"
The only law that can be applicable to the matrimonial dispute is the one under which the parties were married. Therefore, in cases where the foreign court by its own rules of jurisdiction, has rightly entertained the dispute and granted a valid decree of divorce according to its law, the same would only be recognized by the Indian Courts if it complies with the rules laid down by the Hon´ble Supreme Court of India."
See the Judgment :
BENCH:SAWANT, P.B.
MISRA, RANGNATH (CJ)
PETITIONER:Y. NARASIMHA RAO AND ORS.
Vs.
RESPONDENT:Y. VENKATA LAKSHMI AND ANR.
CITATION:1991 SCR (2) 821 1991 SCC (3) 451
JT 1991 (3) 33 1991 SCALE (2)1
ACT:Hindu Marriage Act, 1955: Section 19. Dissolution of
marriage-Court to which petition should be presented-Parties
marrying in India under Hindu Law-Husband’s petition for
dissolution of marriage in Foreign Court-Fraud-Incorrect
representation of jurisdictional facts-Husband neither
domiciled nor had intention to make the foreign state his
home but only technically satisfying the requirement of
residence of 90 days for the purpose of obtaining divorce-
Divorce decree by foreign court on a ground not available
under the 1955 Act-Enforceability of.
Civil Procedure Code, 1908: Section 13. Matrimonial
dispute-Foreign judgment-When not conclusive.
Clause (a)-“Court of competent jurisdiction”-Which is.
Clause (b)-Judgment on merits-What is.
Clause (c)-Judgment founded on a ground not recognised by
Law of India-Effect of.
Clause (d)-Judgment obtained in proceedings opposed in
principles of natural justice-Effect of-Principles of natural justice-Scope of.
Clause (e)-`Fraud’-Scope of-Judgment obtained by
fraud-Effect of.
Clause (f)-Judgment founded on a breach of law in force in
India-Effect of.
Section 14-Presumption as to foreign judgments-Expression
“Certified copy of a foreign judgment”-Should
be read consistent with requirement of Section 86 of Indian
Evidence Act.
Indian Evidence Act, 1872. Section 41-“Competent
court”-Which is.
Section 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and 86.
Foreign judgment-Photostat copy-Admissibility of.
Private International Law-Matrimonial dispute-Recognition of
foreign judgment-Rules for recognition of foreign matrimonial judgment laid
down-Hague convention of 1968 on the recognition of divorce and legal
separations-Article 10-Judgment Convention of the European Community.Words and
phrases “Residence-Meaning of”.
HEADNOTE:
The first appellant and the first respondent were married at
Tirupati on 27.2.1975 according to Hindu Law.
They separated in July 1978. The appellant-husband filed a
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petition for dissolution of the marriage in the Sub-Court of
Tirupati stating that he was a resident of South Claiborn
Avenue, New Orleans, Louisiana, and that he was a citizen of
India and that he and his wife last resided together at New
Orleans, Louisiana. Subsequently he filed another petition
for dissolution of marriage in the Circuit Court St. Louis
Country, Missouri, USA alleging that he has been a resident
of the State of Missouri for 90 days or more immediately
preceding th filing of the petition by refusing to continue
to live with the appellant in the US and particularly in the
State of Missouri. But from the averments made by him in the
petition before the Sub-Judge, Tirupati it was obvious that
he and his wife had last resided together at New Orleans,
Louisiana and never within the jurisdiction of th Circuit
Court of St. Louis Country in the State of Missouri.
The respondent-wife filed her reply raising her
objections to the maintainability of the petition. She also
clearly stated that her reply was without prejudice to her
contention that she was not submitting to the jurisdiction
of the foreign court.
The Circuit Court Missouri assumed jurisdiction on the
ground that the 1st Appellant had been a resident of the
State of Missouri for 90 days next preceding the
commencement of the action in the Court. In the absence of
the respondent-wife the Circuit Court, Missouri passed a
decree for dissolution of marriage on the only ground that
the marriage has irretrievably down. Subsequent to the
passing of the decree by the Circuit Court, Missouri, the
appellant filed an application for dismissal of his earlier
petition before the Sub-Court of Tirupati and the same was
dismissed.
On 2nd November 1981 the last appellant married appellant
No. 2. Thereafter, the 1st-respondent filed a criminal
complaint against the appellants for the offence of bigamy.
