• Is divorce decree "irreconcilable differences" valid in India

Me and wife have been living separately since 18 months in USA. I filed for divorce 6 months ago based on mental cruelty  but  she is not responding or signing the papers currently. If I go for a no fault divorce(after living separately for more than 6 months) based on irreconcilable differences and judge grants the same here in USA, are the grounds valid in India to nullify the marriage ? If not, what is the solution ?
Asked 1 year ago in Family Law from United States
Religion: Hindu
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.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
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 
Ajay Sethi
Advocate, Mumbai
23386 Answers
1229 Consultations
5.0 on 5.0
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


_____________________________________________
Ajay Sethi
Advocate, Mumbai
23386 Answers
1229 Consultations
5.0 on 5.0
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
Shashidhar S. Sastry
Advocate, Bangalore
1242 Answers
59 Consultations
5.0 on 5.0
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. 
Ashish Davessar
Advocate, Jaipur
18259 Answers
450 Consultations
5.0 on 5.0
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  
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
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.   
H. S. Thukral
Advocate, New Delhi
520 Answers
125 Consultations
5.0 on 5.0
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.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
 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.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
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 
Nadeem Qureshi
Advocate, New Delhi
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