Home > Judgement > Decree of divorce passed in foriegn country not valid in India as wife did not contest the proceeding in that country

Decree of divorce passed in foriegn country not valid in India as wife did not contest the proceeding in that country

Delhi High Court
Sheenam Raheja vs Amit Wadhwa on 10 September, 2012

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(OS) 990/2010

SHEENAM RAHEJA … Plaintiff Through: Mr. Deepak Anand, Advocate

along with plaintiff in person.

versus

AMIT WADHWA ….. Defendant Through: Defendant is ex parte.

% Date of Decision : September 10, 2012

CORAM:

HON’BLE MS. JUSTICE REVA KHETRAPAL

JUDGMENT

: REVA KHETRAPAL, J.

1. The plaintiff has filed the present suit seeking a decree of

declaration in favour of the plaintiff and against the defendant,

declaring that the proceedings initiated by the defendant for the

dissolution of marriage between the parties on the ground of

irreconcilable differences, arising out of File No.1-09-FL-149089,

pending before the Superior Court of California, County of Santa

Clara, San Jose, USA are illegal, invalid and void ab-initio.

2. During the pendency of the present suit, however, a decree of

dissolution was passed by the Superior Court of California, County of

CS (OS) No.990/2010 Page 1 of 21 Santa Clara, San Jose, USA in favour of the defendant/Husband and

thereupon the plaintiff amended her plaint to seek appropriate orders

declaring the order of dissolution of marriage dated January 14, 2011

and January 18, 2011 passed by the Superior Court of California as

null and void and non-est in the eyes of law.

3. The plaintiff and defendant were married on 15th April, 2000

according to Hindu rites and ceremonies at New Delhi. The marriage

was duly registered under the Hindu Marriage Act, 1955 on 24th

April, 2000. From the wedlock two female children were born on 17th

August, 2001 and 2nd July, 2004, aged 9 years and 6 years

respectively. Both the children are presently in the custody of the

defendant, who, as detailed in the plaint, has taken them away

clandestinely. Shorn of details, the marriage of the plaintiff ran into

troubled waters on account of cruelty inflicted upon her by the

defendant, his mother, sister and other relatives. The mother and sister

of the defendant publicly humiliated the plaintiff for dowry, whenever

she visited India, even though for short spells. On account of said

cruelty and harassment, the plaintiff had become unwell, and on 7th

July, 2008, when the plaintiff came to India along with her two

CS (OS) No.990/2010 Page 2 of 21 children she had to be hospitalized at New Delhi. During this period

the mother-in- law of the plaintiff, without the knowledge and consent

of plaintiff, preponed the already confirmed tickets of the two

children for 17th August, 2008 and took them away with her to USA

on 5th August, 2008. The aforesaid act of the plaintiff’s mother-in-law

naturally caused apprehension in the mind of the plaintiff about her

safety and security in USA, as it became clear to her that the

defendant had no intention to call her to USA. The mother-in-law of

the plaintiff with malafide intentions locked the matrimonial home i.e

H-87, Kirti Nagar, New Delhi and all the belongings of the plaintiff

therein. Since the parents of the plaintiff had limited financial

resources, the plaintiff in order to withdraw money from her savings

bank account visited the State Bank of Patiala, Branch Pusa Road,

New Delhi and was flabbergasted to discover that her savings had

already been withdrawn fraudulently by the defendant and his

relatives by forging her signatures. On coming to know that her bank

account had been cleaned out in this manner, the plaintiff informed

the law enforcing agencies and got registered FIR bearing

No.164/2009 under Sections 420/467/468/471/120-B IPC with the

CS (OS) No.990/2010 Page 3 of 21 Economic Offences Wing, Crime Branch (Delhi Police), where the

matter is still pending for investigation. To be noted at this juncture

that the plaintiff had also lodged a complaint in USA against the

defendant for domestic violence committed in the USA.

4. As averred in the plaint, the plaintiff in the third week of

March, 2010, through a whisper campaign amongst close relatives of

the plaintiff and defendant, came to know that the defendant has filed

some proceedings before a Court in USA. The plaintiff checked the

website of the said Court and came to know that a case for dissolution

of marriage of the parties on the ground of irreconcilable differences

had been filed by the defendant before the Superior Court of

California, County of Santa Clara, San Jose, USA. It is the allegation

of the plaintiff that the plaintiff was never served with the petition and

other pleadings by the defendant, who has played a fraud on the

judicial process to the extent that he did not even disclose the address

of the plaintiff to the Californian Court. The plaintiff on 8th April,

2010 after obtaining copies of the Court papers through her friends in

USA sent a letter to the Court at California, disputing the jurisdiction

of the said Court to entertain the petition of the defendant for

CS (OS) No.990/2010 Page 4 of 21 dissolution of her marriage, solemnized and registered under the

provisions of the Hindu Marriage Act, 1955. The plaintiff also

instituted the present suit seeking a declaration that the proceedings

before the Superior Court at California were illegal, invalid and void

ab-initio.

