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.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: April 22, 2013
PRITAM ASHOK SADAPHULE
versus
HIMA CHUGH
CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL
1. By this revision petition challenge has been made to order dated 22nd
September, 2011 passed by the ld.Addl. District Judge-1, New Delhi
District, Patiala House Courts, New Delhi in HMA No.15/2011 whereby
the application of the petitioner/husband under section 13 of the CPC has
been dismissed.
2. Briefly the facts relevant for the disposal of the present petition are as
under:-
The parties met each other in England in the year 2004 and developed
liking for each other. On 5th March, 2005, both got married at New Delhi.
After about one week of marriage, they went back to England on 12th March,
2005. With the passage of time, disputes and differences arose between
them as a result of which they could not live together. In September, 2009,
respondent/wife had lodged a complaint of domestic violence, cruelty and
assault against the petitioner/husband in Ilford Police Station, England. It is
alleged that respondent/wife also invoked the jurisdiction of UK Family
Court (Brentford County Court) for Non-Molestation and Occupation order CRP 148/2011 Page 2 of 10
in September, 2009. Thereafter, she had come back to India in December,
2009. In March, 2010, respondent/wife lodged FIR against the
petitioner/husband, his parents and family members being FIR no.46/2010
under Section 498-A/34 IPC, P.S. Tilak Nagar, Mumbai. Petitioner/husband
has filed a petition for quashing of aforesaid FIR which is pending disposal
before the Bombay High Court.
3. In December, 2010, petitioner/husband had filed a divorce petition
before the Ilford County Court in UK for dissolution of marriage by a decree
of divorce on the ground that the respondent had misbehaved with him and
that he could not reasonably be expected to live with her. It is alleged that
respondent was served with the divorce petition on 19th November, 2010.
4. On 21st December, 2010, respondent/wife had filed a suit being Civil
Suit (OS) No.2610/2010 before this court praying for a grant of decree of
permanent injunction against the petitioner for continuing with the divorce
petition before the court in UK. During the pendency of aforesaid divorce
petition, respondent had filed a complaint before learned MM, Dwarka, New
Delhi under The Protection of Women from Domestic Violence Act, 2005.
The same was dismissed on 24th December, 2010 by the concerned ld.MM,
as not maintainable. Respondent filed an appeal against the said order
which was dismissed vide order dated 28.3.2011.
5. The respondent/wife also filed a petition under section 13(1)(ia) of the
Hindu Marriage Act i.e. HMA No.15/2011 in February, 2011 praying for
dissolution of marriage with petitioner on the ground of cruelty which is
pending disposal before learned Addl. District Judge, Delhi.
6. The ld. Ilford County Court in UK had passed a Decree Nisi on 9th
May, 2011 stating therein that marriage between the parties has been broken CRP 148/2011 Page 3 of 10
down irretrievably and ordered that the said marriage be dissolved unless
sufficient cause be shown within six weeks as to why the same be not made
“absolute”. A copy of the said decree was placed by the petitioner before
the ld.Addl. District Judge, New Delhi on 10th June, 2011 hearing HMA
15/2011. Respondent filed a detailed representation before the Ld. Ilford
County Court in UK on 15th June, 2011 opposing making the divorce decree
absolute. However, the decree passed by the Ilford County Court was made
„absolute‟ on 21st June, 2011. Thereafter, in July, 2011 an application under
section 13 of CPC was filed by the petitioner for dropping the divorce
proceedings against him on the ground that marriage between the parties has
already been dissolved by a decree of divorce by Ilford County Court in
U.K., as such divorce petition filed by respondent/wife has become
infructuous. Reply was filed by the respondent to the aforesaid application
contending therein that decree of divorce passed by the foreign court is not
recognised in Indian Law. It was further stated that the ground on which
the foreign court had dissolved the marriage i.e., irretrievable breakdown
was no ground for dissolution of marriage under the Hindu Marriage Act, as
such, the said decree cannot be recognised in India.
