Topic: Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr

Requirements for a Foreign Divorce be valid in India

Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr

Equivalent citations: 1991 SCR (2) 821, 1991 SCC (3) 451
Bench: Sawant, P.B. Misra, Rangnath (Cj) - Date Of Judgment: 09/07/1991

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.

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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.

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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

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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]

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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.

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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- 827

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-

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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

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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

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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-

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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. 832

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

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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

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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

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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.

Re: Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr

Foreign court divorce valid

A divorce obtained in a foreign court is valid in India, the Supreme Court has ruled, clarifying a long-standing grey area.

Divorces are easier to obtain in many foreign countries than in India, where the grounds for dissolution of marriage are limited and divorces are usually not awarded in the absence of one of the parties.

Friday’s ruling by the apex court means, for instance, that if an NRI marries an Indian girl, leaves her behind and obtains a divorce in his country of residence, Indian courts must accept that the marriage stands dissolved.

Till now, the issue of divorces obtained abroad had been open for each court to interpret in its own way in the absence of a clear directive.

The ruling came in the case of Pashaura Singh, who had divorced his Canadian wife in Canada and remarried in India. The apex court quashed the bigamy charges against him, upheld by a high court. The apex court observed that although his first wife claimed she was unaware of the divorce proceedings, the decree had neither been stayed nor set aside.

Pashaura was a Punjab resident when he married Kamaljeet Kaur, a Canadian citizen, in 1997 and settled down in Canada with her. In 2001, he divorced her in the Supreme Court of British Columbia. He remarried in India and returned to live in Canada, prompting Kamaljeet’s brother to lodge an FIR in Punjab.