Foreign Divorce Decree is not conclusive if wife not contested in proceeding.
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-Ã -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
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
"If, the petitioner is a citizen of California, and he is entitled to file a petition for Dissolution of Marriage at California he should reveal the same to the respondent herein before the solemnisation of marriage. Without disclosing such material things to a poor woman and married her and deserted her is not only SIN but also amount to cheating."
Madras High Court
CORAM:
THE
HONOURABLE MRS. JUSTICE R.BANUMATHI
and
THE
HONOURABLE MRS. JUSTICE S.VIMALA
C.M.A.No.929
of 2002
against
O.S.No.38
of 2000
Bhashyam
Ramesh @ Rajagopalan
rep. by
Power Agent
Mr.V.S.Vhasyam
... Appellant/Defendant
.. Vs ..
R.Saroja
@ K.K.Saroja
35/2,
T.P.Koil Street,
Triplicane,
Chennai-5. ... Respondent/Plaintiff
Civil
Miscellaneous Appeal in C.M.A.929 of 2001 is filed under Section 19 of the
Family Court Act,1984, against the judgment and decree of the 1st Additional
Family Court at Madras, passed in O.S.No.38 of 2000, dated 19.12.2000.
For
Appellant : Mr.Kuberan for M/s. Rank Associates
For
Respondent : Mr.K.Ethirajalu
JUDGMENT
S.Vimala,
J.
The short
lived marriage which got solemnized on 24.6.1999 was dissolved on 17.4.2000 by
a decree passed by Superior Court of California, County San Diego, Family
Division, in Case No.D.454571 ABC, filed by the husband/appellant herein. 1.1.
The wife filed the suit before the 1st Additional Principal Family Court,
Chennai, for a declaration that the decree of divorce passed by the Superior
Court of California is abinitio void, inoperative and not binding on the
plaintiff, which came to be decreed. The said judgment passed by the 1st
Additional Principal Family Court, decreeing the suit, is under challenge in
this appeal.
2. Brief
facts:-
The
marriage between the appellant and the respondent took place on 24.6.1999 at
Sholingapuram, Vellore District as per Hindu Rites and Customs. They started
living as husband and wife at Virugambakkam at Chennai. The appellant left the
respondent on 12.7.1999 for United States, with promise to take her soon. After
going to U.S.A. the communication and the contact between the sources came to
an end, as the husband became mute. 2.1. The plaintiff/wife filed a petition
for Restitution of Conjugal Rights in O.P.No.383 of 2000. The plaintiff
received the summons from the Superior Court of California on 1.10.99. She
expressed her desire to contest her proceedings by sending the defence
statement in writing. She also prayed for waiver of payment of fee. Thereafter,
a decree of divorce was passed by the foreign Court on 17.4.2000. 2.2.
Contending that the decree of divorce passed on 17.4.2000 by the Superior Court
of California is not binding upon her, the wife filed a suit for declaration to
that effect. In the suit, the appellant remained exparte. The main contention
of the respondent/plaintiff before the Family Court was that decree for
dissolution of marriage made by a foreign Court cannot be regarded as a binding
decree on the parties in India. After perusing the oral and documentary
evidence, the Family Court has decreed the suit granting the prayer of the
plaintiff.
3. The
husband has challenged the judgment of the Family Court on the following
contentions:-
(i) The
wife/respondent after receiving the summons from the Superior Court of
California sent her response to the petition and contested the matter by
raising various defences. Considering the defences raised, the Superior Court
has passed an order on merits. The wife having submitted herself to the jurisdiction
of the Foreign Court is now estopped from questioning the jurisdiction of the
Foreign Court. (ii) The Family Court has no jurisdiction and power to entertain
the suit.
(iii)
Even though the husband remained exparte, there is a duty caused upon the Family
Court to see whether the relief sought for is within the scope, ambit and
jurisdiction of the Court. (iv) The judgment of the Family Court did not take
into account the participation of the wife before the Superior Court of
California.
