NRI divorce lawyers

Divorce case can be initiated in India with the help of a general power of attorney holder so that the person seeking divorce does not have to come to India again and again. The biggest problem which Non-Resident Indians (NRI) used to face in divorce cases is that they had to come to India to give evidence to get divorce. Now family courts have got the power to establish their own procedure in divorce cases. Evidence can be given through video-conferencing also, if the judge allows the application to give evidence through videoconferencing. Therefore it has become extremely easy for Non-Resident Indians (NRI) to get divorce in India.

Divorce in India as of two types. One is uncontested divorce which is called mutual consent divorce in India. In mutual consent divorce, both the parties agreed to get divorce from each other. When the case is first heard (that is the first date of hearing) judge asks the parties whether they have finally decided to get divorce from each other. After the parties affirm their decision before the judge, date of six months is given. On the second date of hearing, the judge passes a decree of divorce.

The other type of divorce is contested divorce. In contested divorce, one of the parties seeks the divorce and the other does not want to give divorce. In contested divorce, one party files a divorce case in the court, summons are issued to the second party, second party files reply the court, issues are framed, evidence is led by both the parties, arguments of both the parties are heard by the judge and then a final decision is given. Under Hindu Marriage Act, 1955, contested divorce can be sought on the grounds of adultery, cruelty, desertion, conversion to another religion, unsoundness of mind or mental disorder, leprosy or venereal diseases, or if the respondent has renounced the world or has not been heard for seven years or more.

It may be noted that the court always tries to mediate between the parties to resolve the differences and can even send the case to mediation Centre. Parties are not forced to enter into a compromise or to withdraw divorce proceedings. The court merely interferes because in India divorce is not considered a normal situation.

Complete text of The Hindu Marriage Act, 1955 is as following:-

The Hindu Marriage Act, 1955

1. Short title and extent.

(1) This Act may be called the Hindu Marriage Act, 1955. (2) It extends to the whole of India except the State of Jammu and Kashmir , and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

2. Application of Act. —

(1) This Act applies—

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation. —The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:—

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

3. Definitions.-

In this Act, unless the context otherwise requires,—

(a) the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;

(b) “district court” means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction, and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act;

(c) “full blood” and “half blood”— two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives;

(d) “uterine blood”— two persons are said to be related to each other by uterine blood when they are descended from a common ancestress but by different husbands;

Explanation. —In clauses (c) and (d), “ancestor” includes the father and “ancestress” the mother;

(e) “prescribed” means prescribed by rules made under this Act;

(f) (i) “ sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation; (ii) two persons are said to be “sapindas” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;

(g) “degrees of prohibited relationship”— two persons are said to be within the “degrees of prohibited relationship”— (i) if one is a lineal ascendant of the other; or (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or (iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother of the other; or (iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters;

Explanation .—For the purposes of clauses (f) and (g), relationship includes— (i) relationship by half or uterine blood as well as by full blood; (ii) illegitimate blood relationship as well as legitimate; (iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.

4. Overriding effect of Act.-

Save as otherwise expressly provided in this Act,—

(a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.

5. Conditions for a Hindu marriage.-

A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:—

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party— (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity ***;

(iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; ***

6. Guardianship in marriage.
***

7. Ceremonies for a Hindu marriage.-

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.

8. Registration of Hindu marriages.-

(1) For the purpose of facilitating the proof of Hindu marriages, the State Government may make rules providing that the parties to any such marriage may have the particulars relating to their marriage entered in such manner and subject to such conditions as may be prescribed in a Hindu Marriage Register kept for the purpose.

(2) Notwithstanding anything contained in sub-section (1), the State Government may, if it is of opinion that it is necessary or expedient so to do, provide that the entering of the particulars referred to in sub-section (1) shall be compulsory in the State or in any part thereof, whether in all cases or in such cases as may be specified, and where any such direction has been issued, any person contravening any rule made in this behalf shall be punishable with fine which may extend to twenty-five rupees.

(3) All rules made under this section shall be laid before the State Legislature, as soon as may be, after they are made.

(4) The Hindu Marriage Register shall at all reasonable times be open for inspection, and shall be admissible as evidence of the statements therein contained and certified extracts therefrom shall, on application, be given by the Registrar on payment to him of the prescribed fee.

(5) Notwithstanding anything contained in this section, the validity of any Hindu marriage shall in no way be affected by the omission to make the entry.

9. Restitution of conjugal rights.-

*** When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

Explanation. —Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society. ***

10. Judicial separation.-

(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

11. Void marriages.-

Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i) , (iv) and (v) of section 5.

12. Voidable marriages.-

(1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:— (a) that the marriage has not been consummated owing to the impotence of the respondent; or (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978), the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage— (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if— (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied— (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnised before the commencement of this Act within one year of such commencement and in the case of marriages solemnised after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.

13. Divorce. —

(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—

(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation .—In this clause,—

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or

(iv) has *** been suffering from a virulent and incurable form of leprosy; or

(v) has *** been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; ***

Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly. ***

(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground—

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of [one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,—

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation. —This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).

13A. Alternate relief in divorce proceedings.-

In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

13B. Divorce by mutual consent. —

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

14. No petition for divorce to be presented within one year of marriage.-

(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:

Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.

(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.

15. Divorced persons when may marry again.-

When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again. ***

16. Legitimacy of children of void and voidable marriages.-

(1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

17. Punishment of bigamy.-

Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.

18. Punishment for contravention of certain other conditions for Hindu marriage.-

Every person who procures a marriage of himself or herself to be solemnised under this Act in contravention of the conditions specified in clauses (iii), (iv), and (v) of section 5 shall be punishable—

(a) in the case of contravention of the condition specified in clause (iii) of section 5, with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees, or with both; (b) in the case of a contravention of the condition specified in clause (iv) or clause (v) of section 5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both; *** ***

19. Court to which petition shall be presented.-

Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction—

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii) the parties to the marriage last resided together, or

(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

20. Contents and verification of petitions. —

(1) Every petition presented under this Act shall state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and, except in a petition under section 11, shall also state that there is no collusion between the petitioner and the other party to the marriage.

(2) The statements contained in every petition under this Act shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.

21. Application of Act 5 of 1908.-

Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.

21A. Power to transfer petitions in certain cases.-

(1) Where— (a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13; and (b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State, the petitions shall be dealt with as specified in sub-section (2).

(2) In a case where sub-section (1) applies,— (a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court; (b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.

21B. Special provision relating to trial and disposal of petitions under the Act. —

(1) The trial of a petition under this Act shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion unless the court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

(2) Every petition under this Act shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of service of notice of the petition on the respondent.

(3) Every appeal under this Act shall be heard as expeditiously as possible, and endeavour shall be made to conclude the hearing within three months from the date of service of notice of appeal on the respondent.

21C. Documentary evidence.-

Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence in any proceeding at the trial of a petition under this Act on the ground that it is not duly stamped or registered.

22. Proceedings to be in camera and may not be printed or published. —

(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.

(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees.

23. Decree in proceedings .—

(1) In any proceeding under this Act, whether defended or not, if the court is satisfied that—

(a) any of the grounds for granting relief exists and the petitioner except in cases where the relief is sought by him on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of section 5 is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and

(b) where the ground of the petition is the ground specified *** in clause (i) of sub-section (1) of section 13, the petitioner has not in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of the petition is cruelty the petitioner has not in any manner condoned the cruelty, and

(bb) when a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and

(c) the petition (not being a petition presented under section 11) is not presented or prosecuted in collusion with the respondent, and

(d) there has not been any unnecessary or improper delay in instituting the proceeding, and

(e) there is no other legal ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

(2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties: Provided that nothing contained in this sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in clause (ii), clause (iii), clause (iv), clause (v), clause (vi) or clause (vii) of sub-section (1) of section 13.

(3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.

23A. Relief for respondent in divorce and other proceedings.-

In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’s adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking such relief on that ground.

24. Maintenance pendente lite and expenses of proceedings.-

Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable: Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.

25. Permanent alimony and maintenance.-

(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall *** pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant , the conduct of the parties and other circumstances of the case, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.

26. Custody of children.-

In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made: Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

27. Disposal of property.-

In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

28. Appeals from decrees and orders.-

(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub-section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(2) Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.

(3) There shall be no appeal under this section on the subject of costs only. (4) Every appeal under this section shall be preferred within a period of ninety days from the date of the decree or order.

28A. Enforcement of decrees and orders.-

All decrees and orders made by the court in any proceeding under this Act shall be enforced in the like manner as the decrees and orders of the court made in exercise of its original civil jurisdiction for the time being are enforced.

29. Savings.-

(1) A marriage solemnised between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste.

(2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.

(3) Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed. (4) Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage Act, 1954 (43 of 1954) with respect to marriages between Hindus solemnised under that Act, whether before or after the commencement of this Act.

30. Repeals.
***

Important divorce judgments for Non Resident Indians (NRI):-

Rupak Rathi vs Anita Chaudhary

RAJIV NARAIN RAINA, J.

This is a rather strange and awkward case to deal with. The petition has been filed under Article 227 of the Constitution of India challenging the order dated 5th April, 2013 passed by the learned District Judge, Panchkula declining an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (‘CPC’ for short) filed by Rupak Rathi in a divorce petition instituted by his wife Anita Chaudhary under Section 13 of the Hindu Marriage Act, 1955 (‘HMA’) praying for dissolution of marriage. Nevertheless, the issues involved have a wide import on other cases of the kind with serious ramifications on the applicability of the last of the three exceptions carved out by the Supreme Court in Y.Narasimharao and others v. Y. Venkata Lakshmi and another; (1991) 3 SCC 451 in para. 20 of the ruling on recognition of foreign matrimonial decrees sought to be enforced in India and where the three exceptions for the first time have been carved out from the basic rule that the jurisdiction assumed by the foreign Court as well as the grounds on which the relief is granted by a foreign court must be in accordance with the matrimonial law under which the parties are married. I would come to those three exceptions and especially exception (iii) in the course of the discussion on which the fate of this case turns, but not before noticing a few seminal facts which are not disputed by the parties and which would influence later events as they happened, impacting the view ultimately taken in concluding this case.

2. The complexity of the matter has arisen from divorce proceedings instituted by Rupak Rathi, husband of Anita Chaudhary, the respondent in this petition, in Brentford County Court (‘BCC’ for short) in the United Kingdom on 17th March, 2011. While those proceedings were pending, Anita Chaudhary filed a divorce petition in the Court of the learned District Judge, Panchkula through her father holding her general power of attorney to file a petition under Section 13 of the HMA on her behalf on the ground of cruelty practiced by Rupak Rathi upon her. The pendency of the proceedings in the English Court is duly mentioned in the divorce petition instituted on 17th May, 2011. In such circumstances, both the proceedings ran parallel for sometime, the first concluding in a decree of divorce in the English court on 31st January, 2012. The other is from which the present petition arises.

3. The decree nisi was passed by the BCC on 7th June, 2011 and made absolute on 31st January, 2012 vide P-7. It may be noted that the decree nisi was passed by the BCC on the ground that the marriage of the parties had broken down irretrievably. The proceedings were concluded without any adjudication on the merits of the case. Rupak Rathi calls it a consent order. He made use of the decree of divorce secured before the English Court in the presence of Anita Chaudhary, who then indisputably was living in her temoprory matrimonial home in the United Kingdom, and approached the matrimonial court at Panchkula through an application of 18th July, 2012 under Order VII Rule 11 CPC praying for rejection of the divorce petition on the ground that the UK divorce decree passed on 31st January, 2012 was binding between the parties. Therefore, the divorce petition filed by the wife on grounds of cruelty was barred by the principles of both res judicata and estoppel and the learned District Judge, Panchkula had no jurisdiction to entertain the divorce petition as the matter inter-parties stood settled by the English decree. The application was contested by Anita Chaudhary by filing a reply alleging that the BCC had no jurisdiction to pass the decree of dissolution of marriage on the impermissible ground of irretreivable breakdown of marriage not available in HMA and further still, that both the parties are domiciled in India and are governed by the Hindu law under which they were married in Panchkula in the State of Haryana, India on 7th March, 2010.

