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.
