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Tuesday, February 21, 2017

Enforcement of foreign divorce decree in India

The substantial questions of law which arise for consideration in this appeal are as to whether the foreign judgment passed by the Supreme Court in the State of New York is valid and binding on the parties and whether the said judgment dissolved the relationship of marriage between the parties.

The case made out by the plaintiff in the plaint that no other forum save and except the forum in India having jurisdiction to entertain proceedings under the Hindu Marriage Act 1955 is competent to pass a decree of divorce is not acceptable in law. That the relationship of marriage governed by the Hindu Marriage Act, 1955 can be dissloved by foreign decree of divorce has been long recognised by the Courts in India.The decision reported in AIR 1975 SC 105 (Smt. Satya v. Teja Singh) is a complete answer to the aforesaid question. Their Lordships have held that foreign decrees of divorce including decrees of Sister States are to be either accorded recognition or to be treated as invalid depending upon the circumstances of each case. Section 13 of the Code of Civil Procedure makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon between the same parties except-

 Section 14, C.P.C. creates a presumption that a foreign judgment, certified copy of which has been produced was a judgment pronounced by a court of competent jurisdiction unless the contrary appears on the record, but such presumption may be displaced by proving want of jurisdiction. Thus a combined reading of Sections 13 and 14 of the Code of Civil Procedure makes the position of law clear that if a certified copy of a foreign judgment is produced in a court of law directly adjudicating upon any matter between the same parties, the same shall be presumed by a court to have been pronounced by a court of competent jurisdiction unless the contrary is proved.

Orissa High Court
Dr. Padmini Mishra vs Dr. Ramesh Chandra Mishra
Equivalent citations: AIR 1991 Ori 263, II (1990) DMC 408
Author: P Mishra
Bench: P Misra
JUDGMENT P.C. Mishra, J.

1. This appeal arises out of a suit filed by the wife for obtaining a decree of divorce under Section 13 of the Hindu Marriage Act. The present appellant as plaintiff instituted the suit (O. S. No. 48/ 83-I) in the court of Subordinate Judge, Bhubaneswar praying for dissolution of the marriage on the ground, of ill-treatment and cruelty by her husband (respondent in this appeal). The suit was decreed by the trial Court. But the appellate court reversed the judgment on a finding that the marriage between the plaintiff and the defendant stands dissolved with effect from 18-1-1980 by the decree passed by the Supreme Court of County of Albany (U.S. A.) When this appeal was placed for admission, the respondent entered appearance through Advocates and both parties prayed for final disposal of the appeal at the stage of admission saying that a complaint case has been filed by the mother of the present appellant against the respondent and his old father alleging that the respondent is guilty of bigamy and a Criminal Revision (Criminal Revision No. 98/86) is pending in this Court to quash the proceeding. It was stated by the counsel for both parties that apart from the other questions of fact which may be required to be proved to bring home the charge of bigamy, the question as to whether the marriage was dissolved with effect from 18-1-1980 by the judgment of the foreign Court would be one of the most relevant points for consideration and the said point is the only question for consideration in this appeal. Accordingly the L.C.R. was called for and this appeal was heard at length for final disposal of the appeal.

2. As already stated the plaintiff filed the suit praying for dissolution of the marriage mainly on the ground of ill-treatment and cruelly. Admittedly the marriage was performed at Bhubaneswar on 18-5-1974 whereafter plaintiff and the defendant lived as husband and wife for some time at Bhubaneswar, and thereafter went to Delhi. The defendant-husband left for U.S.A. shortly thereafter and the plaintiff joined her husband some time in April, 1975. According to the plaintiff, she lived with her husband in U.S.A. till August, 1975., during which time she found that the relationship is getting strained and there was temperamentally incompatibility. During her stay in U.S.A. she found that the behaviour of her husband was intolerable and under the circumstances she left her husband and returned to India to be with her parents. It has also been alleged in the plaint that her husband has obtained a void decree of divorce from the Supreme Court of County of Albany in the State of New York in U.S.A. which, according to her, is incompetent to dissolve a Hindu marriage, as it is not a forum created under the Hindu Marriage Act. Since the said decree of divorce is neither operative nor enforceable in law, she has filed the suit almost for the same relief from a court of competent jurisdiction. In the written statement of the defendant the allegations of illtreatment, misbehaviour and cruelty were stoutly denied. It was further alleged that the plaintiff voluntarily deserted the defendant and went away for Delhi for her own purposes and was, therefore, guilty of desertion. According to the defendant, all his attempts for reconciliation having failed, he filed a case for divorce in the Supreme Court of County of Albany in the State of New York in U.S.A. on the ground of desertion for a continuous period of about 4 years. The defendant asserts that the Surpeme Court of the State of New York is a competent court having jurisdiction in relation to a dispute involving matrimonial relationship between the parties, since the plaintiff and defendant last lived together and cohabitated in the State of New York. The decree for divorce granted by the Supreme Court on 18-1-1980 was after due notice to the plaintiff, which as stated by the defendant is binding on the parties and has already severed the marital relationship between them. It was, therefore, urged that the question of dissolution of the marriage or granting a decree for divorce did not arise at all as by the date of the suit there existed no such relationship. The learned trial Court held that the judgment of the Supreme Court of New York in U.S.A. was void under Section 13(3) of the Civil Procedure Code as the same was obtained by making a false representation as to the jurisdictional facts. The contention of the plaintiff that the Supreme Court of the State of New York in the County of Albany is not a District Court within the meaning of the Hindu Marriage Act and that the decree is void on that ground was, however, not accepted by the learned trial court. It was further found that the plaintiff has successfully established that during her stay in U.S.A. defendant treated her with cruelty and deserted her. On these findings the learned trial court dissolved the marriage by a decree of divorce with effect from the date of the judgment. The defendant-husband came up in appeal and the District Judge, Puri in the judgment, impugned in this appeal, allowed the same, as according to him, the foreign judgment dissolving the marriage with effect from the 18th January, 1980 is conclusive and binding on the parties and the present proceeding for divorce is not maintainable. It appears from the appellate judgment that finding as regards ill-treatment and cruelty was not effectively challenged before the appellate court and consequently the appellate court has not recorded any finding whatsoever on that issue.

3. The substantial questions of law which arise for consideration in this appeal are as to whether the foreign judgment passed by the Supreme Court in the State of New York is valid and binding on the parties and whether the said judgment dissolved the relationship of marriage between the parties.