4. A few more relevant facts are necessary for the narration of events overarching the case. After the couple were married in Panchkula according to Hindu rites and ceremonies, they re-located in the United Kingdom in September, 2010 and set up matrimonial home in the foreign jurisdiction. The marriage did not last long and turned sour. Kumar Paritosh 2014.04.09 15:34 I attest to the accuracy and integrity of this document CR-3130-2013 (O&M)

5. The ensuing matrimonial discord led Rupak Rathi to file for divorce in BCC on 17th March, 2011 on the ground that the marriage had irretrievably broken down. In para. 13 of the petition presented in the English Court, the husband alleged in sub para. 4 that throughout the marriage and whilst in United Kingdom, the respondent wife has had an improper relation with a man, namely, the landlord of the property where the parties resided as tenants. This had caused the petitioner great hurt. The BCC following its local law and procedure in matrimonial actions, issued a Certificate of Entitlement to a decree on the petition on account of irretrievable breakdown of marriage as a ground for divorce by issuing such certificate on 19th May, 2011. On 7th July, 2011, the BCC issued decree nisi holding that the marriage had broken down irretrievably and called upon the parties to show sufficient cause in six weeks as to why the decree be not made absolute. In the Ancillary Relief Application filed before the BCC, an order was made on 18th October, 2011 staying the application for decree absolute until final orders were passed in the aforesaid application. When the matter was taken up on 31st January, 2012 before the BCC, the Minutes of Consent Order on ancillary relief application, were decided in directing that it is “ordered by consent subject to decree absolute”.

6. In the meantime, Rupak Rathi filed an application on 8th December, 2011 requesting BCC to consider issuing an order that the consent order and the decree absolute be endorsed and signed by the Judge for it to be used in foreign jurisdictions. This request was made in para. 3 of part-3 of the application. The Minutes of Consent Order in laminated form are produced at page 76 of the paperbook. An order was made in the printed format of Minutes of Consent Order with pen noting that “Applicant’s Application of 08.12.11 at Paragraph 3 Part-3 is Hereby Dismissed”. It may be noted that in the intervening period between the issuance of the Minutes of Consent Order and making the decree nisi absolute, parties according to English law were given time to settle ancillary matters between the parties to crease out issues of custody, property, inheritance, pension, welfare reforms etc. and for them to arrive freely at mutual settlements. The issue of custody does not arise in this case as no child was born of the marriage. It is not discernible from the record as to what transpired in the intereggnum but the decree was made final and absolute and the said marriage was thereby dissolved on 31st January, 2012 for the reason of irretrievable breakdown of marriage. It was also, in the Certificate of Entitlement, the laminated copy of which is placed on record at page 73 of the paperbook (P-7), recorded by the BCC that the Court certifies that the petitioner (Rupak Rathi) has sufficiently proved the contents of the petition and is entitled to a decree of divorce on the grounds that the marriage has irretrievably broken down. The fact found proved being the respondent’s unreasonable behaviour. Nevertheless, it may be further noted that on 7th June, 2011 the Deputy District Judge Gittens sitting at BCC held on 7th June, 2011, while issuing decree nisi, that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. This appears to me to be inter alia a bone of contention as conclusion was reached without any reasons recorded after contest. I should record that when the decree was made absolute on 31st January, 2012, Anita Chaudhary was a signatory to the orderin which the specific prayer of Rupak Rathi to allow the decree absolute to be used in foreign jurisdictions was rejected as prayed for by the husband on 18th December, 2011. However, it is not possible to comment any further on Certificate of Entitlement to a decree of divorce dated 19th May, 2011 and the order dated 7th June, 2011 as produced in this petition in the original with the stamp of BCC. These are the facts leading to the decree made absolute by the English Court.

7. Two days before the English Court issued the certificate of entitlement to a decree on 19th May, 2011, Anita Chaudhary, acting through her father, had already instituted a divorce proceedings before the Matrimonial Court at Panchkula on 17th May, 2011 when notice was issued to the respondent-Rupak Rathi. The present petition was filed before this Court by Rupak Rathi as seen from the stamps of the Registry dated 13th May, 2013. It was re-filed on 15th May, 2013. The matter came up, for the first time for hearing on 16th May, 2013 when the learned counsel for the petitioner made a request to place on record the certified copy of the order and the decree passed by the Court in England. The matter was adjourned to 3rd July, 2013 for the purpose. On 3rd July, 2013, after arguing before the Bench for sometime, counsel sought an adjournment to show that the Court in England which passed the decree (P-7), dissolving the marriage between the parties had jurisdiction to pass the said decree. The matter was adjourned to 15th July, 2013. On 15th July, 2013, the counsel for the petitioner sought further adjournment to search relevant case law in support of the case, for which reason last opportunity was granted, and the matter stood posted for 29th July, 2013. On the next date of hearing, the learned counsel relied upon the decision of the Supreme Court in Y.Narasimha Rao’s case (supra) contending that the respondent had consented to divorce in the foreign Court and the parties were residing within the jurisdiction of the foreign Court and therefore the judgment and decree passed by BCC dissolving the marriage between the parties by divorce is binding on the parties. On this submission, notice of motion was issued for 20th September, 2013. The respondent on due service appeared before this Court on 20th September, 2013. When the matter came up for hearing on 31st January, 2014 and sensing the far reaching consequences of the case, this Court requested Mr. Malhotra, an Advocate of this Court to act as amicus curiae since he is well versed with subject matter law on matrimonial actions arising out of the decrees passed by foreign Courts and as to the nature and scope of their binding effect on an Indian Court since he has co-authored books on the subject, including “Acting for Non-resident Indian Clients” (London 2005), Jordan Publishing Limited, Bristol, UK and “India, NRIs and the Law”, Universal Law Publishing Company, New Delhi, 2009. Both the learned counsel graciously accepted the presence of Mr.Malhotra to assist as a neutral amicus principally for elucidation and the interpretation of Y.Narasimha Rao with respect to exception (iii) carved out for the guidance of Indian Courts therein by the Supreme Court and its applicability to the case at hand.

8. Learned amicus curiae has presented his submissions in writing together with a compendium of judgments on the subject which were taken on record on 17th February, 2013. Hard copies of the same were supplied to both the learned counsel appearing for the parties and soft copies were sent through e-mail as directed on 7th March, 2014. Since the application filed in the BCC, U.K. praying for allowing the decree in foreign jurisdictions was rejected but was not on record, counsel was requested to place the same on record to help the court to take a view at the final hearing. The arguments were heard at length on all sides and the judgment was reserved on 13th March, 2014 which are being pronounced today.

9. At the outset, the learned counsel informed the Court that since no stay was granted in the present proceedings against the order declining the application under Order VII Rule 11 CPC, the proceedings continued and have reached culmination, meaning thereby, the evidence stands recorded. Since Mr.J.S. Bedi, learned counsel appearing for the petitioner has insisted that he wants a decision on the law involved on the application under Order VII Rule 11 CPC and to test the correctness of the order impugned rejecting the aforesaid application, and that this Court should remain free to opine not only on the application under Order VII Rule 11 CPC but on the legal issues arising out of interpretation of the exceptions carved out in para. 20 of Y.Narasimha Rao and to lay the matter at rest between the parties without touching upon the merits of the case, I have taken up the matter for due consideration of the issues involved. However, one thing is certain that both the parties want divorce; one, on the ground of the binding nature of the divorce decree granted by the BCC, U.K. on the Indian Court, while the wife presses her petition under Section 13 of the HMA on the grounds available therein which does not include as at present, irretrievable break down of marriage as a ground of divorce under the Hindu marriage law. In view of the submissions pressing decision, this Court cannot possibly hold that culmination of evidence before the learned Matrimonial Court at Panchkula renders the present petition only an academic exercise. Therefore, I venture to express an opinion on the subject matter in the peculiar facts of this case. The view of the learned District Judge in dismissing the application under Order VII Rule 11 CPC.

10. Before I deal with the case law on the subject, it would not be out of place to examine the view broadly of the learned District Judge, Panchkula in passing the impugned order but before I do so, a few words on the defence taken by Rupak Rathi in the Panchkula Court praying for dismissal of the divorse petition instituted by his wife would be in order and are thus briefly outlined. In the application suplemmented by written arguments submitted before the Matrimonial Court at Panchkula, it was stated that the petition is not maintianable and is barred by the law of res judicata and the principle of estoppel by conduct. Section 11 of the Code of Civil Procedure was pressed into service to contend that no Court shall try any suit or any issue in which the matter directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court shall be agitated. It is urged that the UK decree was passed in the presence of the wife and with her consent. The claims between the parties are taken to be settled before the decree nisi was made absolute. It is submitted that the wife could have availed remedy against the order dated 7th June, 2011 passed by the Deputy District Judge Gittens adversely commenting on the behaviour of the respondent being such that the petitioner cannot reasonably be expected to live with her. That order is final and binding. I may record here that the adverse comment did not flow from findings of fact recorded through adversarial adjudication before BCC.

11. It was further contended that the law in India is crystal clear regarding the applicability of a foreign judgment or the conclusiveness of a foreign judgment as prescribed under Section 13 CPC. Section 13 reads as follows : –

“Section 13–When Foreign Judgment not conclusive: A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same 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 recognise 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].”

12. On the strength of these provisions, it is urged that if the foreign judgment is marred by any of the disqualifications mentioned in the Section, then only it is not conclusive but if it passes all the litmus tests for its conclusiveness, the same is applicable and cannot be termed as not conclusive. In the present case, it is urged that the judgment passed by the County Court in UK has been passed by taking into consideration the applicable laws, the financial and social background of the parties and thus, is applicable in India also. The decree being legal and valid and not having been challenged in any way, attains finality and is good enough reason for dismissal of the divorce petition. It was further submitted that notice on the matrimonial action suffers from suppressio veri and suggestio falsi and the conduct of the petitioner prima facie amounts to gross contempt of Court and therefore she is not entitled to be heard on merits. If the wife has unconditionally subjected herself to the jurisdiction of the Court in the United Kingdom in a petition for decree of divorce with mutual consent, it does not lie in her mouth to invoke the jurisdiction of the Court at Panchkula or that the foreign court had no jurisdiction to decide the dispute. The decision of the Supreme Court in Y. Narasimha Rao cited in support of the respondespondent husband.

13. To turn to the view taken by the learned District Judge on the moot application under Order VII Rule 11 CPC in the impugned order dated 5th April, 2013 I find valuable reason and the same is best put in the District Judge’s own words without any gloss or add-ons: –

“A perusal of the record shows that after the petition was filed, the present application was filed. The issue can only be examined when the parties have completed the pleadings and they are given an opportunity to formally lead evidence and show that the case falls or does not fall under any of the clauses of Section 13 of the Civil Procedure Code. Section 14 of the Civil Procedure Code places a presumption regarding foreign judgment which are purported to be certified copy. The applicant had taken the plea that the proceedings were barred by resjudicata. The plea can only be examined when there is a plea. The applicant is yet to file his written statement. Therefore, it is held that the question cannot be examined at this stage and can be decided only after the pleadings are completed and evidence has been led. The application is dismissed.”

13. In short, what the learned District Judge, Panchkula has held is that whether the case falls or does not fall under any of the clauses of Section 13 CPC read with Section 14 thereof, a plea of res judicata is such a plea which can be examined only on receiving written statement and the issue is not capable of being examined before the pleadings are completed and the evidence led by the parties. It is this order which has brought the petitioner to this Court.

The ratio of exception (iii) in Y.Narasimha Rao case

14. Both the learned counsel for the parties have placed strong reliance on the judgment of the Supreme Court rendered in the aforesaid case. It is the case of the petitioner that the matter falls in exception (iii) carved out by the Supreme Court, while the learned Amicus Curiae on the other hand and, therefore, the learned counsel for the respondent adopting the submissions of Mr.Malhotra, has relied on the rule laid down by the Supreme Court in para. 20 of the judgment and that exception (iii) has to be read in the context of the primary rule from which the exceptions flow. Before proceeding any further with the discussion, para. 20 of the judgment, in which the heart of the case lies, is reproduced : –

“20. From the aforesaid discussion the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum 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.” (emphasis supplied). (underlined for emphasis)

15. There can be no gainsaying that the parties married at Panchkula in the State of Haryana according to Hindu rites and ceremonies and are governed by the provisions of the Hindu Marriage Act, 1955 and in the normal circumstances, only the District Court within the local limits of whose original civil jurisdiction, the marriage was solemnized or the respondent, at the time of the presentation of the petition resides or the parties to the marriage last resided together or the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at the time, residing outside the territories to which the Act extends or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive, has jurisdiction to entertain the petition. This position is borne by statutory law.

