NRI Marriage – Jurisdiction of Foreign Courts
There are a number of cases being reported these days where Non Resident Indians solemnize marriage in India and thereafter go abroad and latter on get their marriages annulled by the foreign courts as per the law of that other country. However in such cases a question often arises as to the validity of such divorce decrees in India. There is confusion as to whether a marriage solemnized within this country can be validly annulled by a decree of divorce granted by a foreign Court. The confusion is mainly because under the Indian law a marriage can be annulled only by the provisions of the Act under which the parties had contracted their marriage. For example the marriage of a Hindu couple in India is governed by the Hindu Marriage Act, 1955. 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 or more by those persons who would naturally have heard of him if he were alive, has jurisdiction to entertain the petition. A foreign Court, therefore, will have no jurisdiction to entertain the petition for divorce according to the Act under which admittedly the parties were married. Further a foreign law may provide for certain grounds for divorce which may not be recognized under the Indian law. For example irretrievable breakdown of marriage is not one of the grounds recognized by the Hindu Marriage Act for dissolution of marriage. Hence it would be debatable whether a divorce granted by a foreign court on the ground of irretrievable breakdown of matrimony would be recognized by the Courts in India or not.
In absence of any statutory law on this point the only guidance available is the decision of the Supreme Court and the High Courts which can throw some light on the matter. Early treatment on the question is found in the judgment of the Supreme Court in the matter of Satya versus Teja Singh 1975 AIR (SC) 105.
In this case the question which came for consideration before the Supreme Court was whether Indian courts are bound to give recognition to divorce decrees granted by foreign courts ? In this case Both the appellant wife as well as the respondent husband were Indian citizens and were domiciled in India at the time of their marriage. After some time of the marriage the husband moved to the US whereas the wife along with her two children remained in India. The husband obtained a decree of divorce from the US Court. In a maintenance petition by the wife, the husband contended that he was not liable to pay maintenance as the marriage stood dissolved by the decree of divorce passed by the court in the US.
The Supreme Court examined the principles of private international law and the concept of domicile and laid down some important principles regarding the validity of foreign judgments in matrimonial disputes. The Court observed that the decree of divorce obtained by the respondent from the US court is, prima facie, a complete answer to the appellant’s claim for maintenance under Section 488, Code of Criminal Procedure (old Act). If that decree is valid the appellant’s claim for maintenance, though not her children’s must fail, as Section 488 enables a “wife” and children to apply for maintenance. But was the decree of divorce procured by fraud and if so, is it entitled to recognition here? That is the essence of the matter. The Court observed that in determining whether a divorce decree will be recognized in another jurisdiction as a matter of comity, public policy and good morals may be considered. No country is bound by comity to give effect in its courts to divorce laws of another country which are repugnant to its own laws and public policy.
Speaking about the concept of domicile the court observed that domicile is a jurisdictional fact. Therefore, a foreign divorce decree may be attacked, and its invalidity shown, by proof that plaintiff did not have, or that neither party had, a domicile or bonafide residence in the State or country where the decree was rendered. In order to render a foreign decree subject to a collateral attack on the ground of fraud, the fraud in procurement of the judgment must go to the jurisdiction of the court. It is necessary and sufficient that there was a fraudulent representation designed and intended to mislead and resulting in damaging deception.
Speaking about the effect of law laid down by the foreign courts the Supreme Court observed that the principles of the American and English conflict of laws are not to be adopted blindly by Indian courts. Our notions of a genuine divorce and of substantial justice and the distinctive principles of our public policy must determine the rules of our private International Law. But an awareness of foreign law in a parallel jurisdiction would be a useful guideline in determining these rules. We are sovereign within our territory but “it is no derogation of sovereignty to take account of foreign law and we shall not brush aside foreign judicial processes unless doing so would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.
In the light of these observations the Apex Court held that the decree of divorce obtained by the respondent from the Nevada court is, prima facie, a complete answer to the appellant’s claim for maintenance under Section 488, Code of Criminal Procedure. If that decree is valid the appellant’s claim for maintenance, though not her children’s must fail, as Section 488 enables a “wife” and children to apply for maintenance. But was the decree of divorce procured by fraud and if so, is it entitled to recognition here? That is the essence of the matter. The Nevada court assumed and exercised jurisdiction to pass the divorce decree on the basis that the respondent was a bonafide resident of and was domiciled in Nevada. Domicile being a jurisdictional fact, the decree is open to the collateral attack that the respondent was not a bonafide resident of Nevada, much less was he domiciled in Nevada. The recital in the judgment of the Nevada court that the respondent was a bonafide resident of and was domiciled in Nevada is not conclusive and can be contradicted by satisfactory proof. The appellant did not appear in the Nevada court, was un-represented and did not submit to the jurisdiction of that court.