The appellants filed an application for their discharge in
view of the decree for dissolution of marriage passed by the
Circuit Court, Missouri. The Magistrate discharged the
appellants by holding that the complainant-wife had failed
to make out a prima facie case against the appellants. The
respondent preferred a Criminal Revision Petition before the
High Court which set aside the order of the Magistrate by
holding (i) that a photostat copy of the judgment of
Missouri Court was not admissible in evidence; (ii) since
the Learned Magistrate acted on the photostat copy of the
judgment, he was in error in discharging the accused.
Accordingly the High Court directed the Magistrate to
dispose of the petition filed by the appellants for their
discharge afresh in accordance with law. Aggrieved by the
decision of the High Court the appellants filed appeal in
this Court.
Dismissing the appeal, this Court,
HELD: 1. The decree dissolving the marriage passed by
the foreign court is without jurisdiction according to the
Hindu Marriage Act as neither the marriage was celebrated
nor the parties last resided together nor the respondent
resided within the jurisdiction of that Court. Further,
irretrievable breakdown of marriage is not one of the
grounds recognised by the Act of dissolution of marriage.
Hence, the decree of the divorce passed by the foreign court
was on a ground unavailable under the Act which is
applicable to the marriage. Since with regard to the
jurisdiction of the forum as well as the ground on which it
is passed the foreign decree in the present case is not in
accordance with the Act under which the parties were
married, and the respondent had not submitted to the
jurisdiction of the court or consented to its passing, it
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cannot be recognised by the courts in this country and is
therefore, unenforceable. [828H, 829A, 828E, 834H, 835A]
2. Residence does not mean a temporary residence for the
purpose of obtaining a divorce but habitual residence or
residence which is intended to be permanent for future as
well. Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971,
referred to.
3. The rules of Private International Law in this
country are not codified and are scattered in different
enactments such as the Civil Procedure Code, the Contract
ACt, the Indian Succession Act, the Indian Divorce Act, the
Special Marriage Act etc. In addition, some
rules have also been evolved by judicial decisions. In
matters of status or legal capacity of natural persons,
matrimonial disputes, custody of children, adoption,
testamentary and intestate succession etc. the problem in
this country is complicated by the fact that there exist
different personal laws and no uniform rule can be laid down
for all citizens. Today more than ever in the past, the need
for definitive rules for recognition of foreign judgments in
personal and family matters, and particularly in matrimonial
disputes has surged to the surface. A large number of
foreign decrees in matrimonial matters is becoming the order
of the day. A time has, therefore, come to ensure certainty
in the recognition of the foreign judgments in these
matters. The minimum rules of guidance for securing the
certainty need not await legislative initiative. This Court
can accomplish the modest job within the frame-work of the
present statutory provisions if they are rationally
interpreted and extended to achieve the purpose. Though the
proposed rules of guidance in this area may prove inadequate
or miss some aspects which may not be present to us at this
juncture, yet a begining has to be made as best as one can,
the lacunae and the errors being left to be filled in and
corrected by future judgments. [829H, 830A, 831C, F-H]
4. The relevant provisions of Section 13 of the CPC 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 social life.
4.1 On an analysis and interpretation of Section 13 of
CPC the following rule can be deduced for recognising a
foreign matrimonial judgment in this country. The
jurisdiction assumed by the foreign court as well as the
grounds 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 be as follows; (i)
where the matrimonial action is filed in the forum where the
respondent is domiciled or 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 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.
5. The High Court erred in setting aside the order ofthe
learned Magistrate only on the ground that the photostat copy of the decree was
not admissible in evidence.
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In the instant case photostat copies of the judicial record
of the Court of St. Louis is certified for th Circuit Clerk
by the Deputy clerk who is a public officer having the
custody of the document within the meaning of Section 76 of
the Indian Evidence Act also in the manner required by the
provisions of the said section. Hence the photostat copy per
se is not inadmissible in evidence. It is inadmissible
because it has not further been certified by the
representative of our Central Government in the United
States as required by Section 86 of the Act. Therefore the
document is not admissible in evidence for want of the
certificate under Section 86 of the Act and not because it
is a photostat copy of the original as held by the High
Court.
6. The Magistrate is directed to proceed with th matter
pending before him according to law as expeditiously as
possible, preferably within four months. [835G]
JUDGMENT:CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 385 of 1991.
