Recognition of Foreign Matrimonial Judgement in India #indianlaws #marriagelaws

Supreme Court dealt with the issue relating to Recognition of Foreign Matrimonial Judgment in India when parties to marriage are Hindu and the scope of applicable statutory provisions in connection thereto

In the judgment as passed by the Supreme Court in Y. Narasimha Rao and Ors. vs. Y. Venkata Lakshmi and Anr., dated 09.07.1991, the Court dealt with the issue relating to Recognition of Foreign Matrimonial Judgment in India when parties to marriage are Hindu and the scope of applicable statutory provisions in connection thereto. The holding arrived at in this matter can certainly considered as timeless ratio and worth including in this category.

Crux of the holding is as under: • Under the provisions of the Hindu Marriage Act, 1955 (‘‘Act’’) only the District Court within the local limits of whose original civil jurisdiction:

o (i) the marriage was solemnized, or

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

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

(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.

• Section 13 of the Code of Civil Procedure 1908, deals with provisions relating to applicability of foreign judgment. The interpretation assigned to its various clauses is as under: o

Section 13(a) – A foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. 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. o

Section 13(b) – 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 would 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. o 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. o

Second part of Section 13(c) – 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 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 Section 13(f), since such a judgment would obviously be in breach of the matrimonial law in force in this country. o

Section 13(d) – This provision 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. 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. o

Section 13(e) – This provision requires that the courts in this country will not recognise a foreign judgment if obtained by fraud, is self-evident. However the fraud need not be only in relation to the merits of the mater but may also be in relation to jurisdictional facts.

• In view of the above position of law, as applicable in India, the following may be construed as summarised conclusion:

o Jurisdiction assumed by the foreign Court must be in accordance with the matrimonial law under which the parties are married. o Subject to following exceptions:

 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; 

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; 

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. •

It would further be necessary to note that: o 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. o The above rule 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. • Applicability of Provisions of Indian Evidence Act (Act) on Copy of the Foreign Judgment – o

Under Section 86 of the Act there is presumption with regard to the genuineness and accuracy of certified copy only if it is also certified by the representative of country’s 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. o Certified copies and copies made from the original by mechanical process are permitted to be tendered as secondary evidence.