(v) The
respondent/wife did not dispute the jurisdiction of Superior Court of
California. Therefore, the suit challenging jurisdiction of Superior Court of
California is not maintainable.
4. In
view of the contentions raised in the grounds of appeal the following points arises
for determination:-
(i)
Whether the suit filed by the wife/respondent before the Family Court in
O.S.No.38 of 2000 is maintainable?
(ii)
Whether the Family Court has got jurisdiction to entertain the suit?
(iii)
Whether the conduct of the wife in sending response to the Superior Court of
California would amount to submitting herself to the jurisdiction of Foreign
Court? If so, the wife having submitted herself to the jurisdiction of Foreign
Court is whether estopped from disputing the legality of the order passed by
the Foreign Court? (iv) Whether the decree of divorce passed by the Foreign
Court is legal and valid and binding upon the wife ?
5. The
first contention of the learned counsel for the appellant is that the Family
Court cannot grant a decree as prayed for in the petition, just because the
husband remained exparte and has got an independent duty to examine the
validity and the legality of the issues raised irrespective of the stand taken
by the parties to the case. 5.1. This contention is correct provided the order
of the Lower Court is without consideration of evidence and Law. But, in this
case, the Family Court while passing the judgment has not passed a mechanical
order, just because the respondent has remained exparte. The Family Court has
not only considered the evidence of the wife and also the judgment reported in
1955 (a) Law Weekly 53 Dr. David C. Arumainayagam Vs. Geetha C. Arumainayagam
by the Madras High Court wherein, it has been held that a decree for
dissolution of marriage made by a foreign Court cannot be regarded as binding
on the parties in India. The legal proposition has been correctly applied.
Therefore, the contention that the Family Court has mechanically passed the
order is not correct and therefore, the Judgment of the Family Court is
correct.
6. The
second contention of the learned counsel for appellant is that the Family
Courts in India have no competency and jurisdiction to declare the Judgment of
a Foreign Court as null and void. But, the contention of the learned counsel
for the respondent is other way round, and it is his contention that it is not
the Family Court which lacks jurisdiction and competency but, it is only the
Foreign Court which lacks jurisdiction and competency to pass a decree for
divorce. 6.1. In order to appreciate the contentions raised on both sides, it
is appropriate to consider the decision reported in Ruchi Majoo Vs. Sanjeev
Majoo reported in (2011) 6 SCC 479 wherein the Hon'ble Supreme Court has
pointed out, (though in the context of the case of child custody) that as no
system of private international law exists that can claim universal recognition
on this issue, Indian Courts have to decide the issue regarding the validity of
the decree passed by foreign court in accordance with Indian law. The relevant
portion of the observation of the Hon'ble Supreme Court is extracted hereunder:
"Recognition of decrees and orders passed by foreign courts remains an
eternal dilemma inasmuch as whenever called upon to do so, courts in this
country are bound to determine the validity of such decrees and orders keeping
in view the provisions of Section 13 CPC as amended by the Amendment Acts of
1999 and 2002. ............." "Simply because a foreign court
has taken a particular view on any aspect concerning the welfare of the minor
is not enough for the courts in this country to shut out an independent
consideration of the matter. Objectivity and not abject surrender is the mantra
in such cases. Judicial pronouncements on the subject are not on virgin ground.