7. After considering the contentions of the parties, the learned trial court
relying on the judgment in Y Narashimha Rao & ors vs. Y.Venkata
Lakshimi & another: (1991) 3 SCC 451, has dismissed the said
application.
8. Aggrieved with the same, present petition is filed.
9. Learned counsel for the petitioner has contended that respondent-wife
has not obtained any declaration from a competent court declaring the
foreign decree of divorce as null and void, as such, same cannot be treated CRP 148/2011 Page 4 of 10
as a nullity by the ld.trial court. In support of his contention, learned
counsel has relied upon the judgment of this court in Harbans Lal Malik vs.
Payal Malik 171 (2010) DLT 67. It is further contended that respondent was
served with summons issued by the Ilford County Court on 19th November,
2010 and she also made a representation there. In these circumstances, it
cannot be said that she has not subjected herself to the jurisdiction of the
said court. It is further contended that participating or not participating
before the foreign court by the respondent is immaterial. The exceptions are
given in Section 13 of CPC as to when a foreign judgment is not conclusive
and binding. It is contended that in the present case none of the exceptions
as stated therein exist.
10. On the other hand, learned counsel for the respondent has contended
that present petition is liable to be dismissed inasmuch as the petitioner
seeks to enforce a decree of divorce granted by a foreign court which is not
recognised in India and it would be opposed to public policy if the said
decree is afforded any recognition. It is contended that the sole ground of
the petitioner hinges on averring that respondent should have obtained
declaration from a competent court declaring the foreign decree as null and
void. It is contended that petitioner is misleading the court inasmuch as
petitioner himself made a voluntary statement before the ld.trial court that he
would be filing an application under section 13 of the CPC and thereafter
had moved the said application which was ultimately rejected and now the
petitioner cannot turn around and contend that respondent should have
approached the competent court seeking declaration of foreign divorce
decree as null and void.
11. Learned counsel for the respondent has contended that judgment of CRP 148/2011 Page 5 of 10
the Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi
(supra) is clearly applicable to the facts of the present case. It is contended
that foreign divorce decree was an ex parte decree wherein respondent
could not contest. The said decree is not recognised in India, as such,
petitioner is not entitled for any relief.
12. The Supreme Court in Y Narsimha Rao and ors v Y.Venkata
Lakshmi (supra) declined to give its imprimatur to foreign decree which
did not take into consideration the provisions of Hindu Marriage Act under
which the parties were married. The Supreme Court while interpreting
Section 13 of CPC has held that unless the respondent voluntarily and
effectively submitted to the jurisdiction of the foreign court and contested
the claim which is based on the grounds available in the matrimonial law
under which the parties were married, the judgment of the foreign court
could not be relied upon. The relevant portion of the judgment of the
Supreme Court is reproduced as under:-
“12. We believe that the relevant provisions of
Section 13 of the Code are capable of being interpreted to secure
the required certainty in the sphere of this branch of law in
conformity with public policy, justice, equity and good
conscience, and the rules so evolved will protect the sanctity of
the institution of marriage and the unity of family which are the
corner stones of our societal life.
Clause (a) of Section 13 states that a foreign judgment
shall not be recognised if it has not been pronounced by a court
of competent jurisdiction. We are of the view that this clause
should be interpreted to mean that only that court will be a court
of competent jurisdiction which the Act or the law under which
the parties are married recognises as a court of competent
jurisdiction to entertain the matrimonial dispute. Any other court CRP 148/2011 Page 6 of 10
should be held to be a court without jurisdiction unless both
parties voluntarily and unconditionally subject themselves to the
jurisdiction of that court. The expression "competent court" in
Section 41 of the Indian Evidence Act has also to be construed
likewise.
