Hi, if the wife does not participate in the proceedings of the divorce it is not valid in India.

2. It is better you can file a divorce on the ground of mental cruelty in India.

3. If she participate in the divorce proceedings in USA the it is valid.

1) divorce on grounds of mental cruelty is valid in india .

2) if your wife participates in divorce proceedings decree would be valid in india .

3)There`s no ground for `irreconcilable differences` in India,so that divorce is not valid in India.

4) file for divorce in india if wife does not participate obtain exparte divorce decree in india

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(OS) 990/2010

SHEENAM RAHEJA ... Plaintiff Through: Mr. Deepak Anand, Advocate

along with plaintiff in person.

versus

AMIT WADHWA ..... Defendant Through: Defendant is ex parte.

% Date of Decision : September 10, 2012

CORAM:

HON'BLE MS. JUSTICE REVA KHETRAPAL

JUDGMENT

: REVA KHETRAPAL, J.

1. The plaintiff has filed the present suit seeking a decree of

declaration in favour of the plaintiff and against the defendant,

declaring that the proceedings initiated by the defendant for the

dissolution of marriage between the parties on the ground of

irreconcilable differences, arising out of File No.1-09-FL-149089,

pending before the Superior Court of California, County of Santa

Clara, San Jose, USA are illegal, invalid and void ab-initio.

2. During the pendency of the present suit, however, a decree of

dissolution was passed by the Superior Court of California, County of

CS (OS) No.990/2010 Page 1 of 21 Santa Clara, San Jose, USA in favour of the defendant/Husband and

thereupon the plaintiff amended her plaint to seek appropriate orders

declaring the order of dissolution of marriage dated January 14, 2011

and January 18, 2011 passed by the Superior Court of California as

null and void and non-est in the eyes of law.

3. The plaintiff and defendant were married on 15th April, 2000

according to Hindu rites and ceremonies at New Delhi. The marriage

was duly registered under the Hindu Marriage Act, 1955 on 24th

April, 2000. From the wedlock two female children were born on 17th

August, 2001 and 2nd July, 2004, aged 9 years and 6 years

respectively. Both the children are presently in the custody of the

defendant, who, as detailed in the plaint, has taken them away

clandestinely. Shorn of details, the marriage of the plaintiff ran into

troubled waters on account of cruelty inflicted upon her by the

defendant, his mother, sister and other relatives. The mother and sister

of the defendant publicly humiliated the plaintiff for dowry, whenever

she visited India, even though for short spells. On account of said

cruelty and harassment, the plaintiff had become unwell, and on 7th

July, 2008, when the plaintiff came to India along with her two

CS (OS) No.990/2010 Page 2 of 21 children she had to be hospitalized at New Delhi. During this period

the mother-in- law of the plaintiff, without the knowledge and consent

of plaintiff, preponed the already confirmed tickets of the two

children for 17th August, 2008 and took them away with her to USA

on 5th August, 2008. The aforesaid act of the plaintiff's mother-in-law

naturally caused apprehension in the mind of the plaintiff about her

safety and security in USA, as it became clear to her that the

defendant had no intention to call her to USA. The mother-in-law of

the plaintiff with malafide intentions locked the matrimonial home i.e

H-87, Kirti Nagar, New Delhi and all the belongings of the plaintiff

therein. Since the parents of the plaintiff had limited financial

resources, the plaintiff in order to withdraw money from her savings

bank account visited the State Bank of Patiala, Branch Pusa Road,

New Delhi and was flabbergasted to discover that her savings had

already been withdrawn fraudulently by the defendant and his

relatives by forging her signatures. On coming to know that her bank

account had been cleaned out in this manner, the plaintiff informed

the law enforcing agencies and got registered FIR bearing

No.164/2009 under Sections 420/467/468/471/120-B IPC with the

CS (OS) No.990/2010 Page 3 of 21 Economic Offences Wing, Crime Branch (Delhi Police), where the

matter is still pending for investigation. To be noted at this juncture

that the plaintiff had also lodged a complaint in USA against the

defendant for domestic violence committed in the USA.

4. As averred in the plaint, the plaintiff in the third week of

March, 2010, through a whisper campaign amongst close relatives of

the plaintiff and defendant, came to know that the defendant has filed

some proceedings before a Court in USA. The plaintiff checked the

website of the said Court and came to know that a case for dissolution

of marriage of the parties on the ground of irreconcilable differences

had been filed by the defendant before the Superior Court of

California, County of Santa Clara, San Jose, USA. It is the allegation

of the plaintiff that the plaintiff was never served with the petition and

other pleadings by the defendant, who has played a fraud on the

judicial process to the extent that he did not even disclose the address

of the plaintiff to the Californian Court. The plaintiff on 8th April,

2010 after obtaining copies of the Court papers through her friends in

USA sent a letter to the Court at California, disputing the jurisdiction

of the said Court to entertain the petition of the defendant for

CS (OS) No.990/2010 Page 4 of 21 dissolution of her marriage, solemnized and registered under the

provisions of the Hindu Marriage Act, 1955. The plaintiff also

instituted the present suit seeking a declaration that the proceedings

before the Superior Court at California were illegal, invalid and void

ab-initio.

5. During the pendency of this suit, the plaintiff learnt that a final

order of dissolution of marriage was granted by the Superior Court of

California, County of Santa Clara, San Jose, USA in favour of the

defendant on January 14, 2011 (vide notice of entry judgment dated

January 18, 2011). The plaintiff now seeks to assail the said order of

dissolution of the marriage as null, void and non-est by amendment of

the plaint.