From the Judgment and Order dated 18.4.1988 of the Andhra
Pradesh High Court in Crl. Revision Petition No. 41 of 1987.
M.C. Bhandare and Ms. C.K. Sucharita for the Appellants.
C.N. Sreekumar and G. Prabhakar (for the State) for the
Respondents.
The Judgment of the Court was delivered by SAWANT, J. Leave
is granted. Appeal is taken oj board for final hearing by consent of parties.
The 1st appellant and the 1st respondent were married ar
Tirupati on February 27, 1975. They separated in July 1978.
The 1st appellant filed a petition for dissolution of
marriage in the Circuit of St. Louis Country Missouri, USA.
The 1st respondent sent her reply from here under protest.
The Circuit Court passed a decree for dissolution of
marriage on February 19, 1980 in the absence of the 1st
respondent.
2. The 1st appellant had earlier filed a petition for
dissolution of marriage in the Sub-Court of Tirupati being
O.P. No. 87/86. In that petition, the 1st appellant filed an
application for dismissing the same as not pressed in view
of the decree passed by the Missouri Court. On August 14,
1991 the learned sub-Judge of Tirupati dismissed the
petition.
3. On November 2, 1981, the 1st appellant married the
2nd appellant in Yadgirigutta, 1st respondent filed a
criminal complaint against the appellants for the offence of
bigamy. It is not necessary to refer to the details of the
proceedings in the said complaint. Suffice it to say that in
that complaint, the appellants filed an application for
their discharge in view of the decree for dissolution of
marriage passed by Missouri Court. By this judgment of
October 21, 1986, the learned Magistrate discharged the
appellants holding that the complainant, i.e., the 1st
respondent had failed to make out a prima facie case against
the appellants. Against the said decision, the 1st
respondent preferred a Criminal Revision Petition to the
High Court and the High Court by the impugned decision of
April 18, 1987 set aside the order of the magistrate holding
that a photostat copy of the judgment of the Missouri Court
was not admissible in evidence to prove the dissolution of
marriage. The Court further held that since the learned
Magistrate acted on the photostat copy, he was in error in
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discharging the accused and directed the Magistrate to
dispose of the petition filed by the accused, i.e.,
appellants herein for their discharge, afresh in accordance
with law. It is aggrieved by this decision that the present
appeal is filed.
4. It is necessary to note certain facts relating to the
decree of dissolution of marriage passed by the Circuit
Court of St. Louis Country Missouri, USA. In the first
instance, the Court assumed jurisdiction over the matter on
the ground that the 1st appellant had been a resident of the
State of Missouri for 90 days next preceding the
commencement of the action and that petition in that Court.
Secondly, the decree has been passed on the only ground that
there remains no reasonable likelihood that the marriage
between the parties can be preserved, and that the marriage
is, therefore, irretrievably broken”. Thirdly, the 1st
respondent had not submitted to the jurisdiction of the
Court. From the record, it appears that to the petition she
had filed two replies of the same date. Both are identical
in nature except that one of the replies begins with an
additional averment as follows: “without prejudice to the
contention that this respondent is not submitting to the
jurisdiction of this hon’ble court, this respondent sub-
mits as follows”. She had also stated in the replies, among
other things, that (i) the petition was not maintainable,
(ii) she was not aware if the first appellant had been
living in the State of Missouri for more than 90 days and
that he was entitled to file the petition before the Court,
(iii) the parties were Hindus and governed by Hindu Law,
(iv) she was an Indian citizen and was not governed by laws
in force in the State of Missouri and , therefore, the Court
had no jurisdiction to entertain the petition, (v) the
dissolution of the marriage between the parties was governed
by the Hindu Marriage Act and that it could not be dissolved
in any other way except as provided under the said Act, (vi)
the Court had no jurisdiction to enforce the foreign laws
and none of the grounds pleaded in the petition was
sufficient to grant any divorce under the Hindu Marriage
Act.
