Foreign Judgments in Context of Matrimonial Disputes

As a part of submission for Internal Assessment for Civil

Procedure Code

4/8/2018

Submitted to :- S R Subramanian

RAJNISH KUMAR 17IP63022

Foreign judgments in context of matrimonial disputes
There is no bigger celebration in a family than a wedding, in India, involving every possible
rituals and social obligations, customs and traditional value, kinship bonds, fervid love and
sentiments and economic resources. In organising and supervising the wedding ceremony, the
complex combinations and permutations of Indian social systems are best at their display.
Marriage is presumed to be virtually essential for everyone in India, the bond made in heaven
and solemnised on earth. Now in modern day world marriage is seen more like a contract
than a holy bond made by God. Therefore, spouses in case of conflict arising in their
matrimonial life and are opting out of wedlock obligations through divorce. The divorce is
possible only when marriages are solemnised as per the law of the land otherwise such
marriages are void or voidable and divorce can be obtained from either foreign or domestic
courts depending on where the couple is domiciled at the time of filing the divorce petition.
The execution of such divorce petitions are governed by Indian Code of Civil Procedure,
1908 (CPC) whether foreign or domestic in India. There are two ways of enforcing foreign
judgment in India, firstly by filing an execution petition under Section 44A of the CPC in
case therein conditions specified are met and secondly by filing a suit upon the foreign
judgment or decree. Under the provision of the Section 44A of the CPC, a decree of any
Superior Courts located in any reciprocating territory are executable as a decree passed by the
domestic courts. Therefore, whenever in case a decree is not from a reciprocating territory or
passed from a superior court of reciprocating territories, as notified in the Official Gazette of
India by Central Government, the said decree is not executable India. In the case where a
decree obtained from court a country which is not reciprocating territory notified in Official
Gazette then a fresh suit will have to be filed in Indian Courts on the ground of previous
decree or judgment, which can be analysed as a ground for the said suit. While litigating
under the fresh suit, the previous suit will be evaluated as evidence against the defendant. But
the fresh suit can only be accepted when the foreign judgments are inconclusive and
consequently unenforceable in India. The inconclusiveness of such decree or judgment is
governed by Section 13 of the Indian Civil Procedure Code and such judgments and decree
becomes unenforceable in the following substances:

 where it has not been pronounced by a Court of competent jurisdiction;

 where it has not been given on the merits of the case;
 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;
 where the proceedings in which judgment was obtained are opposed to natural justice;
where it has been obtained by fraud;
 Where it sustains a claim founded on a breach of any law in force in India.

A foreign decree or judgment can only be conclusive if the above mentioned criteria are fully
satisfied and any matter thereby directly adjudicated between the same parties or between the
parties whom or any of them claim litigating under the same title. After the dissolution of
marriage through foreign court, the litigants should present their case to the district court,
under section 19 of the Hindu Marriage Act, 1955. Each and every petition under this act
shall be presented to the district courts within whose local limits the ordinary original civil
jurisdiction-

I. The marriage was solemnized, or

II. The respondent, at the time of the presentation of petition, resides, or
III. The parties to the marriage last resided together,
IV. In case wife is the petitioner, where she is residing at the date of the presentation of
the petition.

The Apex Court of India, after examining the various laws of the land, international
conventions, has laid down the conditions for acceptability and enforceability of foreign
judgments in India pertaining to divorce. Dissolution of marriage can be scrutinised in India
only if the parties marrying in India under Hindu law and husband/wife has obtained decree
of divorce from foreign court by fraud, misrepresentation of facts, incorrect representation of
judicial facts. And the Husband has neither domiciled nor has any intention of settling
permanently to make foreign state as his home state. But for the purpose for obtaining
divorce, he/she must satisfy the technical requirement of living for 90 days in that particular
nation. Therefore, the Supreme Court of India has observed that Indian courts would not
recognize a foreign judgment if it had been obtained by fraud, which need not be only in
relation to the merits of the matter but may also be in relation to jurisdictional facts or in
violation of any international law or breach of Indian laws and public policy and couple
domiciled in India. The court has also laid down broad principles to be followed by Indian
courts regarding foreign judgments in matrimonial matters through case precedents.