6. Summons of the institution of the present suit were issued to

the defendant on 18th May, 2010. By an order of the same date this

Court opined that prima facie the continuance of proceedings in the

Superior Court of California, County of Santa Clara, San Jose, USA

would act to the prejudice of the plaintiff, as she did not appear to

have any means to contest the said proceedings, and, in the

circumstances, the defendant was restrained from proceeding further

CS (OS) No.990/2010 Page 5 of 21 with the aforesaid case. The defendant was duly served with the order

of this Court along with the copy of plaint and application by all

modes including E-mail, Registered A.D post and UPC at the local

address and at the USA address-3651, Cabernet, Vineyards Circle,

San Jose, CA 95117, USA. Acknowledgement dated 5th June, 2010,

signifying the receipt of the copy of the plaint and the injunction

order of this Court, duly served upon the defendant by the United

States Postal Service and Indian Postal Service, are placed on record

by the plaintiff. It is pleaded that despite being aware of the restraint

order passed by this Court, the defendant knowingly, wilfully and

intentionally continued to proceed with the case in USA in breach of

the interim injunction passed by this court. The plaintiff also served

upon the defendant legal notice dated 12th October, 2010, making the

defendant aware of the consequences ensuing from the breach of

injunction order dated 18th May, 2010 passed by this Court, but to no

avail.

7. Mr. Deepak Anand, the learned counsel representing the

plaintiff, had drawn my attention to the fact that the order of the

Superior Court of California, County of Santa Clara, San Jose, USA

CS (OS) No.990/2010 Page 6 of 21 dated September 3, 2010 unequivocally shows that the order of this

Court was on the file of the said Court. The relevant portion of the

order of the Superior Court of California states:

"The Court notes that it received a letter from Wife dated May 28, 2010, to which she attached a non-certified copy of an order dated May 18, 2010, from the High Court of New Delhi in New Delhi, India. The order, which appears to bear two case numbers-6701/2010 and 99/2010

(sic.)-purports to prohibit Husband from

proceeding with his divorce action in

California based on the theory that California recognizes divorce based on a finding of

irreconcilable differences which, according to the order, is contrary to Indian marriage law."

8. After noting that this Court had prohibited the husband from

proceeding with the divorce action in California, the Court at

California, however, observed that the Indian order did not indicate

that the husband was ever served with the Indian order. The learned

counsel for the plaintiff contended and I think rightly so, that the said

observation is of no consequence in view of the fact that there is proof

of service upon the defendant on 5th June, 2010, through the United

States Postal Service, which even bears the signatures of the

defendant, namely, Amit Wadhwa with the date and time of service

i.e 05-June-2010 - 10.35 A.M endorsed on it. This is quite apart from

CS (OS) No.990/2010 Page 7 of 21 the fact that the defendant was served through all other modes

including E-mail, proof whereof has been placed on record. The

learned Superior Court of California, despite full and complete

knowledge of the existence of the injunction order passed by this

Court, authorized the defendant to proceed with his request to enter

the plaintiff's default in case bearing No.1-09-FL-149089 for legal

separation and dissolution of marriage initiated by the defendant in

USA.

9. The learned counsel for the plaintiff on the aforesaid facts and

on the basis of the affidavits by way of evidence filed by the plaintiff

contends that the marriage between the parties having been

solemnized and registered under the provisions of the Hindu Marriage

Act, 1955 in New Delhi, within the jurisdiction of this Court, its

dissolution could be effected only under the said Act. Both the parties

are Indian citizens holding Indian passports and are permanent

residents of India, hence are governed by Indian laws. The Superior

Court of California does not have the jurisdiction to grant decree of

divorce as per the provisions of Hindu Marriage Act, 1955, as neither

the marriage between the parties was solemnized in USA nor the

CS (OS) No.990/2010 Page 8 of 21 plaintiff was residing within the jurisdiction of the Superior Court of

California at the time of the presentation of the petition. The

jurisdiction assumed by the foreign Court as well as the grounds on

which the relief is claimed must be in accordance with the

matrimonial law under which the parties are married i.e. the Hindu

Marriage Act, 1955. The plaintiff and the defendant have both resided

together in India and hence as per Section 19 of the Hindu Marriage

Act, 1955, the jurisdiction for the grant of decree of divorce vests

with the Courts in India. It is further the contention of the learned

counsel for the plaintiff that the plaintiff has till date not submitted

herself to the jurisdiction of the foreign Court i.e Superior Court of

California, County of Santa Clara, San Jose, USA nor was she

represented through counsel and the Court passed the decree in her

absence.

10. The learned counsel placed reliance on the provisions of

Section 13 of the Code of Civil Procedure, 1908 to contend that the

plaintiff is entitled to a decree of declaration as claimed by her. For

the sake of facility of reference, the provisions of Section 13 of the

CPC are reproduced hereunder:-

CS (OS) No.990/2010 Page 9 of 21 "13. When foreign judgment not conclusive- 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-

(a) where it has not been pronounced by a

Court of competent jurisdiction;

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

(c) where it appears on the face of the

proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;

(d) where the proceedings in which the

judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a

breach of any law in force in India."

11. Mr. Anand relied on the decision in the case of Y. Narasimha

Rao and Others Vs. Y.Venkata Lakshmi and Another, (1991) 3 SCC

451, where the Hon'ble Supreme Court interpreted each and every

clause of Section 13 of the Civil Procedure Code vis-à-vis

matrimonial law with a view to secure required certainty and protect

the sanctity of the institution of marriage and the unity of family

which are the cornerstones of our societal life. Clauses (b), (c), (d)

CS (OS) No.990/2010 Page 10 of 21 and (f) of Section 13 were interpreted by the Supreme Court in the

following manner :

"16. 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.