Since no system of private international law exists that can claim universal
recognition on this issue, Indian Courts have to decide the issue regarding the
validity of the decree in accordance with Indian law. Comity of courts simply
demands consideration of any such order issued by foreign courts and not
necessarily their enforcement." (emphasis supplied)
6.2. The
learned counsel for the respondent has relied upon the following rulings in
order to support the contention that the Foreign Court has no jurisdiction to
pass a decree for divorce when the marriage has taken place in India under the
provision of Hindu Marriage Act. a) 2010 (4) CTC 822 (R.Sridharan Vs.The
presiding Officer, Principal Family Court, Chennai-600 106 and another)
In
Narasimha Rao's case, the Supreme Court categorically stated that marriages
performed under the Hindu Marriage Act can be dissolved only under the said
Act. Naturally, the provisions of the Hindu Marriage Act with regard to
jurisdiction would also come into play. Section 19 clearly gives jurisdiction
to the Court to deal with Matrimonial proceedings initiated by the wife, if she
is residing within the jurisdiction of the said Court. There is no question of
the Second Respondent initiating Divorce proceedings before the Court at United
States of America invoking the provisions of the Hindu Marriage Act. The moment
the Appellant has married the Second Respondent, he has subjected himself to
the jurisdiction of the Court designated to deal with matrimonial disputes
under Section 19 of the Hindu Marriage Act. Applying the ratio to the
facts of this case, it is clear that the moment the appellant/husband herein
has married the respondent wife, he has subjected himself to the jurisdiction
of the Courts designated (Family Courts), to deal with matrimonial disputes
under Section 19 of the Hindu Marriage Act. There is no question of the
husband/appellant initiating divorce proceedings before the Superior Court of
California as the husband could not have initiated the proceedings, invoking
the provisions of Hindu Marriage Act. The marriage between the appellant and
respondent herein could be resolved only on the grounds set out under Section
13 of the Hindu Marriage Act. It is not the case of the appellant/husband that
application for divorce could be made before the Superior Court of California
on the grounds mentioned in the Hindu Marriage Act. Therefore, as contended by
the learned counsel for the respondent, the Foreign Court i.e. The Superior
Court of California which is not a Court of competent jurisdiction and only the
Family Court at Chennai which has complete competency and jurisdiction. b) In
2010 (5) CTC 858 (Deepalakshmi Vs.K.Murugesh) a Single Judge of this Court has
held as under:-
"Thus,
it is clear 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 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 dispute is the one under which
the parties are married, and no other law.... Therefore, the decisions
quoted above would clearly go to show that the Superior Court of California is
not a court of competent jurisdiction to decide the matrimonial dispute of the
appellant/husband as they have married under the Hindu Marriage Act and the
marriage having been taken place in India. Therefore, the finding of the Family
Court that order passed by the Foreign Court is not binding upon the wife is
correct.
7. It is
an admitted case of both parties that the wife received summons from the
superior Court of California and has sent written response it. According to the
learned counsel for the appellant the sending of written response amounts to
submitting herself to the jurisdiction of Superior Court of California and
therefore, the suit filed by wife challenging the judgment of the Superior
Court of California is not maintainable. 7.1. Therefore, the question falling
for consideration is whether the conduct of the wife in sending response to the
Superior Court of California would amount to submitting herself to the
jurisdiction of Foreign Court? If so, the wife having submitted herself to the
jurisdiction of Foreign Court is estopped from disputing the legality of the
order passed by the Foreign Court is the issue to be decided. 7.2. The learned
counsel for the husband has relied upon the decision reported in Supreme Court
Reports (1963) (Shaligram Vs. Daulat Ram), wherein it has been held as
follows:- That a person who appeared in obedience to the process of a
foreign Court and applied for leave to defend the suit without challenging the
jurisdiction of the Court must be held to have voluntarily submitted to the
jurisdiction of such Court and therefore this decree did not suffer from any
defect which a foreign decree would suffer without such
submission. (underlining added) 7.3. From the facts and circumstances
available in this case whether the conduct of the wife in submitting a written
representation in response to the summons issued can be construed as amounting
to voluntarily submitting herself to the jurisdiction of the Superior Court of
California is to be considered. It is necessary to consider the content of the
written representation sent by the wife. 7.4. By perusal of the response, it is
seen the wife has raised very pertinent issue regarding (a) jurisdiction of the
Foreign Court (b) maintainability of the petition for divorce within one year
of the marriage (c) maintainability of the petition filed by the husband
seeking divorce in a foreign court which lacks jurisdiction, when the wife has
initiated a proceeding for Restitution of Conjugal Right in a competent court
and (d) inability of her to submit herself to the jurisdiction of the superior
court of California. The details are as extracted below:
(a) Issue
regarding jurisdiction:
"
Both spouses are admittedly Hindus and born at Tamilnadu and brought up at
Tamilnadu and their marriage was solemnized in Tamilnadu, India, under the
Hindu rites and Customs. So, if at all the parties wanted to seek any remedy
that should be under the Courts at Tamilnadu and under the HINDU MARRIAGE
ACT." (b) The next issue raised by the wife is with reference to
maintainability of petition for divorce under Section 14 of the Hindu Marriage
Act under which no petition for divorce could be presented within one year of
the marriage. "As per the Hindu Marriage Act, no spouse is entitled to
terminate the marriage within one year from the date of its solemnisation. But
unfortunately, the petitioner herein seeks dissolution of marriage, within one
year, that Too from the Superior Court of California."