4. The case made out by the plaintiff in the plaint that no other forum save and except the forum in India having jurisdiction to entertain proceedings under the Hindu Marriage Act 1955 is competent to pass a decree of divorce is not acceptable in law. That the relationship of marriage governed by the Hindu Marriage Act, 1955 can be dissloved by foreign decree of divorce has been long recognised by the Courts in India.The decision reported in AIR 1975 SC 105 (Smt. Satya v. Teja Singh) is a complete answer to the aforesaid question. Their Lordships have held that foreign decrees of divorce including decrees of Sister States are to be either accorded recognition or to be treated as invalid depending upon the circumstances of each case. Section 13 of the Code of Civil Procedure makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon between the same parties except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud; and

(f) where it sustains a claim founded on a breach of any law in force in India.

5. Section 14, C.P.C. creates a presumption that a foreign judgment, certified copy of which has been produced was a judgment pronounced by a court of competent jurisdiction unless the contrary appears on the record, but such presumption may be displaced by proving want of jurisdiction. Thus a combined reading of Sections 13 and 14 of the Code of Civil Procedure makes the position of law clear that if a certified copy of a foreign judgment is produced in a court of law directly adjudicating upon any matter between the same parties, the same shall be presumed by a court to have been pronounced by a court of competent jurisdiction unless the contrary is proved. In view of the aforesaid settled position of law, the appellant tried to bring her case within Clause (e) of Section 13 of Civil Procedure Code contending that the decree passed by the Supreme Court of County of Albany in the United States of America was obtained by fraud. It was urged that the appellant was not a resident of New York when the foreign decree was passed and that material facts were suppressed by the respondent in the foreign court and there is no discussion in the judgment passed by the said Court as to how and under what circumstances a decree for divorce was passed by it. It was also urged that the proceeding in the foreign Court was without due notice to the appellant for which the judgment passed therein would not bind, the plaintiff-appellant. Learned counsel appearing for the respondent in his reply argued that the aforesaid contentions of the appellant cannot be entertained at the stage of Second Appeal since no allegation of fraud has been made out in the plaint far less the particulars thereof. For appreciating the aforesaid point the entire L.C.R. which was called for from the courts below was examined. The plaintiff-appellant in para 15 of the plaint has made a mention of the fact that the defendant has obtained a void decree of divorce from the Supreme Court of County of Albany in the State of New York in U.S.A. and has further stated in para 16 of the plaint that the said decree having not been passed by a forum in India as appointed under the law is incompetent to pass a decree of divorce. In para 17 of the plaint the operative part of the order in the foreign judgment has been quoted and it has been stated therein that the defendant by his act and omission is estopped from contesting the present proceeding. Nothing further has been said as to whether the foreign judgment referred to therein was obtained by fraud or the reasons for which it was said to be void. The rule of pleadings as given in Rule 2 of Order 6, C.P.C. requires that it must contain all the material facts on which a party relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. Rule 4 of the said Order requires that wherever necessary, particulars of such material facts are also to be given, the object being to enable the adversary to know what case he has to meet and thus to prevent a surprise at the trial and to limit the generality of the pleadings and so to define and limit the issues to be tried, thereby saving unnecessary time and expenses. The aforesaid rule is mandatory in nature. It has been stressed time and again that where fraud is alleged, particulars thereof should be given and the allegations constituting fraud must be clear, definite and specific. In a decision reported in AIR 1969 SC 583 (Dr. Lakhi Prasad Agarwal v. Nathmal Dokania) their Lordships have held that general allegations, in howsoever strong words they may be, if unaccompanied by particulars, are insufficient to amount to an averment of fraud. In this case far from giving the particulars of fraud the plaint does not contain any allegation of fraud whatsoever. Finding this difficulty the learned counsel appearing for the appellant filed an application for amendment of the memorandum of appeal wherein in the pretext of incorporating further substantial questions of law, various questions of fact which were totally absent in the pleading were sought to be introduced. The learned counsel for the appellant was heard at length as to whether it would be permissible in law to introduce new questions of fact in the memorandum of appeal, which did not at all find place in the pleadings. Learned counsel filed another petition under Order 6, Rule 17, C.P.C. praying for leave of the Court to amend the plaint. The schedule of amendment seeks to introduce various new facts such as: (i) that the parties never stayed any where inside the State of New York in U.S.A.; (ii) that the plaintiff never received summons from the Supreme Court of New York in the proceeding initiated there for obtaining a decree of dissolution of marriage; (iii) that the defendant had gone to U.S.A. only for studies having no intention whatsoever to permanently stay in the State of New York in U.S.A. and, therefore, did not acquire domicile in U.S.A.; (iv) that no jurisdictional facts have been stated in the foreign judgment and there is no finding therein as to the jurisdictional facts; (v) that the foreign judgment is not a judgment on merit and is founded on an incorrect view of international law and is also vitiated by refusal to recognise by the law of India; (vi) that the judgment has been obtained by fraud and misrepresentation, i.e. by suppression of summons by the defendant and misrepresentation with regard to the residence within the State of New York; and (vii) that the copy of the judgment, which has been marked as Ext. A is a forged document. It has already been stated that the plaintiff in her plaint itself has made a specific reference to the foreign judgment and has quoted the ordering portion thereof. The foreign judgment was passed on 18th Jan. 1980 and the suit was filed about three years thereafter. The defendant in his written statement specifically alleged that the Supreme Court of the State of New York is a competent court having jurisdiction in matrimonial relationship of the parties since the plaintiff and the defendant last lived together and cohabitated in the State of New York and that after due notice to the plaintiff, the aforesaid case of divorce was decided on merit and the decree of divorce was passed by the said Supreme Court on 18-1-1980. Authenticated copies of the judgment and the decree of the said Court were filed as Annexures 1 and 2 to the written statement, which were to be read as part of the written statement itself. The said written statement was filed in the month of May, 1984. The facts now sought to be introduced in the plaint by way of amendment could have been alleged in the plaint when it was filed inasmuch as the plaintiff was aware of the proceeding of divorce and the decree passed therein by the Supreme Court in the State of New York or at least all those facts could be introduced by way of amendment after the written statement was filed wherein specific averments were made as regards the jurisdictional facts and about the service of notice by the foreign Court. It may be noted that the plaintiff had once filed an application in the trial court for amendment of the plaint to add some allegations regarding the subsequent second marriage of the defendant, but not the facts now sought to be introduced. The appellate court did not accept the contention that the foreign judgment is not binding on the parties on the ground that none of the exceptions mentioned in Section 13 has been pleaded or proved by the plaintiff. In spite of the above, no grounds were taken at the first instance in this Second Appeal on the basis of the facts now alleged. The amendment sought for is, therefore, not only belated, but has been conceived only to meet the legal difficulties which the appellant faced during the course of argument. The petition for amendment of the plaint is supported by an affidavit of the mother of the plaintiff and not by the plaintiff herself. In the affidavit it has been stated that she is the special power of attorney holder of the plaintiff and has been authorised under the power of attorney to take all steps, file affidavits, plaints, appeals etc. and to engage lawyers on behalf of the plaintiff in the trial court and in the appellate court. The pleadings are required to be signed and verified by the party or ,a person duly authorised by him and so also an application for amendment of the pleadings. The affidavit appended to the application for amendment by the mother of the plaintiff does not specify as to whether she has been authorised to sign or verify the plaint in the absence of which it cannot be assumed that she has been so authorised. The introduction of the aforesaid new facts in the plaint by way of amendment would necessarily mean trial of the suit de novo from the stage of framing of issues. In the application it has been stated that in the year 1983 the plaintiff had come to India for about two weeks to participate in the religious rites following the death of her father and there was little time to instruct her advocate for the purpose of filing of the plaint. She merely handed over whatever papers were there with her to her Advocate Sri G. S. Rath for the purpose of drafting the plaint and that she had signed the plaint when prepared, without applying her mind as she was in a distressed state of mind. The aforesaid explanation after a lapse of more than 9 years from the date of filing of plaint for the first time in a second appeal is not acceptable to any court of law. It appears from Exts. 5, 6, 1 and 2 that the plaintiff had sent legal notices through her counsel in New Delhi repeatedly insisting that any action for dissolution of marriage in U.S.A. would not be in accordance with law as administered in India and, therefore, any proceeding taken there for divorce would not be recognised. In a letter dated 4-1-1980 the Attorney at law for the present respondent wrote to Rakesh Dayal, who was then the lawyer corresponding on instruction of the present plaintiff to the effect that the present respondent has resided in the State of New York for a period in excess of two years and that the plaintiff has been properly served with the summons and also that the State of New York wilt have jurisdiction for the action taken for divorce. These documents add further strength to infer that the various pleas offset now sought to be introduced by way of amendment of the plaint are afterthought and intended to prolong the litigation. Though delay in making an application for amendment would not by itself be sufficient for its rejection, it may be one of the facts to be taken into account in granting or refusing the amendment. The predominant consideration for dealing with the application for amendment of a pleading is whether the amendment is necessary for determining the real question in controversy between the parties and whether the amendment can be allowed without injustice to the otherside. From the discussions made above, it would be clear that the amendment of the plaint sought for by the appellant at this stage cannot be said to be one intended for determining the real question in controversy between the parties nor can it be said to be bona fide. As already stated, such an amendment, if allowed, would necessarily have the consequence of permitting the suit to be tried afresh from the stage of framing of the issues as none of the questions now raised was the subject-matter of the suit at the stage of trial. Thus the amendment of the plaint now sought for, if allowed would cause serious prejudice and injustice to the defendant. I would, therefore, conclude that the petitions for amendment of the plaint and also the memorandum of appeal are liable to be rejected, which I hereby do.