17. 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

CS (OS) No.990/2010 Page 11 of 21 customary or the statutory law in force in this country. Hence, the only law that can be

applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign

judgment is founded on a jurisdiction or on 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.

18. 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

CS (OS) No.990/2010 Page 12 of 21 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 jurisdictional principle is also recognised by the Judgments Convention of the 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."

12. The Supreme Court thereafter deduced the following rule as

regards to the binding effect of a decree of dissolution of marriage

passed by a foreign court :-

"The jurisdiction assumed by the foreign Court as well as the grounds on which the relief is granted must be in accordance with the

matrimonial law under which the parties are

CS (OS) No.990/2010 Page 13 of 21 married. The exceptions to this rule may be as follows:- (i) where the matrimonial action is filed in the forum where the respondent is

domiciled or habitually and permanently

resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the

respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii)

where the respondent consents to the grant of relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties."

13. Reliance was also placed by Mr. Anand on the decision of

Veena Kalia v. Dr. Jatinder Nath Kalia and Anr., 59 (1995) DLT

635, wherein a learned Single Judge of this Court, Hon'ble Mr.

Justice D.P.Wadhwa (as his Lordship then was) after noting that the

petitioner had never contested the proceedings for divorce filed by the

respondent in the Supreme Court at Nova Scotia, held that it would

not mean that she conceded the jurisdiction of that Court or that the

Supreme Court at Nova Scotia was the Court of competent

jurisdiction. The silence of the wife, which the learned Judge

observed, was not because of her own volition but because of the

CS (OS) No.990/2010 Page 14 of 21 constraints which she could not overcome to contest the proceedings

there, could not confer jurisdiction on that Court, more so as the

husband was not permanently residing within the jurisdiction of the

Supreme Court of Nova Scotia. The Court further observed as under:-

"It is also clear that the ground on which

the decree of divorce had been granted by

the foreign Court is not a ground on which

such a decree could be granted under the

Act. Since the petitioner wife was not in a

position to contest the proceedings in a

foreign Court as she had no means to go

there and the foreign Court did not see to it whether the wife was possessed of sufficient funds and her documentation to visit

Canada complete, the rules of natural

justice stood violated. It is a matter of

common knowledge that mere buying an air

ticket is not enough to visit Canada. There

are various other formalities to be

completed. I am of the firm view that the

foreign judgment on which the husband

relied has no legal validity in this country."

14. In Smt.Anubha v. Vikas Aggarwal & Ors, 100 (2002) DLT

682, this Court relying upon the decision of the Supreme Court in the

case of Narasimha Rao (supra), held that as laid down by the

Supreme Court, the first and foremost requirement of recognising a

foreign matrimonial judgment is that the relief should be granted to

the petitioner on a ground available under the matrimonial law under

CS (OS) No.990/2010 Page 15 of 21 which the parties are married, or where the respondent voluntarily and

effectively submits to the jurisdiction of the forum and contests the

claim which is based on a ground available under the matrimonial law

under which the parties are married. On the facts of the case before it,

the Court further held as under:-

"25. The ground on which the marriage of

the defendant was dissolved is not available in the Hindu Marriage Act. The parties are

Hindus. Their marriage was solemnised

according to the Hindu rites. Their

matrimonial dispute or relationship was,

therefore, governable by the provisions of

Hindu Marriage Act. Since the plaintiff did

not submit to the jurisdiction of the USA

Court nor did she consent for the grant of

divorce in the US Court the decree obtained

by the defendant from the Connecticut Court

of USA is neither recognisable nor

enforceable in India."

15. The learned counsel for the plaintiff also vehemently contended

that the defendant-husband has practiced fraud upon the Court at

USA inasmuch as no summons were ever served on the plaintiff at

any point of time. The proof of service of summons do not have any

acknowledgement/receipt/signature of the person to whom the

summons and copies were delivered. The issue of service of

CS (OS) No.990/2010 Page 16 of 21 summons, however, need not be delved into in view of the

observations made hereinafter.

16. In the instant case, the Superior Court of California has passed

the decree of dissolution of marriage on the ground of irreconcilable

differences. The said ground, not being a ground available for

dissolution of marriage under Section 13 of the Hindu Marriage Act,

1955 under which the marriage between the parties was contracted, it

cannot be said that the judgment is passed on merits. Further, it can,

by no stretch of imagination, be said that the decision of the Superior

Court of California was the result of the contest between the parties.

On the contrary, the judgment dated 14.01.2011 shows no application

of mind or appreciation of facts and is merely mechanical in its form

as well as substance. Moreover, the impugned proceedings and the

decree of dissolution are in violation of the principles of natural

justice, which the Supreme Court in the case of Narasimha (supra)

interpreted to mean something more than mere compliance with the

technical rules of procedure. It was observed by the Supreme Court

that it should not be deemed sufficient that the respondent had been

duly served with the process of the court but it must also be

CS (OS) No.990/2010 Page 17 of 21 ascertained whether the respondent was in a position to present or

represent himself/herself and contest effectively the said proceedings

and if the foreign court had not ascertained and ensured 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

were in breach of the principles of natural justice. In this regard, the

order dated 18.05.2010 passed by this Court and the order dated

03.09.2010 passed by the Superior Court of California are of

significance. This Court on 18.05.2010 concluded that prima facie the

continuance of proceedings in the Superior Court of California would

act to the prejudice of the plaintiff, as she did not appear to have any

means to contest the said proceedings, and, in the circumstances, the

defendant was restrained from proceeding further with the aforesaid

case till the next date of hearing which was 21.10.2010. The Superior

Court of California on 03.09.2010, despite being aware of the order of

this Court, disregarded the same merely on the technical ground that

the order did not indicate that the husband was ever served with the

Indian order and in completely ignoring the principles of natural

CS (OS) No.990/2010 Page 18 of 21 justice, concluded that the Court had the jurisdiction to hear the

husband's petition for dissolution of marriage and that there was no

legal basis to stay the divorce proceedings, authorizing the husband to

proceed with his request to enter wife's default.