16. Under Section 13 of the Code of Civil Procedure, 1908, a foreign judgment is not conclusive as to any matter directly adjudicated upon between the parties if (a) it has not been pronounced by a court of competent jurisdiction; (b) it has not been given on the merits of the case;

(c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice; (e) it is obtained by fraud;

(f) it sustains a claim founded on a breach of any law in force in India. Therefore, Section 13 CPC is the major premise, upon which, the matrimonial actions have to be tested with respect to cases where foreign judgments obtained by a party are pressed in India to act as res judicata, estoppel, waiver, acquiescence and the like. It is trite that no decree of divorce obtained from the English Court on a ground not available under the HMA, which personal law is applicable to the marriage between the parties, can be sustained on ground of irretrievable break down of marriage. In order to first understand and then resolve the issue in the facts presented in this case, it would be necessary to refer to paragraphs 7, 16, 17, 20 to 22 of the judgment in Y. Narasimha Rao as urged by Mr Malhotra. These paragraphs are reproduced by repeating core para. 20 in the setting in which it lies in the judgment : –

“7. ……The Circuit Court of St. Louis County, Missouri had, therefore, no jurisdiction to entertain the petition according to the Act under which admittedly the parties were married. Secondly, irretrievable breakdown of marriage is not one of the grounds recognised by the Act for dissolution of marriage. Hence, the decree of divorce passed by the foreign court was on a ground unavailable under the Act.

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 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.

20. From the aforesaid discussion the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum 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.

21. The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence – permanent or temporary or ad hoc, forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law which determines the jurisdiction and judges the merits of the case.

22. 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.” (underlined for emphasis)

17. A close analysis of para. 20 leaves no manner of doubt that the major premise or what we may call the rule which is clearly statutory in nature with reference to both Section 13 CPC and Section 13 HMA, that if a foreign Court enters upon a matrimonial action brought by a Hindu husband against a Hindu wife married under the Hindu Law, then both the jurisdiction and grounds have deservedly to be in accordance with HMA. Here, the word jurisdiction refers to the right, power, as well as authority to interpret and implement the law, or simply put in a nut shell, the authority and power to decide a lis. Court jurisdictions are limited by physical boundaries as well as by subject matter. The original jurisdictional court in the present case by all means is the court of the District Judge exercising territorial jurisdiction in India and the grounds on which the action can be brought, must be one which are mentioned in Section 13 of HMA. But that is not the end of the matter. There can be cases where parties confer jurisdiction on the foreign Court and the said Court will assume jurisdiction available to the Matrimonial Court in India but would remain confined to adjudicate the action in accordance with the matrimonial law of the parties i.e. HMA and the grounds available therein. The legal principle being that when a Hindu couple tied by the nuptial knot according to Hindu rites travel abroad with intention to settle down and reside there to set up matrimonial home, they carry their personal laws on their back, off loading it in a foreign court for adjudication in the event parties intend to litigate for dissolving the marriage, mutually or by contest on one or more of HMA recognized principles. A foreign Court can then grant a valid decree of dissolution of marriage but the adjudication must be upon one of the available grounds in the Indian law. Since irretrievable breakdown of marriage is not available in HMA, the twin test of forum jurisdiction and relief based grounds would remain unsatisfied and the foreign Court decree would not be binding in India nor recognized. From this major premise or fixed point anchored and rooted in Section 13 of both HMA and CPC, the exceptions carved out by the Supreme Court would need to be examined.

18. Admittedly, exceptions (i) and (ii) do not apply to the facts of this case and should not detain us except to understand their inter- connectivity with the rule and exceptions. The controversy here centres around exception (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 between the parties. The word, “relief” and “grounds” has been employed in the major premise or what we may call the statutory rule. In exceptions (i) and (ii) the words “grounds” or “ground” have been used in the rule and also in exceptions (i) and (ii) but not in exception (iii). The word, “relief” has been used in the rule and in exceptions (i) and (iii) but not in exception (ii). The first exception talks of ‘forum’ where the respondent is domiciled or habitually and permanently resides and this is clarified by the conjunction “and” to mean that the “relief” is granted on a ground available under HMA. The second exception, as I see, falls in the category of cases contested by the respondent spouse based on grounds available under HMA. After such contest on one of the grounds mentioned in Section 13, the final decree though rendered by a foreign Court may be binding. Exception (iii) applies in cases which are not contested and are based on consent. It follows that when ‘contest’ and ‘consent/s’ are referable to grounds available under HMA, only then can relief flow. This is for the reason that there is no estoppel against the statute. What is meant by consent to the grant of relief even though the English Court’s jurisdiction is contrary to HMA is the moot point presenting some difficulty. The rule in para. 20 confers and recognizes jurisdiction by assumption conferred on a foreign Court to act in accordance with the mandate of Indian matrimonial law. The Supreme Court chose not to use the word “grounds” in exception

(iii) and this is how some ambiguity is felt after the heated debate on the interpretation of exception (iii) vehemently argued by the respective counsel and the learned amicus from many angles and prisms or points of view. It is, however, well settled that the words used in a judgment cannot be read as one would read words used by the legislature in enactments which latter have to be given their ordinary and plain meaning. In cases of ambiguity in the statutory rule and of the words used by the Parliament, then the court can step in to harmonize the provisions in a way which is in consonance with the objects and reasons for which the Act was passed and to further the intention of the law. If we were to read exception (iii) in isolation as interpreted by Mr.Bedi appearing for the husband, it would destroy the rule itself, the rule as delineated in Y. Narasimha Rao itself in para. 20 and the foreign Court would wrongly have assumed jurisdiction in passing a decree of dissolution of a Hindu marriage de hors the grounds available in HMA on which the relief was not sought. It is another matter whether it is granted or denied on merits. There is a difference between the words “relief” and “jurisdiction” of the “forum” in exception (iii). Even in the rule, the forum has no jurisdiction but is assumed to have one when it acts on a principle permitted by Section 13 HMA to be the grounds for dissolution of marriage by a decree of divorce. It is for this reason the Supreme Court used the word “may” when it observed while carving out the three exceptions that the “exceptions to this rule may be as follows”. To my mind, if any other interpretation is placed on the word ‘relief” in exception (iii), it may result in grant of an illegal decree of dissolution of marriage made available to a party on the ground of irretrievable breakdown of marriage which is an impermissible ground of divorce not so far heralded into the Hindu law of marriage. Exception (i) no doubt gives sufficient latitude to a foreign court to grant matrimonial relief on foreign soil to a Hindu seeking divorce from Hindu spouse in accordance with HMA principles. Exception (ii) requires voluntary submission to foreign jurisdiction but relief is contested on HMA grounds. Exception

(iii) is consent based for relief to the respondent but not to the petitioner in forum conveniens; “although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties”. When the Supreme Court carved out this last exception it avoided introducing the word ‘grounds’. If it were employed, the meaning then would have admitted no further debate and full effect would have to be given to the declaration under Article 141 of the Constitution of India and for this Court to act in aid. However, since an exception cannot be seen to obliterate the rule itself or to rewrite it, then what the Supreme Court, in my humble view, in fact meant was a consent based decree obtained on foreign soil on HMA grounds and not otherwise. Therefore, HMA law would have to be read into exception (iii) to align it with the rule and not create a new rule since then it would not qualify as an exception to a rule. Reading the exception in isolation, will, in my considered view, be in violation of the rule itself. Thus, in cases of contested and consented decrees both would suffer HMA standards, failing which, the foreign court will be overstepping Parliamentary mandates in India and the decrees so obtained cannot be recognized in India unless falling in exceptions (i) and (ii). This is more so, as I see, when exception (i) talks neither of contest nor consent. Otherwise, there would hardly be any visible distinction between exception (i) and exception (iii) because even in exception (i) the assumed jurisdiction of the foreign court was not in accordance with the provisions of the matrimonial law of the parties or the relief granted was not in accordance with the matrimonial law under which the parties are married. This would be the ‘just and equitable’ rule to follow for the protection of women who are the most vulnerable sections of society as observed in para. 21 of Y. Narasimha Rao itself. Besides, consent to a foreign decree not questioned or litigated in court by parties makes no lis and remains good till it lasts. However, this is not a matter of law but of personal choice where the arms of law may not reach. But consent itself is a question of evidence if the mode and manner in which it was given is taken to a court of law for determination.

19. It was to guard against such eventualities besetting transnational marriages among migrating Hindu couples, the overseas dispora of Hindus and its expatriate community living abroad while retaining domicile in India as per the provisions of HMA and facing matrimonial divorce proceedings or threatened by foreign court decrees, ex parte, contested or by consent that the Supreme Court in Neerja Saraph v. Jayant V. Saraph, 1994 (6) SCC 461 a few years later cautioned, observed and hoped as follows:-

“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 is this domicile rule is not necessary to be gone into. But feasibility of a legislation safeguarding interests 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.

The appeals are disposed of accordingly. Any observation made shall not be taken as expressing of any opinion when the case is decided on merits.”

20. Other than Neerja Saraph’s case (supra), the learned amicus curiae has placed reliance on paragraphs 14, 19, 20, 28 to 30 of the judgment of the Supreme Court rendered in Sondur Gopal v. Sondur Rajini, 2013(7) SCC 426 after noticing the provisions of section 1 (2) HMA in which it has been laid down : –

“14. Bearing in mind the principle aforesaid, when we consider Section 1(2) of the Act, it is evident that the Act extends to the Hindus of whole of India except the State of Jammu and Kashmir and also applies to Hindus domiciled in India who are outside the said territory. In short, the Act, in our opinion, will apply to Hindus domiciled in India even if they reside outside India. If the requirement of domicile in India is omitted altogether, the Act shall have no nexus with India which shall render the Act vulnerable on the ground that extra-territorial operation has no nexus with India. In our opinion, this extra-territorial operation of law is saved not because of nexus with Hindus but Hindus domiciled in India.

19. Section 2(1) provides for the application of the Act. The same reads as follows :-

2. Application of Act.- (1) This Act applies –

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.”

20. This section contemplates application of the Act to Hindu by religion in any of its forms or Hindu within the extended meaning i.e. Buddhist, Jaina or Sikh and, in fact, applies to all such persons domiciled in the country who are not Muslims, Christians, Parsi or Jew, unless it is proved that such persons are not governed by the Act under any custom or usage. Therefore, we are of the opinion that Section 2 will apply to Hindus when the Act extends to that area in terms of Section 1 of the Act. Therefore, in our considered opinion, the Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.”

28. …For all these reasons, we are of the opinion that both the husband and wife are domicile of India and, hence, shall be covered by the provisions of the Hindu Marriage Act, 1955. As on fact, we have found that both the husband and wife are domicile of India, and the Act will apply to them, other contentions raised on behalf of the parties, are rendered academic and we refrain ourselves to answer those.

29. In the result, we do not find any merit in the appeal and it is dismissed accordingly but without any order as to costs.

30. In view of our decision in Civil Appeal No. 4629 of 2005 (Sondur Gopal v. Sondur Rajini) holding that the petition filed by the appellant for judicial separation and custody of the children is maintainable, we are of the opinion that the writ petition filed by the respondent for somewhat similar relief is rendered infructuous. On this ground alone, we allow this appeal and dismiss the writ petition filed by the respondent.” (underlined for emphasis)

21. The next reliance of the learned amicus is on the following decisions of the Supreme Court, Bombay High Court and of Delhi High Court : –

The Delhi High Court in CRP No. 148 of 2011, Pritam Ashok Sadaphule v. Hima Chugh decided on 22nd January, 2013 has held as follows : –

“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.

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 (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.” The Delhi High Court in para. 18 of the Judgment in Harmeeta Singh v. Rajat Taneja, 2003 (2) RCR (Civil) 197, has ruled as follows:

“18. ….. In the event that the marriage is dissolved by a decree in America, in consonance with principles of private international law which are embodied in Section 13 of the Civil Procedure Code, 1908, inter alia, this decree would have to be confirmed by a Court in this country. Furthermore, if the Defendant (Husband) were to remarry in the United States of America on the strength of the Decree of Divorce granted in that country, until this Decree is recognized in India he would have committed the criminal offence of bigamy and would have rendered himself vulnerable to be punished for bigamy. The confusion would be confounded insofar as the parties are concerned.”

The Bombay High Court in Navin Chander Advani v.

Leena, 2005 (2) HLR 582, laid down:

“2. ……. Thus, from reading these averments it appears that the husband and wife both are Indian citizens, domiciled in India. However, they have performed their marriage according to Hindu rites on 19th July, 1998 in U.S.A. Let the fact as it is what we find that since the parties are Indian citizens and domiciled in India, the courts in India will have jurisdiction. The family court has Kumar Paritosh jurisdiction to deal with the matters under the Special 2014.04.09 15:34 I attest to the accuracy and integrity of this document CR-3130-2013 (O&M) Marriage Act and equally under the Hindu Marriage Act. It has even jurisdiction to deal with matrimonial matters where the parties are Muslims. Except, the Parsi Marriage Act for all other marriages the Family Court is having jurisdiction. While deciding the matter the Family Court is only expected to look into personal law of the parties.”

