tag:blogger.com,1999:blog-64769441898150209152024-02-08T11:07:51.838-08:00is Foreign Divorce Decree valid in IndiaWhen a Foreign Divorce Decree may valid in India,when Foreign Divorce Decree is Enforceable in India,Marriage of Indian Couple dissolved by USA Court is Valid in India ?, Foreign Divorce Decree in India Validity,UK Divorce Decree in India,Recognition of foreign divorce decree in India,How to validate foreign divorce decree in India,International Divorce decree in India,Divorce granted by foreign court on mutual consent is valid in India ?,Ex-Parte divorce decree by foreign court.
.V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-6476944189815020915.post-17039458421594004892018-06-13T23:14:00.000-07:002018-06-13T23:14:46.568-07:00When Your Decree of divorce is valid in India if divorce granted by USA Court or any foreign Court.<div dir="ltr" style="text-align: left;" trbidi="on">
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<b style="mso-bidi-font-weight: normal;"><span style="font-size: 14.0pt; line-height: 115%;">When foreign Court divorce decree is
valid/recognized/ Enforceable <span style="mso-spacerun: yes;"> </span>in India .<o:p></o:p></span></b></div>
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<b style="mso-bidi-font-weight: normal;"><span style="font-size: 14.0pt; line-height: 115%;"><br /></span></b></div>
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Foreign court decree of divorce or dissolution of marriage
can be valid in India provided such decree is according to the provision of law
in India as provided under section 13 of the Civil Procedure Code and Principle
of law as laid down by the Indian courts. A foreign court divorce decree may be
valid in India ONLY if the spouse had lived in that country and had consented
to that country's jurisdiction.</div>
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<b style="mso-bidi-font-weight: normal;">FAQ on foreign
divorce decree ?<o:p></o:p></b></div>
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<b style="mso-bidi-font-weight: normal;"><br /></b></div>
<div class="MsoListParagraph" style="mso-list: l0 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]--><b style="mso-bidi-font-weight: normal;"><span style="mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;">1.<span style="font: 7.0pt "Times New Roman";"> </span></span></span></b><!--[endif]--><b style="mso-bidi-font-weight: normal;">Question</b> <b style="mso-bidi-font-weight: normal;">: My husband or wife has filed divorce petition in USA/UK/Australia <span style="mso-spacerun: yes;"> </span>Court for dissolution of marriage on grounds
of “Irretrievable Breakdown of Marriage “ is this decree is valid in India ?<o:p></o:p></b></div>
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<b style="mso-bidi-font-weight: normal;">Ans.</b> This means the couple can no longer live together as husband <span style="mso-spacerun: yes;"> </span>and wife. Both partners, and one partner, must
prove to the court that the marriage broke down so badly that there is no<span style="mso-spacerun: yes;"> </span>chances of reconciliation or possible for
staying together , but this ground is not available under Hindu Marriage Act in
India and thus if marriage dissolved on this grounds is not valid or
enforceable in India..</div>
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<div class="MsoListParagraph" style="mso-list: l0 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]--><b style="mso-bidi-font-weight: normal;"><span style="mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;">2.<span style="font: 7.0pt "Times New Roman";"> </span></span></span></b><!--[endif]--><b style="mso-bidi-font-weight: normal;">My wife or Husband has filed a divorce
petition in USA/ or in abroad , he or she has received the court summons and <span style="mso-spacerun: yes;"> </span>after receiving the same relocate in India but
court has passed the decree of divorce in his or her absence , Is Ex parte
divorce is valid or recognized in India ?.<o:p></o:p></b></div>
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<b style="mso-bidi-font-weight: normal;"><br /></b></div>
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<b style="mso-bidi-font-weight: normal;">Ans </b>: when an
ex-parte decree is passed by a Foreign Court, it would not be valid and
conclusive in India. divorce obtained on grounds other than the grounds
enumerated under the Hindu Marriage Act if the parties were married under Hindu
Law, as a divorce matter is governed by the law under which one gets married
and not the law of the land where the party is residing.</div>
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<!--[if !supportLists]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 14.0pt; line-height: 115%; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;">3.<span style="font: 7.0pt "Times New Roman";">
</span></span></span></b><!--[endif]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 14.0pt; line-height: 115%;">When foreign court divorce decree
will be valid or recognized or enforceable in India ?<o:p></o:p></span></b></div>
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Ans : It is a general rule that if one of
the partners/ couple/party <span style="mso-spacerun: yes;"> </span>contests
divorce filed in Foreign Court <span style="mso-spacerun: yes;"> </span>it would
be said that he/she consented/ accepted <span style="mso-spacerun: yes;"> </span>to the jurisdiction of that Court, in such a
case the decree would be considered to be a conclusive or valid <span style="mso-spacerun: yes;"> </span>one.<o:p></o:p></div>
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Where the wife consents to the grant of the
relief by the foreign Court although the jurisdiction of the foreign Court is
not in accordance with the provisions of the Matrimonial Law/ Private and
Personal or International Laws <span style="mso-spacerun: yes;"> </span>of the
parties, to be valid and the judgment of such foreign Court to be conclusive.</div>
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<br /></div>
<div class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-indent: -.25in;">
<!--[if !supportLists]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 14.0pt; line-height: 115%; mso-bidi-font-family: Calibri; mso-bidi-theme-font: minor-latin;"><span style="mso-list: Ignore;">4.<span style="font: 7.0pt "Times New Roman";">
</span></span></span></b><!--[endif]--><b style="mso-bidi-font-weight: normal;"><span style="font-size: 14.0pt; line-height: 115%;">How can I validate/ Enforce or Execute
my foreign divorce decree in India ?<o:p></o:p></span></b></div>
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<b style="mso-bidi-font-weight: normal;"><span style="font-size: 14.0pt; line-height: 115%;"><br /></span></b></div>
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Ans: A foreign judgment can be executed in
two ways in India. The ways are as follows:<o:p></o:p></div>
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First, by filing an execution under Section
44A of the Civil Procedure Code. Section<span style="mso-spacerun: yes;">
</span>44A states that a decree passed by Courts in reciprocating territories
can be executed in India as if the decree was passed by the Indian Courts only.
The Court also see the judgments<span style="mso-spacerun: yes;"> </span>passed
by foreign court as per sec.13 of Civil Procedure Code .<o:p></o:p></div>
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Secondly, by filing a civil <span style="mso-spacerun: yes;"> </span>suit upon the foreign judgment/decree. For
instance, the decree does not pertain to a reciprocating territory or a
superior Court of a reciprocating territory, as notified by the Central
Government in the Official Gazette, the decree is not directly executable in
India. </div>
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V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com4tag:blogger.com,1999:blog-6476944189815020915.post-65158019682815153162017-02-21T05:50:00.000-08:002017-02-21T05:50:31.136-08:00Enforcement of foreign divorce decree in India<div dir="ltr" style="text-align: left;" trbidi="on">
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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.<o:p></o:p></div>
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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-<o:p></o:p></div>
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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.<o:p></o:p></div>
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Orissa High Court<o:p></o:p></div>
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Dr. Padmini Mishra vs Dr. Ramesh Chandra Mishra <o:p></o:p></div>
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Equivalent citations: AIR 1991 Ori 263, II (1990) DMC 408<o:p></o:p></div>
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Author: P Mishra<o:p></o:p></div>
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Bench: P Misra<o:p></o:p></div>
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JUDGMENT P.C. Mishra, J.<o:p></o:p></div>
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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.<o:p></o:p></div>
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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.<o:p></o:p></div>
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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.<o:p></o:p></div>
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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-<o:p></o:p></div>
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(a) where it has not been pronounced by a Court of competent
jurisdiction;<o:p></o:p></div>
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(b) where it has not been given on the merits of the case;<o:p></o:p></div>
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(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;<o:p></o:p></div>
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(d) where the proceedings in which the judgment was obtained
are opposed to natural justice;<o:p></o:p></div>
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(e) where it has been obtained by fraud; and<o:p></o:p></div>
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(f) where it sustains a claim founded on a breach of any law
in force in India.<o:p></o:p></div>
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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.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<br />
<div class="MsoNormal">
13. In the result, this appeal is dismissed subject to the
observations made in the concluding paragraph of this judgment.<o:p></o:p></div>
</div>
V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com2tag:blogger.com,1999:blog-6476944189815020915.post-2214890919868607362017-02-21T05:24:00.000-08:002017-02-21T05:24:28.436-08:00Ex-Parte Foreign Divorce Decree is Void and Invalid in India.<div dir="ltr" style="text-align: left;" trbidi="on">
<div class="MsoNormal">
The Hon’ble Delhi High Court held in this case as under:-<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Supreme Court in Y Narsimha Rao and ors v Y.Venkata
Lakshmi (supra) declined to give its imprimatur to foreign decree which did not
take into consideration the provisions of Hindu Marriage Act under which the
parties were married. The Supreme Court while interpreting Section 13 of CPC
has held that unless the respondent voluntarily and effectively submitted to
the jurisdiction of the foreign court and contested the claim which is based on
the grounds available in the matrimonial law under which the parties were
married, the judgment of the foreign court could not be relied upon. The
relevant portion of the judgment of the Supreme Court is reproduced as under:-<o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
" We believe that the relevant provisions of Section 13
of the Code are capable of being interpreted to secure the required certainty
in the sphere of this branch of law in conformity with public policy, justice,
equity and good conscience, and the rules so evolved will protect the sanctity
of the institution of marriage and the unity of family which are the corner
stones of our societal life.<o:p></o:p></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Clause (b) of Section 13 states that if a foreign judgment
has not been given on the merits of the case, the courts in this country will
not recognise such judgment. This clause should be interpreted to mean (a) that
the decision of the foreign court should be on a ground available under the law
under which the parties are married, and (b) that the decision should be a
result of the contest between the parties. The latter requirement is fulfilled
only when the respondent is duly served and voluntarily and unconditionally
submits himself/herself to the jurisdiction of the court and contests the
claim, or agrees to the passing of the decree with or without appearance. A
mere filing of the reply to the claim under protest and without submitting to
the jurisdiction of the court, or an appearance in the Court either in person
or through a representative for objecting to the jurisdiction of the Court,
should not be considered as a decision on the merits of the case. In this
respect the general rules of the acquiscence to the jurisdiction of the Court
which may be valid in other matters and areas should be ignored and deemed
inappropriate.<o:p></o:p></div>
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<br /></div>
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The second part of Clause (c) of Section 13 states that
where the judgment is founded on a refusal to recognise the law of this country
in cases in which such law is applicable, the judgment will not be recognised
by the courts in this country. The marriages which take place in this country
can only be under either the customary or the statutory law in force in this
country. Hence, the only law that can be applicable to the matrimonial disputes
is the cine under which the parties are married, and no other law. When,
therefore, a foreign judgment is founded on a jurisdiction or on a ground not
recognised by such law, it is a judgment which is in defiance of the Law.
Hence, it is not conclusive of the matters adjudicated therein and, therefore,
unenforceable in this country. For the same reason, such a judgment will also
be unenforceable under Clause (f) of Section 13, since such a judgment would
obviously be in breach of the matrimonial law in force in this country.<o:p></o:p></div>
<div class="MsoNormal">
Clause (d) of Section 13 which makes a foreign judgment
unenforceable on the ground that the proceedings in which it is obtained are
opposed to natural justice, states no more than an elementary principle on
which any civilised system of justice rests. However, in matters concerning the
family law such as the matrimonial disputes, this principle has to be extended
to mean something more than mere compliance with the technical rules of
procedure. If the rule of audi alteram partem has any meaning with reference to
the proceedings in a foreign court, for the purposes of the rule it should not
be deemed sufficient that the respondent has been duly served with the process
of the court. It is necessary to ascertain whether the respondent was in a
position to present or represent himself/herself and contest effectively the
said proceedings. This requirement should apply equally to the appellate
proceedings if and when they are filed by either party. If the foreign court
has not ascertained and ensured such effective contest by requiring the
petitioner to make all necessary provisions for the respondent to defend
including the costs of travel, residence and litigation where necessary, it
should be held that the proceedings are in breach of the principles of natural
justice. It is for this reason that we find that the rules of Private
International Law of some countries insist, even in commercial matters that the
action should be filed in the forum where the defendant is either domiciled or
is habitually resident. It is only in special cases which is called special
jurisdiction where the claim has some real link with other forum that a
judgment of such forum is recognised. This jurisdiction principle is also
recognised by the Judgments Convention of this European Community. If,
therefore, the courts in this country also insist as a matter of rule that
foreign matrimonial judgment will be recognised only if it is of the forum
where the respondent is domiciled or habitually and permanently resides, the
provisions of Clause (d) may be held to have been satisfied.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The provision of Clause (e) of Section 13 which requires
that the courts in this country will nor recognise a foreign judgment if it has
been obtained by fraud, is self-evident. However, in view of the decision of
this Court in Smt. Satya v. Teja Singh (supra) it must be understood that the
fraud need not be only in relation to the merits of the matter but may also be
in relation to jurisdictional facts.<o:p></o:p></div>
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<br /></div>
<div class="MsoNormal">
13. From the aforesaid discussion the following rule can be
deduced for recognising foreign matrimonial judgment in this country. The
jurisdiction assumed by the foreign court as well as the ground on which the
relief is granted must be in accordance with the matrimonial law under which
the parties are married. The exceptions to this rule may Le as follows: (i)
where the matrimonial action is filed in the forum where the respondent is
domiciled 01 habitually and permanently resides and the relief is granted on a
ground available in the matrimonial law under which the parties are married;
(ii) where the respondent voluntarily and effectively submits to the jurisdiction
of the forum as discussed above and contests the claim which is based on a
ground available under the matrimonial law under which the parties are married;
(iii) where the respondent consents to the grant of the relief although the
jurisdiction of the forum is not in accordance with the provisions of the
matrimonial law of the parties.<o:p></o:p></div>
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<br /></div>
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The aforesaid rule with its
stated exceptions has the merit of being just and equitable. It does no
injustice to any of the parties. The parties do and ought to know their rights
and obligations when they marry under a particular law. They cannot be heard to
make a grievance about it later or allowed to bypass it by subterfuges as in
the present case. The rule also has an advantage of rescuing the institution of
marriage from the uncertain maze of the rules of the Private international Law
of the different countries with regard to jurisdiction and merits based
variously on domicile, nationality, residence-permanent or temporary or ad hoc
forum, proper law etc. and ensuring certainly in the most vital field of
national life and conformity with pubic policy. The rule further takes account
of the needs of modern life and makes due allowance to accommodate them. Above
all, it gives protection to women, the most vulnerable section of our society,
whatever the strata to which they may belong. In particular it frees them from
the bondage of the tyrannical and servile rule that wife's domicile follows
that of her husband and that it is the husband's domiciliary law which determines
the jurisdiction and judges the merits of the case."<o:p></o:p></div>
</div>
<div class="MsoNormal">
IN THE HIGH COURT OF DELHI AT NEW DELHI<o:p></o:p></div>
<div class="MsoNormal">
+
C.R.P.148/2011<o:p></o:p></div>
<div class="MsoNormal">
% Date of
Decision: April 22, 2013<o:p></o:p></div>
<div class="MsoNormal">
PRITAM ASHOK SADAPHULE ..... Petitioner<o:p></o:p></div>
<div class="MsoNormal">
Through: Mr.Rakesh Taneja, Advocate<o:p></o:p></div>
<div class="MsoNormal">
versus<o:p></o:p></div>
<div class="MsoNormal">
HIMA CHUGH
.... Respondent<o:p></o:p></div>
<div class="MsoNormal">
Through: Mr.Prashant Mendiratta, Adv.<o:p></o:p></div>
<div class="MsoNormal">
CORAM:<o:p></o:p></div>
<div class="MsoNormal">
HON'BLE MS. JUSTICE VEENA BIRBAL<o:p></o:p></div>
<div class="MsoNormal">
VEENA BIRBAL, J.<o:p></o:p></div>
<div class="MsoNormal">
*<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
1. By this revision petition challenge has been made to
order dated 22nd September, 2011 passed by the ld.Addl. District Judge-1, New
Delhi District, Patiala House Courts, New Delhi in HMA No.15/2011 whereby the
application of the petitioner/husband under section 13 of the CPC has been
dismissed.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
2. Briefly the facts relevant for the disposal of the
present petition are as under:-<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The parties met each other in England in the year 2004 and
developed liking for each other. On 5th March, 2005, both got married at New
Delhi. After about one week of marriage, they went back to England on 12th
March, 2005. With the passage of time, disputes and differences arose between
them as a result of which they could not live together. In September, 2009,
respondent/wife had lodged a complaint of domestic violence, cruelty and
assault against the petitioner/husband in Ilford Police Station, England. It is
alleged that respondent/wife also invoked the jurisdiction of UK Family Court
(Brentford County Court) for Non-Molestation and Occupation order in September,
2009. Thereafter, she had come back to India in December, 2009. In March, 2010,
respondent/wife lodged FIR against the petitioner/husband, his parents and
family members being FIR no.46/2010 under Section 498-A/34 IPC, P.S. Tilak
Nagar, Mumbai. Petitioner/husband has filed a petition for quashing of
aforesaid FIR which is pending disposal before the Bombay High Court.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
3. In December, 2010, petitioner/husband had filed a divorce
petition before the Ilford County Court in UK for dissolution of marriage by a
decree of divorce on the ground that the respondent had misbehaved with him and
that he could not reasonably be expected to live with her. It is alleged that
respondent was served with the divorce petition on 19th November, 2010.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
4. On 21st December, 2010, respondent/wife had filed a suit
being Civil Suit (OS) No.2610/2010 before this court praying for a grant of
decree of permanent injunction against the petitioner for continuing with the
divorce petition before the court in UK. During the pendency of aforesaid
divorce petition, respondent had filed a complaint before learned MM, Dwarka,
New Delhi under The Protection of Women from Domestic Violence Act, 2005. The
same was dismissed on 24th December, 2010 by the concerned ld.MM, as not
maintainable. Respondent filed an appeal against the said order which was
dismissed vide order dated 28.3.2011.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
5. The respondent/wife also filed a petition under section
13(1)(ia) of the Hindu Marriage Act i.e. HMA No.15/2011 in February, 2011
praying for dissolution of marriage with petitioner on the ground of cruelty
which is pending disposal before learned Addl. District Judge, Delhi.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
6. The ld. Ilford County Court in UK had passed a Decree
Nisi on 9th May, 2011 stating therein that marriage between the parties has
been broken down irretrievably and ordered that the said marriage be dissolved
unless sufficient cause be shown within six weeks as to why the same be not
made "absolute". A copy of the said decree was placed by the
petitioner before the ld.Addl. District Judge, New Delhi on 10th June, 2011
hearing HMA 15/2011. Respondent filed a detailed representation before the Ld.
