marriage in India. Two days later, Deepa filed a petition for dissolution of marriage in Illinois. Murugesh filed a motion to dismiss Deepa's petition for dissolution. The trial court denied the motion and certified a question for appeal. Murugesh filed a petition for interlocutory appeal, seeking an answer to the certified question. We answer the certified question in the negative.

¶ 2 FACTS

¶ 3 Murugesh and Deepa are citizens of India. In 1997, Murugesh came to the United States and started a company in Illinois. Murugesh and Deepa were married in India in January 1999, under the Hindu Marriage Act No. 25 of 1955. The marriage was solemnized in India on August 22, 1999. In September 1999, Deepa moved to Illinois with Murugesh. One year later, Murugesh and Deepa had a child. The child was born in Illinois and has resided in Illinois since her birth.

¶ 4 In 2008 and 2009, Deepa spent extended periods in India. According to Murugesh, during these periods, Deepa was living with another man and holding herself out as his wife. Deepa returned to Illinois on March 10, 2009.

¶ 5 On March 14, 2009, Murugesh filed a petition under the Hindu Marriage Act, seeking dissolution of his marriage to Deepa. The petition alleged that Deepa committed adultery and mental cruelty. Two days later, Deepa filed a petition for dissolution of marriage in Will County, Illinois, alleging irreconcilable differences and mental cruelty. In April 2009, Murugesh filed a motion to dismiss the Illinois divorce proceeding, pursuant to section 2-619(a)(3) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(3) (West 2010)), arguing that a divorce action was already pending in India.

¶ 6 The trial court held a hearing on Murugesh's motion to dismiss. At the hearing, Murugesh testified that he owns two businesses in Illinois. He also claimed an ownership interest in a business in India but said that he receives no income from it. Murugesh testified that he and Deepa have $400, 000 worth of jewelry in a safe deposit box in India. He also testified that he paid an advance for a vacant lot in India on which he and Deepa planned to build a home. Murugesh testified that he did not have any documentation with respect to that property because it was purchased through his father with "black money."

¶ 7 Deepa testified that except for one bank account with a nominal balance and a safe deposit box containing jewelry, all of the couple's assets are located in Illinois, including Murugesh's businesses, the couples' primary bank accounts, their personal property, and their marital residence. She testified that she did not own any land in India.

¶ 8 Since Murugesh filed his divorce action, neither he nor Deepa has been back to India. Murugesh's parents instituted two criminal actions against Deepa for adultery and filed a charge of attempted assault against Deepa and her parents. If Deepa were to return to India and be convicted of adultery, she could face up to two years in prison.[1]

¶ 9 In the Indian divorce action, Murugesh never personally appeared; rather, his father appeared by proxy on his behalf. In an affidavit submitted to the Indian court, Murugesh explained that he would be unable to appear in court in India because he was "preoccupied" with "running a software business in the United States." Deepa's father participated in the Indian divorce action on her behalf. Murugesh's father lives in the city where Murugesh filed his divorce action, while Deepa's father lives nearly 200 miles away. It takes him five to seven hours to travel that distance by car or train.

¶ 10 In March 2011, the trial court denied Murugesh's motion to dismiss the Illinois proceeding. In its oral ruling, the court found that (1) neither of the parties has been in India since Murugesh filed his petition, (2) all of the proceedings in India have been by proxy, (3) except for brief periods of time since August 1999, the parties have resided in Illinois, (4) the parties' only child was born in Illinois and is a citizen of the United States, (5) the only assets of the parties located in India are a vacant lot, a relatively new corporation, a bank account, and jewelry, (6) the only reason Murugesh filed his action in India was "because of [Deepa's] alleged marital infidelity and the consequences of the same under the Hindu Marriage Act, " (7) Murugesh engaged in "forum shopping" so that he could "take advantage of the Hindu Marriage Act, " (8) "substantially, if not all of the evidence, is located in this jurisdiction, " and (9) the only evidence not available in Illinois is proof of Deepa's infidelity, "which is not an issue in the United States."

¶ 11 On March 16, 2011, Murugesh filed a motion requesting the Illinois trial court to stay the Illinois proceedings and certify the following question for appeal:

"Where citizens and domiciliaries of India were married in India under the Hindu Marriage Act of 1955 but are currently living in Illinois; where grounds for divorce and/or dissolution are alleged to have arisen in both the State of Illinois and the Country of India, and that proof of those grounds would be located in each jurisdiction, and the husband filed his divorce action in India before the wife filed a Petition for Dissolution of Marriage in Illinois; where both courts have personal and subject matter jurisdiction over the respective proceedings; and where the India court, according to the Hindu Marriage Act of 1955, asserts exclusive jurisdiction to divorce parties married according to Hindu law such that India would not recognize an Illinois judgment of dissolution in a contested case, should the Illinois ...

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