6. The amendment of the plaint sought for having been refused, the matter has to proceed on the basis of the pleadings already on record. It has, therefore, to be decided as to whether the foreign judgment (Ext. A) would be conclusive between the parties as regards the matter which was adjudicated upon. I have already indicated that a combined reading of Sections 13 & 14 of the Civil Procedure Code suggests that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the parties and production of a certified copy of the foreign judgment, and the court shall presume that such judgment was pronounced by a court of competent jurisdiction unless the contrary appears on the record or such presumption is displaced by proving want of jurisdiction. The only exceptions under which the aforesaid conclusiveness would not be attached to the foreign judgment have been specified in Clauses (a) to (f) of Section 13 of the Civil Procedure Code. I have already dealt with the requirement of Clause (e) of the said section where a foreign judgment shall not be conclusive where it has been obtained by fraud. The plea of fraud has not at all been taken by the plaintiff in her plaint and no particulars or material facts which would constitute fraud have either been pleaded or proved by the plaintiff. Therefore, the said ground on which the foreign judgment is now challenged is without any basis whatsoever.

7. Mr. Patnaik, learned counsel for the appellant finding that the ground of fraud on which the case was tried to be built up is not supportable for want of pleadings contended that Ext. A is not the certified copy of the judgment and decree passed by the Supreme Court of the State of New York and, therefore, the presumption under Section 14 of the Civil Procedure Code would not be available in respect of the said foreign judgment. It appears that similar objection was taken during the course of argument of the suit in the trial court by the plaintiff which necessitated the filing of the certified copy of the Ext. A by the defendant and the same is available in the records of the trial court. The certified copy of the foreign judgment having thus been filed, there is no merit in the contention that the presumptions under Section 14 C.P.C. would not be available in this case. It was next contended by the learned counsel for the appellant that Ext. A. which purports to be a foreign judgment is not a genuine document as it is self contradictory in terms and cannot, therefore, be relied upon. It was pointed out that the judgment is said to have been passed on 18th January, 1980, where as in the narration therein it has been stated that the court was held in the County of Albany on 24th January, 1980. The aforesaid discrepancy appears to be a typing mistake inasmuch as the date has been corrected from 24th of January, 1980 to 10th January, 1980 at the top of the document and the signature of the Judge is dated 18th January, 1980 where as such correction has not been effected in the body of the judgment. That a judgment has been pronounced by the Supreme Court in the State of New York dissolving the marriage between the plaintiff and the defendant stands admitted in the plaint. In para 17 of the plaint the ordering portion of the judgment has been quoted. The judgment was marked as an 'Exhibit' without objection. In the circumstances, there is no room for doubting the genuineness of the Ext. A and, therefore, I do not find any merit in the aforesaid contention of Mr. Patnaik.