Ilford County Court in UK on 15th June, 2011 opposing making the divorce decree
absolute. However, the decree passed by the Ilford County Court was made
„absolute‟ on 21st June, 2011. Thereafter, in July, 2011 an application under
section 13 of CPC was filed by the petitioner for dropping the divorce
proceedings against him on the ground that marriage between the parties has
already been dissolved by a decree of divorce by Ilford County Court in U.K.,
as such divorce petition filed by respondent/wife has become infructuous. Reply
was filed by the respondent to the aforesaid application contending therein
that decree of divorce passed by the foreign court is not recognised in Indian
Law. It was further stated that the ground on which the foreign court had
dissolved the marriage i.e., irretrievable breakdown was no ground for
dissolution of marriage under the Hindu Marriage Act, as such, the said decree
cannot be recognised in India.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
7. After considering the contentions of the parties, the learned
trial court relying on the judgment in Y Narashimha Rao & ors vs. Y.Venkata
Lakshimi & another: (1991) 3 SCC 451, has dismissed the said application.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
8. Aggrieved with the same, present petition is filed.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
9. Learned counsel for the petitioner has contended that
respondent-wife has not obtained any declaration from a competent court
declaring the foreign decree of divorce as null and void, as such, same cannot
be treated as a nullity by the ld.trial court. In support of his contention,
learned counsel has relied upon the judgment of this court in Harbans Lal Malik
vs. Payal Malik 171 (2010) DLT 67. It is further contended that respondent was
served with summons issued by the Ilford County Court on 19 th November, 2010
and she also made a representation there. In these circumstances, it cannot be
said that she has not subjected herself to the jurisdiction of the said court.
It is further contended that participating or not participating before the
foreign court by the respondent is immaterial. The exceptions are given in
Section 13 of CPC as to when a foreign judgment is not conclusive and binding.
It is contended that in the present case none of the exceptions as stated
therein exist.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
10. On the other hand, learned counsel for the respondent
has contended that present petition is liable to be dismissed inasmuch as the
petitioner seeks to enforce a decree of divorce granted by a foreign court
which is not recognised in India and it would be opposed to public policy if
the said decree is afforded any recognition. It is contended that the sole
ground of the petitioner hinges on averring that respondent should have
obtained declaration from a competent court declaring the foreign decree as
null and void. It is contended that petitioner is misleading the court inasmuch
as petitioner himself made a voluntary statement before the ld.trial court that
he would be filing an application under section 13 of the CPC and thereafter
had moved the said application which was ultimately rejected and now the
petitioner cannot turn around and contend that respondent should have
approached the competent court seeking declaration of foreign divorce decree as
null and void.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
11. Learned counsel for the respondent has contended that
judgment of the Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi
(supra) is clearly applicable to the facts of the present case. It is contended
that foreign divorce decree was an ex parte decree wherein respondent could not
contest. The said decree is not recognised in India, as such, petitioner is not
entitled for any relief.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
12. The Supreme Court in Y Narsimha Rao and ors v Y.Venkata
Lakshmi (supra) declined to give its imprimatur to foreign decree which did not
take into consideration the provisions of Hindu Marriage Act under which the parties
were married. The Supreme Court while interpreting Section 13 of CPC has held
that unless the respondent voluntarily and effectively submitted to the
jurisdiction of the foreign court and contested the claim which is based on the
grounds available in the matrimonial law under which the parties were married,
the judgment of the foreign court could not be relied upon. The relevant
portion of the judgment of the Supreme Court is reproduced as under:-<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
"12. We believe that the relevant provisions of Section
13 of the Code are capable of being interpreted to secure the required
certainty in the sphere of this branch of law in conformity with public policy,
justice, equity and good conscience, and the rules so evolved will protect the
sanctity of the institution of marriage and the unity of family which are the
corner stones of our societal life.<o:p></o:p></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
Clause (b) of Section 13 states that if a foreign judgment
has not been given on the merits of the case, the courts in this country will
not recognise such judgment. This clause should be interpreted to mean (a) that
the decision of the foreign court should be on a ground available under the law
under which the parties are married, and (b) that the decision should be a
result of the contest between the parties. The latter requirement is fulfilled
only when the respondent is duly served and voluntarily and unconditionally
submits himself/herself to the jurisdiction of the court and contests the
claim, or agrees to the passing of the decree with or without appearance. A
mere filing of the reply to the claim under protest and without submitting to
the jurisdiction of the court, or an appearance in the Court either in person
or through a representative for objecting to the jurisdiction of the Court,
should not be considered as a decision on the merits of the case. In this
respect the general rules of the acquiscence to the jurisdiction of the Court
which may be valid in other matters and areas should be ignored and deemed
inappropriate.<o:p></o:p></div>
<div class="MsoNormal">
The second part of Clause (c) of Section 13 states that
where the judgment is founded on a refusal to recognise the law of this country
in cases in which such law is applicable, the judgment will not be recognised
by the courts in this country. The marriages which take place in this country
can only be under either the customary or the statutory law in force in this
country. Hence, the only law that can be applicable to the matrimonial disputes
is the cine under which the parties are married, and no other law. When,
therefore, a foreign judgment is founded on a jurisdiction or on a ground not
recognised by such law, it is a judgment which is in defiance of the Law.
Hence, it is not conclusive of the matters adjudicated therein and, therefore,
unenforceable in this country. For the same reason, such a judgment will also
be unenforceable under Clause (f) of Section 13, since such a judgment would
obviously be in breach of the matrimonial law in force in this country.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Clause (d) of Section 13 which makes a foreign judgment
unenforceable on the ground that the proceedings in which it is obtained are
opposed to natural justice, states no more than an elementary principle on
which any civilised system of justice rests. However, in matters concerning the
family law such as the matrimonial disputes, this principle has to be extended
to mean something more than mere compliance with the technical rules of
procedure. If the rule of audi alteram partem has any meaning with reference to
the proceedings in a foreign court, for the purposes of the rule it should not
be deemed sufficient that the respondent has been duly served with the process
of the court. It is necessary to ascertain whether the respondent was in a
position to present or represent himself/herself and contest effectively the
said proceedings. This requirement should apply equally to the appellate
proceedings if and when they are filed by either party. If the foreign court
has not ascertained and ensured such effective contest by requiring the
petitioner to make all necessary provisions for the respondent to defend
including the costs of travel, residence and litigation where necessary, it
should be held that the proceedings are in breach of the principles of natural
justice. It is for this reason that we find that the rules of Private
International Law of some countries insist, even in commercial matters that the
action should be filed in the forum where the defendant is either domiciled or
is habitually resident. It is only in special cases which is called special
jurisdiction where the claim has some real link with other forum that a
judgment of such forum is recognised. This jurisdiction principle is also
recognised by the Judgments Convention of this European Community. If,
therefore, the courts in this country also insist as a matter of rule that
foreign matrimonial judgment will be recognised only if it is of the forum
where the respondent is domiciled or habitually and permanently resides, the
provisions of Clause (d) may be held to have been satisfied.<o:p></o:p></div>
<div class="MsoNormal">
The provision of Clause (e) of Section 13 which requires
that the courts in this country will nor recognise a foreign judgment if it has
been obtained by fraud, is self-evident. However, in view of the decision of
this Court in Smt. Satya v. Teja Singh (supra) it must be understood that the
fraud need not be only in relation to the merits of the matter but may also be
in relation to jurisdictional facts.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
13. From the aforesaid discussion the following rule can be
deduced for recognising foreign matrimonial judgment in this country. The
jurisdiction assumed by the foreign court as well as the ground on which the
relief is granted must be in accordance with the matrimonial law under which
the parties are married. The exceptions to this rule may Le as follows: (i)
where the matrimonial action is filed in the forum where the respondent is
domiciled 01 habitually and permanently resides and the relief is granted on a
ground available in the matrimonial law under which the parties are married;
(ii) where the respondent voluntarily and effectively submits to the
jurisdiction of the forum as discussed above and contests the claim which is
based on a ground available under the matrimonial law under which the parties
are married; (iii) where the respondent consents to the grant of the relief
although the jurisdiction of the forum is not in accordance with the provisions
of the matrimonial law of the parties.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The aforesaid rule with its stated exceptions has the merit
of being just and equitable. It does no injustice to any of the parties. The
parties do and ought to know their rights and obligations when they marry under
a particular law. They cannot be heard to make a grievance about it later or
allowed to bypass it by subterfuges as in the present case. The rule also has
an advantage of rescuing the institution of marriage from the uncertain maze of
the rules of the Private international Law of the different countries with
regard to jurisdiction and merits based variously on domicile, nationality,
residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring
certainly in the most vital field of national life and conformity with pubic
policy. The rule further takes account of the needs of modern life and makes
due allowance to accommodate them. Above all, it gives protection to women, the
most vulnerable section of our society, whatever the strata to which they may
belong. In particular it frees them from the bondage of the tyrannical and
servile rule that wife's domicile follows that of her husband and that it is
the husband's domiciliary law which determines the jurisdiction and judges the
merits of the case."<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
13. It is admitted position that both the parties are
Indians and marriage between them was solemnised at New Delhi according to
Hindu rites and ceremonies and both are governed by Hindu Marriage Act, 1955.
Their marriage has been dissolved by Ilford County Court in UK on the ground of
having been broken down irretrievably which is not a ground for divorce under
the Hindu Marriage Act. The Supreme Court in Y.Narasimha Rao and Ors vs.
Y.Venkata Lakshmi and Anr (supra) has already held that foreign decree of
divorce granted on a ground which is not recognized in India.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
14. The contention raised by the petitioner that there
should be declaration from a competent court declaring the foreign decree null
and void has no force as it is the petitioner who had moved an application
under section 13 of CPC praying therein that the petitioner has already
obtained a divorce decree from a foreign court thereby the marriage between the
parties has been dissolved, as such, divorce petition pending before the
ld.Addl. District Judge has become infructuous. Pursuant thereto reply was
filed by respondent/office opposing the said application. While deciding the
said application, the impugned order has been passed.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
15. Further the divorce granted by the Ilford County Court
in UK is an ex parte divorce decree. Respondent never submitted herself to the
jurisdiction of the said court. Respondent lodged a representation dated
15.6.2011 before the Ilford County Court informing that she was in India when
the divorce petition was filed. She also informed that she was in acute
financial difficulty to come to London to contest the divorce case. She wrote
in detail about her financial condition and also informed that she had already
filed a divorce petition in India. She requested the Ilford County Court not to
make the divorce decree "absolute". Respondent also filed
CS(OS)2610/2010 before this court praying for grant of a decree of permanent
injunction against the petitioner from continuing with the divorce petition
before the court in UK. In these circumstances, it cannot be said that she had
submitted to the jurisdiction of the foreign court.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
16. The reliance placed by learned counsel for the
petitioner on the judgment of Harbans Lal Malik vs. Payal Malik (supra), is of
no help to him. The facts of the said case are entirely different. The learned
trial court has also considered the judgment of this court in Harmeeta Singh
vs. Rajat Taneja reported in I(2003) DMC 443 and Mrs.Veena Kalia vs.