It was further held that true, that the concept of domicil is not uniform throughout the world and just as long residence does not by itself establish domicil, brief residence may not negative it. But residence for a particular purpose fails to answer the qualitative test for, the purpose being accomplished the residence would cease. The residence must answer “a qualitative as well as a quantitative test”, that is, the two elements of factum at animus must concur. The respondent went to Nevada forum-hunting found a convenient jurisdiction which would easily purvey a divorce to him and left it even before the ink on his domiciliary assertion was dry. Thus, the decree of the Nevada court lacks jurisdiction. It can receive no recognition in our courts.
The Court discussed the provision of CPC and observed that Section 13(a) of the Code of Civil Procedure, 1908 makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon except “where it has not been pronounced by a court of competent jurisdiction. Further Under Section 13(e), Civil Procedure Code, the foreign judgment is open to challenge “where it has been obtained by fraud.
In this case the respondent argued that judgments on status are judgments in rem, that such is the character of Nevada judgment and therefore that judgment is binding on the whole world. Section 41 of the Evidence Act provides, to the extent material, that a final judgment of a competent court in the exercise of matrimonial jurisdiction is conclusive proof that the legal character which it confers or takes away accrued or ceased at the time declared in the judgment for that purpose. But the judgment has to be of a “competent Court” that is, a court having jurisdiction over the parties and the subject-matter. Even a judgment in rem is therefore open to attack on the ground that the court which gave it had no jurisdiction to do so. In R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Majid (1963) 3 SCR 22 at p. 42, this court held that “a judgment of a foreign court to be conclusive between the parties must be a judgment pronounced by a court of competent-‘ jurisdiction and competence contemplated by Section 13 of the Code of. Civil Procedure is in an international sense and not merely by the law of foreign State in which the Court delivering judgment functions”. In fact Section 44 of the Evidence Act gives to any party to a suit or proceeding the right to show that the judgment which is relevant under Section 41 ” was delivered by a court not competent to deliver it, or was obtained by fraud or collusion”. It is therefore wrong to think that judgments in rem are inviolable. Fraud, in any case bearing on jurisdictional facts, vitiates all judicial acts whether in rem or in Personam.
In another case titled as Y. Narasimha Rao And Others versus Y. Venkata Lakshmi and another(1991(3) SCC 451 ) the Hon’ble Supreme Court discussed the principles regarding recognition of divorce decree by foreign court(USA Court in this case). In the present case the Parties married in India and were governed by Hindu Marriage Act. Thereafter the Husband move to the USA and obtained a decree of divorce from the USA Court. The grounds on which decree of divorce passed, was not covered by Hindu Marriage Act. Husband was not a domicile of the USA but only technically satisfying the residence requirement of 90 days for assuming the jurisdiction of the foreign court. Decree was held to be not enforceable against the respondent. Appellant played a fraud on the foreign court by representing to it incorrect jurisdictional facts. Such a decree was held not available as a decree to the charge of bigamy filed by wife.
Clause (a) of Section 13 states that a foreign judgment shall not be recognized 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 recognizes 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 judgment has not been given on the merits of the case, the courts in this country will not recognize such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the court either in person or through a representative for objecting to the jurisdiction of the court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the court which may be valid in other matters and areas should be ignored and deemed inappropriate.
The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognize the law of this country in cases in which such law is applicable, the judgment will not be recognized 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 recognized 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 the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilized system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognized. This jurisdictional principle is also recognized by the Judgments Convention of the European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognized only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) may be held to have been satisfied.
The provision of clause (e) of Section 13 of which requires that the courts in this country will not recognize 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 it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.
13. From the aforesaid discussion the following rule can be deduced for recognizing 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.
Thus from the above discussion and the case law it can be safely assume that the although the decrees of divorce passed by the foreign courts are generally enforceable in India however where such decrees are passed by foreign courts without having jurisdiction or against any express provision of law which is in force in India then such decrees would have no value in any proceedings arising out between the parties in India and the courts in India would be free to discard such decrees and it would also not affect the marital status of the parties thereto.