17. The cumulative effect of the aforesaid facts, in my considered

opinion, is that the decree of dissolution of marriage passed by the

Superior Court of California cannot be said to have been passed on

merits nor can it be said to be in compliance with the principles of

natural justice. The plaintiff-wife did not contest the claim nor agree

to the passing of the decree. In fact, the plaintiff in the present case

did not have the wherewithal to contest the impugned proceedings. As

noticed above even her bank account had been fraudulently operated

by the defendant and his relatives by forging her signatures and First

Information Report in this regard was lodged by her being FIR

No.164/2009 under Sections 420/467/468/471/120-B IPC, in respect

of which Status Report has been filed by the Investigating Agency

from time to time. In these circumstances, the judgment, having been

passed in default of wife's appearance, is clearly in violation of the

principle of audi alteram partem as enunciated by the Supreme Court

CS (OS) No.990/2010 Page 19 of 21 with reference to foreign judgments rendered in matrimonial disputes,

where the wife is not in a position to contest the case in a foreign

jurisdiction, resulting in grave injustice to the wife.

18. Lastly, this Court cannot help but refer to the following

observations made by the Hon'ble Supreme Court in Neeraja Saraph

(Smt) v. Jayant V.Saraph and Anr, (1994) 6 SCC 461, which case

pertained to desertion of an Indian wife by an NRI husband:-

"...But the rule of domicile replacing the

nationality rule in most of the countries for assumption of jurisdiction and granting relief in matrimonial matters has resulted in conflict of laws. What this domicile rule is not necessary to be gone into. But feasibility of a legislation safeguarding interest of women may be

examined by incorporating such provisions as-

(1) No marriage between a NRI and an

Indian woman which has taken place in

India may be annulled by a foreign

court;

(2) Provision may be made for adequate

alimony to the wife in the property of the

husband both in India and abroad.

(3) The decree granted by Indian courts

may be made executable in foreign

courts both on principle of comity and by

entering into reciprocal agreements like

Section 44-A of the Civil Procedure Code

which makes a foreign decree executable

as it would have been a decree passed by

that court."

CS (OS) No.990/2010 Page 20 of 21

19. Regretfully the plight of women and their exploitation by NRI

husbands is yet to be ameliorated through legislative measures as

suggested in the said case.

20. In view of the aforesaid, the decree of dissolution of marriage

passed by the Superior Court of California in favour of the defendant

can not be said to be conclusive under Section 13 of the Civil

Procedure Code and hence is not enforceable in India. The decree of

dissolution of marriage dated January 14, 2011 and judgment entered

on January 18, 2011 passed by the Superior Court of California,

County of Santa Clara, San Jose, USA in favour of the defendant be

and is hereby declared null and void and unenforceable in India being

opposed to the laws in force in this country.

21. Resultantly, the suit stands decreed in terms of the prayer made

by the plaintiff. The plaintiff shall also be entitled to recover cost in

the sum of Rs.2 lakhs from the defendant.

22. CS(OS) No.990/2010 and IA Nos.182/2012 and 183/2012

stand disposed of.

REVA KHETRAPAL

_____________________________________________

1. Irreconcilable marriage is not a valid ground in India to nullify the marriage as on date.

2. Better to take Divorce in USA on the ground which is recognised as one of the grounds for taking divorce in India as per the HMA

1. Are you and your wife citizens of India? Was the marriage solemnized in India? If the answer to either of the preceding questions is yes then it would be prudent on your part to apply for divorce in India alone.

2. The divorce granted by the US court may subsequently be challenged by your wife in an Indian court which may annul it, more so in view of the fact that irreconcilable differences is not a ground for divorce in India.

3. If you have already filed for divorce and your wife is not appearing in the court then the court will very soon grant you divorce.

Irreconcilable differences is not a valid ground in india however what is valid is the irretrievable breakdown of marriage. Hence if the divorce is obtained outside india on the grounds which are not valid grounds under the Indian law then that is not sufficient to nullify the marriage. hence it is advisable to apply for divorce in india on the ground of mental cruelty

No. Divorce decree is not valid in India if It contravenes Hindu Marriage Act or any other Indian Law. There is no such ground as irretrievable differences in the Act and further a divorce petition can not be filed on ground of living separately for 6 months. Recently Delhi High Court refused to validate such decree on irreconcilable differences ground. You can file the petition on ground of mental cruelty if the same is available to you but an ex-parte decree shall again be amenable to challenge. See to that your wife gets opportunity to participate in the proceedings.

1. Decree for No Fault divorce passed by USA Court will be acceptable by Indian Courts provided your wife takes part in the said divorce proceeding,

2. In the above inatance it will be treated as mutla consent divorce,

3. Otherwise, No Fault divorce decree without hearing the other party is not acceptable by India Courts,

4. You can take a No Objection letter from her in connection with your No Fault divorce petition to solve the impass.

PETITIONER:

Y. NARASIMHA RAO AND ORS.

Vs.

RESPONDENT:

Y. VENKATA LAKSHMI AND ANR.

DATE OF JUDGMENT09/07/1991

BENCH:

SAWANT, P.B.

BENCH:

SAWANT, P.B.