5. During the pendency of this suit, the plaintiff learnt that a final

order of dissolution of marriage was granted by the Superior Court of

California, County of Santa Clara, San Jose, USA in favour of the

defendant on January 14, 2011 (vide notice of entry judgment dated

January 18, 2011). The plaintiff now seeks to assail the said order of

dissolution of the marriage as null, void and non-est by amendment of

the plaint.

6. Summons of the institution of the present suit were issued to

the defendant on 18th May, 2010. By an order of the same date this

Court opined that prima facie the continuance of proceedings in the

Superior Court of California, County of Santa Clara, San Jose, USA

would act to the prejudice of the plaintiff, as she did not appear to

have any means to contest the said proceedings, and, in the

circumstances, the defendant was restrained from proceeding further

CS (OS) No.990/2010 Page 5 of 21 with the aforesaid case. The defendant was duly served with the order

of this Court along with the copy of plaint and application by all

modes including E-mail, Registered A.D post and UPC at the local

address and at the USA address-3651, Cabernet, Vineyards Circle,

San Jose, CA 95117, USA. Acknowledgement dated 5th June, 2010,

signifying the receipt of the copy of the plaint and the injunction

order of this Court, duly served upon the defendant by the United

States Postal Service and Indian Postal Service, are placed on record

by the plaintiff. It is pleaded that despite being aware of the restraint

order passed by this Court, the defendant knowingly, wilfully and

intentionally continued to proceed with the case in USA in breach of

the interim injunction passed by this court. The plaintiff also served

upon the defendant legal notice dated 12th October, 2010, making the

defendant aware of the consequences ensuing from the breach of

injunction order dated 18th May, 2010 passed by this Court, but to no

avail.

7. Mr. Deepak Anand, the learned counsel representing the

plaintiff, had drawn my attention to the fact that the order of the

Superior Court of California, County of Santa Clara, San Jose, USA

CS (OS) No.990/2010 Page 6 of 21 dated September 3, 2010 unequivocally shows that the order of this

Court was on the file of the said Court. The relevant portion of the

order of the Superior Court of California states:

“The Court notes that it received a letter from Wife dated May 28, 2010, to which she attached a non-certified copy of an order dated May 18, 2010, from the High Court of New Delhi in New Delhi, India. The order, which appears to bear two case numbers-6701/2010 and 99/2010

(sic.)-purports to prohibit Husband from

proceeding with his divorce action in

California based on the theory that California recognizes divorce based on a finding of

irreconcilable differences which, according to the order, is contrary to Indian marriage law.”

8. After noting that this Court had prohibited the husband from

proceeding with the divorce action in California, the Court at

California, however, observed that the Indian order did not indicate

that the husband was ever served with the Indian order. The learned

counsel for the plaintiff contended and I think rightly so, that the said

observation is of no consequence in view of the fact that there is proof

of service upon the defendant on 5th June, 2010, through the United

States Postal Service, which even bears the signatures of the

defendant, namely, Amit Wadhwa with the date and time of service

i.e 05-June-2010 – 10.35 A.M endorsed on it. This is quite apart from

CS (OS) No.990/2010 Page 7 of 21 the fact that the defendant was served through all other modes

including E-mail, proof whereof has been placed on record. The

learned Superior Court of California, despite full and complete

knowledge of the existence of the injunction order passed by this

Court, authorized the defendant to proceed with his request to enter

the plaintiff’s default in case bearing No.1-09-FL-149089 for legal

separation and dissolution of marriage initiated by the defendant in

USA.

9. The learned counsel for the plaintiff on the aforesaid facts and

on the basis of the affidavits by way of evidence filed by the plaintiff

contends that the marriage between the parties having been

solemnized and registered under the provisions of the Hindu Marriage

Act, 1955 in New Delhi, within the jurisdiction of this Court, its

dissolution could be effected only under the said Act. Both the parties

are Indian citizens holding Indian passports and are permanent

residents of India, hence are governed by Indian laws. The Superior

Court of California does not have the jurisdiction to grant decree of

divorce as per the provisions of Hindu Marriage Act, 1955, as neither

the marriage between the parties was solemnized in USA nor the

CS (OS) No.990/2010 Page 8 of 21 plaintiff was residing within the jurisdiction of the Superior Court of

California at the time of the presentation of the petition. The

jurisdiction assumed by the foreign Court as well as the grounds on

which the relief is claimed must be in accordance with the

matrimonial law under which the parties are married i.e. the Hindu

Marriage Act, 1955. The plaintiff and the defendant have both resided

together in India and hence as per Section 19 of the Hindu Marriage

Act, 1955, the jurisdiction for the grant of decree of divorce vests

with the Courts in India. It is further the contention of the learned

counsel for the plaintiff that the plaintiff has till date not submitted

herself to the jurisdiction of the foreign Court i.e Superior Court of

California, County of Santa Clara, San Jose, USA nor was she

represented through counsel and the Court passed the decree in her

absence.