Again the Delhi High Court in Monia Khosla v. Amardeep Singh Khosla, AIR 1986 Delhi 399, observed:

“11. It is well settled that strong proof is required for the purposes of establishing that the domicile of origin has been abandoned and a new one has been acquired. For this purpose, the best evidence, in fact the only evidence, during the life time of a person who is said to have abandoned his domicile of origin, would be the evidence of such person, the respondent husband. There was no evidence in this case before the Additional District Judge by the husband. The proceedings were ex parte. There was no suggestion and no question was put to the wife that the domicile of origin of the husband had been abandoned. Soon after the marriage the husband had declared his intention of the Registrar of Marriages that his intention was to retain D-249, Defence Colony, New Delhi, as his permanent home. In view of this declaration before an authority functioning under the Hindu Marriage Act strong evidence was required from the husband to say that he had abandoned the Indian Domicile which is suggested by the name he bore, a name which would be borne by a person born in India. There was no evidence that a Canadian Passport had been acquired by the husband.

12. In this view of the matter I set aside the finding of the Additional District Judge that the domicile of the respondent husband was not an Indian domicile, and therefore, the court had no jurisdiction to try this matter, in view of Section 1(1) of the Act.”

The Supreme Court in Vishnu Dutt Sharma v. Manju Sharma, JT 2009 (7) SC 5, laid down the following dicta: Kumar Paritosh “10. On a bare reading of Section 13 of the Act, reproduced 2014.04.09 15:34 I attest to the accuracy and integrity of this document CR-3130-2013 (O&M) above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.

11. Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown . In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned counsel for the appellant.” (underlined for emphasis) Again the Supreme Court in Neelam Kumar v. Dayarani AIR 2011 SC 193, held as follows:

“13. We are not impressed by this submission at all. There is nothing to indicate that the respondent has contributed in anyway to the alleged breakdown of the marriage. If a party to a marriage, by his own conduct brings the relationship to a point of irretrievable breakdown, he/she cannot be allowed to seek divorce on the ground of breakdown of the marriage. That would simply mean giving someone the benefits of his/her own misdeeds. Moreover, in a later decision of this Court in Vishnu Dutt Sharma v. Manju Sharma 2009(2) R.C.R.(Civil) 506 : 2009(2) R.A.J. 542 :

(2009) 6 SCC 379, it has been held that irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under section 13 and granting divorce on this ground alone would amount to adding a clause therein by a judicial verdict which would amount to legislation by Court. In the concluding paragraph of this judgment, the Court observed :

“If we grant divorce on the ground of irretrievable breakdown , then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts.” (underlined for emphasis)

22. Based on the aforesaid judgments, to sum up his submissions in the special facts and circumstances of the case, learned amicus has the following to say : –

1. ” that interpreting paragraph 20 of the judgment of the Apex Court in Y. Narasimha Rao’s case cited above, it may be humbly submitted that the present matter does not fall within the ambit of the principle stated by the Apex Court in the aforesaid judgment that “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 requirement that the matrimonial action is based on the ground available in the matrimonial law under which the parties are married, when the respondent consents to the grant of the relief, is squarely attracted to the case. Hence, the non applicability of the principle is attracted in the facts of the present case and since there is no adjudication by the English Court of the matter on merits as also because the English Divorce is based on a ground not available under HMA, the non applicability clause would be per se attracted rendering the judgment of the English Court unacceptable under Indian law. If however , the petitioner herein alleges to the contrary and can prove otherwise, he would have to establish the same by appropriate pleadings duly supported by cogent evidence before the District Judge, Panchkula now adjudicating the matter. No summary procedure can be sought to be invoked to by pass this determination.

2. “The Judgment and decree of divorce of the English Court has to be tested on the anvil of Section 13 CPC which provides as to when a foreign judgment shall not be conclusive. In so far the present case is concerned, Section 13 (b) and Section 13 (c) CPC are attracted to the facts of the present case. As per the Judgment of the Apex Court in Y.

Narasimha Rao’s case cited above, interpreting Section 13 (b) CPC, the decision of the foreign Court should be on a ground available under law of marriage of the parties and the decision should be as a result of contest between the parties. Furthermore, the judgment in Y.

Narasimha Rao’s case also holds while interpreting Section 13 (c) CPC that where the judgment is founded on a refusal to recognise the law of this Country, the Judgment will not be recognised by Courts in India. Since the judgment of the English Court, per se, can be stated to be in breach of the matrimonial law in force in India, the decree of divorce passed by the English Court on the ground of irretrievable breakdown of marriage, cannot be a bar to prevent an adjudication by a Court of competent jurisdiction under the HMA. Therefore, the impugned order of the District Judge, Panchkula cannot be said to suffer from any infirmity.

3. “On another stream of thought, it may be stated that both parties are Hindus by religion, Indians by nationality and have a permanent domicile in India. Following the dictum of the Apex Court in Sondur Gopal’s case settled in 2013, it can be safely stated that the HMA will apply to parties in the present case. The parties were married according to HMA and have a permanent domicile of India. Even viewed from this angle, it would be difficult to stretch the application of English law of divorce to the parties who are Hindus by religion and have a permanent domicile in India. Moreover, as rightly observed by the District Judge in the impugned order, all the issues involved would need determination by appropriate pleadings and recording of evidence. Consequently, any alleged ground of lack of jurisdiction cannot be summarily dismissed in an application under Order VII Rule 11 CPC without any pleadings on record. Therefore, there is no merit, at the present stage in the contentions of a summary dismissal of the divorce petition before the District Judge which will require adjudication.

4. “As a last concluding submission and suggestion the impugned order passed by the District Judge, Panchkula rightly requires determination upon pleadings and evidence of parties to test the applicability of Section 13 CPC to the facts of the case .Unless and until, pleadings are put before the District Judge and the matter is examined on merits after parties are afforded opportunity to lead evidence as to whether the case falls under Section 13 CPC or not, no summary dismissal of the alleged relief sought by the present petitioner is possible. All the contentions advanced by the present petitioner will be required to be put on the anvil for being established by pleadings to be corroborated by cogent testimony. A summary process for such adjudication is not possible. If the present petitioner alleges that his averments be accepted, they have to be first proved. It is accordingly, submitted that until and unless pleadings are placed on record and are substantiated by evidence of parties, it does not appear that the impugned order of the District Judge, Panchkula dated 5.4.2013 seems to suffer from any infirmity.”

23. There is merit in the submissions of the learned amicus curiae. I accept them as fair, reasonable and pragmatic. An adjudication cannot be foreclosed simply on account of presence of the foreign court decree. In the present case moreso as both the parties pursued parallel matrimonial reliefs in different jurisdictions thereby giving rise to conflict on the issue of consent. Accordingly, it was imperative to resolve the issues arising out of such a consent and settle the matter. For the guidance of the courts below and on the valuable suggestions of the learned amicus, which after much thought and deliberation and by weighing all pros and cons emerging from the illuminating debate are accepted by this Court as workable solutions for trial courts to follow when confronted by foreign court matrimonial decrees produced within the jurisdiction of this Court in order to safeguard the interests particularly of Hindu women married to NRIs living in India and abroad.

24. These principles are summarized for guidance of matrimonial courts functioning within the territories over which this court exercises jurisdiction but with a word of caution that they should be applied on a case to case basis while dealing with applications under Order VII Rule 11, CPC in the context of HMA and section 13 CPC as it is not prudent to lay down any strait jacket formula of universal application and some free play in the joints of matrimonial courts should be left while dealing with different fact situations presented before them:-

(i) If the spouse aggrieved by the foreign matrimonial decree has not submitted to the jurisdiction of the foreign court or consented to the passing of the foreign Court judgment, it ought not to be recognised being unenforceable under Section 13 CPC. This position of law ought to be applied to the facts of the individual case.

(ii) There may be occasions that a spouse relying upon the judgment of a foreign matrimonial court, upon receipt of a summon or notice from a court of competent jurisdiction under the HMA, may not choose to file a written statement in response to a petition seeking a matrimonial cause under HMA in Punjab, Haryana or Chandigarh. Instead, the contesting spouse may prefer to move an application under Order VII Rule 11 CPC seeking to rely upon or invoke the provisions of Section 13 CPC. Thus, it may be contended before the court of competent jurisdiction under the HMA that since the matrimonial action between the parties has already been decided and concluded by a Court in the foreign jurisdiction, the adjudication in the matter in issue between the same spouses based on the same matrimonial cause of action is barred by the principle of res judicata and spouses are estopped in law from agitating the same again.

(iii) It is respectfully contended that wherever both or any spouse arrayed in a matrimonial cause in a matrimonial action under HMA contest, dispute, question or oppose any above such application under Order VII Rule 11, CPC involving interpretation of the principles laid down under Section 13 CPC thereby necessitating requirement of detailed pleadings and evidence of spouses, no summary decision may seem possible to decide the matter in the preliminary stage.

(iv) In the above situation, there may also be circumstances involving application of issues of domicile as also applicability of Sections 1 and 2 of the HMA regarding extra territorial application of the provisions of HMA. Determination of these issues may also require parties to put their pleadings and testimony as well on the record of the Court of competent jurisdiction under the HMA.

(v) The application of the provisions of the CPC finding mention under Section 21 HMA, the Court of Competent jurisdiction under the HMA in Punjab, Haryana or Chandigarh may then be guided by the procedural law of pleadings contained in the Orders and Rules of the CPC and Punjab & Haryana High Court amendments, if any, for further proceedings in the matter. Accordingly, filing of a written statement, counter claim, rejoinder and/or other pleadings may be necessitated for having the factual matrix on record leading to the settlement of issues under Order XIV CPC which can only be framed upon allegations made by parties to be read along with the contents of documents produced by spouses. Hence, this procedure may be necessary to be adopted to decide upon the warring claims of spouses relying on averments in support or against the judgment of the foreign matrimonial court between the parties.

(vi) Based on the above procedural requirements, the Court of competent jurisdiction under the HMA may then examine the process, pleadings, grounds and other details in the passing of the judgment/decree of the matrimonial court of foreign jurisdiction to test it on the anvil of Section 13 CPC and based on the principles laid down by the Apex Court in Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991 (3) SCC 451 and exception (iii) as understood in the present opinion. Hence, in the event of a contest, dispute, opposition to the applicability of the foreign matrimonial judgment in the Indian jurisdiction, a summary disposal may not be possible. To do complete justice to both the spouses and to ensure that prejudice has not been caused to either of them as also that issues of maintenance, settlement of matrimonial property, child custody etc. arising in India have been completely settled between spouses based on provisions of HMA, the Court of competent jurisdiction under the HMA may examine the matter on the lines suggested above.

(vii)Thereafter, if the issue relating to the jurisdiction of Competent Court under the HMA as also any bar to the matrimonial cause created by any existing law appears to be established, the matrimonial court in Punjab, Haryana or Chandigarh may upon the facts and circumstances of the case take an appropriate decision under Order XIV Rule 2 CPC whether it needs to pronounce judgment on all issues or decide the issue of jurisdiction or maintainability as a preliminary issue. In such circumstances, the Competent Court under the HMA may after forming an opinion take an appropriate decision on the facts of the case as to whether the issue of jurisdiction or maintainability is to be decided as a preliminary issue or pronounce judgment together on all the issues. Accordingly, based on the individual facts and circumstances, the Court ought to take a decision whether to decide the preliminary issue of jurisdiction or maintainability or postpone the settlement of other issues after such preliminary issues has been determined.

25. For the reasons recorded above, this petition is dismissed as I find no legal infirmity in the impugned order passed by the learned District Judge, Panchkula declining the application under Order VII Rule 11 CPC. However, since the evidence has already been adduced by the parties, the learned District Judge, Panchkula would be free to pass final orders on the merits of the case and whether the grounds of divorce pleaded in the petition and available under Section 13 of the HMA are made out or not warranting grant or refusal of a dissolution of marriage between the parties and other incidental and ancilliary matters thereto. However, nothing said in this order, touching upon the merits of the case, would be taken as an expression of opinion or would influence the trial Court in any manner since purely legal issues have been attempted to be resolved in this opinion with respect to applicability and interpretation of exception (iii) in paragraph 20 of Y. Narasimha Rao and of Order VII Rule 11, CPC.

A copy of this order be brought to the notice of the matrimonial courts in Punjab, Haryana and Chandigarh for guidance.

Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 385 of 1991.

From the Judgment and Order dated 18.4.1988 of the Andhra Pradesh High Court in Crl. Revision Petition No. 41 of 1987.

M.C. Bhandare and Ms. C.K. Sucharita for the Appellants. C.N. Sreekumar and G. Prabhakar (for the State) for the Respondents.

The Judgment of the Court was delivered by SAWANT, J. Leave is granted. Appeal is taken oj board for final hearing by consent of parties.

