when a foreign divorce decree may be conclusive-valid in India

"
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.