Dr.Jatinder Nath Kalia and anr reported as 59(1995) Delhi Law times 635 in
coming to the conclusion that decree of dissolution of marriage granted by the
Ilford County Court, Essex, UK cannot be recognised as the facts of the case
fall within the purview of the exceptions of Section 13 of CPC.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
In view of the above discussion, no illegality is seen in
the impugned order which calls for interference of this court. Petition is
dismissed.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<br />
<div class="MsoNormal">
VEENA BIRBAL, J<o:p></o:p></div>
</div>
V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com1tag:blogger.com,1999:blog-6476944189815020915.post-73855784825156582942016-02-15T21:55:00.000-08:002016-02-15T21:56:48.902-08:00execution of foreign divorce decree in india.<div dir="ltr" style="text-align: left;" trbidi="on">
<div class="fragment" style="border-bottom-color: rgb(245, 237, 227); border-bottom-style: solid; border-bottom-width: 20px; font-family: georgia, sans-serif, serif, arial; font-size: 16.25px; line-height: 24.375px; text-align: justify;">
<div id="p_12">
learned counsel for the respondent has contended that present petition is liable to be dismissed inasmuch as the petitioner seeks to enforce a decree of <b>divorce</b> granted by a <b>foreign</b> court which is not recognised in India and it would be opposed to public policy if the said decree is afforded any recognition. It is contended that the sole ground of the petitioner hinges on averring that respondent should have obtained declaration from a competent court declaring the <b>foreign</b> decree as null and void. It is contended that petitioner is misleading the court inasmuch as petitioner himself made a voluntary statement before the ld.trial court that he would be filing an application under section 13 of the CPC and thereafter had moved the said application which was ultimately rejected and now the petitioner cannot turn around and contend that respondent should have approached the competent court seeking declaration of<b>foreign</b> <b>divorce</b> decree as null and void.</div>
</div>
<div class="fragment" style="border-bottom-color: rgb(245, 237, 227); border-bottom-style: solid; border-bottom-width: 20px; font-family: georgia, sans-serif, serif, arial; font-size: 16.25px; line-height: 24.375px; text-align: justify;">
<div id="p_13">
Learned counsel for the respondent has contended that judgment of the Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) is clearly applicable to the facts of the present case. It is contended that <b>foreign</b> <b>divorce</b> decree was an ex parte decree wherein respondent could not contest. The said decree is not recognised in India, as such, petitioner is not entitled for any relief.</div>
<div id="p_14">
12. The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to <b>foreign</b> decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the <b>foreign</b> court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the <b>foreign</b> court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under:-</div>
</div>
<div class="fragment" style="border-bottom-color: rgb(245, 237, 227); border-bottom-style: solid; border-bottom-width: 20px; font-family: georgia, sans-serif, serif, arial; font-size: 16.25px; line-height: 24.375px; text-align: justify;">
<div id="p_15">
It is admitted position that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies and both are governed byHindu Marriage Act, 1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for <b>divorce</b> under the Hindu Marriage Act. The Supreme Court in Y.Narasimha Rao and Ors vs. Y.Venkata Lakshmi and Anr (supra) has already held that <b>foreign</b> decree of <b>divorce</b> granted on a ground which is not recognized in India.</div>
</div>
<div style="font-family: georgia, sans-serif, serif, arial; font-size: 16.25px; line-height: 24.375px; text-align: justify;">
<div id="p_16">
The contention raised by the petitioner that there should be declaration from a competent court declaring the <b>foreign</b> decree null and void has no force as it is the petitioner who had moved an application under section 13 of CPC praying therein that the petitioner has already obtained a <b>divorce</b> decree from a <b>foreign</b> court thereby the marriage between the parties has been dissolved, as such, <b>divorce</b> petition pending before the ld.Addl. District Judge has become infructuous. Pursuant thereto reply was filed by respondent/office opposing the said application. While deciding the said application, the impugned order has been passed.</div>
<div id="p_16">
----------------------------------------------------------------------------------------------------------</div>
<pre id="pre_1" style="padding: 20px; white-space: pre-wrap; width: 700px; word-wrap: break-word;">IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P.148/2011
% Date of Decision: April 22, 2013
PRITAM ASHOK SADAPHULE ..... Petitioner
Through: Mr.Rakesh Taneja, Advocate
versus
HIMA CHUGH .... Respondent
Through: Mr.Prashant Mendiratta, Adv.
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
VEENA BIRBAL, J.
</pre>
<div id="p_1">
*</div>
<div id="p_2">
1. By this revision petition challenge has been made to order dated 22nd September, 2011 passed by the ld.Addl. District Judge-1, New Delhi District, Patiala House Courts, New Delhi in HMA No.15/2011 whereby the application of the petitioner/husband under section 13 of the CPC has been dismissed.</div>
<div id="p_3">
2. Briefly the facts relevant for the disposal of the present petition are as under:-</div>
<div id="p_4">
The parties met each other in England in the year 2004 and developed liking for each other. On 5th March, 2005, both got married at New Delhi. After about one week of marriage, they went back to England on 12th March, 2005. With the passage of time, disputes and differences arose between them as a result of which they could not live together. In September, 2009, respondent/wife had lodged a complaint of domestic violence, cruelty and assault against the petitioner/husband in Ilford Police Station, England. It is alleged that respondent/wife also invoked the jurisdiction of UK Family Court (Brentford County Court) for Non-Molestation and Occupation order in September, 2009. Thereafter, she had come back to India in December, 2009. In March, 2010, respondent/wife lodged FIR against the petitioner/husband, his parents and family members being FIR no.46/2010 under Section 498-A/<a href="http://indiankanoon.org/doc/37788/" id="a_2" style="color: #1100cc; text-decoration: none;">34</a> IPC, P.S. Tilak Nagar, Mumbai. Petitioner/husband has filed a petition for quashing of aforesaid FIR which is pending disposal before the Bombay High Court.</div>
<div id="p_5">
3. In December, 2010, petitioner/husband had filed a divorce petition before the Ilford County Court in UK for dissolution of marriage by a decree of divorce on the ground that the respondent had misbehaved with him and that he could not reasonably be expected to live with her. It is alleged that respondent was served with the divorce petition on 19th November, 2010.</div>
<div id="p_6">
4. On 21st December, 2010, respondent/wife had filed a suit being Civil Suit (OS) No.2610/2010 before this court praying for a grant of decree of permanent injunction against the petitioner for continuing with the divorce petition before the court in UK. During the pendency of aforesaid divorce petition, respondent had filed a complaint before learned MM, Dwarka, New Delhi under The Protection of Women from Domestic Violence Act, 2005. The same was dismissed on 24th December, 2010 by the concerned ld.MM, as not maintainable. Respondent filed an appeal against the said order which was dismissed vide order dated 28.3.2011.</div>
<div id="p_7">
5. The respondent/wife also filed a petition under section 13(1)(ia) of the Hindu Marriage Act i.e. HMA No.15/2011 in February, 2011 praying for dissolution of marriage with petitioner on the ground of cruelty which is pending disposal before learned Addl. District Judge, Delhi.</div>
<div id="p_8">
6. The ld. Ilford County Court in UK had passed a Decree Nisi on 9th May, 2011 stating therein that marriage between the parties has been broken down irretrievably and ordered that the said marriage be dissolved unless sufficient cause be shown within six weeks as to why the same be not made "absolute". A copy of the said decree was placed by the petitioner before the ld.Addl. District Judge, New Delhi on 10th June, 2011 hearing HMA 15/2011. Respondent filed a detailed representation before the Ld. Ilford County Court in UK on 15th June, 2011 opposing making the divorce decree absolute. However, the decree passed by the Ilford County Court was made „absolute‟ on 21st June, 2011. Thereafter, in July, 2011 an application under section 13 of CPC was filed by the petitioner for dropping the divorce proceedings against him on the ground that marriage between the parties has already been dissolved by a decree of divorce by Ilford County Court in U.K., as such divorce petition filed by respondent/wife has become infructuous. Reply was filed by the respondent to the aforesaid application contending therein that decree of divorce passed by the foreign court is not recognised in Indian Law. It was further stated that the ground on which the foreign court had dissolved the marriage i.e., irretrievable breakdown was no ground for dissolution of marriage under the Hindu Marriage Act, as such, the said decree cannot be recognised in India.</div>
<div id="p_9">
7. After considering the contentions of the parties, the learned trial court relying on the judgment in Y Narashimha Rao & ors vs. Y.Venkata Lakshimi & another: (1991) 3 SCC 451, has dismissed the said application.</div>
<div id="p_10">
8. Aggrieved with the same, present petition is filed.</div>
<div id="p_11">
9. Learned counsel for the petitioner has contended that respondent-wife has not obtained any declaration from a competent court declaring the foreign decree of divorce as null and void, as such, same cannot be treated as a nullity by the ld.trial court. In support of his contention, learned counsel has relied upon the judgment of this court in Harbans Lal Malik vs. Payal Malik 171 (2010) DLT 67. It is further contended that respondent was served with summons issued by the Ilford County Court on 19 th November, 2010 and she also made a representation there. In these circumstances, it cannot be said that she has not subjected herself to the jurisdiction of the said court. It is further contended that participating or not participating before the foreign court by the respondent is immaterial. The exceptions are given in Section 13 of CPC as to when a foreign judgment is not conclusive and binding. It is contended that in the present case none of the exceptions as stated therein exist.</div>
<div id="p_12">
10. On the other hand, learned counsel for the respondent has contended that present petition is liable to be dismissed inasmuch as the petitioner seeks to enforce a decree of divorce granted by a foreign court which is not recognised in India and it would be opposed to public policy if the said decree is afforded any recognition. It is contended that the sole ground of the petitioner hinges on averring that respondent should have obtained declaration from a competent court declaring the foreign decree as null and void. It is contended that petitioner is misleading the court inasmuch as petitioner himself made a voluntary statement before the ld.trial court that he would be filing an application under section 13 of the CPC and thereafter had moved the said application which was ultimately rejected and now the petitioner cannot turn around and contend that respondent should have approached the competent court seeking declaration of foreign divorce decree as null and void.</div>
<div id="p_13">
11. Learned counsel for the respondent has contended that judgment of the Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) is clearly applicable to the facts of the present case. It is contended that foreign divorce decree was an ex parte decree wherein respondent could not contest. The said decree is not recognised in India, as such, petitioner is not entitled for any relief.</div>
<div id="p_14">
12. The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under:-</div>
<blockquote id="blockquote_1">
"12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.</blockquote>
<blockquote id="blockquote_2">
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.</blockquote>
<blockquote id="blockquote_3">
Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.</blockquote>
<blockquote id="blockquote_4">
The second part of Clause (c) of <a href="http://indiankanoon.org/doc/1284729/" id="a_12" style="color: #1100cc; text-decoration: none;">Section 13</a> states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of <a href="http://indiankanoon.org/doc/1284729/" id="a_13" style="color: #1100cc; text-decoration: none;">Section 13</a>, since such a judgment would obviously be in breach of the matrimonial law in force in this country.</blockquote>
<blockquote id="blockquote_5">
Clause (d) of <a href="http://indiankanoon.org/doc/1284729/" id="a_14" style="color: #1100cc; text-decoration: none;">Section 13</a> which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied.</blockquote>
<blockquote id="blockquote_6">
The provision of Clause (e) of <a href="http://indiankanoon.org/doc/1284729/" id="a_15" style="color: #1100cc; text-decoration: none;">Section 13</a> which requires that the courts in this country will nor recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in <a href="http://indiankanoon.org/doc/1774034/" id="a_16" style="color: #1100cc; text-decoration: none;">Smt. Satya v. Teja Singh</a> (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.</blockquote>
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13. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.</blockquote>
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The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private international Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainly in the most vital field of national life and conformity with pubic policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerablesection of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife's domicile follows that of her husband and that it is the husband's domiciliary law which determines the jurisdiction and judges the merits of the case."</blockquote>
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13. It is admitted position that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies and both are governed byHindu Marriage Act, 1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under theHindu Marriage Act. The Supreme Court in Y.Narasimha Rao and Ors vs. Y.Venkata Lakshmi and Anr (supra) has already held that foreign decree of divorce granted on a ground which is not recognized in India.</div>
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14. The contention raised by the petitioner that there should be declaration from a competent court declaring the foreign decree null and void has no force as it is the petitioner who had moved an application under section 13 of CPC praying therein that the petitioner has already obtained a divorce decree from a foreign court thereby the marriage between the parties has been dissolved, as such, divorce petition pending before the ld.Addl. District Judge has become infructuous. Pursuant thereto reply was filed by respondent/office opposing the said application. While deciding the said application, the impugned order has been passed.</div>
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15. Further the divorce granted by the Ilford County Court in UK is an ex parte divorce decree. Respondent never submitted herself to the jurisdiction of the said court. Respondent lodged a representation dated 15.6.2011 before the Ilford County Court informing that she was in India when the divorce petition was filed. She also informed that she was in acute financial difficulty to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the Ilford County Court not to make the divorce decree "absolute". Respondent also filed CS(OS)2610/2010 before this court praying for grant of a decree of permanent injunction against the petitioner from continuing with the divorce petition before the court in UK. In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court.</div>