10. The learned counsel placed reliance on the provisions of

Section 13 of the Code of Civil Procedure, 1908 to contend that the

plaintiff is entitled to a decree of declaration as claimed by her. For

the sake of facility of reference, the provisions of Section 13 of the

CPC are reproduced hereunder:-

CS (OS) No.990/2010 Page 9 of 21 “13. When foreign judgment not conclusive- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon

between the same parties or between 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 recognize 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.”

11. Mr. Anand relied on the decision in the case of Y. Narasimha

Rao and Others Vs. Y.Venkata Lakshmi and Another, (1991) 3 SCC

451, where the Hon’ble Supreme Court interpreted each and every

clause of Section 13 of the Civil Procedure Code vis-à-vis

matrimonial law with a view to secure required certainty and protect

the sanctity of the institution of marriage and the unity of family

which are the cornerstones of our societal life. Clauses (b), (c), (d)

CS (OS) No.990/2010 Page 10 of 21 and (f) of Section 13 were interpreted by the Supreme Court in the

following manner :

“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

CS (OS) No.990/2010 Page 11 of 21 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.

18. 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

CS (OS) No.990/2010 Page 12 of 21 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 recognised. This jurisdictional principle is also recognised 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

recognised 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.”

12. The Supreme Court thereafter deduced the following rule as

regards to the binding effect of a decree of dissolution of marriage

passed by a foreign court :-

“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

CS (OS) No.990/2010 Page 13 of 21 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 relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.”

13. Reliance was also placed by Mr. Anand on the decision of

Veena Kalia v. Dr. Jatinder Nath Kalia and Anr., 59 (1995) DLT

635, wherein a learned Single Judge of this Court, Hon’ble Mr.

Justice D.P.Wadhwa (as his Lordship then was) after noting that the

petitioner had never contested the proceedings for divorce filed by the

respondent in the Supreme Court at Nova Scotia, held that it would

not mean that she conceded the jurisdiction of that Court or that the

Supreme Court at Nova Scotia was the Court of competent

jurisdiction. The silence of the wife, which the learned Judge

observed, was not because of her own volition but because of the

CS (OS) No.990/2010 Page 14 of 21 constraints which she could not overcome to contest the proceedings

there, could not confer jurisdiction on that Court, more so as the

husband was not permanently residing within the jurisdiction of the

Supreme Court of Nova Scotia. The Court further observed as under:-

“It is also clear that the ground on which

the decree of divorce had been granted by

the foreign Court is not a ground on which

such a decree could be granted under the

Act. Since the petitioner wife was not in a

position to contest the proceedings in a

foreign Court as she had no means to go

there and the foreign Court did not see to it whether the wife was possessed of sufficient funds and her documentation to visit

Canada complete, the rules of natural

justice stood violated. It is a matter of

common knowledge that mere buying an air

ticket is not enough to visit Canada. There

are various other formalities to be

completed. I am of the firm view that the

foreign judgment on which the husband

relied has no legal validity in this country.”

14. In Smt.Anubha v. Vikas Aggarwal & Ors, 100 (2002) DLT

682, this Court relying upon the decision of the Supreme Court in the

case of Narasimha Rao (supra), held that as laid down by the

Supreme Court, the first and foremost requirement of recognising a

foreign matrimonial judgment is that the relief should be granted to

the petitioner on a ground available under the matrimonial law under

CS (OS) No.990/2010 Page 15 of 21 which the parties are married, or where the respondent voluntarily and

effectively submits to the jurisdiction of the forum and contests the

claim which is based on a ground available under the matrimonial law

under which the parties are married. On the facts of the case before it,

the Court further held as under:-

“25. The ground on which the marriage of

the defendant was dissolved is not available in the Hindu Marriage Act. The parties are

Hindus. Their marriage was solemnised

according to the Hindu rites. Their

matrimonial dispute or relationship was,

therefore, governable by the provisions of

Hindu Marriage Act. Since the plaintiff did

not submit to the jurisdiction of the USA

Court nor did she consent for the grant of

divorce in the US Court the decree obtained

by the defendant from the Connecticut Court

of USA is neither recognisable nor

enforceable in India.”