Fourthly, it is not disputed that the 1st respondent was
neither present nor represented in the Court passed the
decree in her absence. In fact, the Court has in terms
observed that it had no jurisdiction “in personam” over
the respondent or minor child which was born out of the
wedlock
and both of them had domiciled in India. Fifthly, in
the petition which was filed by the 1st appellant in that
Court on October 6, 1980, besides alleging that he had been
a resident of the State of Missouri for 90 days or more
immediately preceding the filing of the petition and he was
then residing at 23rd Timber View Road, Kukwapood, in the
Country of St. Louis, Missouri, he had also alleged that the
1st respondent had deserted him for one year or more next
preceding the filing of the petition by refusal to continue
to live with the appellant in the United States and
particularly in the State of Missouri. On the other hand,
the averments made by him in his petition filed in the court
of the Subordinate Judge, Tirupati in 1978 shows that he was
a resident of Apartment No. 414, 6440, South Claiborn
Avenue, New Orleans, Louisiana, United States and that he
was a citizen of India. He had given for the service of all
notices and processes in the petition, the address of his
counsel Shri PR Ramachandra Rao, Advocate, 16-11-1/3,
Malakpet, Hyderabad-500 036. Even according to his averments
in the said petition, the 1st respondent had resided with
him at Kuppanapudi for about 4 to 5 months after th
marriage. Thereafter she had gone to her parental house at
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Relangi, Tanuka Taluk, West Godawari District. He was,
thereafter, sponsored by his friend Prasad for a placement
in the medical service in the United States and had first
obtained employment in Chicago and thereafter in Oak Forest
and Greenville Springs and ultimately in the Charity
Hospital in Louisiana at New Orleans where he continued to
be emp-loyed. Again according to the averments in the said
petition, when the 1st respondent joined him in the United
States, both of them had stayed together as husband and wife
at New Orleans. The 1st respondent left his residence in New
Orleans and went first to Jackson, Texas and, thereafter, to
Chicago to stay at the residence of his friend, Prasad.
Thereafter she left Chicago for India. Thus it is obvious
from these averments in the petition that both the 1st
respondent and the 1st petitioner had last resided together
at New Orleans, Louisiana and never within the jurisdiction
of the Circuit Court of St. Louis Country in the State of
Missouri. The averments to that effect in the petition filed
before the St. Louis Court are obviously incorrect.
5. Under the provisions of the Hindu Marriage Act, 1955
(hereinafter referred to as the “Act”) only the District
Court within the local limits of whose original civil
jurisdiction (i) the marriage was solemnized, or (ii) the
respondent, at the time of the presentation of the petition
resides, or (iii) the parties to the marriage last resided
together, or (iv) the petitioner is residing at the time of
the presentation of the petition, in a case where the
respondent is, at the time, residing outside the territories
to which the Act extends, or has not been heard of as being
alive for a period of seven years of more by those persons
who would naturally have heard of him if he were alive, has
jurisdiction to entertain the petition. The Circuit Court of
St. Louis Country, Missouri had, therefore, no jurisdiction
to entertain the petition according to the Act under which
admittedly the parties were married. Secondly, irretrievable
breakdown of marriage is not one of the grounds recognised
by the Act for dissolution of marriage. Hence, the decree of
divorce passed by the foreign court was on a ground
unavailable under the Act.
6. Under Section 13 of the Code of Civil Procedure 1908
(hereinafter referred to as the “Code”), a foreign
judgment is not conclusive as to any matter thereby
directly adjudicated upon between the parties if (a) it has
not been pronounced by a Court of competent jurisdiction;
(b) it has not been given on the merits of the case; (c) it
is founded on an incorrect view of international law or a
refusal to recognize the law of India in cases in which such
law is applicable; (d) the proceedings are opposed to
natural justice, (e) it is obtained by fraud, (f) it
sustains a claim founded on a breach of any law in force in
India.
7. As pointed out above, the present decree dissolving
the marriage passed by the foreign court is without
jurisdiction according to the Act as neither the marriage
was celebrated nor the parties last
resided together nor the respondent resided within the
jurisdiction of that Court. The decree is also passed on a
ground which is not available under the Act which is
applicable to the marriage. What is further, the decree has
been obtained by the 1st appellant by stating that he was
the resident of the Missouri State when the record shows
that he was only a bird of passage there and was ordinarily
a resident of the State of Louisiana. He had, if at all,
only technically satisfied the requirement of residence of
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ninety days with the only purpose of obtaining the divorce.