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16. The reliance placed by learned counsel for the petitioner on the judgment of Harbans Lal Malik vs. Payal Malik (supra), is of no help to him. The facts of the said case are entirely different. The learned trial court has also considered the judgment of this court in Harmeeta Singh vs. Rajat Taneja reported in I(2003) DMC 443 and Mrs.Veena Kalia vs. Dr.Jatinder Nath Kalia and anr reported as 59(1995) Delhi Law times 635 in coming to the conclusion that decree of dissolution of marriage granted by the Ilford County Court, Essex, UK cannot be recognised as the facts of the case fall within the purview of the exceptions of Section 13 of CPC.</div>
<div id="p_19">
In view of the above discussion, no illegality is seen in the impugned order which calls for interference of this court. Petition is dismissed.</div>
<div id="p_20">
VEENA BIRBAL, J APRIL 22, 2013</div>
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V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com2tag:blogger.com,1999:blog-6476944189815020915.post-25683660712465967442012-12-13T21:49:00.000-08:002012-12-13T21:49:25.846-08:00Recognition of Foreign Divorce Decree in India<div dir="ltr" style="text-align: left;" trbidi="on">
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<span style="font-family: Georgia, serif;">When a foreign Divorce may conclusive in India/ </span></div>
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<span style="font-family: Georgia, serif;">Recognition of Foreign Divorce Decree in India.</span></div>
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<span style="color: red; font-family: Georgia, serif;">Here the petitioner who is challenging the judgment was at the relevant time resident for a fairly long time within the jurisdiction of the foreign Court, did not approach the foreign Court under the dictates of the respondent and made out a case before the foreign Court for obtaining the judgment. Indeed in Y. Narasimha Rao (supra) itself the Supreme Court held matrimonial action filed in the forum where the wife is domiciled or habitually and permanently resides or where the wife voluntarily and effectively submits to the foreign jurisdiction or where the wife consents to the grant of the relief by the foreign Court although the jurisdiction of the foreign Court is not in accordance with the provisions of the Matrimonial Law of the parties, to be valid and the judgment of such foreign Court to be conclusive</span></div>
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<span style="font-family: Georgia, serif;">IN THE HIGH COURT OF DELHI AT NEW DELHI<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">Date of decision: 25th January, 2012<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">+ CRL.M.C. 3845/2010<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">% DR. MEENA CHAUDHARY<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">@ DR. MEENA P.N. SINGH ..... Petitioner Through: None.<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">Versus<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">BASANT KUMAR CHAUDHARY & ORS. ..... Respondents Through: Mr. Atul Jha, Adv.<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">CORAM :-<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">HON'BLE THE ACTING CHIEF JUSTICE<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">JUDGMENT<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">RAJIV SAHAI ENDLAW, J.<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">1. This petition has been preferred under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code (Cr.P.C.) impugning the order dated 26.08.2010 of the learned Metropolitan Magistrate dismissing the complaint under Section 200 of the Cr.P.C. filed by the petitioner of offence under Section 120-B read with Section 494 and Section 498A of the Indian Penal Code (IPC). This petition was listed before the learned Single Judge on 10.12.2010 when the CRL.M.C. 3845/2010 Page 1 of 8 petitioner appearing in person sought adjournment. The petitioner had also filed LPA No.64/2009 and contempt case No.C-386/2010. The petitioner on 03.05.2011, while appearing before the Division Bench in LPA No.64/2009 sought consolidation of the contempt petition as well this petition with the LPA and the matter was accordingly placed before Hon'ble the Chief Justice who vide order dated 22.05.2011 directed that the contempt petition as well as this petition be placed before the same Division Bench before which the LPA was pending. It is for this reason that the matter is before us. We may also notice that though the LPA and the contempt petition have since been disposed of but the petitioner appearing in person stated that rather than sending back this petition to the learned Single Judge, we only should hear the same. In view of the said request and for the reason that by doing so, the petitioner is not being deprived of any remedy had the matter been considered by the learned Single Judge, we proceeded to hear the petitioner. The petitioner sought and was granted liberty to file written arguments which have also been filed.<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">CRL.M.C. 3845/2010 Page 2 of 8<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">2. The learned Metropolitan Magistrate after recording the statements of the petitioner and her witnesses held no case for summoning of the accused / respondent to have been made out for the reason of the petitioner herself having obtained decree of dissolution of her marriage with the respondent from the Court in U.K. and the respondent having so ceased to be the husband of the petitioner there being no question of his being guilty of the offence of bigamy under Section 494 of the IPC or of causing cruelty to the petitioner as wife under Section 498-A of the IPC. Qua the offence under Section 498-A of the IPC, reliance was also placed on the status report submitted by the police and on the petitioner having failed to make out any case of cruelty.<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">3. The argument of the petitioner before us, orally as well as in writing, is that the divorce decree obtained by her in U.K. being not a valid decree and hence not bringing to an end the relationship of husband and wife between the petitioner and the respondent. Reliance in this regard is placed on Smt. Satya Vs. Shri Teja Singh (1975) 1 SCC 120 and on Y. Narasimha Rao Vs. Y. Venkata Lakshmi (1991) 3 SCC 451. The CRL.M.C. 3845/2010 Page 3 of 8 Supreme Court in both Smt. Satya and Y. Narasimha Rao (supra) was faced with a situation of the husband setting up a decree of a foreign Court of dissolution of marriage as a defence to the claim / charge of the wife in the Indian Courts for maintenance or of bigamy. In both cases, the husband was found to have obtained the decree of foreign Court fraudulently.<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">4. The situation here is however converse. It is the petitioner herself who had obtained the decree from the foreign Court of dissolution of marriage and who now wants our Courts to ignore the same. Obviously, no case of the foreign decree having been obtained fraudulently can be said to exist in this scenario. Rather the said foreign decree was at the sole initiative of the petitioner with the respondent having no role in the same and having not even contested the same. The question which arises is, can the petitioner, who by obtaining the said decree led the respondent to believe that his marriage with the petitioner stood dissolved and that he was free to remarry, can now be permitted to challenge the foreign decree obtained herself and charge the respondent with the offence of bigamy. In CRL.M.C. 3845/2010 Page 4 of 8 our opinion, no and the complaint has been rightly dismissed by the learned Metropolitan Magistrate. As far back as in Asanalli Nagoor Meera Vs. K.M. Madhu Meera MANU/TN/0707/1925, a division bench of the Madras High Court held that a litigant cannot be allowed to deny the jurisdiction which he himself invoked. The same principle was recently applied by a Single Judge of the same Court in Ms. Dorothy Thomas Vs. Rex Arul MANU/TN/2876/2011 in near similar facts.<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">5. We may also notice that under Section 13 of CPC a foreign judgment is conclusive as to any matter thereby directly adjudicated upon between the same parties except in cases specified thereunder. However the right if any to contend that the said foreign judgment is not conclusive can be only of the party who had himself / herself / itself not initiated the process of obtaining the said judgment and cannot be of a party at whose instance such foreign judgment has been obtained. No litigant can be allowed to abuse the process of the Courts or to approbate and reprobate as per convenience. Mention at this stage may also be made of the finding recorded by the learned Metropolitan Magistrate and not disputed before us CRL.M.C. 3845/2010 Page 5 of 8 that the petitioner in the disputes with her siblings before another Indian Court sought to justify her claim by contending herself to be a divorcee by virtue of the said foreign judgment.<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">6. Thus, whichever way we may look, we cannot find any error in the order of dismissal of the complaint aforesaid. We had also called for the records of the Court of the Metropolitan Magistrate and have perused the pre-summoning evidence led by the petitioner. The petitioner had deposed that she was in U.K. from 1993 to 1999. She has not even whispered, alleged or made out any case of any of the grounds for the foreign judgment of dissolution of her marriage with the respondent being not conclusive. For the said foreign judgment to be not conclusive, the petitioner was required to make out a case of the same being either pronounced by a Court having no jurisdiction and / or having been not given on the merits of the case or being founded on an incorrect view of international law or the proceedings resulting therein being opposed to natural justice or having been obtained by fraud or sustaining a claim founded on a breach of any law in force in India. Moreover all the grounds CRL.M.C. 3845/2010 Page 6 of 8 specified in Section 13 of the CPC and on establishment whereof a foreign judgment can be said to be not conclusive are such which can be set up only by a party not himself/herself/itself approaching the foreign Court. The judgments cited by the petitioner cannot be read as laying down and indeed do not lay down any absolute principle that a marriage under the Hindu Marriage Act, 1955 cannot be dissolved by a foreign Court.</span><span style="color: red; font-family: Georgia, serif;">Here the petitioner who is challenging the judgment was at the relevant time resident for a fairly long time within the jurisdiction of the foreign Court, did not approach the foreign Court under the dictates of the respondent and made out a case before the foreign Court for obtaining the judgment. Indeed in Y. Narasimha Rao (supra) itself the Supreme Court held matrimonial action filed in the forum where the wife is domiciled or habitually and permanently resides or where the wife voluntarily and effectively submits to the foreign jurisdiction or where the wife consents to the grant of the relief by the foreign Court although the jurisdiction of the foreign Court is not in accordance with the provisions of the Matrimonial Law of the parties, to be valid and the judgment of such foreign Court to be conclusive</span><span style="font-family: Georgia, serif;">. We, therefore, do not find any merit in this petition. CRL.M.C. 3845/2010 Page 7 of 8<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">7. Before parting with the case, we may observe that though the order of the Metropolitan Magistrate of dismissal of complaint is under Section 203 of the Cr.P.C. and is challengeable by way of Revision Petition under Section 397 read with Section 401 of the Cr.P.C. but since the matter had remained pending before this Court, though in the circumstances aforesaid for considerable time, we did not deem it appropriate to reject this petition on the said ground.<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">The petition is accordingly dismissed. No order as to costs. RAJIV SAHAI ENDLAW, J<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">ACTING CHIEF JUSTICE<o:p></o:p></span></div>
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<span style="font-family: Georgia, serif;">JANUARY 25, 2012</span></div>
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V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com1tag:blogger.com,1999:blog-6476944189815020915.post-18063394052631859182012-12-13T21:44:00.002-08:002012-12-16T08:15:05.309-08:00when a foreign divorce decree may be conclusive-valid in India<div dir="ltr" style="text-align: left;" trbidi="on">
<span style="background-color: #fff9ee; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif; font-size: 15px; line-height: 21px;">"</span><br />
<span style="background-color: #fff9ee; color: red; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif; font-size: 15px; line-height: 21px;">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."</span><br />
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<span style="background-color: #fff9ee; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif; font-size: 15px; line-height: 21px;">See the Judgment :</span><br />
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BENCH:SAWANT, P.B.<o:p></o:p></div>
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MISRA, RANGNATH (CJ)<o:p></o:p></div>
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PETITIONER:Y. NARASIMHA RAO AND ORS.<o:p></o:p></div>
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Vs.<o:p></o:p></div>
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RESPONDENT:Y. VENKATA LAKSHMI AND ANR.<o:p></o:p></div>
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CITATION:1991 SCR (2) 821 1991 SCC (3) 451<o:p></o:p></div>
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JT 1991 (3) 33 1991 SCALE (2)1<o:p></o:p></div>
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ACT:Hindu Marriage Act, 1955: Section 19. Dissolution of<o:p></o:p></div>
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marriage-Court to which petition should be presented-Parties<o:p></o:p></div>
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marrying in India under Hindu Law-Husband’s petition for<o:p></o:p></div>
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dissolution of marriage in Foreign Court-Fraud-Incorrect<o:p></o:p></div>
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representation of jurisdictional facts-Husband neither<o:p></o:p></div>
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domiciled nor had intention to make the foreign state his<o:p></o:p></div>
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home but only technically satisfying the requirement of<o:p></o:p></div>
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residence of 90 days for the purpose of obtaining divorce-<o:p></o:p></div>
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Divorce decree by foreign court on a ground not available<o:p></o:p></div>
<div class="MsoNormal">
under the 1955 Act-Enforceability of.<o:p></o:p></div>
<div class="MsoNormal">
Civil Procedure Code, 1908: Section 13. Matrimonial<o:p></o:p></div>
<div class="MsoNormal">
dispute-Foreign judgment-When not conclusive.<o:p></o:p></div>
<div class="MsoNormal">
Clause (a)-“Court of competent jurisdiction”-Which is.<o:p></o:p></div>
<div class="MsoNormal">
Clause (b)-Judgment on merits-What is.<o:p></o:p></div>
<div class="MsoNormal">
Clause (c)-Judgment founded on a ground not recognised by
Law of India-Effect of.<o:p></o:p></div>
<div class="MsoNormal">