15. The learned counsel for the plaintiff also vehemently contended

that the defendant-husband has practiced fraud upon the Court at

USA inasmuch as no summons were ever served on the plaintiff at

any point of time. The proof of service of summons do not have any

acknowledgement/receipt/signature of the person to whom the

summons and copies were delivered. The issue of service of

CS (OS) No.990/2010 Page 16 of 21 summons, however, need not be delved into in view of the

observations made hereinafter.

16. In the instant case, the Superior Court of California has passed

the decree of dissolution of marriage on the ground of irreconcilable

differences. The said ground, not being a ground available for

dissolution of marriage under Section 13 of the Hindu Marriage Act,

1955 under which the marriage between the parties was contracted, it

cannot be said that the judgment is passed on merits. Further, it can,

by no stretch of imagination, be said that the decision of the Superior

Court of California was the result of the contest between the parties.

On the contrary, the judgment dated 14.01.2011 shows no application

of mind or appreciation of facts and is merely mechanical in its form

as well as substance. Moreover, the impugned proceedings and the

decree of dissolution are in violation of the principles of natural

justice, which the Supreme Court in the case of Narasimha (supra)

interpreted to mean something more than mere compliance with the

technical rules of procedure. It was observed by the Supreme Court

that it should not be deemed sufficient that the respondent had been

duly served with the process of the court but it must also be

CS (OS) No.990/2010 Page 17 of 21 ascertained whether the respondent was in a position to present or

represent himself/herself and contest effectively the said proceedings

and if the foreign court had not ascertained and ensured 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

were in breach of the principles of natural justice. In this regard, the

order dated 18.05.2010 passed by this Court and the order dated

03.09.2010 passed by the Superior Court of California are of

significance. This Court on 18.05.2010 concluded that prima facie the

continuance of proceedings in the Superior Court of California would

act to the prejudice of the plaintiff, as she did not appear to have any

means to contest the said proceedings, and, in the circumstances, the

defendant was restrained from proceeding further with the aforesaid

case till the next date of hearing which was 21.10.2010. The Superior

Court of California on 03.09.2010, despite being aware of the order of

this Court, disregarded the same merely on the technical ground that

the order did not indicate that the husband was ever served with the

Indian order and in completely ignoring the principles of natural

CS (OS) No.990/2010 Page 18 of 21 justice, concluded that the Court had the jurisdiction to hear the

husband’s petition for dissolution of marriage and that there was no

legal basis to stay the divorce proceedings, authorizing the husband to

proceed with his request to enter wife’s default.

17. The cumulative effect of the aforesaid facts, in my considered

opinion, is that the decree of dissolution of marriage passed by the

Superior Court of California cannot be said to have been passed on

merits nor can it be said to be in compliance with the principles of

natural justice. The plaintiff-wife did not contest the claim nor agree

to the passing of the decree. In fact, the plaintiff in the present case

did not have the wherewithal to contest the impugned proceedings. As

noticed above even her bank account had been fraudulently operated

by the defendant and his relatives by forging her signatures and First

Information Report in this regard was lodged by her being FIR

No.164/2009 under Sections 420/467/468/471/120-B IPC, in respect

of which Status Report has been filed by the Investigating Agency

from time to time. In these circumstances, the judgment, having been

passed in default of wife’s appearance, is clearly in violation of the

principle of audi alteram partem as enunciated by the Supreme Court

CS (OS) No.990/2010 Page 19 of 21 with reference to foreign judgments rendered in matrimonial disputes,

where the wife is not in a position to contest the case in a foreign

jurisdiction, resulting in grave injustice to the wife.

18. Lastly, this Court cannot help but refer to the following

observations made by the Hon’ble Supreme Court in Neeraja Saraph

(Smt) v. Jayant V.Saraph and Anr, (1994) 6 SCC 461, which case

pertained to desertion of an Indian wife by an NRI husband:-

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

CS (OS) No.990/2010 Page 20 of 21

19. Regretfully the plight of women and their exploitation by NRI

husbands is yet to be ameliorated through legislative measures as

suggested in the said case.

20. In view of the aforesaid, the decree of dissolution of marriage

passed by the Superior Court of California in favour of the defendant

can not be said to be conclusive under Section 13 of the Civil

Procedure Code and hence is not enforceable in India. The decree of

dissolution of marriage dated January 14, 2011 and judgment entered

on January 18, 2011 passed by the Superior Court of California,

County of Santa Clara, San Jose, USA in favour of the defendant be

and is hereby declared null and void and unenforceable in India being

opposed to the laws in force in this country.

21. Resultantly, the suit stands decreed in terms of the prayer made

by the plaintiff. The plaintiff shall also be entitled to recover cost in

the sum of Rs.2 lakhs from the defendant.

22. CS(OS) No.990/2010 and IA Nos.182/2012 and 183/2012

stand disposed of.

REVA KHETRAPAL

(JUDGE)

September 10, 2012/’k’

CS (OS) No.990/2010 Page 21 of 21

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