DIVORCE DECREE PASSED BY A FOREIGN COURT

DIVORCE DECREE PASSED BY A FOREIGN COURT

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DIVORCE DECREE PASSED BY A FOREIGN COURT
DIVORCE DECREE PASSED BY A FOREIGN COURT

Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.

Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi and Anr.

(1991) 3 SCC 451, [1991] 2 SCR 821

Hon’ble Judges/Coram: P.B. Sawant and J Ranganath Misra, C.J.

Decided on: 09.07.1991

FACTS:-

The appellant and the respondent were married 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 the 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 the 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.

On 2nd November 1981 the appellant husband married. Thereafter, the 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. The respondent preferred a Criminal Revision Petition before the High Court which set aside the order of the Magistrate. Therefore, the Appellant preferred present appeal.

ISSUE:-

Whether decree passed by the foreign court to dissolve the marriage of the Appellant can be made enforceable or not?

JUDGMENT:-

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.

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. 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, and 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 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 are 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 beginning 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.

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.

On an analysis and interpretation of Section 13 of CPC, 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.

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.

HELD:-

Decree passed by the foreign court is not enforceable as irretrievable breakdown of marriage is not one of the grounds mentioned in the Act to dissolve the marriage. Moreover, neither the marriage nor the respondent resided within the jurisdiction of the court which passed the judgment, resulting in the lack of jurisdiction.

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