(c)
Expressing her anguish that due to distance and financial constraints and lack
of legal knowledge that she will not be able to come to California to contest
the case she would state thus:- Further, the respondent is a poor helpless
lady and she is unable to meet out her basic needs without the support from her
kins. Under such circumstances, how is it possible to the respondent to come
over to California and contest the case. The respondent did not know the
existing law at California and the procedure is being adopted at the Superior
Court California, Family Division. As a law abiding citizen she is hereby
communicated her response to the Hon'ble Court's notice. If, the petitioner is
a citizen of California, and he is entitled to file a petition for Dissolution
of Marriage at California he should reveal the same to the respondent herein
before the solemnisation of marriage. Without disclosing such material things
to a poor woman and married her and deserted her is not only SIN but also
amount to cheating. (d) After expressing the social stigma faced by the
Indian Women, as a divorcee, the respondent has conveyed the message that she
has already moved the Indian Courts for restitution of conjugal rights. It is
stated as follows:- The respondent further submits that, she has filed a
petition under Section 9 of the Hindu Marriage Act, for Restitution of Conjugal
Right before the 1 Additional family Court at Chennai, Tamilnadu, India, in
Hindu Matrimonial Original Petition No.383 of 2000 and the same is posted to
4th May 2000 for the appearance of the petitioner herein (let, the petitioner
herein may treat this as Notice to him for his appearance in H.M.O.P.383 of
2000 on 4th May 2000) 7.5. Whether the contents of the
communication/response sent by the Wife can be construed as amounting to
submitting herself to the jurisdiction of California Court is the issue to be
decided. The meaning of the word "submit" as downloaded from
the site www.thefree dictionary.com is as follows: "1. To yield or
surrender (oneself) to the will or
authority
of another.
2. To
subject to a condition or process.
3. To
commit (something) to the consideration or
judgment
of another.
4. To
offer as a proposition or contention: I submit
that the
terms are entirely unreasonable."
If the
written submissions are considered then it would be evident that the wife has
offered a proposition challenging the very jurisdiction of the court for
consideration. It will not amount to submitting herself to the jurisdiction of
the court. 7.6. What is crucial is that the wife has challenged jurisdiction of
the Foreign Courts. Only, if a party applies for leave to participate in the
proceedings without challenging the jurisdiction one can infer that the party
has submitted to the jurisdiction of the Court. But, in this case, the wife on
receipt of summons has challenged the jurisdiction of the Foreign Court. While
so challenging the wife has categorically stated that due to financial and
legal constraints her access to justice has been denied. The contents of
written submissions made by the wife to the Superior Court of California itself
would clearly go to show that the respondent/wife neither wanted to participate
in the proceedings nor subjected herself to the jurisdiction of the Foreign
Court, either voluntarily or involuntarily. Under such circumstances, the
contention that she has submitted herself to the jurisdiction of the Foreign
Court cannot be accepted.
8. The
issues discussed above will go to show that the suit filed challenging judgment
passed by the Superior Court of California by the wife is perfectly
maintainable. The order passed by the Family Court is in accordance with well
settled principles and the materials on records. Therefore, the appeal has no
merits and is liable to be dismissed.
9. In the
result, the appeal filed by the appellant/husband is dismissed with costs. The
judgment and decree passed by the 1st Additional Family Court is confirmed.