8. Mr. Patnaik, learned counsel appearing for the appellant wanted to challenge the foreign judgment (Ext. A) also on the ground that it has not been passed by a court of competent jurisdiction inasmuch as the parties were not the bona fide residents in the Staste of New York and, therefore, the Supreme Court of New York had no jurisdiction to entertain the proceeding for divorce. There is evidence on record in this case to show that the appellant went to America and resided with the respondent for about 3 months before returning to India in August, 1975. It goes almost by admission that both of them resided at America for the last time and the place of residence of the respondent has never been disputed by the appellant at any point of time. Merely because the appellant came away from America or was residing at different places when the proceeding for divorce was instituted in the year 1979, the court of New work would not lose jurisdiction to entertain the case. There is nothing on record to assume that the respondent was not a resident of New York at the time when the proceeding was instituted or when the decree was obtained. I have gone through the documents marked as Exts. 1, 2, 3, 5 and 6 which are correspondences between the lawyers of the parties from which it would be apparent that each of them had the intention of getting a decree of divorce from the other and that the only objection taken on behalf of the present appellant was that the court at New York being not a court empowered to entertain application under Section 13 of the Hindu Marriage Act, the proceeding for divorce should be instituted in India in a court of competent jurisdiction. The proceeding for divorce instituted at New York was known to the mother of the plaintiff as would appear from her evidence. And a specific mention was made in Ext. 3, which is a correspondence from the lawyer of the respondent to the lawyer of the appellant to the effect that the respondent had been properly served with summons of the court of New York State. The mother of the plaintiff obtained a certified copy of the judgment and decree as has been admitted by her. The appellant did not contest the proceeding and allowed the same to proceed ex parte. It was open to her to plead want of jurisdiction of New York Court in the very same proceeding, which she did not prefer to contest. In the present suit, the plaintiff did not plead any fact from which it can be gathered that the foreign judgment was without jurisdiction. In the aforesaid premises the conclusion is irresistible that the plaintiff-appellant has failed to displace the presumption under Section 14 of the Civil Procedure Code that the judgment was pronounced by a court of competent jurisdiction.

9. No other ground available under Section 13 of the C.P.C. has been taken to challenge the foreign judgment in Ext. A. 1, therefore, conclude that the foreign judgment (Ext. A) conclusively dissolves the marriage between the appellant and the respondent by its judgment dated 18-1-1980.

10. The learned counsel appearing for the appellant has relied upon several decisions which enunciate the principle of domicile and grounds by proof of which a foreign judgment stands vitiated. The facts and observations of their Lordships in different cases have been quoted and relied upon at several places in the judgments of the courts below, repetition of which is unnecessary. I have already referred to the decision reported in AIR 1975 SC 105 (supra) where their Lordships have clearly stated that the validity or otherwise of a decree of divorce passed by a foreign court would largely depend upon the circumstances of each particular case. The law of this country in Sections 13 and 14 of the C.P.C., which is not merely the rules of the procedure, but rules of substantive law recognises the conclusiveness of a foreign judgment as to any matter thereby directly adjudicated upon between the same parties. In order that the foreign judgment shall be held to be not conclusive, the plaintiff in this case could have taken any ground available under Clauses (a) to (f) of the said Section. In the absence of any plea taken by the plaintiff in the plaint and in the absence of proof of the material facts which would bring her case within the exceptions enumerated in the said section, this Court has no scope for taking a view different from that of the lower appellate court. In all the reported cases relied upon by the learned counsel for the appellant, specific facts were pleaded and proved to bring the case within the exception under Section 13 of the C.P.C. In the facts of this case and on the basis of the materials placed on record, the belated attempt of the learned counsel for the appellant to bring the case within one or the other exceptions under Section 13 of the C.P.C. must be held to be futile. I would thus confirm the judgment of the lower appellate court and dismiss this appeal.

11. I have already stated that both parties had been intending to dissolve the marriage as they found the marriage to be incompatible. At the beginning of the hearing of this appeal, I wanted to ascertain as to the real purpose for which the appellant is pursuing the matter as the ultimate relief which she sought for in the suit has already been given by the foreign judgment. The learned counsel wanted some time for obtaining instructions from the appellant and filed a memorandum saying that the appellant had shown the foreign judgment to a Marriage Counsellor and to a lawyer in the United Kingdom, where she is now residing and she was told by them that the said foreign judgment would not be recognised in the United Kingdom. It was also stated in this memorandum that when the trial court in this suit passed a decree for divorce it was shown to the Marriage Counsellor and to a lawyer in the United Kingdom, who opined that the same would be recognised in the United Kingdom. The memorandum is however silent as to the reasons for which the foreign judgment Ext. A was not recognised in the United Kingdom. It appears from the memorandum as well as from the submissions of Mr. Patnaik that the plaintiff requires the decree for divorce for her purposes at United Kingdom, where she practically settled down for the last 12 years.

12. On an analysis of the evidence on record, the learned trial court came to a conclusion that the plaintiff has successfully established that during her stay in U.S.A. the defendant treated the plaintiff with cruelty and deserted her. This was the ground on which the divorce was granted by the learned trial court as the trial court found that the decree of divorce granted by the Supreme Court of the State of New York in County of Albany is not valid and binding on the parties. The aforesaid finding that the plaintiff was ill treated by the respondent and that she was deserted by him though challenged in the grounds of appeal in the lower appellate court, was not dealt with at ail in the judgment of the lower appellate court, probably because the same were not seriously pressed at the hearing or for the reason that the lower appellate court did not find the necessity for the same as it held that the marital relationship stood dissolved by the foreign judgment with effect from 18-1-80. Both the parties in this case are highly educated and are well aware of the consequences of dissolution of the marriage by a decree of divorce. It is evident from the records of this case and fairly conceded by the counsel for both parties that all attempts for reconciliation had failed and neither of them is interested to live with the other. As a matter of fact the respondent filed an application in the Supreme Court in the State of New York for a decree of divorce and obtained one. The appellant has also instituted the suit praying for a decree of divorce out of which this appeal arises. The Hindu Marriage Act was amended in 1976 introducing a provision for divorce by mutual consent in section 13B. The said section however prescribes a procedure for the purpose. In the facts of this case, all the requirements for a divorce by mutual consent stands satisfied except that the parties have not presented a joint petition for the purpose nor any motion has been made by them after lapse of six months as provided in Sub-section (2) of the said section. In the peculiar circumstances of this case, since the sole purpose of this suit is to obtain a decree for divorce which would be recognised in the United Kingdom, I consider it more appropriate to hold that in the event the decree of divorce granted on 18-1-80 by the Supreme Court in the State of New York in County of Albany which I have held to be valid and binding on the parties is not acknowledged, the marriage between the parties would stand dissolved by virtue of this decree.


13. In the result, this appeal is dismissed subject to the observations made in the concluding paragraph of this judgment.

Ex-Parte Foreign Divorce Decree is Void and Invalid in India.

The Hon’ble Delhi High Court held in this case as under:-

The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under:-

" We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.
Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression "competent court" in Section 41 of the Indian Evidence Act has also to be construed likewise.

Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.

The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.
Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied.

The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.

13. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private international Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainly in the most vital field of national life and conformity with pubic policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife's domicile follows that of her husband and that it is the husband's domiciliary law which determines the jurisdiction and judges the merits of the case."
IN THE HIGH COURT OF DELHI AT NEW DELHI
+                    C.R.P.148/2011
%                                    Date of Decision: April 22, 2013
PRITAM ASHOK SADAPHULE                         ..... Petitioner
                Through: Mr.Rakesh Taneja, Advocate
                            versus
HIMA CHUGH                                                 .... Respondent
                            Through: Mr.Prashant Mendiratta, Adv.
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J.
*

1. By this revision petition challenge has been made to order dated 22nd September, 2011 passed by the ld.Addl. District Judge-1, New Delhi District, Patiala House Courts, New Delhi in HMA No.15/2011 whereby the application of the petitioner/husband under section 13 of the CPC has been dismissed.