Clause (d)-Judgment obtained in proceedings opposed in
principles of natural justice-Effect of-Principles of natural justice-Scope of.<o:p></o:p></div>
<div class="MsoNormal">
Clause (e)-`Fraud’-Scope of-Judgment obtained by
fraud-Effect of.<o:p></o:p></div>
<div class="MsoNormal">
Clause (f)-Judgment founded on a breach of law in force in
India-Effect of.<o:p></o:p></div>
<div class="MsoNormal">
Section 14-Presumption as to foreign judgments-Expression
“Certified copy of a foreign judgment”-Should<o:p></o:p></div>
<div class="MsoNormal">
be read consistent with requirement of Section 86 of Indian
Evidence Act.<o:p></o:p></div>
<div class="MsoNormal">
Indian Evidence Act, 1872. Section 41-“Competent
court”-Which is.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Section 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and 86.<o:p></o:p></div>
<div class="MsoNormal">
Foreign judgment-Photostat copy-Admissibility of.<o:p></o:p></div>
<div class="MsoNormal">
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”.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
HEADNOTE:<o:p></o:p></div>
<div class="MsoNormal">
The first appellant and the first respondent were married at
Tirupati on 27.2.1975 according to Hindu Law.<o:p></o:p></div>
<div class="MsoNormal">
They separated in July 1978. The appellant-husband filed a<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007<o:p></o:p></div>
<div class="MsoNormal">
petition for dissolution of the marriage in the Sub-Court of<o:p></o:p></div>
<div class="MsoNormal">
Tirupati stating that he was a resident of South Claiborn<o:p></o:p></div>
<div class="MsoNormal">
Avenue, New Orleans, Louisiana, and that he was a citizen of<o:p></o:p></div>
<div class="MsoNormal">
India and that he and his wife last resided together at New<o:p></o:p></div>
<div class="MsoNormal">
Orleans, Louisiana. Subsequently he filed another petition<o:p></o:p></div>
<div class="MsoNormal">
for dissolution of marriage in the Circuit Court St. Louis<o:p></o:p></div>
<div class="MsoNormal">
Country, Missouri, USA alleging that he has been a resident<o:p></o:p></div>
<div class="MsoNormal">
of the State of Missouri for 90 days or more immediately<o:p></o:p></div>
<div class="MsoNormal">
preceding th filing of the petition by refusing to continue<o:p></o:p></div>
<div class="MsoNormal">
to live with the appellant in the US and particularly in the<o:p></o:p></div>
<div class="MsoNormal">
State of Missouri. But from the averments made by him in the<o:p></o:p></div>
<div class="MsoNormal">
petition before the Sub-Judge, Tirupati it was obvious that<o:p></o:p></div>
<div class="MsoNormal">
he and his wife had last resided together at New Orleans,<o:p></o:p></div>
<div class="MsoNormal">
Louisiana and never within the jurisdiction of th Circuit<o:p></o:p></div>
<div class="MsoNormal">
Court of St. Louis Country in the State of Missouri.<o:p></o:p></div>
<div class="MsoNormal">
The respondent-wife filed her reply raising her<o:p></o:p></div>
<div class="MsoNormal">
objections to the maintainability of the petition. She also<o:p></o:p></div>
<div class="MsoNormal">
clearly stated that her reply was without prejudice to her<o:p></o:p></div>
<div class="MsoNormal">
contention that she was not submitting to the jurisdiction<o:p></o:p></div>
<div class="MsoNormal">
of the foreign court.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The Circuit Court Missouri assumed jurisdiction on the<o:p></o:p></div>
<div class="MsoNormal">
ground that the 1st Appellant had been a resident of the<o:p></o:p></div>
<div class="MsoNormal">
State of Missouri for 90 days next preceding the<o:p></o:p></div>
<div class="MsoNormal">
commencement of the action in the Court. In the absence of<o:p></o:p></div>
<div class="MsoNormal">
the respondent-wife the Circuit Court, Missouri passed a<o:p></o:p></div>
<div class="MsoNormal">
decree for dissolution of marriage on the only ground that<o:p></o:p></div>
<div class="MsoNormal">
the marriage has irretrievably down. Subsequent to the<o:p></o:p></div>
<div class="MsoNormal">
passing of the decree by the Circuit Court, Missouri, the<o:p></o:p></div>
<div class="MsoNormal">
appellant filed an application for dismissal of his earlier<o:p></o:p></div>
<div class="MsoNormal">
petition before the Sub-Court of Tirupati and the same was<o:p></o:p></div>
<div class="MsoNormal">
dismissed.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
On 2nd November 1981 the last appellant married appellant<o:p></o:p></div>
<div class="MsoNormal">
No. 2. Thereafter, the 1st-respondent filed a criminal<o:p></o:p></div>
<div class="MsoNormal">
complaint against the appellants for the offence of bigamy.<o:p></o:p></div>
<div class="MsoNormal">
The appellants filed an application for their discharge in<o:p></o:p></div>
<div class="MsoNormal">
view of the decree for dissolution of marriage passed by the<o:p></o:p></div>
<div class="MsoNormal">
Circuit Court, Missouri. The Magistrate discharged the<o:p></o:p></div>
<div class="MsoNormal">
appellants by holding that the complainant-wife had failed<o:p></o:p></div>
<div class="MsoNormal">
to make out a prima facie case against the appellants. The<o:p></o:p></div>
<div class="MsoNormal">
respondent preferred a Criminal Revision Petition before the<o:p></o:p></div>
<div class="MsoNormal">
High Court which set aside the order of the Magistrate by<o:p></o:p></div>
<div class="MsoNormal">
holding (i) that a photostat copy of the judgment of<o:p></o:p></div>
<div class="MsoNormal">
Missouri Court was not admissible in evidence; (ii) since<o:p></o:p></div>
<div class="MsoNormal">
the Learned Magistrate acted on the photostat copy of the<o:p></o:p></div>
<div class="MsoNormal">
judgment, he was in error in discharging the accused.<o:p></o:p></div>
<div class="MsoNormal">
Accordingly the High Court directed the Magistrate to<o:p></o:p></div>
<div class="MsoNormal">
dispose of the petition filed by the appellants for their<o:p></o:p></div>
<div class="MsoNormal">
discharge afresh in accordance with law. Aggrieved by the<o:p></o:p></div>
<div class="MsoNormal">
decision of the High Court the appellants filed appeal in<o:p></o:p></div>
<div class="MsoNormal">
this Court.<o:p></o:p></div>
<div class="MsoNormal">
Dismissing the appeal, this Court,<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
HELD: 1. The decree dissolving the marriage passed by<o:p></o:p></div>
<div class="MsoNormal">
the foreign court is without jurisdiction according to the<o:p></o:p></div>
<div class="MsoNormal">
Hindu Marriage Act as neither the marriage was celebrated<o:p></o:p></div>
<div class="MsoNormal">
nor the parties last resided together nor the respondent<o:p></o:p></div>
<div class="MsoNormal">
resided within the jurisdiction of that Court. Further,<o:p></o:p></div>
<div class="MsoNormal">
irretrievable breakdown of marriage is not one of the<o:p></o:p></div>
<div class="MsoNormal">
grounds recognised by the Act of dissolution of marriage.<o:p></o:p></div>
<div class="MsoNormal">
Hence, the decree of the divorce passed by the foreign court<o:p></o:p></div>
<div class="MsoNormal">
was on a ground unavailable under the Act which is<o:p></o:p></div>
<div class="MsoNormal">
applicable to the marriage. Since with regard to the<o:p></o:p></div>
<div class="MsoNormal">
jurisdiction of the forum as well as the ground on which it<o:p></o:p></div>
<div class="MsoNormal">
is passed the foreign decree in the present case is not in<o:p></o:p></div>
<div class="MsoNormal">
accordance with the Act under which the parties were<o:p></o:p></div>
<div class="MsoNormal">
married, and the respondent had not submitted to the<o:p></o:p></div>
<div class="MsoNormal">
jurisdiction of the court or consented to its passing, it<o:p></o:p></div>
<div class="MsoNormal">
YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007<o:p></o:p></div>
<div class="MsoNormal">
cannot be recognised by the courts in this country and is<o:p></o:p></div>
<div class="MsoNormal">
therefore, unenforceable. [828H, 829A, 828E, 834H, 835A]<o:p></o:p></div>
<div class="MsoNormal">
2. Residence does not mean a temporary residence for the<o:p></o:p></div>
<div class="MsoNormal">
purpose of obtaining a divorce but habitual residence or<o:p></o:p></div>
<div class="MsoNormal">
residence which is intended to be permanent for future as<o:p></o:p></div>
<div class="MsoNormal">
well. Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971,
referred to.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
3. The rules of Private International Law in this<o:p></o:p></div>
<div class="MsoNormal">
country are not codified and are scattered in different<o:p></o:p></div>
<div class="MsoNormal">
enactments such as the Civil Procedure Code, the Contract<o:p></o:p></div>
<div class="MsoNormal">
ACt, the Indian Succession Act, the Indian Divorce Act, the<o:p></o:p></div>
<div class="MsoNormal">
Special Marriage Act etc. In addition, some<o:p></o:p></div>
<div class="MsoNormal">
rules have also been evolved by judicial decisions. In<o:p></o:p></div>
<div class="MsoNormal">
matters of status or legal capacity of natural persons,<o:p></o:p></div>
<div class="MsoNormal">
matrimonial disputes, custody of children, adoption,<o:p></o:p></div>
<div class="MsoNormal">
testamentary and intestate succession etc. the problem in<o:p></o:p></div>
<div class="MsoNormal">
this country is complicated by the fact that there exist<o:p></o:p></div>
<div class="MsoNormal">
different personal laws and no uniform rule can be laid down<o:p></o:p></div>
<div class="MsoNormal">
for all citizens. Today more than ever in the past, the need<o:p></o:p></div>
<div class="MsoNormal">
for definitive rules for recognition of foreign judgments in<o:p></o:p></div>
<div class="MsoNormal">
personal and family matters, and particularly in matrimonial<o:p></o:p></div>
<div class="MsoNormal">
disputes has surged to the surface. A large number of<o:p></o:p></div>
<div class="MsoNormal">
foreign decrees in matrimonial matters is becoming the order<o:p></o:p></div>
<div class="MsoNormal">
of the day. A time has, therefore, come to ensure certainty<o:p></o:p></div>
<div class="MsoNormal">
in the recognition of the foreign judgments in these<o:p></o:p></div>
<div class="MsoNormal">
matters. The minimum rules of guidance for securing the<o:p></o:p></div>
<div class="MsoNormal">
certainty need not await legislative initiative. This Court<o:p></o:p></div>
<div class="MsoNormal">
can accomplish the modest job within the frame-work of the<o:p></o:p></div>
<div class="MsoNormal">
present statutory provisions if they are rationally<o:p></o:p></div>
<div class="MsoNormal">
interpreted and extended to achieve the purpose. Though the<o:p></o:p></div>
<div class="MsoNormal">
proposed rules of guidance in this area may prove inadequate<o:p></o:p></div>
<div class="MsoNormal">
or miss some aspects which may not be present to us at this<o:p></o:p></div>
<div class="MsoNormal">
juncture, yet a begining has to be made as best as one can,<o:p></o:p></div>
<div class="MsoNormal">
the lacunae and the errors being left to be filled in and<o:p></o:p></div>
<div class="MsoNormal">
corrected by future judgments. [829H, 830A, 831C, F-H]<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
4. The relevant provisions of Section 13 of the CPC are<o:p></o:p></div>
<div class="MsoNormal">
capable of being interpreted to secure the required<o:p></o:p></div>
<div class="MsoNormal">
certainty in the sphere of this branch of law in conformity<o:p></o:p></div>
<div class="MsoNormal">
with public policy, justice, equity and good conscience,<o:p></o:p></div>
<div class="MsoNormal">
and the rules so evolved will protect the sanctity of the<o:p></o:p></div>
<div class="MsoNormal">
institution of marriage and the unity of family which are<o:p></o:p></div>
<div class="MsoNormal">
the corner stones of our social life.<o:p></o:p></div>
<div class="MsoNormal">
4.1 On an analysis and interpretation of Section 13 of<o:p></o:p></div>
<div class="MsoNormal">
CPC the following rule can be deduced for recognising a<o:p></o:p></div>
<div class="MsoNormal">
foreign matrimonial judgment in this country. The<o:p></o:p></div>
<div class="MsoNormal">
jurisdiction assumed by the foreign court as well as the<o:p></o:p></div>
<div class="MsoNormal">
grounds on which the relief is granted must be in accordance<o:p></o:p></div>
<div class="MsoNormal">
with the matrimonial law under which the parties are<o:p></o:p></div>
<div class="MsoNormal">
married. The exceptions to this rule may be as follows; (i)<o:p></o:p></div>
<div class="MsoNormal">
where the matrimonial action is filed in the forum where the<o:p></o:p></div>
<div class="MsoNormal">
respondent is domiciled or habitually and permanently<o:p></o:p></div>
<div class="MsoNormal">
resides and the relief is granted on a ground available in<o:p></o:p></div>
<div class="MsoNormal">
the matrimonial law under which the parties are married;<o:p></o:p></div>
<div class="MsoNormal">
(ii) where the respondent voluntarily and effectively<o:p></o:p></div>
<div class="MsoNormal">
submits to the jurisdiction of the forum and contests the<o:p></o:p></div>
<div class="MsoNormal">
claim which is based on a ground available under the<o:p></o:p></div>
<div class="MsoNormal">
matrimonial law under which the parties are married; (iii)<o:p></o:p></div>
<div class="MsoNormal">
where the respondent consents to the grant of the relief<o:p></o:p></div>
<div class="MsoNormal">
although the jurisdiction of the forum is not in accordance<o:p></o:p></div>
<div class="MsoNormal">
with the provisions of the matrimonial law of the parties.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007<o:p></o:p></div>
<div class="MsoNormal">
In the instant case photostat copies of the judicial record<o:p></o:p></div>
<div class="MsoNormal">
of the Court of St. Louis is certified for th Circuit Clerk<o:p></o:p></div>
<div class="MsoNormal">
by the Deputy clerk who is a public officer having the<o:p></o:p></div>
<div class="MsoNormal">
custody of the document within the meaning of Section 76 of<o:p></o:p></div>
<div class="MsoNormal">
the Indian Evidence Act also in the manner required by the<o:p></o:p></div>
<div class="MsoNormal">
provisions of the said section. Hence the photostat copy per<o:p></o:p></div>
<div class="MsoNormal">
se is not inadmissible in evidence. It is inadmissible<o:p></o:p></div>
<div class="MsoNormal">
because it has not further been certified by the<o:p></o:p></div>
<div class="MsoNormal">
representative of our Central Government in the United<o:p></o:p></div>
<div class="MsoNormal">
States as required by Section 86 of the Act. Therefore the<o:p></o:p></div>
<div class="MsoNormal">
document is not admissible in evidence for want of the<o:p></o:p></div>
<div class="MsoNormal">
certificate under Section 86 of the Act and not because it<o:p></o:p></div>
<div class="MsoNormal">
is a photostat copy of the original as held by the High
Court.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
6. The Magistrate is directed to proceed with th matter<o:p></o:p></div>
<div class="MsoNormal">
pending before him according to law as expeditiously as<o:p></o:p></div>
<div class="MsoNormal">
possible, preferably within four months. [835G]<o:p></o:p></div>
<div class="MsoNormal">
JUDGMENT:CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 385 of 1991.<o:p></o:p></div>
<div class="MsoNormal">
From the Judgment and Order dated 18.4.1988 of the Andhra
Pradesh High Court in Crl. Revision Petition No. 41 of 1987.<o:p></o:p></div>
<div class="MsoNormal">
M.C. Bhandare and Ms. C.K. Sucharita for the Appellants.<o:p></o:p></div>
<div class="MsoNormal">
C.N. Sreekumar and G. Prabhakar (for the State) for the
Respondents.<o:p></o:p></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
The 1st appellant and the 1st respondent were married ar<o:p></o:p></div>
<div class="MsoNormal">
Tirupati on February 27, 1975. They separated in July 1978.<o:p></o:p></div>
<div class="MsoNormal">
The 1st appellant filed a petition for dissolution of<o:p></o:p></div>
<div class="MsoNormal">
marriage in the Circuit of St. Louis Country Missouri, USA.<o:p></o:p></div>
<div class="MsoNormal">
The 1st respondent sent her reply from here under protest.<o:p></o:p></div>
