Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr on 9 July,
1991
Equivalent citations: 1991 SCR (2) 821, 1991 SCC (3) 451
Bench: Sawant, P.B.
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.
826
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-
828
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
829
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
830
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-
831
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
833
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
834
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
835
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