2. Briefly the facts relevant for the disposal of the present petition are as under:-

The parties met each other in England in the year 2004 and developed liking for each other. On 5th March, 2005, both got married at New Delhi. After about one week of marriage, they went back to England on 12th March, 2005. With the passage of time, disputes and differences arose between them as a result of which they could not live together. In September, 2009, respondent/wife had lodged a complaint of domestic violence, cruelty and assault against the petitioner/husband in Ilford Police Station, England. It is alleged that respondent/wife also invoked the jurisdiction of UK Family Court (Brentford County Court) for Non-Molestation and Occupation order in September, 2009. Thereafter, she had come back to India in December, 2009. In March, 2010, respondent/wife lodged FIR against the petitioner/husband, his parents and family members being FIR no.46/2010 under Section 498-A/34 IPC, P.S. Tilak Nagar, Mumbai. Petitioner/husband has filed a petition for quashing of aforesaid FIR which is pending disposal before the Bombay High Court.

3. In December, 2010, petitioner/husband had filed a divorce petition before the Ilford County Court in UK for dissolution of marriage by a decree of divorce on the ground that the respondent had misbehaved with him and that he could not reasonably be expected to live with her. It is alleged that respondent was served with the divorce petition on 19th November, 2010.

4. On 21st December, 2010, respondent/wife had filed a suit being Civil Suit (OS) No.2610/2010 before this court praying for a grant of decree of permanent injunction against the petitioner for continuing with the divorce petition before the court in UK. During the pendency of aforesaid divorce petition, respondent had filed a complaint before learned MM, Dwarka, New Delhi under The Protection of Women from Domestic Violence Act, 2005. The same was dismissed on 24th December, 2010 by the concerned ld.MM, as not maintainable. Respondent filed an appeal against the said order which was dismissed vide order dated 28.3.2011.

5. The respondent/wife also filed a petition under section 13(1)(ia) of the Hindu Marriage Act i.e. HMA No.15/2011 in February, 2011 praying for dissolution of marriage with petitioner on the ground of cruelty which is pending disposal before learned Addl. District Judge, Delhi.

6. The ld. Ilford County Court in UK had passed a Decree Nisi on 9th May, 2011 stating therein that marriage between the parties has been broken down irretrievably and ordered that the said marriage be dissolved unless sufficient cause be shown within six weeks as to why the same be not made "absolute". A copy of the said decree was placed by the petitioner before the ld.Addl. District Judge, New Delhi on 10th June, 2011 hearing HMA 15/2011. Respondent filed a detailed representation before the Ld. Ilford County Court in UK on 15th June, 2011 opposing making the divorce decree absolute. However, the decree passed by the Ilford County Court was made „absolute‟ on 21st June, 2011. Thereafter, in July, 2011 an application under section 13 of CPC was filed by the petitioner for dropping the divorce proceedings against him on the ground that marriage between the parties has already been dissolved by a decree of divorce by Ilford County Court in U.K., as such divorce petition filed by respondent/wife has become infructuous. Reply was filed by the respondent to the aforesaid application contending therein that decree of divorce passed by the foreign court is not recognised in Indian Law. It was further stated that the ground on which the foreign court had dissolved the marriage i.e., irretrievable breakdown was no ground for dissolution of marriage under the Hindu Marriage Act, as such, the said decree cannot be recognised in India.

7. After considering the contentions of the parties, the learned trial court relying on the judgment in Y Narashimha Rao & ors vs. Y.Venkata Lakshimi & another: (1991) 3 SCC 451, has dismissed the said application.

8. Aggrieved with the same, present petition is filed.

9. Learned counsel for the petitioner has contended that respondent-wife has not obtained any declaration from a competent court declaring the foreign decree of divorce as null and void, as such, same cannot be treated as a nullity by the ld.trial court. In support of his contention, learned counsel has relied upon the judgment of this court in Harbans Lal Malik vs. Payal Malik 171 (2010) DLT 67. It is further contended that respondent was served with summons issued by the Ilford County Court on 19 th November, 2010 and she also made a representation there. In these circumstances, it cannot be said that she has not subjected herself to the jurisdiction of the said court. It is further contended that participating or not participating before the foreign court by the respondent is immaterial. The exceptions are given in Section 13 of CPC as to when a foreign judgment is not conclusive and binding. It is contended that in the present case none of the exceptions as stated therein exist.

10. On the other hand, learned counsel for the respondent has contended that present petition is liable to be dismissed inasmuch as the petitioner seeks to enforce a decree of divorce granted by a foreign court which is not recognised in India and it would be opposed to public policy if the said decree is afforded any recognition. It is contended that the sole ground of the petitioner hinges on averring that respondent should have obtained declaration from a competent court declaring the foreign decree as null and void. It is contended that petitioner is misleading the court inasmuch as petitioner himself made a voluntary statement before the ld.trial court that he would be filing an application under section 13 of the CPC and thereafter had moved the said application which was ultimately rejected and now the petitioner cannot turn around and contend that respondent should have approached the competent court seeking declaration of foreign divorce decree as null and void.

11. Learned counsel for the respondent has contended that judgment of the Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) is clearly applicable to the facts of the present case. It is contended that foreign divorce decree was an ex parte decree wherein respondent could not contest. The said decree is not recognised in India, as such, petitioner is not entitled for any relief.

12. The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under:-

"12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.
Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression "competent court" in Section 41 of the Indian Evidence Act has also to be construed likewise.
Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.
The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.

Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied.
The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.

13. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private international Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainly in the most vital field of national life and conformity with pubic policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife's domicile follows that of her husband and that it is the husband's domiciliary law which determines the jurisdiction and judges the merits of the case."

13. It is admitted position that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies and both are governed by Hindu Marriage Act, 1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under the Hindu Marriage Act. The Supreme Court in Y.Narasimha Rao and Ors vs. Y.Venkata Lakshmi and Anr (supra) has already held that foreign decree of divorce granted on a ground which is not recognized in India.

14. The contention raised by the petitioner that there should be declaration from a competent court declaring the foreign decree null and void has no force as it is the petitioner who had moved an application under section 13 of CPC praying therein that the petitioner has already obtained a divorce decree from a foreign court thereby the marriage between the parties has been dissolved, as such, divorce petition pending before the ld.Addl. District Judge has become infructuous. Pursuant thereto reply was filed by respondent/office opposing the said application. While deciding the said application, the impugned order has been passed.