1. Foreign Judgment Obtained By Fraud

 In the leading case of Satya v. Teja Singh[1], where a husband obtained a

decree of divorce against his wife from an American Court averring that he
was domiciled in America. Observing that the husband was not a bonafide
resident or domicile of America, and he had played fraud on a foreign court
falsely representing to it incorrect jurisdictional fact, the Supreme Court held
that the decree was without jurisdiction and a nullity.
 In case of Narsimha Rao v. Venkata Lakshmi[2], A husband obtained a decree
of divorce against his wife B again from an American High Court on the
ground that he was a resident of America. Then he remarried C. B filed a
criminal complaint against A and C for bigamy. A and C filed an application
for discharge. Dismissing the application, the Supreme Court held that the
decree of dissolution of Marriage was without jurisdiction in as much as
neither the marriage was solemnized nor the parties last resided together in
America. It was, therefore, unenforceable in India.
 In the case of Chengalvaraya Naidu v. Jagannath[3], the Supreme Court
stated: “It is the settled proposition of law that a judgment or decree obtained
by playing fraud on the court is a nullity and non est in the eyes of the law.
Such a judgment/decree by the first court or by the highest court has to be
treated as a nullity by every court, whether superior or inferior. It can be
challenged in any court even in collateral proceedings."
 2. Foreign Judgment Founded on Breach of Indian Law

 As per Section 14 of the Indian Civil Procedure Code, the court shall presume
upon the production of any document purporting to be a certified copy of a
foreign judgment, that such judgment was pronounced by a court of competent
jurisdiction, unless the contrary appears on the record, or is proved. However,
if for admissibility of such copy any further condition is required to be
fulfilled, it can be admitted in evidence only if that condition is satisfied. Thus,
in Narsimha Rao v. Venkata Lakshmi[4], the Supreme Court held that mere
production of a Photostat copy of a decree of a foreign court is not sufficient.
It is required to be certified by a representative of the Central Government in
America.
 The case of Anoop Beniwal v. Jagbir Singh Beniwal[5] relates to a
matrimonial dispute between the parties. The facts of the case are that the
plaintiff had filed a suit for divorce in England on the basis of the English Act
that is the Matrimonial Causes Act, 1973. The particular ground under which
the suit was filed was “that the respondent has behaved in such a way that the
petitioner cannot reasonably be expected to live with the respondent.” This
ground is covered by S. 1(1)(2)(b) of the Matrimonial Causes Act, 1973. The
decree was obtained in England and came to India for enforcement. The
respondent claimed that since the decree was based on the English Act, there
was refusal by the English Court to recognise the Indian Law. The Court held
that under the Indian Hindu Marriage Act under S. 13(1)(ia), there is a similar
ground which is “cruelty” on which the divorce may be granted. Therefore the
English Act, only used a milder expression for the same ground and therefore
there was no refusal to recognise the law of India. Thus the decree was
enforceable in India.
 In deciding the case of Shilpa Sachdeva v. Anand Sachdeva[6] Bombay High
Court ruled that a foreign court does not have the jurisdiction to decide
matrimonial matters of a couple who have Indian domicile and are governed
under the Hindu Marriage Act, even if the parties were at the time residing in a
foreign nation. Therefore it was held that the marriage petition filed by the
petitioner wife before the family court could not have been dismissed on the
basis of the Dubai court’s judgement, which is not binding and enforceable in
India.

Conclusiveness of Foreign Judgment

As mentioned above, a foreign judgment is conclusive and will operate as res judicata
between the parties and privies, must not be strangers. It is firmly established that a foreign
judgment can be examined from the point of view of competence but not of errors. In
considering whether a judgment of a foreign court is conclusive, the courts in India will not
require whether conclusions recorded by a foreign court are correct or findings otherwise
tenable. In other words, the court cannot go into the merits of the original claim and it shall
be conclusive as to any matter thereby directly adjudicated upon between the same parties
subject to the exception enumerated in clauses (a) to (f) of Section 13 of Indian Civil
Procedure Code.
Citations

[1] 1975 AIR 105

[2] 1991 SCR (2) 821
[3] 1994 AIR 853
[4] 1991 SCR (2) 821
[5] AIR 1990 Delhi 305
[6] foreign judgment FCA 56-16----2.doc