MISRA, RANGNATH (CJ)

CITATION:

1991 SCR (2) 821 1991 SCC (3) 451

JT 1991 (3) 33 1991 SCALE (2)1

ACT:

Hindu Marriage Act, 1955: Section 19. Dissolution of

marriage-Court to which petition should be presented-Parties

marrying in India under Hindu Law-Husband's petition for

dissolution of marriage in Foreign Court-Fraud-Incorrect

representation of jurisdictional facts-Husband neither

domiciled nor had intention to make the foreign state his

home but only technically satisfying the requirement of

residence of 90 days for the purpose of obtaining divorce-

Divorce decree by foreign court on a ground not available

under the 1955 Act-Enforceability of.

Civil Procedure Code, 1908: Section 13. Matrimonial

dispute-Foreign judgment-When not conclusive.

Clause (a)-``Court of competent jurisdiction''-Which is.

Clause (b)-Judgment on merits-What is.

Clause (c)-Judgment founded on a ground not recognised

by Law of India-Effect of.

Clause (d)-Judgment obtained in proceedings opposed in

principles of natural justice-Effect of-Principles of

natural justice-Scope of.

Clause (e)-`Fraud'-Scope of-Judgment obtained by fraud-

Effect of.

Clause (f)-Judgment founded on a breach of law in force

in India-Effect of.

Section 14-Presumption as to foreign judgments-

Expression ``Certified copy of a foreign judgment''-Should

be read consistent with requirement of Section 86 of Indian

Evidence Act.

Indian Evidence Act, 1872. Section 41-``Competent

court''-Which is.

822

Section 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and 86.

Foreign judgment-Photostat copy-Admissibility of.

Private International Law-Matrimonial dispute-

Recognition of foreign judgment-Rules for recognition of

foreign matrimonial judgment laid down-Hague convention of

1968 on the recognition of divorce and legal separations-

Article 10-Judgment Convention of the European Community.

Words and phrases ``Residence-Meaning of''.

HEADNOTE:

The first appellant and the first respondent were

married at Tirupati on 27.2.1975 according to Hindu Law.

They separated in July 1978. The appellant-husband filed a

petition for dissolution of the marriage in the Sub-Court of

Tirupati stating that he was a resident of South Claiborn

Avenue, New Orleans, Louisiana, and that he was a citizen of

India and that he and his wife last resided together at New

Orleans, Louisiana. Subsequently he filed another petition

for dissolution of marriage in the Circuit Court St. Louis

Country, Missouri, USA alleging that he has been a resident

of the State of Missouri for 90 days or more immediately

preceding th filing of the petition by refusing to continue

to live with the appellant in the US and particularly in the

State of Missouri. But from the averments made by him in the

petition before the Sub-Judge, Tirupati it was obvious that

he and his wife had last resided together at New Orleans,

Louisiana and never within the jurisdiction of th Circuit

Court of St. Louis Country in the State of Missouri.

The respondent-wife filed her reply raising her

objections to the maintainability of the petition. She also

clearly stated that her reply was without prejudice to her

contention that she was not submitting to the jurisdiction

of the foreign court.

The Circuit Court Missouri assumed jurisdiction on the

ground that the 1st Appellant had been a resident of the

State of Missouri for 90 days next preceding the

commencement of the action in the Court. In the absence of

the respondent-wife the Circuit Court, Missouri passed a

decree for dissolution of marriage on the only ground that

the marriage has irretrievably down. Subsequent to the

passing of the decree by the Circuit Court, Missouri, the

appellant filed an application for dismissal of his earlier

petition before the Sub-Court of Tirupati and the same was

dismissed.

823

On 2nd November 1981 the last appellant married appellant

No. 2. Thereafter, the 1st-respondent filed a criminal

complaint against the appellants for the offence of bigamy.

The appellants filed an application for their discharge in

view of the decree for dissolution of marriage passed by the

Circuit Court, Missouri. The Magistrate discharged the

appellants by holding that the complainant-wife had failed

to make out a prima facie case against the appellants. The

respondent preferred a Criminal Revision Petition before the

High Court which set aside the order of the Magistrate by

holding (i) that a photostat copy of the judgment of

Missouri Court was not admissible in evidence; (ii) since

the Learned Magistrate acted on the photostat copy of the

judgment, he was in error in discharging the accused.

Accordingly the High Court directed the Magistrate to

dispose of the petition filed by the appellants for their

discharge afresh in accordance with law. Aggrieved by the

decision of the High Court the appellants filed appeal in

this Court.

Dismissing the appeal, this Court,

HELD: 1. The decree dissolving the marriage passed by

the foreign court is without jurisdiction according to the

Hindu Marriage Act as neither the marriage was celebrated

nor the parties last resided together nor the respondent

resided within the jurisdiction of that Court. Further,

irretrievable breakdown of marriage is not one of the

grounds recognised by the Act of dissolution of marriage.

Hence, the decree of the divorce passed by the foreign court

was on a ground unavailable under the Act which is

applicable to the marriage. Since with regard to the

jurisdiction of the forum as well as the ground on which it

is passed the foreign decree in the present case is not in

accordance with the Act under which the parties were

married, and the respondent had not submitted to the

jurisdiction of the court or consented to its passing, it

cannot be recognised by the courts in this country and is

therefore, unenforceable. [828H, 829A, 828E, 834H, 835A]

2. Residence does not mean a temporary residence for the

purpose of obtaining a divorce but habitual residence or

residence which is intended to be permanent for future as

well. [829E]

Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971, referred

to.