15. Further the divorce granted by the Ilford County Court in UK is an ex parte divorce decree. Respondent never submitted herself to the jurisdiction of the said court. Respondent lodged a representation dated 15.6.2011 before the Ilford County Court informing that she was in India when the divorce petition was filed. She also informed that she was in acute financial difficulty to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the Ilford County Court not to make the divorce decree "absolute". Respondent also filed CS(OS)2610/2010 before this court praying for grant of a decree of permanent injunction against the petitioner from continuing with the divorce petition before the court in UK. In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court.

16. The reliance placed by learned counsel for the petitioner on the judgment of Harbans Lal Malik vs. Payal Malik (supra), is of no help to him. The facts of the said case are entirely different. The learned trial court has also considered the judgment of this court in Harmeeta Singh vs. Rajat Taneja reported in I(2003) DMC 443 and Mrs.Veena Kalia vs. Dr.Jatinder Nath Kalia and anr reported as 59(1995) Delhi Law times 635 in coming to the conclusion that decree of dissolution of marriage granted by the Ilford County Court, Essex, UK cannot be recognised as the facts of the case fall within the purview of the exceptions of Section 13 of CPC.

In view of the above discussion, no illegality is seen in the impugned order which calls for interference of this court. Petition is dismissed.


VEENA BIRBAL, J

Monday, February 15, 2016

execution of foreign divorce decree in india.

learned counsel for the respondent has contended that present petition is liable to be dismissed inasmuch as the petitioner seeks to enforce a decree of divorce granted by a foreign court which is not recognised in India and it would be opposed to public policy if the said decree is afforded any recognition. It is contended that the sole ground of the petitioner hinges on averring that respondent should have obtained declaration from a competent court declaring the foreign decree as null and void. It is contended that petitioner is misleading the court inasmuch as petitioner himself made a voluntary statement before the ld.trial court that he would be filing an application under section 13 of the CPC and thereafter had moved the said application which was ultimately rejected and now the petitioner cannot turn around and contend that respondent should have approached the competent court seeking declaration offoreign divorce decree as null and void.
Learned counsel for the respondent has contended that judgment of the Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) is clearly applicable to the facts of the present case. It is contended that foreign divorce decree was an ex parte decree wherein respondent could not contest. The said decree is not recognised in India, as such, petitioner is not entitled for any relief.
12. The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under:-
 It is admitted position that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies and both are governed byHindu Marriage Act, 1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under the Hindu Marriage Act. The Supreme Court in Y.Narasimha Rao and Ors vs. Y.Venkata Lakshmi and Anr (supra) has already held that foreign decree of divorce granted on a ground which is not recognized in India.
 The contention raised by the petitioner that there should be declaration from a competent court declaring the foreign decree null and void has no force as it is the petitioner who had moved an application under section 13 of CPC praying therein that the petitioner has already obtained a divorce decree from a foreign court thereby the marriage between the parties has been dissolved, as such, divorce petition pending before the ld.Addl. District Judge has become infructuous. Pursuant thereto reply was filed by respondent/office opposing the said application. While deciding the said application, the impugned order has been passed.
----------------------------------------------------------------------------------------------------------
IN THE HIGH COURT OF DELHI AT NEW DELHI
+                    C.R.P.148/2011
%                                    Date of Decision: April 22, 2013
PRITAM ASHOK SADAPHULE                         ..... Petitioner
                Through: Mr.Rakesh Taneja, Advocate
                            versus
HIMA CHUGH                                                 .... Respondent
                            Through: Mr.Prashant Mendiratta, Adv.
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J.
*
1. By this revision petition challenge has been made to order dated 22nd September, 2011 passed by the ld.Addl. District Judge-1, New Delhi District, Patiala House Courts, New Delhi in HMA No.15/2011 whereby the application of the petitioner/husband under section 13 of the CPC has been dismissed.
2. Briefly the facts relevant for the disposal of the present petition are as under:-
The parties met each other in England in the year 2004 and developed liking for each other. On 5th March, 2005, both got married at New Delhi. After about one week of marriage, they went back to England on 12th March, 2005. With the passage of time, disputes and differences arose between them as a result of which they could not live together. In September, 2009, respondent/wife had lodged a complaint of domestic violence, cruelty and assault against the petitioner/husband in Ilford Police Station, England. It is alleged that respondent/wife also invoked the jurisdiction of UK Family Court (Brentford County Court) for Non-Molestation and Occupation order in September, 2009. Thereafter, she had come back to India in December, 2009. In March, 2010, respondent/wife lodged FIR against the petitioner/husband, his parents and family members being FIR no.46/2010 under Section 498-A/34 IPC, P.S. Tilak Nagar, Mumbai. Petitioner/husband has filed a petition for quashing of aforesaid FIR which is pending disposal before the Bombay High Court.
3. In December, 2010, petitioner/husband had filed a divorce petition before the Ilford County Court in UK for dissolution of marriage by a decree of divorce on the ground that the respondent had misbehaved with him and that he could not reasonably be expected to live with her. It is alleged that respondent was served with the divorce petition on 19th November, 2010.
4. On 21st December, 2010, respondent/wife had filed a suit being Civil Suit (OS) No.2610/2010 before this court praying for a grant of decree of permanent injunction against the petitioner for continuing with the divorce petition before the court in UK. During the pendency of aforesaid divorce petition, respondent had filed a complaint before learned MM, Dwarka, New Delhi under The Protection of Women from Domestic Violence Act, 2005. The same was dismissed on 24th December, 2010 by the concerned ld.MM, as not maintainable. Respondent filed an appeal against the said order which was dismissed vide order dated 28.3.2011.
5. The respondent/wife also filed a petition under section 13(1)(ia) of the Hindu Marriage Act i.e. HMA No.15/2011 in February, 2011 praying for dissolution of marriage with petitioner on the ground of cruelty which is pending disposal before learned Addl. District Judge, Delhi.