He was neither domiciled in that State nor had he an
intention to make it his home. He had also no substantial
connection with the forum. The 1st appellant has further
brought no rules on record under which the St. Louis Court
could assume jurisdiction over the matter. On the contrary,
as pointed out earlier, he has in his petition made a false
averment that the 1st respondent had refused to continue to
stay with him in the State of Missouri where she had never
been. In the absence of the rules of jurisdiction of that
court, we are not aware whether the residence of the 1st
respondent within the State of Missouri was necessary to
confer jurisdiction on that court, and if not, of the
reasons for making the said averment.
8. Relying on a decision of this Court in Smt. Satya v.
Teja Singh, [1975] 2 SCR 1971 it is possible for us to
dispose of this case on a narrow ground, viz., that the
appellant played a fraud on the foreign court residence does
not mean a temporary residence for the purpose of obtaining
a divorce but habitual residence or residence which is
intended to be permanent for future as well. We remain from
adopting that course in the present case because there is
nothing on record to assure us that the Court of St. Louis
does not assume jurisdiction only on the basis of a mere
temporary residence of the appellant for 90 days even is
such
residence is for the purpose of obtaining divorce. We would,
therefore, presume that the foreign court by its own rules
of jurisdiction had rightly entertained the dispute and
granted a valid decree of divorce according to its law. The
larger question that we would like to address ourselves to
is whether even in such cases, the Courts in this country
should recognise the foreign divorce decrees.
9. The rules of Private International Law in this
country are not codified and are scattered in different
enactments such as the Civil Procedure Code, the Contract
Act, the Indian Succession Act, the Indian Divorce Act, the
Special Marriage Act etc. In addition, some rules have also
been evolved by judicial decisions. In matters of status or
legal capacity of natural persons, matrimonial disputes,
custody of children, adoption, testamentary and intestate
succession
etc. the problem in this country is complicated by the fact
that there exist different personal laws and no uniform rule
can be laid down for all citizens. The distinction between
matters which concern personal and family affairs and those
which concern commercial relationships, civil wrongs etc. is
well recognised in other countries and legal systems. The
law in the former area tends to be primarily determined and
influenced by social, moral and religious considerations,
and public policy plays a special and important role in
shaping it. Hence, in almost all the countries the
jurisdicational procedural and substantive rules which are
applied to disputes arising in this area are significantly
different from those applied to claims in other areas. That
is as it ought to be. For, no country can afford to
sacrifice its internal unity, stability and tranquility for
the sake of uniformity of rules and comity of nations which
considerations are important and appropriate to facilitate
international trade, commerce, industry, communication,
transport, exchange of services, technology, manpower etc.
This glaring fact of national life has been recognised both
by the Hague Convention of 1968 on the Recognition of
Divorce and Legal Seperations as well as by the Judgments
Convention of the European Community of the same year.
Article 10 of the Hague Convention expressly provides that
the contracting States may refuse to recognise a divorce or
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legal separation if such recognition is manifestly
incompatible with their public policy. The Judgments
Convention of the European Community expressly excludes from
its scope (a) status or legal capacity of natural persons,
(b) rights in property arising out of a matrimonial
relationship, (c) wills and succession, (d) social security
and (e) bankruptcy. A separate convention was contemplated
for the last of the subjects.
10. We are in the present case concerned only with the
matrimonial law and what we state here will apply strictly
to matters arising out of and ancillary to matrimonial
disputes. The Courts in this country have so far tried to
follow in these matters the English rules of Private
International Law whether common law rules or statutory
rules. The dependence on English Law even in matters which
are purely personal, has however time and again been
regretted. But nothing much has been done to remedy the
situation. The labours of the Law Commission poured in its
65th Report on this very subject have not fructified since
April 1976, when the Report was submitted. Even the
British were circumspect and hesitant to apply their rules
of law in such matters during their governance of this
country and had left the family law to be governed by the
customary rules of the different communities. It is only
where was a void that they had
stepped in by enactments such as the Special Marriage Act,
Indian Divorce Act, Indian Succession Act etc. In spite,
however, of more than 43 years of independence we find that
the legislature has not thought it fit to enact rules of
Private International Law in this area and in the absence of
such initiative from the legislature the courts in this
country their inspiration, as stated earlier, from the
English rules. Even in doing so they have not been uniform
in practice with the result that we have some conflicting
decisions in the area.