Clause (b) of Section 13 states that if a foreign judgment
has not been given on the merits of the case, the courts in this
country will not recognise such judgment. This clause should be
interpreted to mean (a) that the decision of the foreign court
should be on a ground available under the law under which the
parties are married, and (b) that the decision should be a result of
the contest between the parties. The latter requirement is fulfilled
only when the respondent is duly served and voluntarily and
unconditionally submits himself/herself to the jurisdiction of the
court and contests the claim, or agrees to the passing of the
decree with or without appearance. A mere filing of the reply to
the claim under protest and without submitting to the jurisdiction
of the court, or an appearance in the Court either in person or
through a representative for objecting to the jurisdiction of the
Court, should not be considered as a decision on the merits of the
case. In this respect the general rules of the acquiscence to the
jurisdiction of the Court which may be valid in other matters and
areas should be ignored and deemed inappropriate.
The second part of Clause (c) of Section 13 states that
where the judgment is founded on a refusal to recognise the law
of this country in cases in which such law is applicable, the
judgment will not be recognised by the courts in this country.
The marriages which take place in this country can only be under
either the customary or the statutory law in force in this country.
Hence, the only law that can be applicable to the matrimonial
disputes is the cine under which the parties are married, and no
other law. When, therefore, a foreign judgment is founded on a
jurisdiction or on a ground not recognised by such law, it is a
judgment which is in defiance of the Law. Hence, it is not
conclusive of the matters adjudicated therein and, therefore,
unenforceable in this country. For the same reason, such a
judgment will also be unenforceable under Clause (f) of CRP 148/2011 Page 7 of 10
Section 13, since such a judgment would obviously be in breach
of the matrimonial law in force in this country.
Clause (d) of Section 13 which makes a foreign judgment
unenforceable on the ground that the proceedings in which it is
obtained are opposed to natural justice, states no more than an
elementary principle on which any civilised system of justice
rests. However, in matters concerning the family law such as the
matrimonial disputes, this principle has to be extended to mean
something more than mere compliance with the technical rules of
procedure. If the rule of audi alteram partem has any meaning
with reference to the proceedings in a foreign court, for the
purposes of the rule it should not be deemed sufficient that the
respondent has been duly served with the process of the court. It
is necessary to ascertain whether the respondent was in a position
to present or represent himself/herself and contest effectively the
said proceedings. This requirement should apply equally to the
appellate proceedings if and when they are filed by either party.
If the foreign court has not ascertained and ensured such effective
contest by requiring the petitioner to make all necessary
provisions for the respondent to defend including the costs of
travel, residence and litigation where necessary, it should be held
that the proceedings are in breach of the principles of natural
justice. It is for this reason that we find that the rules of Private
International Law of some countries insist, even in commercial
matters that the action should be filed in the forum where the
defendant is either domiciled or is habitually resident. It is only
in special cases which is called special jurisdiction where the
claim has some real link with other forum that a judgment of
such forum is recognised. This jurisdiction principle is also
recognised by the Judgments Convention of this European
Community. If, therefore, the courts in this country also insist as
a matter of rule that foreign matrimonial judgment will be
recognised only if it is of the forum where the respondent is
domiciled or habitually and permanently resides, the provisions
of Clause (d) may be held to have been satisfied.
The provision of Clause (e) of Section 13 which requires
that the courts in this country will nor recognise a foreign CRP 148/2011 Page 8 of 10
judgment if it has been obtained by fraud, is self-evident.
However, in view of the decision of this Court in Smt. Satya v.
Teja Singh (supra) it must be understood that the fraud need not
be only in relation to the merits of the matter but may also be in
relation to jurisdictional facts.
13. From the aforesaid discussion the following rule can be
deduced for recognising foreign matrimonial judgment in this
country. The jurisdiction assumed by the foreign court as well as
the ground on which the relief is granted must be in accordance
with the matrimonial law under which the parties are married.
The exceptions to this rule may Le as follows: (i) where the
matrimonial action is filed in the forum where the respondent is
domiciled 01 habitually and permanently resides and the relief is
granted on a ground available in the matrimonial law under
which the parties are married; (ii) where the respondent
voluntarily and effectively submits to the jurisdiction of the
forum as discussed above and contests the claim which is based
on a ground available under the matrimonial law under which the
parties are married; (iii) where the respondent consents to the
grant of the relief although the jurisdiction of the forum is not in
accordance with the provisions of the matrimonial law of the
parties.