6. The ld. Ilford County Court in UK had passed a Decree Nisi on 9th May, 2011 stating therein that marriage between the parties has been broken down irretrievably and ordered that the said marriage be dissolved unless sufficient cause be shown within six weeks as to why the same be not made "absolute". A copy of the said decree was placed by the petitioner before the ld.Addl. District Judge, New Delhi on 10th June, 2011 hearing HMA 15/2011. Respondent filed a detailed representation before the Ld. Ilford County Court in UK on 15th June, 2011 opposing making the divorce decree absolute. However, the decree passed by the Ilford County Court was made „absolute‟ on 21st June, 2011. Thereafter, in July, 2011 an application under section 13 of CPC was filed by the petitioner for dropping the divorce proceedings against him on the ground that marriage between the parties has already been dissolved by a decree of divorce by Ilford County Court in U.K., as such divorce petition filed by respondent/wife has become infructuous. Reply was filed by the respondent to the aforesaid application contending therein that decree of divorce passed by the foreign court is not recognised in Indian Law. It was further stated that the ground on which the foreign court had dissolved the marriage i.e., irretrievable breakdown was no ground for dissolution of marriage under the Hindu Marriage Act, as such, the said decree cannot be recognised in India.
7. After considering the contentions of the parties, the learned trial court relying on the judgment in Y Narashimha Rao & ors vs. Y.Venkata Lakshimi & another: (1991) 3 SCC 451, has dismissed the said application.
8. Aggrieved with the same, present petition is filed.
9. Learned counsel for the petitioner has contended that respondent-wife has not obtained any declaration from a competent court declaring the foreign decree of divorce as null and void, as such, same cannot be treated as a nullity by the ld.trial court. In support of his contention, learned counsel has relied upon the judgment of this court in Harbans Lal Malik vs. Payal Malik 171 (2010) DLT 67. It is further contended that respondent was served with summons issued by the Ilford County Court on 19 th November, 2010 and she also made a representation there. In these circumstances, it cannot be said that she has not subjected herself to the jurisdiction of the said court. It is further contended that participating or not participating before the foreign court by the respondent is immaterial. The exceptions are given in Section 13 of CPC as to when a foreign judgment is not conclusive and binding. It is contended that in the present case none of the exceptions as stated therein exist.
10. On the other hand, learned counsel for the respondent has contended that present petition is liable to be dismissed inasmuch as the petitioner seeks to enforce a decree of divorce granted by a foreign court which is not recognised in India and it would be opposed to public policy if the said decree is afforded any recognition. It is contended that the sole ground of the petitioner hinges on averring that respondent should have obtained declaration from a competent court declaring the foreign decree as null and void. It is contended that petitioner is misleading the court inasmuch as petitioner himself made a voluntary statement before the ld.trial court that he would be filing an application under section 13 of the CPC and thereafter had moved the said application which was ultimately rejected and now the petitioner cannot turn around and contend that respondent should have approached the competent court seeking declaration of foreign divorce decree as null and void.
11. Learned counsel for the respondent has contended that judgment of the Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) is clearly applicable to the facts of the present case. It is contended that foreign divorce decree was an ex parte decree wherein respondent could not contest. The said decree is not recognised in India, as such, petitioner is not entitled for any relief.
12. The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under:-
"12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.
Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression "competent court" in Section 41 of the Indian Evidence Act has also to be construed likewise.
Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.
The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.
Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied.
The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.
13. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private international Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainly in the most vital field of national life and conformity with pubic policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerablesection of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife's domicile follows that of her husband and that it is the husband's domiciliary law which determines the jurisdiction and judges the merits of the case."
13. It is admitted position that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies and both are governed byHindu Marriage Act, 1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under theHindu Marriage Act. The Supreme Court in Y.Narasimha Rao and Ors vs. Y.Venkata Lakshmi and Anr (supra) has already held that foreign decree of divorce granted on a ground which is not recognized in India.
14. The contention raised by the petitioner that there should be declaration from a competent court declaring the foreign decree null and void has no force as it is the petitioner who had moved an application under section 13 of CPC praying therein that the petitioner has already obtained a divorce decree from a foreign court thereby the marriage between the parties has been dissolved, as such, divorce petition pending before the ld.Addl. District Judge has become infructuous. Pursuant thereto reply was filed by respondent/office opposing the said application. While deciding the said application, the impugned order has been passed.
15. Further the divorce granted by the Ilford County Court in UK is an ex parte divorce decree. Respondent never submitted herself to the jurisdiction of the said court. Respondent lodged a representation dated 15.6.2011 before the Ilford County Court informing that she was in India when the divorce petition was filed. She also informed that she was in acute financial difficulty to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the Ilford County Court not to make the divorce decree "absolute". Respondent also filed CS(OS)2610/2010 before this court praying for grant of a decree of permanent injunction against the petitioner from continuing with the divorce petition before the court in UK. In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court.
16. The reliance placed by learned counsel for the petitioner on the judgment of Harbans Lal Malik vs. Payal Malik (supra), is of no help to him. The facts of the said case are entirely different. The learned trial court has also considered the judgment of this court in Harmeeta Singh vs. Rajat Taneja reported in I(2003) DMC 443 and Mrs.Veena Kalia vs. Dr.Jatinder Nath Kalia and anr reported as 59(1995) Delhi Law times 635 in coming to the conclusion that decree of dissolution of marriage granted by the Ilford County Court, Essex, UK cannot be recognised as the facts of the case fall within the purview of the exceptions of Section 13 of CPC.
In view of the above discussion, no illegality is seen in the impugned order which calls for interference of this court. Petition is dismissed.
VEENA BIRBAL, J APRIL 22, 2013

