Friday, November 9, 2012
Divorce given by foreign court is conclusive under Indian law
“Once a decree of divorce is granted by a foreign Court after the parties submit to its jurisdiction and contest the case, the marriage stands validly dissolved, the Bombay High Court has held”.
(1) (11) WP 9356/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9356 OF 2012
Kaustubh Sudhir Mestry .. Petitioner
Praveena Lakshmanan .. Respondent
Mr. A. M. Vernekar for the Petitioner.
Mr. S. J. Mishra i/b S.R.S. Legal for the Respondent.
CORAM : MRS. ROSHAN DALVI, J.
Date : 16th OCTOBER, 2012.
1. Rule. Made returnable forthwith.
2. The petitioner has challenged the order of the learned Judge,
Family Court No.7 Mumbai dated 31
July, 2012 dismissing his application to
dismiss the petition for restitution of conjugal rights filed by the respondent
3. The parties married in 2006 and went to the U.S.A. in 2006. They
lived together in the U.S.A. until 2010. In the meantime they had disputes.
They were residing in the U.S.A. The petitionerhusband filed the petition for
divorce on the ground of irretrievable breakdown of marriage and also cruelty.
The wife filed a counter claim. The parties applied for, opposed and ultimately
accepted an interim order by consent. The parties appeared in person as also
through their respective attorneys in the Judicial District Harris County, Texas,
U.S.A. The interim order restrained the parties from entering upon their
respective places of residence. The interim order directed the husband to pay
house rent, car and motor cycle loan and phone bill upto the end of July, 2010,
the order having been passed on 14
July, 2010. The parties were directed to
pay their personal debts. There was a temporary restraint order already passed (2) (11) WP 9356/12
which both the parties agreed to continue until further orders of the Court.
The husband was directed not to do anything with the J2 Visa of the wife until
the final decree of divorce. The wife was directed to allow the husband to get
his books and personal belongings from their residential premises.
4. After this interim order was passed the wife came to India on
22.08.2010. She filed the petition for restitution of conjugal rights and an
application under the Domestic Violence Act against the petitionerhusband
and his father and mother.
5. The wife instructed her attorney to withdraw the counter claim
and sent emails to that Court on 30.08.2010 and 31.08.2010. Hence the
petition for divorce filed by the husband was to proceed without the counter
claim and without her defence. She did not appear in the Judicial District
Harris County, Texas, U.S.A. thereafter. The decree of divorce came to be
passed. The aforesaid interim order, therefore, merged in the final decree of
6. Upon the decree of divorce being granted, the marriage of the
parties stood dissolved. Hence the husband applied in the Family Court,
Mumbai for dismissal of the petition of restitution of conjugal rights as it
would not then survive. That application has been dismissed.
7. The wife would contend that the Judicial District Harris County,
Texas, U.S.A. would have no jurisdiction and the decree of divorce passed
would not become a final judgment conclusive upon both the parties. This is
upon the premise that she did not appear before the Judicial District Harris
County, Texas, U.S.A. Her contention is incorrect. She submitted to the
jurisdiction of the District court and argued her case on merits. This can be
seen not only from the counter claim which was filed by her attorney but the
interim order which has been signed by herself. The parties, therefore, agreed (3) (11) WP 9356/12
and consented to the aforesaid interim order.
8. The wife would further contend that she appeared under the
threat of the husband that J2 Visa would be cancelled. That case of threat is
rather unusual. In para 4 of her petition in the Family court she has stated that
due to mental pressure of forcible deportation on the ground that the husband
would withdraw his support so that the J2 Visa would be cancelled and she
would be deported, she “opposed” the interim application.
9. One would accept a party under threat not to oppose any
application but her own admission that she opposed the application shows the
submission to the jurisdiction of that Court. She, therefore, contested on
merits the case of the husband by filing a counter claim and opposing the
interim application and the order came to be passed as above signed by both
the parties. Withdrawing her consent later after submitting to the Courts
jurisdiction does not matter.
10. She would further contend that the ground of divorce would be
different in the Courts of the U.S.A. and hence no decree of divorce can stand
in India. That contention is also incorrect that the grounds of divorce in this
case is not only irretrievable breakdown of marriage but also cruelty which is
recognized by Courts in India.
11. The wife would contend that as the parties were domiciled in
India the Hindu Marriage Act, 1955 would apply. They last resided in Mumbai,
India before they went to the U.S.A. It was for a temporary period. Hence
their domicile continued. Hence only Courts in Mumbai, India would have
jurisdiction. This would be if the wife did not submit to the jurisdiction of any
other Court and contest the petition on merits as she did.
12. The foreign judgment obtained by the husband being the decree of
divorce is conclusive because it is pronounced by the Court in the State in (4) (11) WP 9356/12
which they then lived. It has been given on the merits of the case because the
wife opposed the interim application. It is not founded upon any breach of any
law in force in India because it is for a decree of divorce inter alia on the
ground of cruelty which is in terms of the law in force in India. The judgment
is not ex parte since the wife submitted to the jurisdiction upon being served,
“opposed” the interim reliefs and thereafter instructed her attorney to
withdraw her counter claim thus withdrawing any defence against the
husband's petition and knowingly allowing him to proceed with his own
13. Consequently there was no protest by the wife. There is no fraud
upon which the judgment came to be passed and the threat, if any, resulted in
her opposition in the District Court where she submitted to that jurisdiction.
Hence the judgments relied upon on her behalf do not apply.
14. The only judgment which applies is the case of Y. Narasimha Rao
& Ors. Vs. Y. Venkata Lakshmi & Anr. (1991) 3 SCC 451. In para 20 of that
judgment, upon considering the purview of conclusiveness of the foreign
judgments, the Supreme Court laid down the exceptions when the foreign
judgments would be binding upon parties:
(1) That the parties were habitually residing where the relief was
(2) The respondent submitted to the jurisdiction of the foreign Court
granting the relief and contested the claim on the grounds available
under the matrimonial law where the parties were married
(3) The respondent consented to the grant of relief even though it was
not in accordance with the provisions of matrimonial law of the parties.
15. In this case the parties were then habitually residing in the State
of Texas. The respondent submitted to the jurisdiction of the Judicial District (5) (11) WP 9356/12
Court of Harris County, Texas, U.S.A. The respondent contested the claim on
the ground of cruelty. The respondent consented to the interim order passed
as above by signing the interim order herself and also by her attorney. The
respondent consented to the grant of relief by that Court.
16. This being the law, the impugned order of the learned Judge
would deserve to be interfered with. Though it is seen that the learned Judge
has painstakingly considered the law relating to conclusiveness of foreign
judgments, the view taken by the learned Judge in the impugned order seen to
be erroneous. Once the decree of divorce is granted by a foreign Court after
the parties submit to its jurisdiction and after contest or agreement, the
marriage stands validly dissolved. Nothing further survives in the marriage.
Therefore the conjugal rights cannot be restituted and hence the petition for
conjugal rights or even any other petition cannot proceed and must be
dismissed as infructuous. It is an abuse of legal process to adjudicate upon
matters already decided by foreign Courts which are conclusive under the
17. Consequently the impugned order of the learned Judge, Family
Court No.7, Mumbai dated 31
July, 2012 is set aside. The petition for
restitution of conjugal rights filed by the wife in the Family Court, Mumbai
itself stands dismissed.
18. Rule is accordingly made absolute.
(ROSHAN DALVI, J.)