<div class="MsoNormal">
The Circuit Court passed a decree for dissolution of<o:p></o:p></div>
<div class="MsoNormal">
marriage on February 19, 1980 in the absence of the 1st
respondent.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
2. The 1st appellant had earlier filed a petition for<o:p></o:p></div>
<div class="MsoNormal">
dissolution of marriage in the Sub-Court of Tirupati being<o:p></o:p></div>
<div class="MsoNormal">
O.P. No. 87/86. In that petition, the 1st appellant filed an<o:p></o:p></div>
<div class="MsoNormal">
application for dismissing the same as not pressed in view<o:p></o:p></div>
<div class="MsoNormal">
of the decree passed by the Missouri Court. On August 14,<o:p></o:p></div>
<div class="MsoNormal">
1991 the learned sub-Judge of Tirupati dismissed the
petition.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
3. On November 2, 1981, the 1st appellant married the<o:p></o:p></div>
<div class="MsoNormal">
2nd appellant in Yadgirigutta, 1st respondent filed a<o:p></o:p></div>
<div class="MsoNormal">
criminal complaint against the appellants for the offence of<o:p></o:p></div>
<div class="MsoNormal">
bigamy. It is not necessary to refer to the details of the<o:p></o:p></div>
<div class="MsoNormal">
proceedings in the said complaint. Suffice it to say that in<o:p></o:p></div>
<div class="MsoNormal">
that complaint, the appellants filed an application for<o:p></o:p></div>
<div class="MsoNormal">
their discharge in view of the decree for dissolution of<o:p></o:p></div>
<div class="MsoNormal">
marriage passed by Missouri Court. By this judgment of<o:p></o:p></div>
<div class="MsoNormal">
October 21, 1986, the learned Magistrate discharged the<o:p></o:p></div>
<div class="MsoNormal">
appellants holding that the complainant, i.e., the 1st<o:p></o:p></div>
<div class="MsoNormal">
respondent had failed to make out a prima facie case against<o:p></o:p></div>
<div class="MsoNormal">
the appellants. Against the said decision, the 1st<o:p></o:p></div>
<div class="MsoNormal">
respondent preferred a Criminal Revision Petition to the<o:p></o:p></div>
<div class="MsoNormal">
High Court and the High Court by the impugned decision of<o:p></o:p></div>
<div class="MsoNormal">
April 18, 1987 set aside the order of the magistrate holding<o:p></o:p></div>
<div class="MsoNormal">
that a photostat copy of the judgment of the Missouri Court<o:p></o:p></div>
<div class="MsoNormal">
was not admissible in evidence to prove the dissolution of<o:p></o:p></div>
<div class="MsoNormal">
marriage. The Court further held that since the learned<o:p></o:p></div>
<div class="MsoNormal">
Magistrate acted on the photostat copy, he was in error in<o:p></o:p></div>
<div class="MsoNormal">
YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007<o:p></o:p></div>
<div class="MsoNormal">
discharging the accused and directed the Magistrate to<o:p></o:p></div>
<div class="MsoNormal">
dispose of the petition filed by the accused, i.e.,<o:p></o:p></div>
<div class="MsoNormal">
appellants herein for their discharge, afresh in accordance<o:p></o:p></div>
<div class="MsoNormal">
with law. It is aggrieved by this decision that the present<o:p></o:p></div>
<div class="MsoNormal">
appeal is filed.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
4. It is necessary to note certain facts relating to the<o:p></o:p></div>
<div class="MsoNormal">
decree of dissolution of marriage passed by the Circuit<o:p></o:p></div>
<div class="MsoNormal">
Court of St. Louis Country Missouri, USA. In the first<o:p></o:p></div>
<div class="MsoNormal">
instance, the Court assumed jurisdiction over the matter on<o:p></o:p></div>
<div class="MsoNormal">
the ground that the 1st appellant had been a resident of the<o:p></o:p></div>
<div class="MsoNormal">
State of Missouri for 90 days next preceding the<o:p></o:p></div>
<div class="MsoNormal">
commencement of the action and that petition in that Court.<o:p></o:p></div>
<div class="MsoNormal">
Secondly, the decree has been passed on the only ground that<o:p></o:p></div>
<div class="MsoNormal">
there remains no reasonable likelihood that the marriage<o:p></o:p></div>
<div class="MsoNormal">
between the parties can be preserved, and that the marriage<o:p></o:p></div>
<div class="MsoNormal">
is, therefore, irretrievably broken”. Thirdly, the 1st<o:p></o:p></div>
<div class="MsoNormal">
respondent had not submitted to the jurisdiction of the<o:p></o:p></div>
<div class="MsoNormal">
Court. From the record, it appears that to the petition she<o:p></o:p></div>
<div class="MsoNormal">
had filed two replies of the same date. Both are identical<o:p></o:p></div>
<div class="MsoNormal">
in nature except that one of the replies begins with an<o:p></o:p></div>
<div class="MsoNormal">
additional averment as follows: “without prejudice to the<o:p></o:p></div>
<div class="MsoNormal">
contention that this respondent is not submitting to the<o:p></o:p></div>
<div class="MsoNormal">
jurisdiction of this hon’ble court, this respondent sub-<o:p></o:p></div>
<div class="MsoNormal">
mits as follows”. She had also stated in the replies, among<o:p></o:p></div>
<div class="MsoNormal">
other things, that (i) the petition was not maintainable,<o:p></o:p></div>
<div class="MsoNormal">
(ii) she was not aware if the first appellant had been<o:p></o:p></div>
<div class="MsoNormal">
living in the State of Missouri for more than 90 days and<o:p></o:p></div>
<div class="MsoNormal">
that he was entitled to file the petition before the Court,<o:p></o:p></div>
<div class="MsoNormal">
(iii) the parties were Hindus and governed by Hindu Law,<o:p></o:p></div>
<div class="MsoNormal">
(iv) she was an Indian citizen and was not governed by laws<o:p></o:p></div>
<div class="MsoNormal">
in force in the State of Missouri and , therefore, the Court<o:p></o:p></div>
<div class="MsoNormal">
had no jurisdiction to entertain the petition, (v) the<o:p></o:p></div>
<div class="MsoNormal">
dissolution of the marriage between the parties was governed<o:p></o:p></div>
<div class="MsoNormal">
by the Hindu Marriage Act and that it could not be dissolved<o:p></o:p></div>
<div class="MsoNormal">
in any other way except as provided under the said Act, (vi)<o:p></o:p></div>
<div class="MsoNormal">
the Court had no jurisdiction to enforce the foreign laws<o:p></o:p></div>
<div class="MsoNormal">
and none of the grounds pleaded in the petition was<o:p></o:p></div>
<div class="MsoNormal">
sufficient to grant any divorce under the Hindu Marriage<o:p></o:p></div>
<div class="MsoNormal">
Act.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Fourthly, it is not disputed that the 1st respondent was<o:p></o:p></div>
<div class="MsoNormal">
neither present nor represented in the Court passed the<o:p></o:p></div>
<div class="MsoNormal">
decree in her absence. In fact, the Court has in terms<o:p></o:p></div>
<div class="MsoNormal">
observed that it had no jurisdiction “in personam” over<o:p></o:p></div>
<div class="MsoNormal">
the respondent or minor child which was born out of the
wedlock<o:p></o:p></div>
<div class="MsoNormal">
and both of them had domiciled in India. Fifthly, in<o:p></o:p></div>
<div class="MsoNormal">
the petition which was filed by the 1st appellant in that<o:p></o:p></div>
<div class="MsoNormal">
Court on October 6, 1980, besides alleging that he had been<o:p></o:p></div>
<div class="MsoNormal">
a resident of the State of Missouri for 90 days or more<o:p></o:p></div>
<div class="MsoNormal">
immediately preceding the filing of the petition and he was<o:p></o:p></div>
<div class="MsoNormal">
then residing at 23rd Timber View Road, Kukwapood, in the<o:p></o:p></div>
<div class="MsoNormal">
Country of St. Louis, Missouri, he had also alleged that the<o:p></o:p></div>
<div class="MsoNormal">
1st respondent had deserted him for one year or more next<o:p></o:p></div>
<div class="MsoNormal">
preceding the filing of the petition by refusal to continue<o:p></o:p></div>
<div class="MsoNormal">
to live with the appellant in the United States and<o:p></o:p></div>
<div class="MsoNormal">
particularly in the State of Missouri. On the other hand,<o:p></o:p></div>
<div class="MsoNormal">
the averments made by him in his petition filed in the court<o:p></o:p></div>
<div class="MsoNormal">
of the Subordinate Judge, Tirupati in 1978 shows that he was<o:p></o:p></div>
<div class="MsoNormal">
a resident of Apartment No. 414, 6440, South Claiborn<o:p></o:p></div>
<div class="MsoNormal">
Avenue, New Orleans, Louisiana, United States and that he<o:p></o:p></div>
<div class="MsoNormal">
was a citizen of India. He had given for the service of all<o:p></o:p></div>
<div class="MsoNormal">
notices and processes in the petition, the address of his<o:p></o:p></div>
<div class="MsoNormal">
counsel Shri PR Ramachandra Rao, Advocate, 16-11-1/3,<o:p></o:p></div>
<div class="MsoNormal">
Malakpet, Hyderabad-500 036. Even according to his averments<o:p></o:p></div>
<div class="MsoNormal">
in the said petition, the 1st respondent had resided with<o:p></o:p></div>
<div class="MsoNormal">
him at Kuppanapudi for about 4 to 5 months after th<o:p></o:p></div>
<div class="MsoNormal">
marriage. Thereafter she had gone to her parental house at<o:p></o:p></div>
<div class="MsoNormal">
YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007<o:p></o:p></div>
<div class="MsoNormal">
Relangi, Tanuka Taluk, West Godawari District. He was,<o:p></o:p></div>
<div class="MsoNormal">
thereafter, sponsored by his friend Prasad for a placement<o:p></o:p></div>
<div class="MsoNormal">
in the medical service in the United States and had first<o:p></o:p></div>
<div class="MsoNormal">
obtained employment in Chicago and thereafter in Oak Forest<o:p></o:p></div>
<div class="MsoNormal">
and Greenville Springs and ultimately in the Charity<o:p></o:p></div>
<div class="MsoNormal">
Hospital in Louisiana at New Orleans where he continued to<o:p></o:p></div>
<div class="MsoNormal">
be emp-loyed. Again according to the averments in the said<o:p></o:p></div>
<div class="MsoNormal">
petition, when the 1st respondent joined him in the United<o:p></o:p></div>
<div class="MsoNormal">
States, both of them had stayed together as husband and wife<o:p></o:p></div>
<div class="MsoNormal">
at New Orleans. The 1st respondent left his residence in New<o:p></o:p></div>
<div class="MsoNormal">
Orleans and went first to Jackson, Texas and, thereafter, to<o:p></o:p></div>
<div class="MsoNormal">
Chicago to stay at the residence of his friend, Prasad.<o:p></o:p></div>
<div class="MsoNormal">
Thereafter she left Chicago for India. Thus it is obvious<o:p></o:p></div>
<div class="MsoNormal">
from these averments in the petition that both the 1st<o:p></o:p></div>
<div class="MsoNormal">
respondent and the 1st petitioner had last resided together<o:p></o:p></div>
<div class="MsoNormal">
at New Orleans, Louisiana and never within the jurisdiction<o:p></o:p></div>
<div class="MsoNormal">
of the Circuit Court of St. Louis Country in the State of<o:p></o:p></div>
<div class="MsoNormal">
Missouri. The averments to that effect in the petition filed<o:p></o:p></div>
<div class="MsoNormal">
before the St. Louis Court are obviously incorrect.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
5. Under the provisions of the Hindu Marriage Act, 1955<o:p></o:p></div>
<div class="MsoNormal">
(hereinafter referred to as the “Act”) only the District<o:p></o:p></div>
<div class="MsoNormal">
Court within the local limits of whose original civil<o:p></o:p></div>
<div class="MsoNormal">
jurisdiction (i) the marriage was solemnized, or (ii) the<o:p></o:p></div>
<div class="MsoNormal">
respondent, at the time of the presentation of the petition<o:p></o:p></div>
<div class="MsoNormal">
resides, or (iii) the parties to the marriage last resided<o:p></o:p></div>
<div class="MsoNormal">
together, or (iv) the petitioner is residing at the time of<o:p></o:p></div>
<div class="MsoNormal">
the presentation of the petition, in a case where the<o:p></o:p></div>
<div class="MsoNormal">
respondent is, at the time, residing outside the territories<o:p></o:p></div>
<div class="MsoNormal">
to which the Act extends, or has not been heard of as being<o:p></o:p></div>
<div class="MsoNormal">
alive for a period of seven years of more by those persons<o:p></o:p></div>
<div class="MsoNormal">
who would naturally have heard of him if he were alive, has<o:p></o:p></div>
<div class="MsoNormal">
jurisdiction to entertain the petition. The Circuit Court of<o:p></o:p></div>
<div class="MsoNormal">
St. Louis Country, Missouri had, therefore, no jurisdiction<o:p></o:p></div>
<div class="MsoNormal">
to entertain the petition according to the Act under which<o:p></o:p></div>
<div class="MsoNormal">
admittedly the parties were married. Secondly, irretrievable<o:p></o:p></div>
<div class="MsoNormal">
breakdown of marriage is not one of the grounds recognised<o:p></o:p></div>
<div class="MsoNormal">
by the Act for dissolution of marriage. Hence, the decree of<o:p></o:p></div>
<div class="MsoNormal">
divorce passed by the foreign court was on a ground<o:p></o:p></div>
<div class="MsoNormal">
unavailable under the Act.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
6. Under Section 13 of the Code of Civil Procedure 1908<o:p></o:p></div>
<div class="MsoNormal">
(hereinafter referred to as the “Code”), a foreign<o:p></o:p></div>
<div class="MsoNormal">
judgment is not conclusive as to any matter thereby<o:p></o:p></div>
<div class="MsoNormal">
directly adjudicated upon between the parties if (a) it has<o:p></o:p></div>
<div class="MsoNormal">
not been pronounced by a Court of competent jurisdiction;<o:p></o:p></div>
<div class="MsoNormal">
(b) it has not been given on the merits of the case; (c) it<o:p></o:p></div>
<div class="MsoNormal">
is founded on an incorrect view of international law or a<o:p></o:p></div>
<div class="MsoNormal">
refusal to recognize the law of India in cases in which such<o:p></o:p></div>
<div class="MsoNormal">
law is applicable; (d) the proceedings are opposed to<o:p></o:p></div>
<div class="MsoNormal">
natural justice, (e) it is obtained by fraud, (f) it<o:p></o:p></div>
<div class="MsoNormal">
sustains a claim founded on a breach of any law in force in
India.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
7. As pointed out above, the present decree dissolving<o:p></o:p></div>
<div class="MsoNormal">
the marriage passed by the foreign court is without<o:p></o:p></div>
<div class="MsoNormal">
jurisdiction according to the Act as neither the marriage<o:p></o:p></div>
<div class="MsoNormal">
was celebrated nor the parties last<o:p></o:p></div>
<div class="MsoNormal">
resided together nor the respondent resided within the<o:p></o:p></div>
<div class="MsoNormal">
jurisdiction of that Court. The decree is also passed on a<o:p></o:p></div>
<div class="MsoNormal">
ground which is not available under the Act which is<o:p></o:p></div>
<div class="MsoNormal">
applicable to the marriage. What is further, the decree has<o:p></o:p></div>
<div class="MsoNormal">
been obtained by the 1st appellant by stating that he was<o:p></o:p></div>
<div class="MsoNormal">
the resident of the Missouri State when the record shows<o:p></o:p></div>
<div class="MsoNormal">
that he was only a bird of passage there and was ordinarily<o:p></o:p></div>
<div class="MsoNormal">
a resident of the State of Louisiana. He had, if at all,<o:p></o:p></div>
<div class="MsoNormal">
only technically satisfied the requirement of residence of<o:p></o:p></div>
<div class="MsoNormal">
YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007<o:p></o:p></div>
<div class="MsoNormal">
ninety days with the only purpose of obtaining the divorce.<o:p></o:p></div>
<div class="MsoNormal">
He was neither domiciled in that State nor had he an<o:p></o:p></div>
<div class="MsoNormal">
intention to make it his home. He had also no substantial<o:p></o:p></div>
<div class="MsoNormal">
connection with the forum. The 1st appellant has further<o:p></o:p></div>
<div class="MsoNormal">
brought no rules on record under which the St. Louis Court<o:p></o:p></div>
<div class="MsoNormal">
could assume jurisdiction over the matter. On the contrary,<o:p></o:p></div>
<div class="MsoNormal">
as pointed out earlier, he has in his petition made a false<o:p></o:p></div>
<div class="MsoNormal">