Thursday, December 13, 2012

Recognition of Foreign Divorce Decree in India




When a foreign Divorce may conclusive in India/ 
Recognition of Foreign Divorce Decree in India.

Here the petitioner who is challenging the judgment was at the relevant time resident for a fairly long time within the jurisdiction of the foreign Court, did not approach the foreign Court under the dictates of the respondent and made out a case before the foreign Court for obtaining the judgment. Indeed in Y. Narasimha Rao (supra) itself the Supreme Court held matrimonial action filed in the forum where the wife is domiciled or habitually and permanently resides or where the wife voluntarily and effectively submits to the foreign jurisdiction or where the wife consents to the grant of the relief by the foreign Court although the jurisdiction of the foreign Court is not in accordance with the provisions of the Matrimonial Law of the parties, to be valid and the judgment of such foreign Court to be conclusive

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 25th January, 2012
+ CRL.M.C. 3845/2010
% DR. MEENA CHAUDHARY
@ DR. MEENA P.N. SINGH ..... Petitioner Through: None.
Versus
BASANT KUMAR CHAUDHARY & ORS. ..... Respondents Through: Mr. Atul Jha, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. This petition has been preferred under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code (Cr.P.C.) impugning the order dated 26.08.2010 of the learned Metropolitan Magistrate dismissing the complaint under Section 200 of the Cr.P.C. filed by the petitioner of offence under Section 120-B read with Section 494 and Section 498A of the Indian Penal Code (IPC). This petition was listed before the learned Single Judge on 10.12.2010 when the CRL.M.C. 3845/2010 Page 1 of 8 petitioner appearing in person sought adjournment. The petitioner had also filed LPA No.64/2009 and contempt case No.C-386/2010. The petitioner on 03.05.2011, while appearing before the Division Bench in LPA No.64/2009 sought consolidation of the contempt petition as well this petition with the LPA and the matter was accordingly placed before Hon'ble the Chief Justice who vide order dated 22.05.2011 directed that the contempt petition as well as this petition be placed before the same Division Bench before which the LPA was pending. It is for this reason that the matter is before us. We may also notice that though the LPA and the contempt petition have since been disposed of but the petitioner appearing in person stated that rather than sending back this petition to the learned Single Judge, we only should hear the same. In view of the said request and for the reason that by doing so, the petitioner is not being deprived of any remedy had the matter been considered by the learned Single Judge, we proceeded to hear the petitioner. The petitioner sought and was granted liberty to file written arguments which have also been filed.
CRL.M.C. 3845/2010 Page 2 of 8
2. The learned Metropolitan Magistrate after recording the statements of the petitioner and her witnesses held no case for summoning of the accused / respondent to have been made out for the reason of the petitioner herself having obtained decree of dissolution of her marriage with the respondent from the Court in U.K. and the respondent having so ceased to be the husband of the petitioner there being no question of his being guilty of the offence of bigamy under Section 494 of the IPC or of causing cruelty to the petitioner as wife under Section 498-A of the IPC. Qua the offence under Section 498-A of the IPC, reliance was also placed on the status report submitted by the police and on the petitioner having failed to make out any case of cruelty.
3. The argument of the petitioner before us, orally as well as in writing, is that the divorce decree obtained by her in U.K. being not a valid decree and hence not bringing to an end the relationship of husband and wife between the petitioner and the respondent. Reliance in this regard is placed on Smt. Satya Vs. Shri Teja Singh (1975) 1 SCC 120 and on Y. Narasimha Rao Vs. Y. Venkata Lakshmi (1991) 3 SCC 451. The CRL.M.C. 3845/2010 Page 3 of 8 Supreme Court in both Smt. Satya and Y. Narasimha Rao (supra) was faced with a situation of the husband setting up a decree of a foreign Court of dissolution of marriage as a defence to the claim / charge of the wife in the Indian Courts for maintenance or of bigamy. In both cases, the husband was found to have obtained the decree of foreign Court fraudulently.
4. The situation here is however converse. It is the petitioner herself who had obtained the decree from the foreign Court of dissolution of marriage and who now wants our Courts to ignore the same. Obviously, no case of the foreign decree having been obtained fraudulently can be said to exist in this scenario. Rather the said foreign decree was at the sole initiative of the petitioner with the respondent having no role in the same and having not even contested the same. The question which arises is, can the petitioner, who by obtaining the said decree led the respondent to believe that his marriage with the petitioner stood dissolved and that he was free to remarry, can now be permitted to challenge the foreign decree obtained herself and charge the respondent with the offence of bigamy. In CRL.M.C. 3845/2010 Page 4 of 8 our opinion, no and the complaint has been rightly dismissed by the learned Metropolitan Magistrate. As far back as in Asanalli Nagoor Meera Vs. K.M. Madhu Meera MANU/TN/0707/1925, a division bench of the Madras High Court held that a litigant cannot be allowed to deny the jurisdiction which he himself invoked. The same principle was recently applied by a Single Judge of the same Court in Ms. Dorothy Thomas Vs. Rex Arul MANU/TN/2876/2011 in near similar facts.
5. We may also notice that under Section 13 of CPC a foreign judgment is conclusive as to any matter thereby directly adjudicated upon between the same parties except in cases specified thereunder. However the right if any to contend that the said foreign judgment is not conclusive can be only of the party who had himself / herself / itself not initiated the process of obtaining the said judgment and cannot be of a party at whose instance such foreign judgment has been obtained. No litigant can be allowed to abuse the process of the Courts or to approbate and reprobate as per convenience. Mention at this stage may also be made of the finding recorded by the learned Metropolitan Magistrate and not disputed before us CRL.M.C. 3845/2010 Page 5 of 8 that the petitioner in the disputes with her siblings before another Indian Court sought to justify her claim by contending herself to be a divorcee by virtue of the said foreign judgment.
6. Thus, whichever way we may look, we cannot find any error in the order of dismissal of the complaint aforesaid. We had also called for the records of the Court of the Metropolitan Magistrate and have perused the pre-summoning evidence led by the petitioner. The petitioner had deposed that she was in U.K. from 1993 to 1999. She has not even whispered, alleged or made out any case of any of the grounds for the foreign judgment of dissolution of her marriage with the respondent being not conclusive. For the said foreign judgment to be not conclusive, the petitioner was required to make out a case of the same being either pronounced by a Court having no jurisdiction and / or having been not given on the merits of the case or being founded on an incorrect view of international law or the proceedings resulting therein being opposed to natural justice or having been obtained by fraud or sustaining a claim founded on a breach of any law in force in India. Moreover all the grounds CRL.M.C. 3845/2010 Page 6 of 8 specified in Section 13 of the CPC and on establishment whereof a foreign judgment can be said to be not conclusive are such which can be set up only by a party not himself/herself/itself approaching the foreign Court. The judgments cited by the petitioner cannot be read as laying down and indeed do not lay down any absolute principle that a marriage under the Hindu Marriage Act, 1955 cannot be dissolved by a foreign Court.Here the petitioner who is challenging the judgment was at the relevant time resident for a fairly long time within the jurisdiction of the foreign Court, did not approach the foreign Court under the dictates of the respondent and made out a case before the foreign Court for obtaining the judgment. Indeed in Y. Narasimha Rao (supra) itself the Supreme Court held matrimonial action filed in the forum where the wife is domiciled or habitually and permanently resides or where the wife voluntarily and effectively submits to the foreign jurisdiction or where the wife consents to the grant of the relief by the foreign Court although the jurisdiction of the foreign Court is not in accordance with the provisions of the Matrimonial Law of the parties, to be valid and the judgment of such foreign Court to be conclusive. We, therefore, do not find any merit in this petition. CRL.M.C. 3845/2010 Page 7 of 8
7. Before parting with the case, we may observe that though the order of the Metropolitan Magistrate of dismissal of complaint is under Section 203 of the Cr.P.C. and is challengeable by way of Revision Petition under Section 397 read with Section 401 of the Cr.P.C. but since the matter had remained pending before this Court, though in the circumstances aforesaid for considerable time, we did not deem it appropriate to reject this petition on the said ground.
The petition is accordingly dismissed. No order as to costs. RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
JANUARY 25, 2012