• Monday, September 16th, 2013

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBThe aim of this article, written by Praveen Dalal managing partner of law Firm Perry4Law, is to analyse the legal position regarding recognition of foreign divorce decrees in India and its judicial enforcement in India. Recognition of foreign decree is an important aspect of Conflict of Laws or Private International Law, which has not yet been developed in India. An attempt has been made to provide holistic aspects of this branch, so that the same may be used for various purposes. The article is primarily based upon the updating and purposive interpretation of the Conflict of Laws, as applicable in India. Thus, it will inevitable tread beyond the contemporary line of thought that is not only limiting this branch to narrow confines but is equally restricting its growth in India.

The law regulates the conduct of the society in its most desirable and benign form. It maintains the order in the society and eliminates unhealthy delinquencies and deviations. Thus, law plays an important role in developing a civilised society. The law of a country is generally based on its social, economic, and political ideologies and notions. These ideologies and notions are essentially different in various societies. This usually gives rise to “conflict of laws” which is generally taken care of by the “Private International Law”. An important aspect of the Private International Law is that it is territorial oriented and society specific. Thus, the laws of the country in question prevail, if there is a conflict between the two laws of the different sovereign States. The “Public International Law” on the other hand primarily encompasses within its ambit the Treaties and conventions which are required to be uniformly followed by the “Member Countries” [1]. To appreciate the concept better it is inevitable to analyse the concept of International law in some detail. The expression “International law” is synonymously used for the term “Public International Law”. It is different from “Private International Law” that is a law of different States. The rules of Private International Law have been formulated to avoid conflicts that arise due to conflicting laws of different States. The Public and Private International Law differs in many crucial aspects that primarily decide which law will govern the situation. The chances of “sovereignty clash” are more in case of Private International Law as compared to its counterpart.

The following differences between Private International Law and Public International Law are worth noticing:

(1) Subjects: The Public International Law primarily deals with the States and to some extent with the individuals; Private International Law primarily deals with the individuals of two States.

(2) Scope: The rules of Private International Law are made by the concerned sovereign State whereas it is not so in case of Public International Law.

(3) Applicability: The Public International Law is applied uniformly to all States with few concessions attached to it whereas Private International Law differs from State to State.

(4) Source of law: The Public International Law is formulated through the mode of Treaties and Conventions whereas the Private International Law is formulated by the legislature of the sovereign States.

As a general rule the Public International Law is usually used to give effect to municipal laws of a State but there may be occasions where Private International Law may become rules of Public International Law. This happens when the rules of Private International Law are incorporated in the international treaties [2].

The rules of Private International Law in India 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. The problem in India 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 jurisdictional procedural and substantive rules that 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 Separations 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 the following:

(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 [3].

Thus, India’s social, moral and religious conditions, along with the “public policy”, will be decisive for determining the matrimonial law, including jurisdictional aspects, applicable in India and the harmonisation of law cannot be achieved at the cost of their ignorance and sacrifice. The principles governing public policy must be on proper occasion, capable of expansion or modification. The practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy, which covers a case, then the Court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case, which may not be covered by authority, our courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the Court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution[4]. The courts can refuse to apply a rule of foreign law or recognise a foreign judgment or a foreign arbitral award if it is found that the same is contrary to the public policy of the country in which it is sought to be invoked or enforced[5].

Only court of competent jurisdiction can entertain a matrimonial suit. A court is competent if:

(a) either party or both parties to the suit had “sufficient contact” with the territorial jurisdiction of that court, or

(b) either party was or both parties were “domiciled” in its territorial jurisdiction at the time of filing of the suit, or

(c) the parties were married under “a law” that confers jurisdiction upon that court, either expressly or impliedly, etc.

The Indian Courts have generally tried to follow in jurisdictional 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 is not a sound judicial strategy. 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 different communities. It is only where there 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 58 years of independence 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 India derived their inspiration 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.

The courts, however, cannot be blamed for this sardonic situation. The courts are helpless because either they have to rely upon foreign precedents or they have to develop the Private International Law in India within the parameters of already exiting and scattered law. The same can only be done by adopting an updating, purposive and futuristic interpretation of the existing laws. That is a need of hour because nothing much has been done to remedy the situation by the legislature. Further, since the matter is before the courts the same can also be taken care by the courts in India. Legislatures are not best fitted for the role of adapting the law to the necessities of the time, for the legislative process is too slow and the legislatures often divided by politics, slowed down by periodic elections and overburdened with myriad other legislative activities. This task must, therefore, of necessity fall upon the courts because the courts can by the process of judicial interpretation adapt the law to suit the needs of the society [6]. Thus, Courts in India can provide a much better solution to this situation by adopting the “purposive and updating modes of interpretation’ of the provisions of the various laws. It is presumed that the Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking[7]. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law [8]. This must be more so since the efforts of the Law Commission reflected in its 65th Report on this very subject have not fructified since April 1976, when the Report was submitted.