3. The rules of Private International Law in this

country are not codified and are scattered in different

enactments such as the Civil Procedure Code, the Contract

ACt, the Indian Succession Act, the Indian Divorce Act, the

Special Marriage Act etc. In addition, some

824

rules have also been evolved by judicial decisions. In

matters of status or legal capacity of natural persons,

matrimonial disputes, custody of children, adoption,

testamentary and intestate succession etc. the problem in

this country is complicated by the fact that there exist

different personal laws and no uniform rule can be laid down

for all citizens. Today more than ever in the past, the need

for definitive rules for recognition of foreign judgments in

personal and family matters, and particularly in matrimonial

disputes has surged to the surface. A large number of

foreign decrees in matrimonial matters is becoming the order

of the day. A time has, therefore, come to ensure certainty

in the recognition of the foreign judgments in these

matters. The minimum rules of guidance for securing the

certainty need not await legislative initiative. This Court

can accomplish the modest job within the frame-work of the

present statutory provisions if they are rationally

interpreted and extended to achieve the purpose. Though the

proposed rules of guidance in this area may prove inadequate

or miss some aspects which may not be present to us at this

juncture, yet a begining has to be made as best as one can,

the lacunae and the errors being left to be filled in and

corrected by future judgments. [829H, 830A, 831C, F-H]

4. The relevant provisions of Section 13 of the CPC are

capable of being interpreted to secure the required

certainty in the sphere of this branch of law in conformity

with public policy, justice, equity and good conscience,

and the rules so evolved will protect the sanctity of the

institution of marriage and the unity of family which are

the corner stones of our social life. [832A]

4.1 On an analysis and interpretation of Section 13 of

CPC the following rule can be deduced for recognising a

foreign matrimonial judgment in this country. The

jurisdiction assumed by the foreign court as well as the

grounds on which the relief is granted must be in accordance

with the matrimonial law under which the parties are

married. The exceptions to this rule may be as follows; (i)

where the matrimonial action is filed in the forum where the

respondent is domiciled or habitually and permanently

resides and the relief is granted on a ground available in

the matrimonial law under which the parties are married;

(ii) where the respondent voluntarily and effectively

submits to the jurisdiction of the forum and contests the

claim which is based on a ground available under the

matrimonial law under which the parties are married; (iii)

where the respondent consents to the grant of the relief

although the jurisdiction of the forum is not in accordance

with the provisions of the matrimonial law of the parties.

[834B-D]

825

5. The High Court erred in setting aside the order of

the learned Magistrate only on the ground that the

photostat copy of the decree was not admissible in evidence.

In the instant case photostat copies of the judicial record

of the Court of St. Louis is certified for th Circuit Clerk

by the Deputy clerk who is a public officer having the

custody of the document within the meaning of Section 76 of

the Indian Evidence Act also in the manner required by the

provisions of the said section. Hence the photostat copy per

se is not inadmissible in evidence. It is inadmissible

because it has not further been certified by the

representative of our Central Government in the United

States as required by Section 86 of the Act. Therefore the

document is not admissible in evidence for want of the

certificate under Section 86 of the Act and not because it

is a photostat copy of the original as held by the High

Court. [835B, E, F-G]

6. The Magistrate is directed to proceed with th matter

pending before him according to law as expeditiously as

possible, preferably within four months. [835G]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 385 of 1991.

From the Judgment and Order dated 18.4.1988 of the Andhra Pradesh High Court in Crl. Revision Petition No. 41 of 1987.

M.C. Bhandare and Ms. C.K. Sucharita for the Appellants. C.N. Sreekumar and G. Prabhakar (for the State) for the Respondents.

The Judgment of the Court was delivered by SAWANT, J. Leave is granted. Appeal is taken oj board for final hearing by consent of parties.

The 1st appellant and the 1st respondent were married ar Tirupati on February 27, 1975. They separated in July 1978. The 1st appellant filed a petition for dissolution of marriage in the Circuit of St. Louis Country Missouri, USA. The 1st respondent sent her reply from here under protest. The Circuit Court passed a decree for dissolution of marriage on February 19, 1980 in the absence of the 1st respondent.

2. The 1st appellant had earlier filed a petition for dissolution of marriage in the Sub-Court of Tirupati being O.P. No. 87/86. In that petition, the 1st appellant filed an application for dismissing the same as not pressed in view of the decree passed by the Missouri Court. On August 14, 1991 the learned sub-Judge of Tirupati dismissed the petition.

3. On November 2, 1981, the 1st appellant married the 2nd appellant in Yadgirigutta, 1st respondent filed a criminal complaint against the appellants for the offence of bigamy. It is not necessary to refer to the details of the proceedings in the said complaint. Suffice it to say that in that complaint, the appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by Missouri Court. By this judgment of October 21, 1986, the learned Magistrate discharged the appellants holding that the complainant, i.e., the 1st respondent had failed to make out a prima facie case against the appellants. Against the said decision, the 1st respondent preferred a Criminal Revision Petition to the High Court and the High Court by the impugned decision of April 18, 1987 set aside the order of the magistrate holding that a photostat copy of the judgment of the Missouri Court was not admissible in evidence to prove the dissolution of marriage. The Court further held that since the learned Magistrate acted on the photostat copy, he was in error in discharging the accused and directed the Magistrate to dispose of the petition filed by the accused, i.e., appellants herein for their discharge, afresh in accordance with law. It is aggrieved by this decision that the present appeal is filed.