The 1st appellant and the 1st respondent were married ar Tirupati on February 27, 1975. They separated in July 1978. The 1st appellant filed a petition for dissolution of marriage in the Circuit of St. Louis Country Missouri, USA. The 1st respondent sent her reply from here under protest. The Circuit Court passed a decree for dissolution of marriage on February 19, 1980 in the absence of the 1st respondent.

2. The 1st appellant had earlier filed a petition for dissolution of marriage in the Sub-Court of Tirupati being O.P. No. 87/86. In that petition, the 1st appellant filed an application for dismissing the same as not pressed in view of the decree passed by the Missouri Court. On August 14, 1991 the learned sub-Judge of Tirupati dismissed the petition.

3. On November 2, 1981, the 1st appellant married the 2nd appellant in Yadgirigutta, 1st respondent filed a criminal complaint against the appellants for the offence of bigamy. It is not necessary to refer to the details of the proceedings in the said complaint. Suffice it to say that in that complaint, the appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by Missouri Court. By this judgment of October 21, 1986, the learned Magistrate discharged the appellants holding that the complainant, i.e., the 1st respondent had failed to make out a prima facie case against the appellants. Against the said decision, the 1st respondent preferred a Criminal Revision Petition to the High Court and the High Court by the impugned decision of April 18, 1987 set aside the order of the magistrate holding that a photostat copy of the judgment of the Missouri Court was not admissible in evidence to prove the dissolution of marriage. The Court further held that since the learned Magistrate acted on the photostat copy, he was in error in discharging the accused and directed the Magistrate to dispose of the petition filed by the accused, i.e., appellants herein for their discharge, afresh in accordance with law. It is aggrieved by this decision that the present appeal is filed.

4. It is necessary to note certain facts relating to the decree of dissolution of marriage passed by the Circuit Court of St. Louis Country Missouri, USA. In the first instance, the Court assumed jurisdiction over the matter on the ground that the 1st appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action and that petition in that Court. Secondly, the decree has been passed on the only ground that there remains no reasonable likelihood that the marriage between the parties can be preserved, and that the marriage is, therefore, irretrievably broken”. Thirdly, the 1st respondent had not submitted to the jurisdiction of the Court. From the record, it appears that to the petition she had filed two replies of the same date. Both are identical in nature except that one of the replies begins with an additional averment as follows: “without prejudice to the contention that this respondent is not submitting to the jurisdiction of this hon’ble court, this respondent sub-

mits as follows”. She had also stated in the replies, among other things, that (i) the petition was not maintainable,

(ii) she was not aware if the first appellant had been living in the State of Missouri for more than 90 days and that he was entitled to file the petition before the Court,

(iii) the parties were Hindus and governed by Hindu Law,

(iv) she was an Indian citizen and was not governed by laws in force in the State of Missouri and , therefore, the Court had no jurisdiction to entertain the petition, (v) the dissolution of the marriage between the parties was governed by the Hindu Marriage Act and that it could not be dissolved in any other way except as provided under the said Act, (vi) the Court had no jurisdiction to enforce the foreign laws and none of the grounds pleaded in the petition was sufficient to grant any divorce under the Hindu Marriage Act.

Fourthly, it is not disputed that the 1st respondent was neither present nor represented in the Court passed the decree in her absence. In fact, the Court has in terms observed that it had no jurisdiction “in personam” over the respondent or minor child which was born out of the wed- lock and both of them had domiciled in India. Fifthly, in the petition which was filed by the 1st appellant in that Court on October 6, 1980, besides alleging that he had been a resident of the State of Missouri for 90 days or more immediately preceding the filing of the petition and he was then residing at 23rd Timber View Road, Kukwapood, in the Country of St. Louis, Missouri, he had also alleged that the 1st respondent had deserted him for one year or more next preceding the filing of the petition by refusal to continue to live with the appellant in the United States and particularly in the State of Missouri. On the other hand, the averments made by him in his petition filed in the court of the Subordinate Judge, Tirupati in 1978 shows that he was a resident of Apartment No. 414, 6440, South Claiborn Avenue, New Orleans, Louisiana, United States and that he was a citizen of India. He had given for the service of all notices and processes in the petition, the address of his counsel Shri PR Ramachandra Rao, Advocate, 16-11-1/3, Malakpet, Hyderabad-500 036. Even according to his averments in the said petition, the 1st respondent had resided with him at Kuppanapudi for about 4 to 5 months after th marriage. Thereafter she had gone to her parental house at Relangi, Tanuka Taluk, West Godawari District. He was, thereafter, sponsored by his friend Prasad for a placement in the medical service in the United States and had first obtained employment in Chicago and thereafter in Oak Forest and Greenville Springs and ultimately in the Charity Hospital in Louisiana at New Orleans where he continued to be emp-

loyed. Again according to the averments in the said petition, when the 1st respondent joined him in the United States, both of them had stayed together as husband and wife at New Orleans. The 1st respondent left his residence in New Orleans and went first to Jackson, Texas and, thereafter, to Chicago to stay at the residence of his friend, Prasad. Thereafter she left Chicago for India. Thus it is obvious from these averments in the petition that both the 1st respondent and the 1st petitioner had last resided together at New Orleans, Louisiana and never within the jurisdiction of the Circuit Court of St. Louis Country in the State of Missouri. The averments to that effect in the petition filed before the St. Louis Court are obviously incorrect.

5. Under the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the “Act”) only the District Court within the local limits of whose original civil jurisdiction (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at the time, residing outside the territories to which the Act extends, or has not been heard of as being alive for a period of seven years of more by those persons who would naturally have heard of him if he were alive, has jurisdiction to entertain the petition. The Circuit Court of St. Louis Country, Missouri had, therefore, no jurisdiction to entertain the petition according to the Act under which admittedly the parties were married. Secondly, irretrievable breakdown of marriage is not one of the grounds recognised by the Act for dissolution of marriage. Hence, the decree of divorce passed by the foreign court was on a ground unavailable under the Act.

6. Under Section 13 of the Code of Civil Procedure 1908 (hereinafter referred to as the “Code”), a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if (a) it has not been pronounced by a Court of competent jurisdiction;

(b) it has not been given on the merits of the case; (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice, (e) it is obtained by fraud, (f) it sustains a claim founded on a breach of any law in force in India.

7. As pointed out above, the present decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. The decree is also passed on a ground which is not available under the Act which is applicable to the marriage. What is further, the decree has been obtained by the 1st appellant by stating that he was the resident of the Missouri State when the record shows that he was only a bird of passage there and was ordinarily a resident of the State of Louisiana. He had, if at all, only technically satisfied the requirement of residence of ninety days with the only purpose of obtaining the divorce. He was neither domiciled in that State nor had he an intention to make it his home. He had also no substantial connection with the forum. The 1st appellant has further brought no rules on record under which the St. Louis Court could assume jurisdiction over the matter. On the contrary, as pointed out earlier, he has in his petition made a false averment that the 1st respondent had refused to continue to stay with him in the State of Missouri where she had never been. In the absence of the rules of jurisdiction of that court, we are not aware whether the residence of the 1st respondent within the State of Missouri was necessary to confer jurisdiction on that court, and if not, of the reasons for making the said averment.

8. Relying on a decision of this Court in Smt. Satya v. Teja Singh, [1975] 2 SCR 1971 it is possible for us to dispose of this case on a narrow ground, viz., that the appellant played a fraud on the foreign court residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. We remain from adopting that course in the present case because there is nothing on record to assure us that the Court of St. Louis does not assume jurisdiction only on the basis of a mere temporary residence of the appellant for 90 days even is such residence is for the purpose of obtaining divorce. We would, therefore, presume that the foreign court by its own rules of jurisdiction had rightly entertained the dispute and granted a valid decree of divorce according to its law. The larger question that we would like to address ourselves to is whether even in such cases, the Courts in this country should recognise the foreign divorce decrees.

9. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. The distinction between matters which concern personal and family affairs and those which concern commercial relationships, civil wrongs etc. is well recognised in other countries and legal systems. The law in the former area tends to be primarily determined and influenced by social, moral and religious considerations, and public policy plays a special and important role in shaping it. Hence, in almost all the countries the jurisdicational procedural and substantive rules which are applied to disputes arising in this area are significantly different from those applied to claims in other areas. That is as it ought to be. For, no country can afford to sacrifice its internal unity, stability and tranquility for the sake of uniformity of rules and comity of nations which considerations are important and appropriate to facilitate international trade, commerce, industry, communication, transport, exchange of services, technology, manpower etc. This glaring fact of national life has been recognised both by the Hague Convention of 1968 on the Recognition of Divorce and Legal Seperations as well as by the Judgments Convention of the European Community of the same year. Article 10 of the Hague Convention expressly provides that the contracting States may refuse to recognise a divorce or legal separation if such recognition is manifestly incompatible with their public policy. The Judgments Convention of the European Community expressly excludes from its scope (a) status or legal capacity of natural persons,

(b) rights in property arising out of a matrimonial relationship, (c) wills and succession, (d) social security and (e) bankruptcy. A separate convention was contemplated for the last of the subjects.

10. We are in the present case concerned only with the matrimonial law and what we state here will apply strictly to matters arising out of and ancillary to matrimonial disputes. The Courts in this country have so far tried to follow in these matters the English rules of Private International Law whether common law rules or statutory rules. The dependence on English Law even in matters which are purely personal, has however time and again been regretted. But nothing much has been done to remedy the situation. The labours of the Law Commission poured in its 65th Report on this very subject have not fructified since April 1976, when the Report was submitted. Even the British were circumspect and hesitant to apply their rules of law in such matters during their governance of this country and had left the family law to be governed by the customary rules of the diffe-

rent communities. It is only where was a void that they had stepped in by enactments such as the Special Marriage Act, Indian Divorce Act, Indian Succession Act etc. In spite, however, of more than 43 years of independence we find that the legislature has not thought it fit to enact rules of Private International Law in this area and in the absence of such initiative from the legislature the courts in this country their inspiration, as stated earlier, from the English rules. Even in doing so they have not been uniform in practice with the result that we have some conflicting decisions in the area.

11. We cannot also lose sight of the fact that today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. Many a man and woman of this land with different personal laws have migrated and are migrating to different countries either to make their permanent abode there or for temporary residence. Likewise there is also immigration of the nationals of other countries. The advancement in communication and transportation has also made it easier for individuals to hop from one country to another. It is also not unusual to come across cases where citizens of this country have been contracting marriages either in this country or abroad with nationals of the other countries or among themselves, or having married here, either both or one of them migrate to other countries. There are also cases where parties having married here have been either domiciled or residing separately in different foreign countries. This migration, temporary or permanent, has also been giving rise to various kinds of matrimonial disputes destroying in its turn the family and its peace. A large number of foreign decrees in matrimonial matters is becoming the order of the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the framework of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. It is with this intention that we are undertaking this venture. We aware that unaided and left solely to our resources the rules of guidance which we propose to lay down in this area may prove inadequate or miss some aspects which may not be present to us at this juncture. But a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments.

12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect th sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise.

Clause (b) of Section 13 states that if a foreign has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.

The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.

Clause (d) of Section 13 which makes a foreign judgment unenforceable on th ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to b extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are file by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community . If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only it it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) may be held to have been satisfied. The provision of clause (e) of Section 13 which requires that the courts in this country will not recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh, (supra) it must be understood that the fraud need not be only in relation to the merits of the mater but may also be in relation to jurisdictional facts.

13. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domicilliary law which determines the jurisdiction and judges the merits of the case.

14. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is, therefore, unenforceable.

15. The High Court, as stated earlier, set aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. The High Court is not correct in its reasoning. Under Section 74(1)(iii) of the Indian Evidence Act (Hereinater referred to as the “Act”) documents forming the acts or records of the acts of public judicial officers of a foreign country are public documents. Under Section 76 read with Section 77 of the Act, certified copies of such documents may be produced in proof of their contents. However, under Section 86 of the Act there is presumption with regard to the genuineness and accuracy of such certified copy only if it is also certified by the representative of our Central Government in or for that country that the manner in which it has been certified is commonly in use in that country for such certification.

Section 63(1) and (2) read with Section 65(e) and (f) of the Act permits certified copies and copies made from the original by mechanical process to be tendered as secondary evidence. A photostat copy is prepared by a mechanical process which in itself ensures the accuracy of the original. The present photostat copies of the judicial record of the Court of St. Louis is certified for the Circuit Clerk by the Deputy Clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Act and also in the manner required by the provisions of the said section. Hence the Photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. The expression “certified copy” of a foreign judgment in Section 14 of the Code has to be read consistent with the requirement of Section 86 of the Act.

