Justice Veena Birbal in Pritam Ashok Sadaphule V. Hema Chugh in C.R.P. 148/2011 dismissed the revision petition moved by Petitioner/husband challenging the dismissal of the application made by the petitioner under section 13 of Civil Procedure Code, 1908 (CPC). The Petitioner/husband had acquired decree granting divorce from Ilford County Court in England where the parties were residing subsequent to their marriage.
The dispute was with respect to this ex-parte foreign 'decree' that granted divorce on the ground of "irretrievable breakdown" of marriage. "Ex-parte" decree means a decree or a decision passed by court in the absence of one of the parties to the dispute. "Irretrievable breakdown" of marriage is a ground for granting divorce wherein such situation exists where both parties or spouses are not in position or are not able to live together thereby destroying the marital relationship beyond repair.
In order to understand the questions that were involved in the case, it is first essential to understand some legal concepts that thrust upon the questions that were involved in the case. The Hindu Marriage Act, 1955 governs marriage and divorce amongst Hindus. This Act besides providing essentials for a valid marriage also provides various grounds of divorce. These include cruelty, desertion, conversion etc. However this Act do not recognize irretrievable breakdown of marriage as a ground of divorce. It is also important to note that in the present case, the marriage between the parties was solemnized in India and in accordance to Hindu law.
[However, the Law commission in its 71st report had suggested the inclusion of this ground as a provision for divorce and the Union Cabinet has recently in March, 2012 approved Marriage Laws (Amendment) Bill, 2010 that provides irretrievable breakdown of marriage as a ground of divorce under the Hindu Marriage Act. But this Bill is yet to be passed by the Parliament for converting this into an Act that formally mandates the same.]
The second legal concept that thrust on the question involved in the case is recognition of the foreign judgments by the Indian courts. Section 13 of CPC provides that Foreign judgments (judgment passed by foreign courts) shall be binding on the parties and conclusive until there exits circumstances as provided in exceptions to Section 13 of CPC. These exceptions provide that foreign judgment shall be not conclusive or binding in the following cases:
Thus, CPC provides that only those foreign judgments shall be binding and conclusive those are not pronounced in the circumstances mentioned in the exceptions to section 13 of CPC.
In the present case, the petitioner had initiated divorce proceedings in England that had culminated into decree of divorce on the ground of irretrievable breakdown of marriage. This decree was passed ex-parte and the English court had sought the reply from the parties as to whether the decree should be made absolute. The respondent was in India at the time of initiation of divorce proceedings and had also initiated divorce proceedings against the petitioner/husband on the ground of cruelty in the Indian court. The respondent/wife had in reply to English court had submitted and showcased her inability to attend and contest the divorce proceedings in England due to financial constraints and had informed about the initiation of divorce proceeding before the Indian courts. The respondent/wife had also sought decree of permanent injunction against the petitioner/husband for continuing with the divorce petition in England. Decree of Permanent injunction is prayed to injunct or stops the conduct of legal proceedings.
The Petitioner/husband made an application under section 13 of the CPC to the court praying for dropping of the divorce proceedings against him on the ground of dissolution of marriage having been resulted on account of Foreign divorce decree. The Petitioner had submitted that the divorce petition filed by the respondent was infructuous in view of decree passed by foreign court. The respondent/wife contested the said application by submitting that decree passed by foreign court cannot be recognized by the Indian courts in view of having been passed on the ground of irretrievable breakdown of marriage that was not a ground for divorce in India.
The trial court accepted the plea of the respondent and dismissed the application of the petitioner/husband and held that the decree granted by the English court cannot be recognized in view of the facts of the case that are falling within the purview of the exceptions of section 13 of CPC. The Petitioner/husband thereafter filed the revision petition challenging this order of the Trial court.
The petitioner/husband contended before the Delhi High court that the divorce decree granted by the English court cannot be regarded as nullity by the Trial Court as the respondent/wife had not acquired any declaration from any competent court declaring foreign decree as null and void. The Petitioner/husband also contended that the respondent/ wife was served with the summons (orders to appear before the court) and had also made representation to the English court indicating towards the fact of submission by the respondent to the jurisdiction of the foreign court. The Petitioner also submitted that none of exceptions to the section 13 of CPC were exiting in the case. The respondent/wife on the other hand contended that the revision petition of petitioner should be dismissed on the ground that foreign decree had been passed without taking into consideration the provisions of Indian law and were against the public policy.
The Delhi High Court relying upon the Y. Narasimaha Rao and others v. Y. Venkata Lakshmi (1991) 3 SCC 451 observed the following rule for the recognition of foreign matrimonial judgments:
"The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows:
The Delhi High Court held that parties had married in accordance to Hindu law and were governed by Hindu marriage act and therefore, the relief that was to be granted was to be granted in accordance to the matrimonial law under which they had married and it is only in case the parties have submitted themselves voluntarily and effectively to the jurisdiction of foreign court that the foreign judgment shall be held to be conclusive and binding. The Delhi high Court observed that the marriage between the parties was dissolved on a ground of irretrievable breakdown of marriage that was not a ground of divorce under Hindu Marriage act.
The Delhi High Court also held that the respondent had not submitted to the foreign jurisdiction and this is evidenced from the fact that respondent had moved petition seeking permanent injunction against the divorce proceedings in England and had also only submitted a representation to the English court stating inability to contest the divorce proceedings in England. The Delhi High Court also held that respondent had also informed the English court about the initiation of divorce proceedings by her clearly indicating the fact that respondent had not submitted to the jurisdiction of the English court.
The Delhi High Court observed the settled position in regard to section 13 of CPC that was laid down in Y. Narasimaha Rao and others v. Y. Venkata Lakshmi (1991) 3 SCC 451, the Delhi High Court observed that the Supreme Court while interpreting section 13 of CPC has held that unless the respondent voluntarily and effectively submits to the jurisdiction of the foreign court and contest the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court cannot be relied upon. The Delhi High Court also observed that Supreme Court in this case had declined to give imprimatur to a foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties had married. The Delhi High Court also observed the following relevant portion of Supreme Court judgment of Y. Narasimaha Rao:
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.
Thus, the Delhi High court relying on the above settled principles of law dismissed the Revision petition of the Petitioner/husband and held that there was no illegality seen in the challenged order of the Trial Court that calls for interference by this court and thus upheld the order of the trail court that decree of dissolution marriage passed by England court cannot be recognized as the facts of the case within the preview of exceptions of section 13 of CPC.
This judgment has upheld the precedent that have been laid down by various Supreme Court judgments on section 13 of CPC whereby Foreign judgment shall be not be binding or conclusive in cases where they do not take into consideration the provisions of Indian law or are passed not on merits of case i.e. where parties are not provided an opportunity to contest the suit.
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