The aforesaid rule with its stated exceptions has the merit
of being just and equitable. It does no injustice to any of the
parties. The parties do and ought to know their rights and
obligations when they marry under a particular law. They cannot
be heard to make a grievance about it later or allowed to bypass it
by subterfuges as in the present case. The rule also has an
advantage of rescuing the institution of marriage from the
uncertain maze of the rules of the Private international Law of the
different countries with regard to jurisdiction and merits based
variously on domicile, nationality, residence-permanent or
temporary or ad hoc forum, proper law etc. and ensuring
certainly in the most vital field of national life and conformity
with pubic policy. The rule further takes account of the needs of
modern life and makes due allowance to accommodate them.
Above all, it gives protection to women, the most vulnerable CRP 148/2011 Page 9 of 10
section of our society, whatever the strata to which they may
belong. In particular it frees them from the bondage of the
tyrannical and servile rule that wife's domicile follows that of her
husband and that it is the husband's domiciliary law which
determines the jurisdiction and judges the merits of the case.”
13. It is admitted position that both the parties are Indians and marriage
between them was solemnised at New Delhi according to Hindu rites and
ceremonies and both are governed by Hindu Marriage Act, 1955. Their
marriage has been dissolved by Ilford County Court in UK on the ground of
having been broken down irretrievably which is not a ground for divorce
under the Hindu Marriage Act. The Supreme Court in Y.Narasimha Rao
and Ors vs. Y.Venkata Lakshmi and Anr (supra) has already held that
foreign decree of divorce granted on a ground which is not recognized in
India.
14. The contention raised by the petitioner that there should be
declaration from a competent court declaring the foreign decree null and
void has no force as it is the petitioner who had moved an application under
section 13 of CPC praying therein that the petitioner has already obtained a
divorce decree from a foreign court thereby the marriage between the parties
has been dissolved, as such, divorce petition pending before the ld.Addl.
District Judge has become infructuous. Pursuant thereto reply was filed by
respondent/office opposing the said application. While deciding the said
application, the impugned order has been passed.
15. Further the divorce granted by the Ilford County Court in UK is an ex
parte divorce decree. Respondent never submitted herself to the jurisdiction
of the said court. Respondent lodged a representation dated 15.6.2011
before the Ilford County Court informing that she was in India when the CRP 148/2011 Page 10 of 10
divorce petition was filed. She also informed that she was in acute financial
difficulty to come to London to contest the divorce case. She wrote in detail
about her financial condition and also informed that she had already filed a
divorce petition in India. She requested the Ilford County Court not to make
the divorce decree “absolute”. Respondent also filed CS(OS)2610/2010
before this court praying for grant of a decree of permanent injunction
against the petitioner from continuing with the divorce petition before the
court in UK. In these circumstances, it cannot be said that she had
submitted to the jurisdiction of the foreign court.
16. The reliance placed by learned counsel for the petitioner on the
judgment of Harbans Lal Malik vs. Payal Malik (supra), is of no help to
him. The facts of the said case are entirely different. The learned trial court
has also considered the judgment of this court in Harmeeta Singh vs. Rajat
Taneja reported in I(2003) DMC 443 and Mrs.Veena Kalia vs.
Dr.Jatinder Nath Kalia and anr reported as 59(1995) Delhi Law times
635 in coming to the conclusion that decree of dissolution of marriage
granted by the Ilford County Court, Essex, UK cannot be recognised as the
facts of the case fall within the purview of the exceptions of Section 13 of
CPC.
In view of the above discussion, no illegality is seen in the impugned
order which calls for interference of this court. Petition is dismissed.
VEENA BIRBAL, J
APRIL 22, 2013
ssb
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