16. While, therefore, holding that the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court, we uphold the order of the High Court also on a more substantial and larger ground as stated in paragraph 14 above. Accordingly, we dismiss the appeal and direct the learned Magistrate to proceed with the matter pending before him according to law as expenditiously as possible, preferably within four months from now as the prosecution is already a decade old.

T.N.A. Appeal dismissed.

Important judgments on divorce cases are:-

Suman Singh v. Sanjay Singh, (SC) 2017 AIR (SC) 1316

JUDGMENT

Abhay Manohar Sapre, J. – These appeals are filed by the appellant (wife) against the final judgment and order dated 23.05.2013 passed by the High Court of Delhi at New Delhi in F.A.O. No.108 of 2013 and F.A.O. No.109 of 2013 by which the High Court dismissed the appeals filed by the appellant and confirmed the judgment dated 14.12.2010 of the Principal Judge, Family Courts, Rohini which had granted decree for dissolution of marriage in favour of the respondent (husband) and, in consequence, also affirmed the order dismissing the petition filed by the appellant (wife) for restitution of conjugal rights.

2. Facts, in brief, to appreciate the controversy involved in the appeals need mention infra.

3. The marriage between the appellant and the respondent was solemnized on 26.02.1999 at Delhi as per the Hindu rites. The respondent-husband is working as “Caretaker” in the Government of NCT of Delhi whereas the appellant is a housewife. Out of this wedlock, one daughter was born on 15.06.2002 and the second daughter was born on 10.02.2006. Both daughters are living with the appellant.

4. On 11.07.2010, the respondent (husband) filed a petition for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as “The Act”) in the Family Courts, Rohini, Delhi against the appellant (wife). The respondent sought decree for dissolution of marriage essentially on the ground of “cruelty”.

5. In substance, the respondent, in his petition, pleaded 9 instances which, according to him, constituted “cruelty” within the meaning of Section 13(1)(i-a) of the Act entitling him to claim dissolution of marriage against the appellant.

6. The first ground of cruelty was related to wife’s behaviour on the next day of marriage, i.e., 27.02.1999. It was alleged that the appellant came out of the bedroom in night dress and that too late when the close relatives of the respondent were sitting in the house. It was alleged that she did not pay respect and wishes to the elders. (Para 9 of the plaint)

7. The second ground of cruelty was again about the appellant’s behaviour with the respondent on the eve of New Year. However, the year was not mentioned. According to the respondent, he agreed to celebrate the new year with the appellant on her parental house as the parents of the appellant gave repeated calls. After reaching her parental house, most of the time the appellant was busy with her family members and left him alone in the drawing room. Even at the time of dinner, the family members of the appellant did not behave properly. (Para 10).

8. The third ground of cruelty was that the appellant did not show any inclination or enthusiasm to attend any important family function or festivals at the respondent’s house whenever held. However, no details were given about the date and the function held. The allegations are general in nature (Para 11).

9. The fourth ground of cruelty was again about the indecent behaviour of the appellant towards the respondent’s family members. However, no details were pleaded except making general averments (Para 12).

10. The fifth ground of cruelty was in relation to an incident which, according to the respondent, occurred in July 1999. It was alleged that the appellant, on that day, insisted that the couple should live separately from the respondent’s parents (Para 13).

11. The sixth ground of cruelty was again general with no details. It was alleged that the appellant was not interested in doing any household work nor was interested in preparing meals and used to insist the respondent to have his lunch from outside. (Para 14).

12. The seventh ground of cruelty was in relation to one incident which, according to the respondent, occurred on Diwali day in the year 2000. It was again about the behaviour of the appellant with the family members of the respondent which, according to the respondent, was rude (Para 16).

13. The eighth ground of cruelty was in relation to one isolated incident which, according to the respondent, occurred on 15.04.2001. It was again about the behaviour of the appellant with the friends of the respondent who had come to the respondent’s house. According to the respondent, the family members did not like it (Para 17).

14. The ninth ground of cruelty was that one day in year 2010, the appellant visited the respondent’s office and misbehaved with the respondent in the presence of other officials (Para 27).

15. The respondent also alleged some instances in the petition. They, however, again essentially relate to the appellant’s behaviour with the respondent and his family members.

16. The appellant filed her written statement and denied these allegations. The appellant also applied for restitution of conjugal rights against the respondent in the same proceedings by filing petition under Section 9 of the Act and inter alia alleged in her petition that it was the respondent who has withdrawn from her company without there being a reasonable cause. She also while denying the case set up by the respondent justified her case for restitution of conjugal rights.

17. The Trial Court framed the following issues on the basis of pleadings in the case:

1. Whether after solemnization of marriage, the Respondent has treated the Petitioner with cruelty? OPP

2. Whether the Petitioner is entitled to the decree of divorce as prayed? OPP

3. Relief
The following issues were framed based on the pleadings in the petition under Section 9 of the Act:

1. Whether the Petitioner is entitled to the restitution of conjugal rights as prayed? OPP

2. Relief
18. Parties adduced the evidence. By order dated 14.12.2012, the Family Court allowed the petition filed by the respondent. It was held that the grounds alleged by the respondent amounted to mental cruelty within the meaning of Section 13(1)(ia) of the Act and the same having been proved by the respondent, he was entitled to claim a decree for dissolution of marriage against the appellant. Accordingly, the Trial Court granted decree for dissolution of marriage in favour of the respondent and dissolved the marriage. Since the decree for dissolution of marriage was passed against the appellant, the petition filed by the appellant against the respondent seeking restitution of conjugal rights was dismissed.

19. The appellant, felt aggrieved by the aforesaid order, filed first appeals before the High Court. In appeals, the question was whether the Trial Court was justified in granting decree for dissolution of marriage to the respondent (husband) and, in consequence, was justified in dismissing the petition for restitution of conjugal rights filed by the appellant (wife).

20. By impugned judgment, the High Court dismissed the appeals and affirmed the judgment/decree of the Trial Court. The appellant (wife), felt aggrieved, has filed these appeals by special leave against the judgment of the High Court.

21. Heard Mr. D.N. Goburdhan, learned counsel for the appellant and Mr. Gaurav Goel, learned counsel for the respondent.

22. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals and while setting aside the impugned order, dismiss the divorce petition filed by the respondent(husband) against the appellant and, in consequence, allow the petition filed by the appellant(wife) for restitution of conjugal rights against the respondent (husband).

23. The word “cruelty” used in Section 13(1)(ia) of the Act is not defined under the Act. However, this expression was the subject matter of interpretation in several cases of this Court. What amounts to “mental cruelty” was succinctly explained by this Court (three Judge Bench) in Samar Ghosh v. Jaya Ghosh 2007(2) R.C.R.(Civil) 595 : 2007(2) Recent Apex Judgments (R.A.J.) 177 : (2007) 4 SCC 511. Their Lordships speaking through Justice Dalveer Bhandari observed that no uniform standard can ever be laid down for guidance, yet it is appropriate to enumerate some instances of human behaviour which may be considered relevant in dealing with the cases of “mental cruelty”.

24. Their Lordships then broadly enumerated 16 category of cases which are considered relevant while examining the question as to whether the facts alleged and proved constitute “mental cruelty” so as to attract the provisions of Section 13 (1) (ia) of the Act for granting decree of divorce.

25. Keeping in view the law laid down in Samar Ghosh’s case (supra), when we examine the grounds taken by the respondent in his petition for proving the mental cruelty for grant of divorce against the appellant, we find that none of the grounds satisfies either individually or collectively the test laid down in Samar Ghosh’s case (supra) so as to entitle the respondent to claim a decree of divorce.

26. This we hold for more than one reason. First, almost all the grounds taken by the respondent in his petition were stale or/and isolated and did not subsist to enable the respondent to seek a decree for dissolution of marriage. In other words, the incidents of cruelty alleged had taken place even, according to the respondent, immediately after marriage. They were solitary incidents relating to the behaviour of the appellant. Second, assuming that one or more grounds constituted an act of cruelty, yet we find that the acts complained of were condoned by the parties due to their subsequent conduct inasmuch as admittedly both lived together till 2006 and the appellant gave birth to their second daughter in 2006. Third, most of the incidents of alleged cruelty pertained to the period prior to 2006 and some were alleged to have occurred after 2006. Those pertained to period after 2006 were founded on general allegations with no details pleaded such as when such incident occurred (year, month, date etc.), what was its background, who witnessed, what the appellant actually said etc.

27. In our view, the incidents which occurred prior to 2006 could not be relied on to prove the instances of cruelty because they were deemed to have been condoned by the acts of the parties. So far as the instances alleged after 2006 were concerned, they being isolated instances, did not constitute an act of cruelty.

28. A petition seeking divorce on some isolated incidents alleged to have occurred 8-10 years prior to filing of the date of petition cannot furnish a subsisting cause of action to seek divorce after 10 years or so of occurrence of such incidents. The incidents alleged should be of recurring nature or continuing one and they should be in near proximity with the filing of the petition.

29. Few isolated incidents of long past and that too found to have been condoned due to compromising behaviour of the parties cannot constitute an act of cruelty within the meaning of Section 13 (1)(ia)of the Act.

30. In our considered opinion, both the Courts below failed to take note of this material aspect of the case and thus committed jurisdictional error in passing a decree for dissolution of marriage.

31. We cannot, therefore, countenance the approach of the High Court because it did not, in the first instance, examine the grounds taken in the petition to find out as to whether such grounds constitute mental cruelty or not? The finding, therefore, though concurrent does not bind this Court.

32. We are not impressed by the submission of the learned counsel for the respondent that an incident which occurred somewhere in 2010 when the appellant visited the office of the respondent and alleged to have misbehaved with the respondent in front of other officers would constitute an act of cruelty on the part of the appellant so as to enable the respondent to claim divorce. In the first place, no decree for divorce on one isolated incident can be passed. Secondly, there could be myriad reasons for causing such isolated incident. Merely because both exchanged some verbal conversation in presence of others would not be enough to constitute an act of cruelty unless it is further supported by some incidents of alike nature. It was not so.

33. We are also not impressed by the submission of the learned counsel for the respondent that since the appellant had made allegation against the respondent of his having extra-marital relation and hence such allegation would also constitute an act of cruelty on the part of the appellant entitling the respondent to claim decree for dissolution of marriage.

34. Similarly, we are also not impressed by the submission of learned counsel for the respondent that since both have been living separately for quite some time and hence this may be considered a good ground to give divorce.

35. In the first place, the respondent did not seek a decree of dissolution of marriage on these grounds. Second, the grounds of cruelty taken by the respondent in his petition does not include these grounds. Third, even if some stray allegations were made by the wife in her pleading/evidence as were relied upon by the learned counsel are of no relevance because, as mentioned above, these ground were not pleaded in the petition by the respondent for seeking a decree of divorce and nor were put in issue; and lastly, the burden being on the respondent, the same could be discharged by the respondent by pleading and then proving. It was not so done. It is for these reasons, we cannot accept the aforementioned two submissions for affirming the decree of divorce.

36. This takes us to the next question as to whether the appellant was able to make out any case for restitution of conjugal rights against the respondent.

37. Having perused her petition and evidence, we are of the view that the appellant is entitled for a decree for restitution of conjugal rights against the respondent.

38. In our considered view, as it appears to us from perusal of the evidence that it is the respondent who withdrew from the appellant’s company without there being any reasonable cause to do so. Now that we have held on facts that the respondent failed to make out any case of cruelty against the appellant, it is clear to us that it was the respondent who withdrew from the company of the appellant without reasonable cause and not the vice versa.

39. In view of foregoing discussion, the appeals succeed and are allowed. The impugned judgment is set aside. As a result, the petition filed by the respondent (husband) under Section 13(1) of the Act seeking dissolution of marriage is dismissed. As a consequence thereof, the marriage between the parties is held to subsist whereas the petition filed by the appellant against the respondent under Section 9 of the Act seeking restitution of conjugal right is allowed. A decree for restitution of conjugal right is, accordingly, passed against the respondent.

40. We hope and trust that the parties would now realize their duties and obligations against each other as also would realize their joint obligations as mother and father towards their grown up daughters. Both should, therefore, give quite burial to their past deeds/acts and bitter experiences and start living together and see that their daughters are well settled in their respective lives. Such reunion, we feel, would be in the interest of all family members in the long run and will bring peace, harmony and happiness. We find that the respondent is working as a “Caretaker” in the Government Department (see Para 4 of his petition). He must, therefore, be the “Caretaker” of his own family that being his first obligation and at the same time attend to his Government duties to maintain his family.

Raj Talreja v. Kavita Talreja, (SC) 2017(5) Scale 413

JUDGMENT

Deepak Gupta, J. – Parties to the appeal got married in 1989 according to Hindu rites. Out of this wedlock a son was born in the year 1990. It is not disputed that till the year 1999 both husband and wife lived together with the parents of the husband. In the year 1999, the couple shifted to their own residence. On 19.03.2000, the husband left the matrimonial home and, soon thereafter, on 25.03.2000, filed a petition for grant of a decree of divorce dissolving the marriage.