__________________________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________________________
IN THE HIGH COURT OF DELHI AT
NEW DELHI
Date
of decision: 25th January, 2012
+
CRL.M.C. 3845/2010
% DR.
MEENA CHAUDHARY
@ DR.
MEENA P.N. SINGH ..... Petitioner Through: None.
Versus
BASANT
KUMAR CHAUDHARY & ORS. ..... Respondents Through: Mr. Atul Jha, Adv.
CORAM
:-
HON'BLE
THE ACTING CHIEF JUSTICE
HON'BLE
MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV
SAHAI ENDLAW, J.
1.
This petition has been preferred under Article 227 of the Constitution of India
read with Section 482 of the Criminal Procedure Code (Cr.P.C.) impugning the
order dated 26.08.2010 of the learned Metropolitan Magistrate dismissing the
complaint under Section 200 of the Cr.P.C. filed by the petitioner of offence
under Section 120-B read with Section 494 and Section 498A of the Indian Penal
Code (IPC). This petition was listed before the learned Single Judge on
10.12.2010 when the CRL.M.C. 3845/2010 Page 1 of 8 petitioner appearing in
person sought adjournment. The petitioner had also filed LPA No.64/2009 and
contempt case No.C-386/2010. The petitioner on 03.05.2011, while appearing
before the Division Bench in LPA No.64/2009 sought consolidation of the
contempt petition as well this petition with the LPA and the matter was
accordingly placed before Hon'ble the Chief Justice who vide order dated
22.05.2011 directed that the contempt petition as well as this petition be
placed before the same Division Bench before which the LPA was pending. It is
for this reason that the matter is before us. We may also notice that though
the LPA and the contempt petition have since been disposed of but the
petitioner appearing in person stated that rather than sending back this
petition to the learned Single Judge, we only should hear the same. In view of
the said request and for the reason that by doing so, the petitioner is not
being deprived of any remedy had the matter been considered by the learned Single
Judge, we proceeded to hear the petitioner. The petitioner sought and was
granted liberty to file written arguments which have also been filed.
CRL.M.C.
3845/2010 Page 2 of 8
2.
The learned Metropolitan Magistrate after recording the statements of the
petitioner and her witnesses held no case for summoning of the accused /
respondent to have been made out for the reason of the petitioner herself
having obtained decree of dissolution of her marriage with the respondent from
the Court in U.K. and the respondent having so ceased to be the husband of the
petitioner there being no question of his being guilty of the offence of bigamy
under Section 494 of the IPC or of causing cruelty to the petitioner as wife
under Section 498-A of the IPC. Qua the offence under Section 498-A of the IPC,
reliance was also placed on the status report submitted by the police and on
the petitioner having failed to make out any case of cruelty.
3.
The argument of the petitioner before us, orally as well as in writing, is that
the divorce decree obtained by her in U.K. being not a valid decree and hence
not bringing to an end the relationship of husband and wife between the
petitioner and the respondent. Reliance in this regard is placed on Smt. Satya
Vs. Shri Teja Singh (1975) 1 SCC 120 and on Y. Narasimha Rao Vs. Y. Venkata
Lakshmi (1991) 3 SCC 451. The CRL.M.C. 3845/2010 Page 3 of 8 Supreme Court in
both Smt. Satya and Y. Narasimha Rao (supra) was faced with a situation of the
husband setting up a decree of a foreign Court of dissolution of marriage as a
defence to the claim / charge of the wife in the Indian Courts for maintenance
or of bigamy. In both cases, the husband was found to have obtained the decree
of foreign Court fraudulently.
4.
The situation here is however converse. It is the petitioner herself who had
obtained the decree from the foreign Court of dissolution of marriage and who
now wants our Courts to ignore the same. Obviously, no case of the foreign
decree having been obtained fraudulently can be said to exist in this scenario.