averment that the 1st respondent had refused to continue to<o:p></o:p></div>
<div class="MsoNormal">
stay with him in the State of Missouri where she had never<o:p></o:p></div>
<div class="MsoNormal">
been. In the absence of the rules of jurisdiction of that<o:p></o:p></div>
<div class="MsoNormal">
court, we are not aware whether the residence of the 1st<o:p></o:p></div>
<div class="MsoNormal">
respondent within the State of Missouri was necessary to<o:p></o:p></div>
<div class="MsoNormal">
confer jurisdiction on that court, and if not, of the<o:p></o:p></div>
<div class="MsoNormal">
reasons for making the said averment.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
8. Relying on a decision of this Court in Smt. Satya v.<o:p></o:p></div>
<div class="MsoNormal">
Teja Singh, [1975] 2 SCR 1971 it is possible for us to<o:p></o:p></div>
<div class="MsoNormal">
dispose of this case on a narrow ground, viz., that the<o:p></o:p></div>
<div class="MsoNormal">
appellant played a fraud on the foreign court residence does<o:p></o:p></div>
<div class="MsoNormal">
not mean a temporary residence for the purpose of obtaining<o:p></o:p></div>
<div class="MsoNormal">
a divorce but habitual residence or residence which is<o:p></o:p></div>
<div class="MsoNormal">
intended to be permanent for future as well. We remain from<o:p></o:p></div>
<div class="MsoNormal">
adopting that course in the present case because there is<o:p></o:p></div>
<div class="MsoNormal">
nothing on record to assure us that the Court of St. Louis<o:p></o:p></div>
<div class="MsoNormal">
does not assume jurisdiction only on the basis of a mere<o:p></o:p></div>
<div class="MsoNormal">
temporary residence of the appellant for 90 days even is
such<o:p></o:p></div>
<div class="MsoNormal">
residence is for the purpose of obtaining divorce. We would,<o:p></o:p></div>
<div class="MsoNormal">
therefore, presume that the foreign court by its own rules<o:p></o:p></div>
<div class="MsoNormal">
of jurisdiction had rightly entertained the dispute and<o:p></o:p></div>
<div class="MsoNormal">
granted a valid decree of divorce according to its law. The<o:p></o:p></div>
<div class="MsoNormal">
larger question that we would like to address ourselves to<o:p></o:p></div>
<div class="MsoNormal">
is whether even in such cases, the Courts in this country<o:p></o:p></div>
<div class="MsoNormal">
should recognise the foreign divorce decrees.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
9. The rules of Private International Law in this<o:p></o:p></div>
<div class="MsoNormal">
country are not codified and are scattered in different<o:p></o:p></div>
<div class="MsoNormal">
enactments such as the Civil Procedure Code, the Contract<o:p></o:p></div>
<div class="MsoNormal">
Act, the Indian Succession Act, the Indian Divorce Act, the<o:p></o:p></div>
<div class="MsoNormal">
Special Marriage Act etc. In addition, some rules have also<o:p></o:p></div>
<div class="MsoNormal">
been evolved by judicial decisions. In matters of status or<o:p></o:p></div>
<div class="MsoNormal">
legal capacity of natural persons, matrimonial disputes,<o:p></o:p></div>
<div class="MsoNormal">
custody of children, adoption, testamentary and intestate
succession<o:p></o:p></div>
<div class="MsoNormal">
etc. the problem in this country is complicated by the fact<o:p></o:p></div>
<div class="MsoNormal">
that there exist different personal laws and no uniform rule<o:p></o:p></div>
<div class="MsoNormal">
can be laid down for all citizens. The distinction between<o:p></o:p></div>
<div class="MsoNormal">
matters which concern personal and family affairs and those<o:p></o:p></div>
<div class="MsoNormal">
which concern commercial relationships, civil wrongs etc. is<o:p></o:p></div>
<div class="MsoNormal">
well recognised in other countries and legal systems. The<o:p></o:p></div>
<div class="MsoNormal">
law in the former area tends to be primarily determined and<o:p></o:p></div>
<div class="MsoNormal">
influenced by social, moral and religious considerations,<o:p></o:p></div>
<div class="MsoNormal">
and public policy plays a special and important role in<o:p></o:p></div>
<div class="MsoNormal">
shaping it. Hence, in almost all the countries the<o:p></o:p></div>
<div class="MsoNormal">
jurisdicational procedural and substantive rules which are<o:p></o:p></div>
<div class="MsoNormal">
applied to disputes arising in this area are significantly<o:p></o:p></div>
<div class="MsoNormal">
different from those applied to claims in other areas. That<o:p></o:p></div>
<div class="MsoNormal">
is as it ought to be. For, no country can afford to<o:p></o:p></div>
<div class="MsoNormal">
sacrifice its internal unity, stability and tranquility for<o:p></o:p></div>
<div class="MsoNormal">
the sake of uniformity of rules and comity of nations which<o:p></o:p></div>
<div class="MsoNormal">
considerations are important and appropriate to facilitate<o:p></o:p></div>
<div class="MsoNormal">
international trade, commerce, industry, communication,<o:p></o:p></div>
<div class="MsoNormal">
transport, exchange of services, technology, manpower etc.<o:p></o:p></div>
<div class="MsoNormal">
This glaring fact of national life has been recognised both<o:p></o:p></div>
<div class="MsoNormal">
by the Hague Convention of 1968 on the Recognition of<o:p></o:p></div>
<div class="MsoNormal">
Divorce and Legal Seperations as well as by the Judgments<o:p></o:p></div>
<div class="MsoNormal">
Convention of the European Community of the same year.<o:p></o:p></div>
<div class="MsoNormal">
Article 10 of the Hague Convention expressly provides that<o:p></o:p></div>
<div class="MsoNormal">
the contracting States may refuse to recognise a divorce or<o:p></o:p></div>
<div class="MsoNormal">
YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007<o:p></o:p></div>
<div class="MsoNormal">
legal separation if such recognition is manifestly<o:p></o:p></div>
<div class="MsoNormal">
incompatible with their public policy. The Judgments<o:p></o:p></div>
<div class="MsoNormal">
Convention of the European Community expressly excludes from<o:p></o:p></div>
<div class="MsoNormal">
its scope (a) status or legal capacity of natural persons,<o:p></o:p></div>
<div class="MsoNormal">
(b) rights in property arising out of a matrimonial<o:p></o:p></div>
<div class="MsoNormal">
relationship, (c) wills and succession, (d) social security<o:p></o:p></div>
<div class="MsoNormal">
and (e) bankruptcy. A separate convention was contemplated<o:p></o:p></div>
<div class="MsoNormal">
for the last of the subjects.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
10. We are in the present case concerned only with the<o:p></o:p></div>
<div class="MsoNormal">
matrimonial law and what we state here will apply strictly<o:p></o:p></div>
<div class="MsoNormal">
to matters arising out of and ancillary to matrimonial<o:p></o:p></div>
<div class="MsoNormal">
disputes. The Courts in this country have so far tried to<o:p></o:p></div>
<div class="MsoNormal">
follow in these matters the English rules of Private<o:p></o:p></div>
<div class="MsoNormal">
International Law whether common law rules or statutory<o:p></o:p></div>
<div class="MsoNormal">
rules. The dependence on English Law even in matters which<o:p></o:p></div>
<div class="MsoNormal">
are purely personal, has however time and again been<o:p></o:p></div>
<div class="MsoNormal">
regretted. But nothing much has been done to remedy the<o:p></o:p></div>
<div class="MsoNormal">
situation. The labours of the Law Commission poured in its<o:p></o:p></div>
<div class="MsoNormal">
65th Report on this very subject have not fructified since<o:p></o:p></div>
<div class="MsoNormal">
April 1976, when the Report was submitted. Even the<o:p></o:p></div>
<div class="MsoNormal">
British were circumspect and hesitant to apply their rules<o:p></o:p></div>
<div class="MsoNormal">
of law in such matters during their governance of this<o:p></o:p></div>
<div class="MsoNormal">
country and had left the family law to be governed by the<o:p></o:p></div>
<div class="MsoNormal">
customary rules of the different communities. It is only
where was a void that they had<o:p></o:p></div>
<div class="MsoNormal">
stepped in by enactments such as the Special Marriage Act,<o:p></o:p></div>
<div class="MsoNormal">
Indian Divorce Act, Indian Succession Act etc. In spite,<o:p></o:p></div>
<div class="MsoNormal">
however, of more than 43 years of independence we find that<o:p></o:p></div>
<div class="MsoNormal">
the legislature has not thought it fit to enact rules of<o:p></o:p></div>
<div class="MsoNormal">
Private International Law in this area and in the absence of<o:p></o:p></div>
<div class="MsoNormal">
such initiative from the legislature the courts in this<o:p></o:p></div>
<div class="MsoNormal">
country their inspiration, as stated earlier, from the<o:p></o:p></div>
<div class="MsoNormal">
English rules. Even in doing so they have not been uniform<o:p></o:p></div>
<div class="MsoNormal">
in practice with the result that we have some conflicting<o:p></o:p></div>
<div class="MsoNormal">
decisions in the area.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
11. We cannot also lose sight of the fact that today<o:p></o:p></div>
<div class="MsoNormal">
more than ever in the past, the need for definitive rules<o:p></o:p></div>
<div class="MsoNormal">
for recognition of foreign judgments in personal and family<o:p></o:p></div>
<div class="MsoNormal">
matters, and particularly in matrimonial disputes has surged<o:p></o:p></div>
<div class="MsoNormal">
to the surface. Many a man and woman of this land with<o:p></o:p></div>
<div class="MsoNormal">
different personal laws have migrated and are migrating to<o:p></o:p></div>
<div class="MsoNormal">
different countries either to make their permanent abode<o:p></o:p></div>
<div class="MsoNormal">
there or for temporary residence. Likewise there is also<o:p></o:p></div>
<div class="MsoNormal">
immigration of the nationals of other countries. The<o:p></o:p></div>
<div class="MsoNormal">
advancement in communication and transportation has also<o:p></o:p></div>
<div class="MsoNormal">
made it easier for individuals to hop from one country to<o:p></o:p></div>
<div class="MsoNormal">
another. It is also not unusual to come across cases where<o:p></o:p></div>
<div class="MsoNormal">
citizens of this country have been contracting marriages<o:p></o:p></div>
<div class="MsoNormal">
either in this country or abroad with nationals of the<o:p></o:p></div>
<div class="MsoNormal">
other countries or among themselves, or having married here,<o:p></o:p></div>
<div class="MsoNormal">
either both or one of them migrate to other countries. There<o:p></o:p></div>
<div class="MsoNormal">
are also cases where parties having married here have been<o:p></o:p></div>
<div class="MsoNormal">
either domiciled or residing separately in different foreign<o:p></o:p></div>
<div class="MsoNormal">
countries. This migration, temporary or permanent, has also<o:p></o:p></div>
<div class="MsoNormal">
been giving rise to various kinds of matrimonial disputes<o:p></o:p></div>
<div class="MsoNormal">
destroying in its turn the family and its peace. A large<o:p></o:p></div>
<div class="MsoNormal">
number of foreign decrees in matrimonial matters is becoming<o:p></o:p></div>
<div class="MsoNormal">
the order of the recognition of the foreign judgments in<o:p></o:p></div>
<div class="MsoNormal">
these matters. The minimum rules of guidance for securing<o:p></o:p></div>
<div class="MsoNormal">
the certainty need not await legislative initiative. This<o:p></o:p></div>
<div class="MsoNormal">
Court can accomplish the modest job within the framework of<o:p></o:p></div>
<div class="MsoNormal">
the present statutory provisions if they are rationally<o:p></o:p></div>
<div class="MsoNormal">
interpreted and extended to achieve the purpose. It is with<o:p></o:p></div>
<div class="MsoNormal">
this intention that we are undertaking this venture. We<o:p></o:p></div>
<div class="MsoNormal">
aware that unaided and left solely to our resources the<o:p></o:p></div>
<div class="MsoNormal">
rules of guidance which we propose to lay down in this area<o:p></o:p></div>
<div class="MsoNormal">
YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007<o:p></o:p></div>
<div class="MsoNormal">
may prove inadequate or miss some aspects which may not be<o:p></o:p></div>
<div class="MsoNormal">
present to us at this juncture. But a begining has to be<o:p></o:p></div>
<div class="MsoNormal">
made as best as one can, the lacunae and the errors being<o:p></o:p></div>
<div class="MsoNormal">
left to be filled in and corrected by future judgments.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
12. We believe that the relevant provisions of Section<o:p></o:p></div>
<div class="MsoNormal">
13 of the Code are capable of being interpreted to secure<o:p></o:p></div>
<div class="MsoNormal">
the required certainty in the sphere of this branch of law<o:p></o:p></div>
<div class="MsoNormal">
in conformity with public policy, justice, equity and good<o:p></o:p></div>
<div class="MsoNormal">
conscience, and the rules so evolved will protect th<o:p></o:p></div>
<div class="MsoNormal">
sanctity of the institution of marriage and the unity of<o:p></o:p></div>
<div class="MsoNormal">
family which are the corner stones of our societal life.<o:p></o:p></div>
<div class="MsoNormal">
Clause (a) of Section 13 states that a foreign judgment<o:p></o:p></div>
<div class="MsoNormal">
shall not be recognised if it has not been pronounced by a<o:p></o:p></div>
<div class="MsoNormal">
court of competent jurisdiction. We are of the view that<o:p></o:p></div>
<div class="MsoNormal">
this clause should be interpreted to mean that only that<o:p></o:p></div>
<div class="MsoNormal">
court will be a court of competent jurisdiction which the<o:p></o:p></div>
<div class="MsoNormal">
Act or the law under which the parties are married<o:p></o:p></div>
<div class="MsoNormal">
recognises as a court of competent jurisdiction to entertain<o:p></o:p></div>
<div class="MsoNormal">
the matrimonial dispute. Any other court should be held to<o:p></o:p></div>
<div class="MsoNormal">
be a court without jurisdiction unless both parties<o:p></o:p></div>
<div class="MsoNormal">
voluntarily and unconditionally subject themselves to the<o:p></o:p></div>
<div class="MsoNormal">
jurisdiction of that court. The expression “competent<o:p></o:p></div>
<div class="MsoNormal">
court” in Section 41 of the Indian Evidence Act has also to<o:p></o:p></div>
<div class="MsoNormal">
be construed likewise.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Clause (b) of Section 13 states that if a foreign has<o:p></o:p></div>
<div class="MsoNormal">
not been given on the merits of the case, the courts in this<o:p></o:p></div>
<div class="MsoNormal">
country will not recognise such judgment. This clause<o:p></o:p></div>
<div class="MsoNormal">
should be interpreted to mean (a) that the decision of the<o:p></o:p></div>
<div class="MsoNormal">
foreign court should be on a ground available under the law<o:p></o:p></div>
<div class="MsoNormal">
under which the parties are married, and (b) that the<o:p></o:p></div>
<div class="MsoNormal">
decision should be a result of the contest between the<o:p></o:p></div>
<div class="MsoNormal">
parties. The latter requirement is fulfilled only when the<o:p></o:p></div>
<div class="MsoNormal">
respondent is duly served and voluntarily and<o:p></o:p></div>
<div class="MsoNormal">
unconditionally submits himself/herself to the jurisdiction<o:p></o:p></div>
<div class="MsoNormal">
of the court and contests the claim, or agrees to the<o:p></o:p></div>
<div class="MsoNormal">
passing of the decree with or without appearance. A mere<o:p></o:p></div>
<div class="MsoNormal">
filing of the reply to the claim under protest and without<o:p></o:p></div>
<div class="MsoNormal">
submitting to the jurisdiction of the court, or an<o:p></o:p></div>
<div class="MsoNormal">
appearance in the Court either in person or through a<o:p></o:p></div>
<div class="MsoNormal">
representative for objecting to the jurisdiction of the<o:p></o:p></div>
<div class="MsoNormal">
Court, should not be considered as a decision on the merits<o:p></o:p></div>
<div class="MsoNormal">