2. It is not disputed that the wife filed a suit praying for injunction that the husband should not be permitted to enter the matrimonial home. On 07.11.2000, certain news items appeared in the newspapers in which serious allegations were made against the husband. These newspaper reports were based on the intimation given by the wife. On 04.12.2000, the wife filed a complaint to the State Women Commission making serious allegations against the husband. Thereafter, on 05.12.2000, she sent a similar letter to the Chief Justice of the High Court as well as the Superintendent of Police. Finally, on 07.12.2000, she made another complaint to the Chief Minister. On 16.03.2001, these complaints were found to be false. On 12.04.2001, a First Information Report (for short the `FIR’) was registered at the instance of the wife against the appellant husband under Section 452, 323 and 341 of the Indian Penal Code. The police investigated the matter and filed a report on 30.04.2001 stating that there is no merit in the FIR. According to the police, the injuries on the person of the wife were self inflicted and she has filed a false FIR. It was recommended that the criminal proceedings be initiated against her under Section 182 of the Indian Penal Code (for short `IPC’). It is not disputed that till 16.03.2001, such criminal proceedings were initiated against the wife.

3. The husband moved an amendment application in the divorce petition incorporating all these facts and alleging that due to filing of the false complaints before various authorities he had been subjected to cruelty by the wife. This is the only issue raised before us. The learned trial Judge dismissed the petition. The appeal filed by the husband was also dismissed. Hence, this appeal.

4. It would be pertinent to mention that in the year 2012, 11 years after the police had submitted its report and after proceedings had been initiated against the wife, the wife filed a protest petition against the cancellation of FIR against the husband, in which notice was issued by the court below. However, on a revision being filed by the husband, the revisional court allowed the revision petition and quashed the order of the trial court. As a result, there are no criminal proceedings pending against the husband.

5. We have heard Mr. Gaurav Agrawal, learned counsel for the appellant and Ms. Vibha Datta Makhija, learned senior counsel for the respondent.

6. Mr. Agrawal, learned counsel has contended that the acts of the wife in levelling defamatory allegations and filing false complaints against the husband amounts to cruelty. On the other hand, Ms. Makhija, learned senior counsel has submitted that her client is not at fault and cruelty has not been proved. She further submits that her client wants the status of being a legally married woman and she prays that the appeal be dismissed.

7. We may now refer to the evidence relied upon by the husband. The first is a newspaper report dated 07.11.2000, in which it is reported that the wife had alleged that she was beaten by her husband and his family members many times for not fulfilling the demand of dowry. There were allegations that she was kept like an orphan and twice attempts had been made to set her on fire. These allegations were made in a letter sent by the wife to the police. Thereafter, the wife sent a similar complaint to various authorities including the State Women Commission, Rajasthan. She sent a telegram to the Chief Justice of the Rajasthan High Court again alleging that her husband and in-laws had attempted to burn her and engaged goondas to eliminate her. Complaint was also made to Chief Minister of Rajasthan. The matter was referred to the police. On investigation by the police, the allegations were found to be totally false. Thereafter, the wife filed a complaint against her husband and 3 other persons alleging house trespass against them and that she had been assaulted and threatened to leave the house. In this case also, the final report of the police is that the complaint is baseless and false and the injuries were self-inflicted.

8. As noted above, these findings of the police have attained finality and as on date there is no criminal case pending against the husband. It is more than obvious that the allegations levelled by the wife are false. It may be true that these allegations were levelled after the divorce petition had been filed and the wife may have been in an agitated state of mind. However, that did not give her a right to make defamatory statements against the husband. The falseness of the allegations is borne out from the fact that the police did not even find it a fit case to be tried. After the police filed its cancellation report, the wife kept silent and after 11 years she filed a protest petition.

9. This Court in Para 16 of K. Srinivas Rao v. D.A. Deepa, 2013(2) R.C.R.(Civil) 232 : 2013(2) R.C.R.(Criminal) 217 : 2013(2) Recent Apex Judgments (R.A.J.) 102 : 2013 (5) SCC 226 has held as follows:

“16. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh v. Jaya Ghosh, 2007(2) R.C.R.(Civil) 595 : 2007(2) R.C.R.(Criminal) 515 : 2007(2) Recent Apex Judgments (R.A.J.) 177 : 2007 (4) SCC 511, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.”

In Ravi Kumar v. Julmidevi, 2010(2) R.C.R. (Civil) 178 : 2010(1) Recent Apex Judgments (R.A.J.) 684 : 2010 (4) SCC 476, this Court while dealing with the definition of cruelty held as follows:

“19. It may be true that there is no definition of cruelty under the said Act. Actually such a definition is not possible. In matrimonial relationship, cruelty would obviously mean absence of mutual respect and understanding between the spouses which embitters the relationship and often leads to various outbursts of behaviour which can be termed as cruelty. Sometime cruelty in a matrimonial relationship may take the form of violence, sometime it may take a different form. At times, it may be just an attitude or an approach. Silence in some situations may amount to cruelty.

20. Therefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite variety-it may be subtle or even brutal and may be by gestures and words. That possibly explains why Lord Denning in Sheldon v. Sheldon, (1966) 2 WLR 993 held that categories of cruelty in matrimonial cases are never closed.”

10. Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act 1955 (for short `the Act’). However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self inflicted by the wife. Thereafter, proceedings were launched against the wife under Section 182 of IPC.
11. We have perused the judgment of the High Court. The High Court while dealing with the plea of false complaints held that there was no reason to hold that the criminal complaint filed by the respondent-wife was false and mala fide. We are unable to agree with this finding of the High Court and the court below. Both the courts below relied upon the statement of the wife that her husband had often visited her house and she fulfilled her marital obligations. These observations are not based on any reliable or cogent evidence on record. It is not disputed before us that the wife continues to live in the house which belongs to the mother of the husband whereas the husband lives along with his parents in a separate house and the son and daughter-in-law of the parties live with the wife. The son is working with the husband. We may note that Ms. Makhija has very fairly stated before us that the husband had always fulfilled his paternal obligations to his son and is continuing to pay maintenance to his wife as fixed by the court.

12. Though we have held that the acts of the wife in filing false complaints against the husband amounts to cruelty, we are, however, not oblivious to the requirements of the wife to have a decent house where she can live. Her son and daughter-in-law may not continue to live with her forever. Therefore, some permanent arrangement has to be made for her alimony and residence. Keeping in view the status of the parties, we direct that the husband shall pay to the wife a sum of L 50,00,000/- (Rupees Fifty Lakhs only) as one time permanent alimony and she will not claim any further amount at any later stage. This amount be paid within three months from today. We further direct that the wife shall continue to live in the house which belongs to the mother of the husband till the husband provides her a flat of similar size in a similar locality. For this purpose, the husband is directed to ensure that a flat of the value up to L 1,00,00,000/- (Rupees One Crore Only) be transferred in the name of his wife and till it is provided, she shall continue to live in the house in which she is residing at present.

13. The appeal is accordingly allowed. The judgment and order dated 01.03.2013, passed by the High Court in D.B. Civil Miscellaneous Appeal No.1432 of 2004 and the judgment and decree dated 05.08.2004, passed by the Family Court, Udaipur in Civil Case No. 56 of 2000 are set aside. The petition for divorce filed by the husband under Section 13 of the Act is decreed and the marriage of the parties solemnized on 13.04.1989 is dissolved by a decree of divorce. The wife shall be entitled to permanent alimony of L 50,00,000/- (Rupees Fifty Lakhs Only) and a residential flat of the value of up to L 1,00,00,000/- (Rupees One Crore Only), as directed herein above. Pending application(s), if any, stand(s) disposed of.

Important judgments on transfer of divorce cases from one place to another are:-

Krishna Veni Nagam v. Harish Nagam, (SC) 2017 AIR (SC) 1345

JUDGMENT

Adarsh Kumar Goel, J. – This transfer petition has been filed for transfer of Case No.179A/2013 u/s 13 of the Hindu Marriage Act, 1955 (the Act) titled “Harish Nagam v. Krishna Veni Nagam” pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh to the Family Court Hyderabad, Andhra Pradesh.

2. Case of the petitioner-wife is that she was married to the respondent-husband in the year 2008 at Kukatpally, Hyderabad. She was blessed with a girl child in 2009. While living in her in-law’s house at Jabalpur, she was ill-treated. She was subjected to mental and physical torture. She suffered injury on her spinal cord. She left the matrimonial home in 2012.

3. The respondent-husband filed application for restitution of conjugal rights which was later on got dismissed as withdrawn. Thereafter, a divorce petition has been filed at Jabalpur while the petitioner has filed a domestic violence case at Hyderabad. Since the petitioner-wife, along with her minor daughter, is living with her parents, she cannot undertake long journey and contest the proceedings at Jabalpur by neglecting her minor child. She also apprehends threat to her security in attending proceedings at Jabalpur.

4. On 7th January, 2015, notice was issued and stay of proceedings was granted. The matter has been pending in this Court for more than two years.

5. On 9th January, 2017 when the matter came-up for hearing, the following order was passed:

“This petition is filed under Section 25 of the Code of Civil Procedure seeking transfer of proceedings initiated by the respondent under Section 13 of the Hindu Marriage Act at Jabalpur. According to the petitioner, who is the wife of the respondent, she will face acute hardship in contesting the proceedings at Jabalpur as she is living at Hyderabad. The marriage took place at Hyderabad. The petitioner has to look after her minor daughter who is living with her.

Undoubtedly under Section 19 of the Hindu Marriage Act, the petition of the present nature could be filed at the place where the marriage is solemnized or the respondent, at the time of the presentation of the petition, resides or where the parties to the marriage last resided together or where the wife is residing on the date of the presentation of the petition, in case she is the petitioner or in certain situations (as stipulated in clause iv) where the petitioner resides.

This Court is flooded with petitions of this nature and having regard to the convenience of the wife transfer is normally allowed. However, in the process the litigants have to travel to this Court and spend on litigation. Question is whether this can be avoided?

We are of the view that if orders are to be passed in every individual petition, this causes great hardship to the litigants who have to come to this Court. Moreover in this process, the matrimonial matters which are required to be dealt with expeditiously are delayed.

In these circumstances, we are prima facie of the view that we need to consider whether we could pass a general order to the effect that in case where husband files matrimonial proceedings at place where wife does not reside, the court concerned should entertain such petition only on the condition that the husband makes appropriate deposit to bear the expenses of the wife as may be determined by the Court. The Court may also pass orders from time to time for further deposit to ensure that the wife is not handicapped to defend the proceedings. In other cases, the husband may take proceedings before the Court in whose jurisdiction the wife resides which may lessen inconvenience to the parties and avoid delay. Any other option to remedy the situation can also be considered.

However, before passing a final order, we consider it necessary to hear learned Attorney General who may depute some law officer to assist this Court.

List the matter on 31st January, 2017.

We also request Mr. C.A. Sundaram, Senior Advocate to assist this Court as amicus curiae. A set of papers may be furnished to the amicus.”

(Emphasis added)

6. Thus, the question is whether an order can be passed so as to provide a better alternative to each individual being required to move this Court.

7. We have already noted that large number of transfer petitions of the present nature are being filed in this Court and are being mechanically allowed. Similar observation was made by this Court more than 10 years ago in Anindita Das v. Srijit Das, (2006)9 SCC 197 “…On an average at least 10 to 15 transfer petitions are on board of each court on each admission day.” It has also been observed in a number of cases that in absence of any male member being available to accompany the wife who is party to matrimonial proceedings to a different place, it may render it “expedient for ends of justice” to transfer proceedings Mona Aresh Goel v. Aresh Satya Goel (2000) 9 SCC 255; Lalita A. Ranga v. Ajay Champalal Ranga (2000) 9 SCC 355; Deepa v. Anil Panicker (2000) 9 SCC 441; Archana Rastogi v. Rakesh Rastogi (2000)10 SCC 350; Leena Mukherjee v. Rabi Shankar Mukherjee (2002) 10 SCC 480; Neelam Bhatia v. Satbir Singh Bhatia, 2006(2) R.C.R.(Criminal) 65 : (2004) 13 SCC 436; Soma Choudhury v. Gourab Choudhaury (2004) 13 SCC 462; Rajesh Rani v. Tej Pal (2007) 15 SCC 597; Vandana Sharma v. Rakesh Kumar Sharma, 2008(4) R.C.R.(Civil) 421 : (2008)11 SCC 768; and Anju Ohri v. Varinder Ohri (2007) 15 SCC 556.