11. We cannot also lose sight of the fact that today
more than ever in the past, the need for definitive rules
for recognition of foreign judgments in personal and family
matters, and particularly in matrimonial disputes has surged
to the surface. Many a man and woman of this land with
different personal laws have migrated and are migrating to
different countries either to make their permanent abode
there or for temporary residence. Likewise there is also
immigration of the nationals of other countries. The
advancement in communication and transportation has also
made it easier for individuals to hop from one country to
another. It is also not unusual to come across cases where
citizens of this country have been contracting marriages
either in this country or abroad with nationals of the
other countries or among themselves, or having married here,
either both or one of them migrate to other countries. There
are also cases where parties having married here have been
either domiciled or residing separately in different foreign
countries. This migration, temporary or permanent, has also
been giving rise to various kinds of matrimonial disputes
destroying in its turn the family and its peace. A large
number of foreign decrees in matrimonial matters is becoming
the order of the recognition of the foreign judgments in
these matters. The minimum rules of guidance for securing
the certainty need not await legislative initiative. This
Court can accomplish the modest job within the framework of
the present statutory provisions if they are rationally
interpreted and extended to achieve the purpose. It is with
this intention that we are undertaking this venture. We
aware that unaided and left solely to our resources the
rules of guidance which we propose to lay down in this area
YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007
may prove inadequate or miss some aspects which may not be
present to us at this juncture. But a begining has to be
made as best as one can, the lacunae and the errors being
left to be filled in and corrected by future judgments.
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 th
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 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
acquiescence 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
one under which the
parties are married, and no other law. When, therefore, a
foreign judgment is founded on a jurisdiction or on 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 th ground that the proceedings in which it
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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
b 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 file 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 it 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 not 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 mater 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 grounds 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 be
as follows: (i) where the matrimonial action is filed in the
forum where the respondent is domiciled or 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
YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007
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
certainty in the most vital field of national life and
conformity with public 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 domicilliary law which determines the
jurisdiction and judges the merits of the case.
14. Since with regard to the jurisdiction of the forum as
well as the ground on which it is passed the foreign decree in the present case
is not in accordance with the Act under which the parties were married, and the
respondent had not submitted to the jurisdiction of the court or consented to
its passing, it cannot be recognised by the courts in this country and
is,therefore, unenforceable.
15. The High Court, as stated earlier, set aside the
order of the learned Magistrate only on the ground that the
photostat copy of the decree was not admissible in evidence.
The High Court is not correct in its reasoning. Under
Section 74(1)(iii) of the Indian Evidence Act (Hereinater
referred to as the “Act”) documents forming the acts or
records of the acts of public judicial officers of a foreign
country are public documents. Under Section 76 read with
Section 77 of the Act, certified copies of such documents
may be produced in proof of their contents. However, under
Section 86 of the Act there is presumption with regard to
the genuineness and accuracy of such certified copy only if
it is also certified by the representative of our Central
Government in or for that country that the manner in which
it has been certified is commonly in use in that country for
such certification.
Section 63(1) and (2) read with Section 65(e) and (f) of the
Act permits certified copies and copies made from the original by mechanical
process to be tendered as secondary evidence. A photostat copy is prepared by a
mechanical process which in itself ensures the accuracy of the original. The
present photostat copies of the judicial record of the Court of St. Louis is
certified for the Circuit Clerk by the Deputy Clerk who is a public officer
having the custody of the document within the meaning of Section 76 of the Act
and also in the manner required by the provisions of the said section. Hence
the Photostatcopy per se is not inadmissible in evidence. It is inadmissible
because it has not further been certified by the representative of our Central
Government in the United States as required by Section 86 of the Act. The
expression “certified copy” of a foreign judgment in Section 14 of theCode has
to be read consistent with the requirement of Section 86 of the Act.
16. While, therefore, holding that the document is not
admissible in evidence for want of the certificate under Section 86 of the Act
and not because it is a photostat copy of the original as held by the High
Court, we uphold theorder of the High Court also on a more substantial and
larger ground as stated in paragraph 14 above. Accordingly, we dismiss the
appeal and direct the learned Magistrate toproceed with the matter pending
before him according to law YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007
as expenditiously as possible, preferably within four months from now as the
prosecution is already a decade old.
Appeal dismissed.