The matrimonial laws are not common everywhere in the world and they differ from country to country. The problem arises when the parties have their domicile in one country and one of them obtains matrimonial relief in a foreign country. 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 are becoming the order of the day. The minimum rules of guidance for securing the certainty need not await legislative initiative. The Constitutional Courts can accomplish the modest job within the framework of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose [9].

The relevant provisions of Section 13 of the Code of Civil Procedure, 1908 (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 the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.

Under Section 13 of 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; or

(b) it has not been given on the merits of the case; or

(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; or

(d) the proceedings are opposed to natural justice, or

(e) it is obtained by fraud, or

(f) it sustains a claim founded on a breach of any law in force in India.

It is thus clear that in order to make a foreign judgment conclusive in India; it must be shown that it complies with all the abovementioned six conditions. If there is no compliance of any one of these conditions, the foreign judgment will not be conclusive and consequently not legally effective and binding. A decree of a foreign Court is normally recognised by a Court in another jurisdiction as a matter of comity and public policy. But no country is bound to recognise and give effect to a decree of a foreign Court if it is repugnant to its own laws and public policy. So far as India is concerned, a judgment of a foreign Court creates estoppel or res judicata between the same parties provided such judgment is not subject to attack under any of the Clauses (a) to (f) of section 13 of the Code [10].

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. If a decree of divorce is to be accorded full faith and credit in the courts of another jurisdiction, it is necessary that the Court granting the decree has jurisdiction over the proceedings. A foreign divorce decree is therefore, subject to collateral attack for lack of jurisdiction [11]. 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. A decree passed by a court without jurisdiction will be void, having no force of law and binding value. In Rafique Bibi v Sayed [12] the Supreme Court observed: “What is void has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction, which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go beyond the decree must prevail”.

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 ignore and deemed inappropriate. Thus, an ex-parte decree passed in the absence of the wife will not satisfy the requirements of this clause.

In M/S International Woolen Mills v M/S Standard Wool (UK) Limited (2001) the Supreme Court, while dealing with the validity of an ex-parte decree observed: “Section 114 merely raises the presumption, under illustration (e) thereof, that judicial acts have been regularly performed. To say that a decree has been passed regularly is completely different from saying that the decree has been passed on merits. An ex-parte decree passed without consideration of merits may be decree passed regular if permitted by the rules of that Court. Such a decree would be valid in that country in which it is passed unless set aside by a Court of Appeal. However, even though it may be a valid and enforceable decree in that country, it would not be enforceable in India if it has not been passed on merits. Therefore for a decision on the question whether a decree has been passed on merits or not, the presumption under Section 114 would be of no help at all”.

The first part of clause (c) of Section 13 recognises that if a decision is based on an incorrect view of International Law by a foreign court, that judgment will not be recognised in India. 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 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 civilised 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 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 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 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 [13] 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.

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 domiciliary law, which determines the jurisdiction and judges the merits of the case [14].

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[1] Praveen Dalal, “The mandates of WTO”, .
[2] Praveen Dalal, “The true face of International law”, .
[3] Y.Narasimha Rao v Y.Venkata Lakshmi, 1991 (3) SCC 451.
[4] Central Inland Water Transport Corporation Ltd v Brojo Nath Ganguly, AIR 1986 SC 1571.
[5] Renusagar Power Co. Ltd. v General Electric Co., A.I.R. 1994 S.C. 860.
[6] Central Inland Water Transport Corporation Ltd v Brojo Nath Ganguly, AIR 1986 SC 1571.
[7] Praveen Dalal, “Law as an instrument of social change”
[8] State of Maharashtra v Dr Praful. B. Desai, (2003) 4 SCC 601.
[9] Y.Narasimha Rao v Y.Venkata Lakshmi, 1991 (3) SCC 451.
[10] Maganbhai v. Maniben, A.I.R. 1985 Gujarat 187.
[11] Satya v Teja Singh, A.I.R. 1975 SC 105.
[12] (2004) 1 SCC 287.
[13] A.I.R. 1975 SC 105.
[14] Y.Narasimha Rao v Y.Venkata Lakshmi, 1991 (3) SCC 451.

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