8. Of course in some cases, it was observed that instead of proceedings being transferred, the husband should pay travel, lodging and boarding expenses of the wife and/or person accompanying for each hearing Premlata Singh v. Rita Singh (2005) 12 SCC 277. This trend has also been followed in other matrimonial disputes, including guardianship dispute, etc. Gana Saraswathi v. H. Raghu Prasad (2000)10 SCC 277

9. Spirit behind the orders of this Court in allowing the transfer petitions filed by wives being almost mechanically allowing is that they are not denied justice on account of their inability to participate in proceedings instituted at a different place on account of difficulty either on account of financial or physical hardship. Our Constitutional scheme provides for guaranteeing equal access to justice[6], power of the State to make special provisions for women and children[7]and duty to uphold the dignity of women[8]. Various steps have been taken in this direction.[9]

[6] Article 39A of the Constitution of India, 1950.

[7] Article 15(3) of the Constitution of India, 1950.

[8] Article 51-A(e) of the Constitution of India, 1950.

[9] In Articles 243-D and 243-T of the Constitution, provision has been made for reservation for women in Panchayats and Municipalities by 73rd and 74th Amendments. Need for affirmative action consistent with the Article 15(3) of the Constitution has led to several measures being adopted by the legislature, executive as well as the judiciary to advance gender justice. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) underlines the awareness of the international commitments on the subject which has inspired several judgments of this Court [Vishaka v. State of Rajasthan, 1997(4) R.C.R.(Criminal) 187 : (1997) 6 SCC 241; Arun Kumar Agrawal v. National Insurance Co. Ltd., 2010(3) R.C.R.(Civil) 827 : 2010(4) Recent Apex Judgments (R.A.J.) 262 : (2010) 9 SCC 218; Charu Khurana v. Union of India, 2015(2) S.C.T. 819 : (2015) 1 SCC 192; Prakash v. Phulavati, 2015(4) R.C.R.(Civil) 952 : 2015(6) Recent Apex Judgments (R.A.J.) 22 : (2016) 2 SCC 36; Danial Latifi v. Union of India, 2001(4) R.C.R.(Criminal) 468 : (2001) 7 SCC 740; Voluntary Health Assn. of Punjab v. Union of India, 2013(2) R.C.R.(Civil) 287 : 2013(2) R.C.R.(Criminal) 259 : 2013(2) Recent Apex Judgments (R.A.J.) 134 : (2013) 4 SCC 1 and; Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa (1987) 2 SCC 469. It was observed in Voluntary Health Assn. as under:
“20. It would not be an exaggeration to say that a society that does not respect its women cannot be treated to be civilised. In the first part of the last century Swami Vivekanand had said:
`Just as a bird could not fly with one wing only, a nation would not march forward if the women are left behind.'”
10. As noted in the Order dated 9th January, 2017 quoted above, Section 19 of the Act permits proceedings to be filed not only at a place where the wife resides but also at place where marriage is solemnized or the place where the parties last resided together. It is mostly in the said situations that the wife has hardship in contesting proceedings. At the same time, under the law the husband is legally entitled to file proceedings at such places. Territorial jurisdiction of court is statutorily laid down in C.P.C. or other concerned statutes.

11. Accordingly, we have heard Shri C.A. Sundaram, learned senior counsel as amicus curiae. Learned amicus has suggested that Section 19 of the Act should be interpreted to mean that the jurisdiction at the place other than where wife resides being available only at the option of the wife or that such jurisdiction will be available in exceptional cases where the wife is employed and the husband is unemployed or where the husband suffers from physical or other handicap or is looking after the minor child. Even though we are unable to give such interpretation in the face of plain language of statute to the contrary and it is for the legislature to make such suitable amendment as may be considered necessary, we are certainly inclined to issue directions in the interest of justice consistent with the statute.

12. Mr. Nadkarni, learned Addl. Solicitor General has suggested that it will be appropriate to give some directions to meet the situation. He submitted that paramount consideration in dealing with the issue ought to be the interest of justice and not mere convenience of the parties. Thus, where husband files a petition at a place away from the residence of the wife, the husband can be required to bear travel and incidental expenses of the wife, if it is so considered appropriate in the interest of justice. At the same time, if the husband has genuine difficulty in making the deposit, proceedings can be conducted by video conferencing. At least one court room in every district court ought to be equipped with the video conferencing facility. The interest of the minor child has also to be kept in mind along with the interest of the senior citizens whose interest may be affected by one of the parties being required to undertake trips to distant places to face the proceedings. Protracted litigation ought to be avoided by better management and coordination so that number of adjournments can be reduced.

13. We have considered the above suggestions. In this respect, we may also refer to the doctrine of forum non conveniens which can be applied in matrimonial proceedings for advancing interest of justice. Under the said doctrine, the court exercises its inherent jurisdiction to stay proceedings at a forum which is considered not to be convenient and there is any other forum which is considered to be more convenient for the interest of all the parties at the ends of justice. In Modi Entertainment Network and anr. v. W.S.G. Cricket Pte. Ltd., (2003)4 SCC 341 this Court observed:

“19. In Spiliada Maritime Corpn. v. Cansulex Ltd. (1986)3 All ER 843 case the House of Lords laid down the following principle:

“The fundamental principle applicable to both the stay of English proceedings on the ground that some other forum was the appropriate forum and also the grant of leave to serve proceedings out of the jurisdiction was that the court would choose that forum in which the case could be tried more suitably for the interest of all the parties and for the ends of justice.”

The criteria to determine which was a more appropriate forum, for the purpose of ordering stay of the suit, the court would look for that forum with which the action had the most real and substantial connection in terms of convenience or expense, availability of witnesses, the law governing the relevant transaction and the places where the parties resided or carried on business. If the court concluded that there was no other available forum which was more appropriate than the English court, it would normally refuse a stay. If, however, the court concluded that there was another forum which was prima facie more appropriate, the court would normally grant a stay unless there were circumstances militating against a stay. It was noted that as the dispute concerning the contract in which the proper law was English law, it meant that England was the appropriate forum in which the case could be more suitably tried.”
Though these observations have been made in the context of granting anti suit injunction, the principle can be followed in regulating the exercise of jurisdiction of the court where proceedings are instituted. In a civil proceeding, the plaintiff is the dominus litis but if more than one court has jurisdiction, court can determine which is the convenient forum and lay down conditions in the interest of justice subject to which its jurisdiction may be availed. Kusum Ingots & Alloys Ltd. v. Union of India and anr., 2004(2) R.C.R.(Civil) 720 : (2004) 6 SCC 254 para 30.

14. One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available. In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing State of Maharashtra etc. v. Dr. Praful B. Desai etc., 2003(2) R.C.R.(Criminal) 770 : (2003) 4 SCC 601; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and anr. 2005(1) R.C.R.(Criminal) 988 : (2005) 3 SCC 284; Budhadev Karmaskar (4) v. State of West Bengal, 2012(1) R.C.R.(Criminal) 598 : 2012(1) Recent Apex Judgments (R.A.J.) 101 : (2011) 10 SCC 283; Malthesh Gudda Pooja v. State of Karnataka and ors., 2012(1) R.C.R.(Civil) 985 : 2012(1) Recent Apex Judgments (R.A.J.) 303 : (2011) 15 SCC 330.

15. The other difficulty faced by the parties living beyond the local jurisdiction of the court is ignorance about availability of suitable legal services. Legal Aid Committee of every district ought to make available selected panel of advocates whose discipline and quality can be suitably regulated and who are ready to provide legal aid at a specified fee. Such panels ought to be notified on the websites of the District Legal Services Authorities/State Legal Services Authorities/National Legal Services Authority. This may enhance access to justice consistent with Article 39A of the Constitution.

16. The advancement of technology ought to be utilized also for service on parties or receiving communication from the parties. Every district court must have at least one e-mail ID. Administrative instructions for directions can be issued to permit the litigants to access the court, especially when litigant is located outside the local jurisdiction of the Court. A designated officer/manager of a district court may suitably respond to such e-mail in the manner permitted as per the administrative instructions. Similarly, a manager/information officer in every district court may be accessible on a notified telephone during notified hours as per the instructions. These steps may, to some extent, take care of the problems of the litigants. These suggestions may need attention of the High Courts.

17. We are thus of the view that it is necessary to issue certain directions which may provide alternative to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred it will result in denial of justice.

18. We, therefore, direct that in matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:-

i) Availability of video conferencing facility.

ii) Availability of legal aid service.

iii) Deposit of cost for travel, lodging and boarding in terms of Order 25 CPC.

iv) E-mail address/phone number, if any, at which litigant from out station may communicate.
19. We hope the above arrangement may, to an extent, reduce hardship to the litigants as noted above in the Order of this Court dated 9th January, 2017. However, in the present case since the matter is pending in this Court for about three years, we are satisfied that the prayer for transfer may be allowed. Accordingly, we direct that proceedings in Case No.179A/2013 under Section 13 of the Act titled “Harish Nagam v. Krishna Veni Nagam” pending on the file of II Presiding Judge, Family Court, Jabalpur, Madhya Pradesh shall stand transferred to the Family Court, Hyderabad, Andhra Pradesh. If the parties seek mediation the transferee court may explore the possibility of an amicable settlement through mediation. It will be open to the transferee court to conduct the proceedings or record evidence of the witnesses who are unable to appear in court by way of video conferencing. Records shall e sent by court where proceedings are pending to the transferee court forthwith.

20. The Registry to transmit a copy of this order to the courts concerned. A copy of this order be sent to all the High Courts for appropriate action.

21. We place on record our appreciation for the valuable assistance rendered by Mr. Atmaram N.S. Nadkarni, learned Additional Solicitor General and Mr. C.A. Sundaram, learned Senior Advocate.

21. The transfer petition is disposed of accordingly.

Bhartiben Ravibhai Rav v. Ravibhai Govindbhai Rav, (SC) 2017(6) Scale 74

ORDER

R. Banumathi, J. – This transfer petition filed under Section 25 of Code of Civil Procedure for transfer of H.M.P. No. 1668 of 2015 titled as `Ravibhai Gobindbhai Rav v. Bhartiben Ravibhai Rav’ pending before the Family Court Judge, Ahmedabad at Gujarat to the Court of Competent Jurisdiction at Dungarpur, Rajasthan.

2. The marriage between the petitioner and the respondent was solemnized on 19.02.2006 and the couple was blessed with two sons namely Meshvasinh and Aeshvasinh who are aged eight years and seven years respectively. The relationship between the couple was strained and it is alleged that in September, 2015 the petitioner-wife was thrown out of her matrimonial house. The respondent-husband filed divorce petition being H.M.P. No.1668 of 2015 before the Family Court, Ahmedabad under Section 13(1) of the Hindu Marriage Act, 1955 of which the petitioner-wife seeks transfer.

3. The transfer petition is strongly objected to by the respondent-husband on the ground that he is employed in Ahmedabad and that he is taking care of his two sons, apart from his aged parents. The petitioner-wife, on the other hand, contends that the distance between Ahmedabad and her place Dungarpur, Rajasthan is about 200 kms. and that she finds it difficult to travel to Ahmedabad to contest the divorce petition. That apart, the petitioner-wife has also raised difficulty in pursuing the Divorce Petition in Ahmedabad because of the language problem, as she is not well-acquainted in Gujarati.

4. Apart from divorce petition, there are other proceedings pending between the parties which have been filed by the petitioner-wife at Dungarpur, Rajasthan viz; (i) FIR under Section 498-A and 406 IPC and under Section 4 of The Dowry Prohibition Act; (ii) Petition under Section 125 Cr.P.C. before the Family Court, Dungarpur, Rajasthan and (iii) petition under Sections 12 and 23 of Protection of Women from Domestic Violence Act, 2005 pending before the Chief Judicial Magistrate, Dungarpur, Rajasthan. It is stated that respondent-husband is already appearing in Dungarpur Court, Rajasthan in connection with the aforesaid cases instituted by the petitioner-wife and that it may not be difficult for respondent-husband to pursue the divorce petition in Dungarpur Court, Rajasthan. Considering the facts and circumstances of the case, we feel that the petition could be transferred to Dungarpur, Rajasthan.

5. This petition is allowed. We make it clear that we have not expressed any opinion on the merits of the matter.

6. The Family Court Judge, Ahmedabad, Gujarat is directed to transmit records pertaining to HMP No.1668/2015 to District Judge, Dungarpur, Rajasthan, who shall transmit the case to Family Court, Dungarpur, Rajasthan (if there is a Family Court) or forward the same to the Court of competent jurisdiction.

7. On the case being transferred, to Dungarpur, Rajasthan, if need be sufficient security be provided to either of the parties, on an application made before the Court.