4. It is necessary to note certain facts relating to the decree of dissolution of marriage passed by the Circuit Court of St. Louis Country Missouri, USA. In the first instance, the Court assumed jurisdiction over the matter on the ground that the 1st appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action and that petition in that Court. Secondly, the decree has been passed on the only ground that there remains no reasonable likelihood that the marriage between the parties can be preserved, and that the marriage is, therefore, irretrievably broken''. Thirdly, the 1st respondent had not submitted to the jurisdiction of the Court. From the record, it appears that to the petition she had filed two replies of the same date. Both are identical in nature except that one of the replies begins with an additional averment as follows: ``without prejudice to the contention that this respondent is not submitting to the jurisdiction of this hon'ble court, this respondent sub-

mits as follows''. She had also stated in the replies, among other things, that (i) the petition was not maintainable,

(ii) she was not aware if the first appellant had been living in the State of Missouri for more than 90 days and that he was entitled to file the petition before the Court,

(iii) the parties were Hindus and governed by Hindu Law,

(iv) she was an Indian citizen and was not governed by laws in force in the State of Missouri and , therefore, the Court had no jurisdiction to entertain the petition, (v) the dissolution of the marriage between the parties was governed by the Hindu Marriage Act and that it could not be dissolved in any other way except as provided under the said Act, (vi) the Court had no jurisdiction to enforce the foreign laws and none of the grounds pleaded in the petition was sufficient to grant any divorce under the Hindu Marriage Act.

Fourthly, it is not disputed that the 1st respondent was neither present nor represented in the Court passed the decree in her absence. In fact, the Court has in terms observed that it had no jurisdiction ``in personam'' over the respondent or minor child which was born out of the wed- lock and both of them had domiciled in India. Fifthly, in the petition which was filed by the 1st appellant in that Court on October 6, 1980, besides alleging that he had been a resident of the State of Missouri for 90 days or more immediately preceding the filing of the petition and he was then residing at 23rd Timber View Road, Kukwapood, in the Country of St. Louis, Missouri, he had also alleged that the 1st respondent had deserted him for one year or more next preceding the filing of the petition by refusal to continue to live with the appellant in the United States and particularly in the State of Missouri. On the other hand, the averments made by him in his petition filed in the court of the Subordinate Judge, Tirupati in 1978 shows that he was a resident of Apartment No. 414, 6440, South Claiborn Avenue, New Orleans, Louisiana, United States and that he was a citizen of India. He had given for the service of all notices and processes in the petition, the address of his counsel Shri PR Ramachandra Rao, Advocate, 16-11-1/3, Malakpet, Hyderabad-500 036. Even according to his averments in the said petition, the 1st respondent had resided with him at Kuppanapudi for about 4 to 5 months after th marriage. Thereafter she had gone to her parental house at Relangi, Tanuka Taluk, West Godawari District. He was, thereafter, sponsored by his friend Prasad for a placement in the medical service in the United States and had first obtained employment in Chicago and thereafter in Oak Forest and Greenville Springs and ultimately in the Charity Hospital in Louisiana at New Orleans where he continued to be emp-

loyed. Again according to the averments in the said petition, when the 1st respondent joined him in the United States, both of them had stayed together as husband and wife at New Orleans. The 1st respondent left his residence in New Orleans and went first to Jackson, Texas and, thereafter, to Chicago to stay at the residence of his friend, Prasad. Thereafter she left Chicago for India. Thus it is obvious from these averments in the petition that both the 1st respondent and the 1st petitioner had last resided together at New Orleans, Louisiana and never within the jurisdiction of the Circuit Court of St. Louis Country in the State of Missouri. The averments to that effect in the petition filed before the St. Louis Court are obviously incorrect.

5. Under the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the ``Act'') only the District Court within the local limits of whose original civil jurisdiction (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at the time, residing outside the territories to which the Act extends, or has not been heard of as being alive for a period of seven years of more by those persons who would naturally have heard of him if he were alive, has jurisdiction to entertain the petition. The Circuit Court of St. Louis Country, Missouri had, therefore, no jurisdiction to entertain the petition according to the Act under which admittedly the parties were married. Secondly, irretrievable breakdown of marriage is not one of the grounds recognised by the Act for dissolution of marriage. Hence, the decree of divorce passed by the foreign court was on a ground unavailable under the Act.

6. Under Section 13 of the Code of Civil Procedure 1908 (hereinafter referred to as the ``Code''), a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if (a) it has not been pronounced by a Court of competent jurisdiction;

(b) it has not been given on the merits of the case; (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice, (e) it is obtained by fraud, (f) it sustains a claim founded on a breach of any law in force in India.

7. As pointed out above, the present decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. The decree is also passed on a ground which is not available under the Act which is applicable to the marriage. What is further, the decree has been obtained by the 1st appellant by stating that he was the resident of the Missouri State when the record shows that he was only a bird of passage there and was ordinarily a resident of the State of Louisiana. He had, if at all, only technically satisfied the requirement of residence of ninety days with the only purpose of obtaining the divorce. He was neither domiciled in that State nor had he an intention to make it his home. He had also no substantial connection with the forum. The 1st appellant has further brought no rules on record under which the St. Louis Court could assume jurisdiction over the matter. On the contrary, as pointed out earlier, he has in his petition made a false averment that the 1st respondent had refused to continue to stay with him in the State of Missouri where she had never been. In the absence of the rules of jurisdiction of that court, we are not aware whether the residence of the 1st respondent within the State of Missouri was necessary to confer jurisdiction on that court, and if not, of the reasons for making the said averment.

8. Relying on a decision of this Court in Smt. Satya v. Teja Singh, [1975] 2 SCR 1971 it is possible for us to dispose of this case on a narrow ground, viz., that the appellant played a fraud on the foreign court residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. We remain from adopting that course in the present case because there is nothing on record to assure us that the Court of St. Louis does not assume jurisdiction only on the basis of a mere temporary residence of the appellant for 90 days even is such residence is for the purpose of obtaining divorce. We would, therefore, presume that the foreign court by its own rules of jurisdiction had rightly entertained the dispute and granted a valid decree of divorce according to its law. The larger question that we would like to address ourselves to is whether even in such cases, the Courts in this country should recognise the foreign divorce decrees.

9. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. The distinction between matters which concern personal and family affairs and those which concern commercial relationships, civil wrongs etc. is well recognised in other countries and legal systems. The law in the former area tends to be primarily determined and influenced by social, moral and religious considerations, and public policy plays a special and important role in shaping it. Hence, in almost all the countries the jurisdicational procedural and substantive rules which are applied to disputes arising in this area are significantly different from those applied to claims in other areas. That is as it ought to be. For, no country can afford to sacrifice its internal unity, stability and tranquility for the sake of uniformity of rules and comity of nations which considerations are important and appropriate to facilitate international trade, commerce, industry, communication, transport, exchange of services, technology, manpower etc. This glaring fact of national life has been recognised both by the Hague Convention of 1968 on the Recognition of Divorce and Legal Seperations as well as by the Judgments Convention of the European Community of the same year. Article 10 of the Hague Convention expressly provides that the contracting States may refuse to recognise a divorce or legal separation if such recognition is manifestly incompatible with their public policy. The Judgments Convention of the European Community expressly excludes from its scope (a) status or legal capacity of natural persons,

(b) rights in property arising out of a matrimonial relationship, (c) wills and succession, (d) social security and (e) bankruptcy. A separate convention was contemplated for the last of the subjects.

10. We are in the present case concerned only with the matrimonial law and what we state here will apply strictly to matters arising out of and ancillary to matrimonial disputes. The Courts in this country have so far tried to follow in these matters the English rules of Private International Law whether common law rules or statutory rules. The dependence on English Law even in matters which are purely personal, has however time and again been regretted. But nothing much has been done to remedy the situation. The labours of the Law Commission poured in its 65th Report on this very subject have not fructified since April 1976, when the Report was submitted. Even the British were circumspect and hesitant to apply their rules of law in such matters during their governance of this country and had left the family law to be governed by the customary rules of the diffe-

rent communities. It is only where was a void that they had stepped in by enactments such as the Special Marriage Act, Indian Divorce Act, Indian Succession Act etc. In spite, however, of more than 43 years of independence we find that the legislature has not thought it fit to enact rules of Private International Law in this area and in the absence of such initiative from the legislature the courts in this country their inspiration, as stated earlier, from the English rules. Even in doing so they have not been uniform in practice with the result that we have some conflicting decisions in the area.

11. We cannot also lose sight of the fact that today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. Many a man and woman of this land with different personal laws have migrated and are migrating to different countries either to make their permanent abode there or for temporary residence. Likewise there is also immigration of the nationals of other countries. The advancement in communication and transportation has also made it easier for individuals to hop from one country to another. It is also not unusual to come across cases where citizens of this country have been contracting marriages either in this country or abroad with nationals of the other countries or among themselves, or having married here, either both or one of them migrate to other countries. There are also cases where parties having married here have been either domiciled or residing separately in different foreign countries. This migration, temporary or permanent, has also been giving rise to various kinds of matrimonial disputes destroying in its turn the family and its peace. A large number of foreign decrees in matrimonial matters is becoming the order of the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the framework of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. It is with this intention that we are undertaking this venture. We aware that unaided and left solely to our resources the rules of guidance which we propose to lay down in this area may prove inadequate or miss some aspects which may not be present to us at this juncture. But a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments.

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

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

The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.

Clause (d) of Section 13 which makes a foreign judgment unenforceable on th ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to b extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are file by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community . If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only it it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) may be held to have been satisfied. The provision of clause (e) of Section 13 which requires that the courts in this country will not recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh, (supra) it must be understood that the fraud need not be only in relation to the merits of the mater but may also be in relation to jurisdictional facts.

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

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

14. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is, therefore, unenforceable.

15. The High Court, as stated earlier, set aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. The High Court is not correct in its reasoning. Under Section 74(1)(iii) of the Indian Evidence Act (Hereinater referred to as the "Act") documents forming the acts or records of the acts of public judicial officers of a foreign country are public documents. Under Section 76 read with Section 77 of the Act, certified copies of such documents may be produced in proof of their contents. However, under Section 86 of the Act there is presumption with regard to the genuineness and accuracy of such certified copy only if it is also certified by the representative of our Central Government in or for that country that the manner in which it has been certified is commonly in use in that country for such certification.

Section 63(1) and (2) read with Section 65(e) and (f) of the Act permits certified copies and copies made from the original by mechanical process to be tendered as secondary evidence. A photostat copy is prepared by a mechanical process which in itself ensures the accuracy of the original. The present photostat copies of the judicial record of the Court of St. Louis is certified for the Circuit Clerk by the Deputy Clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Act and also in the manner required by the provisions of the said section. Hence the Photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. The expression "certified copy" of a foreign judgment in Section 14 of the Code has to be read consistent with the requirement of Section 86 of the Act.

16. While, therefore, holding that the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court, we uphold the order 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 to proceed with the matter pending before him according to law as expenditiously as possible, preferably within four months from now as the prosecution is already a decade old.

T.N.A. Appeal dismissed.

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.R.P.148/2011

% Date of Decision: April 22, 2013

PRITAM ASHOK SADAPHULE ..... Petitioner

Through: Mr.Rakesh Taneja, Advocate

versus

HIMA CHUGH .... Respondent

Through: Mr.Prashant Mendiratta, Adv.

CORAM:

HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J.

*

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

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

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

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

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

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

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

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

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

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

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

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

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

"12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.

Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression "competent court" in Section 41 of the Indian Evidence Act has also to be construed likewise.

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

The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.

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

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

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

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

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

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

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

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

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

VEENA BIRBAL, J APRIL 22, 2013