Rather the said foreign decree was at the sole initiative of the petitioner
with the respondent having no role in the same and having not even contested
the same. The question which arises is, can the petitioner, who by obtaining
the said decree led the respondent to believe that his marriage with the
petitioner stood dissolved and that he was free to remarry, can now be
permitted to challenge the foreign decree obtained herself and charge the
respondent with the offence of bigamy. In CRL.M.C. 3845/2010 Page 4 of 8 our
opinion, no and the complaint has been rightly dismissed by the learned
Metropolitan Magistrate. As far back as in Asanalli Nagoor Meera Vs. K.M. Madhu
Meera MANU/TN/0707/1925, a division bench of the Madras High Court held that a
litigant cannot be allowed to deny the jurisdiction which he himself invoked.
The same principle was recently applied by a Single Judge of the same Court in
Ms. Dorothy Thomas Vs. Rex Arul MANU/TN/2876/2011 in near similar facts.
5. We
may also notice that under Section 13 of CPC a foreign judgment is conclusive
as to any matter thereby directly adjudicated upon between the same parties
except in cases specified thereunder. However the right if any to contend that
the said foreign judgment is not conclusive can be only of the party who had
himself / herself / itself not initiated the process of obtaining the said
judgment and cannot be of a party at whose instance such foreign judgment has
been obtained. No litigant can be allowed to abuse the process of the Courts or
to approbate and reprobate as per convenience. Mention at this stage may also
be made of the finding recorded by the learned Metropolitan Magistrate and not
disputed before us CRL.M.C. 3845/2010 Page 5 of 8 that the petitioner in the
disputes with her siblings before another Indian Court sought to justify her
claim by contending herself to be a divorcee by virtue of the said foreign
judgment.
6.
Thus, whichever way we may look, we cannot find any error in the order of
dismissal of the complaint aforesaid. We had also called for the records of the
Court of the Metropolitan Magistrate and have perused the pre-summoning
evidence led by the petitioner. The petitioner had deposed that she was in U.K.
from 1993 to 1999. She has not even whispered, alleged or made out any case of
any of the grounds for the foreign judgment of dissolution of her marriage with
the respondent being not conclusive. For the said foreign judgment to be not
conclusive, the petitioner was required to make out a case of the same being
either pronounced by a Court having no jurisdiction and / or having been not
given on the merits of the case or being founded on an incorrect view of
international law or the proceedings resulting therein being opposed to natural
justice or having been obtained by fraud or sustaining a claim founded on a
breach of any law in force in India. Moreover all the grounds CRL.M.C.
3845/2010 Page 6 of 8 specified in Section 13 of the CPC and on establishment
whereof a foreign judgment can be said to be not conclusive are such which can
be set up only by a party not himself/herself/itself approaching the foreign
Court. The judgments cited by the petitioner cannot be read as laying down and
indeed do not lay down any absolute principle that a marriage under the Hindu
Marriage Act, 1955 cannot be dissolved by a foreign Court. Here the petitioner who is
challenging the judgment was at the relevant time resident for a fairly long
time within the jurisdiction of the foreign Court, did not approach the foreign
Court under the dictates of the respondent and made out a case before the
foreign Court for obtaining the judgment. Indeed in Y. Narasimha Rao (supra)
itself the Supreme Court held matrimonial action filed in the forum where the
wife is domiciled or habitually and permanently resides or where the wife
voluntarily and effectively submits to the foreign jurisdiction or where the
wife consents to the grant of the relief by the foreign Court although the
jurisdiction of the foreign Court is not in accordance with the provisions of
the Matrimonial Law of the parties, to be valid and the judgment of such
foreign Court to be conclusive. We, therefore, do not find any merit in this petition. CRL.M.C.
3845/2010 Page 7 of 8
7.
Before parting with the case, we may observe that though the order of the
Metropolitan Magistrate of dismissal of complaint is under Section 203 of the
Cr.P.C. and is challengeable by way of Revision Petition under Section 397 read
with Section 401 of the Cr.P.C. but since the matter had remained pending
before this Court, though in the circumstances aforesaid for considerable time,
we did not deem it appropriate to reject this petition on the said ground.
The
petition is accordingly dismissed. No order as to costs. RAJIV SAHAI ENDLAW, J
ACTING
CHIEF JUSTICE
JANUARY
25, 2012