of the case. In this respect the general rules of the<o:p></o:p></div>
<div class="MsoNormal">
acquiescence to the jurisdiction of the Court which may be<o:p></o:p></div>
<div class="MsoNormal">
valid in other matters and areas should be ignored and<o:p></o:p></div>
<div class="MsoNormal">
deemed inappropriate.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The second part of clause (c) of Section 13 states that<o:p></o:p></div>
<div class="MsoNormal">
where the judgment is founded on a refusal to recognise<o:p></o:p></div>
<div class="MsoNormal">
the law of this country in cases in which such law is<o:p></o:p></div>
<div class="MsoNormal">
applicable, the judgment will not be recognised by the<o:p></o:p></div>
<div class="MsoNormal">
courts in this country. The marriages which take place in<o:p></o:p></div>
<div class="MsoNormal">
this country can only be under either the customary or the<o:p></o:p></div>
<div class="MsoNormal">
statutory law in force in this country. Hence, the only law<o:p></o:p></div>
<div class="MsoNormal">
that can be applicable to the matrimonial disputes is the
one under which the<o:p></o:p></div>
<div class="MsoNormal">
parties are married, and no other law. When, therefore, a<o:p></o:p></div>
<div class="MsoNormal">
foreign judgment is founded on a jurisdiction or on ground<o:p></o:p></div>
<div class="MsoNormal">
not recognised by such law, it is a judgment which is in<o:p></o:p></div>
<div class="MsoNormal">
defiance of the Law. Hence, it is not conclusive of the<o:p></o:p></div>
<div class="MsoNormal">
matters adjudicated therein and therefore, unenforceable in<o:p></o:p></div>
<div class="MsoNormal">
this country. For the same reason, such a judgment will<o:p></o:p></div>
<div class="MsoNormal">
also be unenforceable under clause (f) of Section 13, since<o:p></o:p></div>
<div class="MsoNormal">
such a judgment would obviously be in breach of the<o:p></o:p></div>
<div class="MsoNormal">
matrimonial law in force in this country.<o:p></o:p></div>
<div class="MsoNormal">
Clause (d) of Section 13 which makes a foreign judgment<o:p></o:p></div>
<div class="MsoNormal">
unenforceable on th ground that the proceedings in which it<o:p></o:p></div>
<div class="MsoNormal">
YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007<o:p></o:p></div>
<div class="MsoNormal">
is obtained are opposed to natural justice, states no more<o:p></o:p></div>
<div class="MsoNormal">
than an elementary principle on which any civilised system<o:p></o:p></div>
<div class="MsoNormal">
of justice rests. However, in matters concerning the family<o:p></o:p></div>
<div class="MsoNormal">
law such as the matrimonial disputes, this principle has to<o:p></o:p></div>
<div class="MsoNormal">
b extended to mean something more than mere compliance with<o:p></o:p></div>
<div class="MsoNormal">
the technical rules of procedure. If the rule of audi<o:p></o:p></div>
<div class="MsoNormal">
alteram partem has any meaning with reference to the<o:p></o:p></div>
<div class="MsoNormal">
proceedings in a foreign court, for the purposes of the rule<o:p></o:p></div>
<div class="MsoNormal">
it should not be deemed sufficient that the respondent has<o:p></o:p></div>
<div class="MsoNormal">
been duly served with the process of the court. It is<o:p></o:p></div>
<div class="MsoNormal">
necessary to ascertain whether the respondent was in a<o:p></o:p></div>
<div class="MsoNormal">
position to present or represent himself/herself and<o:p></o:p></div>
<div class="MsoNormal">
contest effectively the said proceedings. This requirement<o:p></o:p></div>
<div class="MsoNormal">
should apply equally to the appellate proceedings if and<o:p></o:p></div>
<div class="MsoNormal">
when they are file by either party. If the foreign court has<o:p></o:p></div>
<div class="MsoNormal">
not ascertained and ensured such effective contest by<o:p></o:p></div>
<div class="MsoNormal">
requiring the petitioner to make all necessary provisions<o:p></o:p></div>
<div class="MsoNormal">
for the respondent to defend including the costs of travel,<o:p></o:p></div>
<div class="MsoNormal">
residence and litigation where necessary, it should be held<o:p></o:p></div>
<div class="MsoNormal">
that the proceedings are in breach of the principles of<o:p></o:p></div>
<div class="MsoNormal">
natural justice. It is for this reason that we find that the<o:p></o:p></div>
<div class="MsoNormal">
rules of Private International Law of some countries insist,<o:p></o:p></div>
<div class="MsoNormal">
even in commercial matters, that the action should be filed<o:p></o:p></div>
<div class="MsoNormal">
in the forum where the defendant is either domiciled or is<o:p></o:p></div>
<div class="MsoNormal">
habitually resident. It is only in special cases which is<o:p></o:p></div>
<div class="MsoNormal">
called special jurisdiction where the claim has some real<o:p></o:p></div>
<div class="MsoNormal">
link with other forum that a judgment of such forum is<o:p></o:p></div>
<div class="MsoNormal">
recognised. This jurisdiction principle is also recognised<o:p></o:p></div>
<div class="MsoNormal">
by the Judgments Convention of this European Community . If,<o:p></o:p></div>
<div class="MsoNormal">
therefore, the courts in this country also insist as a<o:p></o:p></div>
<div class="MsoNormal">
matter of rule that foreign matrimonial judgment will be<o:p></o:p></div>
<div class="MsoNormal">
recognised only it it is of the forum where the respondent<o:p></o:p></div>
<div class="MsoNormal">
is domiciled or habitually and permanently resides, the<o:p></o:p></div>
<div class="MsoNormal">
provisions of clause (d) may be held to have been satisfied.<o:p></o:p></div>
<div class="MsoNormal">
The provision of clause (e) of Section 13 which<o:p></o:p></div>
<div class="MsoNormal">
requires that the courts in this country will not recognise
a foreign judgment<o:p></o:p></div>
<div class="MsoNormal">
if it has been obtained by fraud, is self-evident. However,<o:p></o:p></div>
<div class="MsoNormal">
in view of the decision of this Court in Smt. Satya v. Teja<o:p></o:p></div>
<div class="MsoNormal">
Singh, (supra) it must be understood that the fraud need not<o:p></o:p></div>
<div class="MsoNormal">
be only in relation to the merits of the mater but may also<o:p></o:p></div>
<div class="MsoNormal">
be in relation to jurisdictional facts.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
13. From the aforesaid discussion the following rule<o:p></o:p></div>
<div class="MsoNormal">
can be deduced for recognising foreign matrimonial judgment<o:p></o:p></div>
<div class="MsoNormal">
in this country. The jurisdiction assumed by the foreign<o:p></o:p></div>
<div class="MsoNormal">
court as well as the grounds on which the relief is granted<o:p></o:p></div>
<div class="MsoNormal">
must be in accordance with the matrimonial law under which<o:p></o:p></div>
<div class="MsoNormal">
the parties are married. The exceptions to this rule may be<o:p></o:p></div>
<div class="MsoNormal">
as follows: (i) where the matrimonial action is filed in the<o:p></o:p></div>
<div class="MsoNormal">
forum where the respondent is domiciled or habitually and<o:p></o:p></div>
<div class="MsoNormal">
permanently resides and the relief is granted on a ground<o:p></o:p></div>
<div class="MsoNormal">
available in the matrimonial law under which the parties are<o:p></o:p></div>
<div class="MsoNormal">
married; (ii) where the respondent voluntarily and<o:p></o:p></div>
<div class="MsoNormal">
effectively submits to the jurisdiction of the forum as<o:p></o:p></div>
<div class="MsoNormal">
discussed above and contests the claim which is based on a<o:p></o:p></div>
<div class="MsoNormal">
ground available under the matrimonial law under which the<o:p></o:p></div>
<div class="MsoNormal">
parties are married; (iii) where the respondent consents to<o:p></o:p></div>
<div class="MsoNormal">
the grant of the relief although the jurisdiction of the<o:p></o:p></div>
<div class="MsoNormal">
forum is not in accordance with the provisions of the<o:p></o:p></div>
<div class="MsoNormal">
matrimonial law of the parties.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
The aforesaid rule with its stated exceptions has the<o:p></o:p></div>
<div class="MsoNormal">
merit of being just and equitable. It does no injustice to<o:p></o:p></div>
<div class="MsoNormal">
any of the parties. The parties do and ought to know their<o:p></o:p></div>
<div class="MsoNormal">
rights and obligations when they marry under a particular<o:p></o:p></div>
<div class="MsoNormal">
law. They cannot be heard to make a grievance about it<o:p></o:p></div>
<div class="MsoNormal">
later or allowed to bypass it by subterfuges as in the<o:p></o:p></div>
<div class="MsoNormal">
YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007<o:p></o:p></div>
<div class="MsoNormal">
present case. The rule also has an advantage of rescuing<o:p></o:p></div>
<div class="MsoNormal">
the institution of marriage from the uncertain maze of the<o:p></o:p></div>
<div class="MsoNormal">
rules of the Private International Law of the different<o:p></o:p></div>
<div class="MsoNormal">
countries with regard to jurisdiction and merits based<o:p></o:p></div>
<div class="MsoNormal">
variously on domicile, nationality, residence-permanent or<o:p></o:p></div>
<div class="MsoNormal">
temporary or ad hoc forum, proper law etc. and ensuring<o:p></o:p></div>
<div class="MsoNormal">
certainty in the most vital field of national life and<o:p></o:p></div>
<div class="MsoNormal">
conformity with public policy. The rule further takes<o:p></o:p></div>
<div class="MsoNormal">
account of the needs of modern life and makes due allowance<o:p></o:p></div>
<div class="MsoNormal">
to accommodate them. Above all, it gives protection to<o:p></o:p></div>
<div class="MsoNormal">
women, the most vulnerable section of our society, whatever<o:p></o:p></div>
<div class="MsoNormal">
the strata to which they may belong. In particular it frees<o:p></o:p></div>
<div class="MsoNormal">
them from the bondage of the tyrannical and servile rule<o:p></o:p></div>
<div class="MsoNormal">
that wife’s domicile follows that of her husband and that it<o:p></o:p></div>
<div class="MsoNormal">
is the husband’s domicilliary law which determines the<o:p></o:p></div>
<div class="MsoNormal">
jurisdiction and judges the merits of the case.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
15. The High Court, as stated earlier, set aside the<o:p></o:p></div>
<div class="MsoNormal">
order of the learned Magistrate only on the ground that the<o:p></o:p></div>
<div class="MsoNormal">
photostat copy of the decree was not admissible in evidence.<o:p></o:p></div>
<div class="MsoNormal">
The High Court is not correct in its reasoning. Under<o:p></o:p></div>
<div class="MsoNormal">
Section 74(1)(iii) of the Indian Evidence Act (Hereinater<o:p></o:p></div>
<div class="MsoNormal">
referred to as the “Act”) documents forming the acts or<o:p></o:p></div>
<div class="MsoNormal">
records of the acts of public judicial officers of a foreign<o:p></o:p></div>
<div class="MsoNormal">
country are public documents. Under Section 76 read with<o:p></o:p></div>
<div class="MsoNormal">
Section 77 of the Act, certified copies of such documents<o:p></o:p></div>
<div class="MsoNormal">
may be produced in proof of their contents. However, under<o:p></o:p></div>
<div class="MsoNormal">
Section 86 of the Act there is presumption with regard to<o:p></o:p></div>
<div class="MsoNormal">
the genuineness and accuracy of such certified copy only if<o:p></o:p></div>
<div class="MsoNormal">
it is also certified by the representative of our Central<o:p></o:p></div>
<div class="MsoNormal">
Government in or for that country that the manner in which<o:p></o:p></div>
<div class="MsoNormal">
it has been certified is commonly in use in that country for<o:p></o:p></div>
<div class="MsoNormal">
such certification.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
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.<o:p></o:p></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
Appeal dismissed.</div>
</div>
V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0tag:blogger.com,1999:blog-6476944189815020915.post-31172056533967056842012-12-13T21:34:00.000-08:002012-12-13T21:34:30.917-08:00Is Foreign Divorce Decree valid in India<div dir="ltr" style="text-align: left;" trbidi="on">
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Foreign Divorce Validity in India</div>
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A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-<br />(a) where it has not been pronounced by a Court of competent jurisdiction.</div>
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(b) where it has not been given on the merits of the case.</div>
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(c) where it appears on the face of the proceedings to be 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.</div>
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(d) where the proceedings in which the judgment was obtained are opposed to natural justice.</div>
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(e) where it has been obtained by fraud.</div>
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(f) where it sustains a claim founded on a breach of any law in force in India.</div>
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So these six conditions are fulfilled by such foreign judgment/decree of divorce then it will be valid for dissolving such Indian marriage as has been held by the Supreme Court of India in several of its judgments. The very first condition is with regard to Jurisdiction of such foreign court, what it means that both or either of the parties should be residing in the foreign country where from such decree of divorce has been obtained. The second important condition is with regard to merits of the case for divorce, whether those merits considered by the foreign court to arrive on this conclusion or not. Next, a proper notice was served to the other party with regard to such divorce proceedings & the other party was assigned a sufficient time to file his or her defense against the case, hence following the principle of natural justice. There was no fraud or force involved in such case & both the parties either mutually agreed to surrender itself to such foreign court for getting the decree of divorce or neither of them objected to such foreign court proceeding with such matter & deciding it accordingly. Lastly the decree so passed by the foreign court should not be such which may not be executable in India. In your case if you both had agreed for going through such divorce in Spain through their Family Court having similar status as Indian Family Court, such decree of divorce was passed after considering all the merits of your case, both the parties were heard & their statements properly recorded by the foreign court & a proper judgment followed by the decree passed by such foreign court dissolving your marriage, then this will be a valid dissolution of marriage & the decree of divorce executable in India. Now should you get this decree of divorce declared as valid by the family court of India or not. It all depends on you or on the precondition as mentioned in such decree of divorce by the foreign court. Some foreign courts do put a condition in the decree to any such matter to become valid only after the Indian court or competent government authority gives its ascent of approval on such decree. In such a case you have to file an application in the Family court of competent jurisdiction as discussed above in India to get the approval & validation of such decree of divorce. Otherwise it is entirely on both of you to go in for Indian court validating such foreign divorce decree or not, for all purpose you both can proceed for second marriage if such foreign divorce decree was obtained keeping in mind all the prerequisite conditions as mentioned in section13 of the CPC. Try using the Foreign Family Court divorce decree for both these purposes if the Indian government/authorities don’t agree then get this decree validated by Indian</div>
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V.K.Singh Advocate at Supreme Court of Indiahttp://www.blogger.com/profile/16908295946347311481noreply@blogger.com0