Is Divorce by foreign court valid in India!

The court cases are Lost or Won on the basis of defects, facts, evidence, merits, and defeat or victory in court cases is also attributable brilliance of Judges in Lower Courts or Higher Courts or Apex Court that look into urgency and nature of the matter, 'Controversy', finer nuances of the matter and deliver crystal clear, path-breaking, trendsetting, landmark, and brilliant judgments.

The courts of law are sensitive towards the matters, 'Controversy' in the matter and are thoughtful while delivering the decisions that can affect the social fabric in the nation and many lives.

Litigant should avoid building cases on 'Controversy' as court of law may frown on 'Controversy' and can end the 'Controversy' with decision.

The litigant and counsels of litigants should examine the very basis of dispute, surrounding facts, applicable enactments, judicial prouncements, case laws, Rulings, and apply their resources and skills and knowledge and act in time before approaching courts of law and thus build the case  avoiding 'Controversy' and thus prepare to get the opportunity to succeed.  

The litigants that do not prepare, and do not prepare well, face the probability of defeat, staring at them.  

A citizen before becoming a litigant and initiating litigation must endeavor to resolve the dispute by amicable means, with own skills, intervention of elders of the family, competent and experienced well wishers, seasoned counsels that can skillfully arbitrate, conciliate and mediate and resolve the matter…..and prevent protracted litigation, huge expenses, loss of youthful years, resources, hard earned monies, bitterness in relations, social stigma etc etc and must spend quality time with counsels having expertise in concerned field of law, before hurriedly initiating litigation.

The Family Court at Bandra; Mumbai, India, dismissed plea of spouse (married woman) for divorce and maintenance to her and her two children, citing and thus accepting the order of the Foreign Court at Dubai of year 2012, granting divorce to the other spouse ( her husband) on the grounds of desertion.

Bombay High Court Divisional Bench  of Justice A.S.OKA, Justice SMT. ANUJA PRABHUDESSAI, strike down the order of Family Court at Bandra; Mumbai, while hearing appeal of the wife  and decided that the divorce of couple by Foreign court at Dubai was not valid and could not be enforced in India, and ended the 'Controversy'.

The decision can be hailed as path breaking, trendsetting decision and litigants should keep in mind and avoid approaching courts with disputes smacking with 'Controversy'. The grounds taken by Husband for; Divorce; in Foreign lands were desertion, and divorce by foreign court was granted.

The wife pleaded that she never submitted nor consented to Foreign Court at Dubai. The couple was domiciled in India and governed by Hindu Marriage Act.

(A) THE CODE OF CIVIL PROCEDURE, 1908 (Act No. 5 of 1908)

13. When foreign judgment is 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.

(B) Dissolution of Marriage:

Central Government Act
The Hindu Marriage Act, 1955

Section; 19: Court to which petition shall be presented.
Every petition under this Act shall be presented to the district court within the local limits of whose ordinary 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

41 [(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or]

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this 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.]

Jurisdiction of the Court If a marriage is solemnised at a place within the municipal limit and the party reside there only, the family Court would have exclusive jurisdiction to deal with case. The case cannot be transferred to district court on a ground that the husband resides outside the limits of municipal corporation; Arjun Singhal v. Pushpa Karwel, AIR 2003 MP 189.

Central Government Act

The Indian Evidence Act, 1872; Section 41: ���jurisdiction.�A final judgment, order or decree of a competent Court, in the exercise of�.., matrimonial,
Section: 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77, 86

(C) The Apex Court; The Supreme Court of India; examined various Laws of the Land, International Conventions,   and laid down the conditions of acceptability and enforceability of foreign judgments in India, pertaining to Divorce.

Hindu Marriage Act, 1955: Section 19. Dissolution of marriage-Court to which petition should be presented-Parties marrying in India under Hindu Law-Husband's petition for dissolution of marriage in Foreign Court-Fraud-Incorrect representation of jurisdictional facts-Husband neither domiciled nor had intention to make the foreign state his home but:

Only technically satisfying the requirement of residence of 90 days for the purpose of obtaining divorce-

Divorce decree by foreign court on a ground not available under the 1955 Act-Enforceability of Civil Procedure Code, 1908: Section 13

HELD:

 2. Residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well.

4. The relevant provisions of Section 13 of the CPC 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 social life.

4.1 On an analysis and interpretation of Section 13 of CPC the following rule can be deduced for recognising 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 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.

Supreme Court of India

Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr

(D) IN THE HIGH COURT OF JUDICATURE AT BOMBAY

(i) DATED: 15th NOVEMBER, 2016.

Considering the controversy (CONTOVERSY) involved, the appeal deserves to be disposed of finally at the stage of admission. For that purpose, the appeal shall be fixed on 5th December, 2016 under the caption of “fresh admission”.

(ANUJA PRABHUDESSAI, J.) (A.S. OKA, J.)

(ii) DATE : 5th December, 2016

RESERVED FOR JUDGEMENT
(iii) The averments and material placed before Court by spouse (Husband) did not establish:
The spouse (Husband) had made Foreign Lands; Dubai, a permanent abode,
The other spouse (Wife) was resident of Foreign Lands (Dubai)
The other spouse (Wife) had domicile of Dubai, had abandoned the spouse and Indian Domicile.
While the other spouse (Wife) placed before court that she never submitted or consented to Foreign Court at Dubai.

The Bombay High Court observed that:

The averments and material placed before it does establish that both spouses are Indians and does not establish that they were domiciled in Dubai therefore the Foreign Court at Dubai has jurisdiction is only assumption and dislodged the presumption of jurisdiction of Foreign Court at Dubai.

The Foreign Court at Dubai just noted the spouse (Wife) is staying away from other spouse (Husband) for more than 2 years and did not consider the aspect of intention to desert

The Foreign Court at Dubai has not considered the real controversy therefore judgment by foreign court is not a judgment of merits of the case

Divisional Bench of Justice A.S.OKA, Justice SMT. ANUJA PRABHUDESSAI ruled in favor of petitioner spouse (Wife) by noting that decision by Foreign Court at Dubai is neither conclusive nor binding, and thus deciding against the spouse (Husband) that secured Divorce from Foreign Courts, and held that Foreign Court at Dubai had NO Jurisdiction in accordance with provisions of Hindu Marriage Act and exceptions carved out by Supreme Court of India.

1. Being aggrieved by the Order dated 22nd February, 2016 in Petition No. A-3072 of 2016, passed by the Family Court at Bandra, Mumbai, the appellant (wife) has filed the present appeal under Section 19 of the Family Court Act, 1984.

3. A few relevant facts necessary to decide the appeal are as under:-

The marriage of the petitioner and the respondent was solemnized according to the Hindu Vedic Rights. The marriage was subsequently registered …Subsequent to the marriage, the petitioner and the respondent moved to Dubai. While in Dubai, the couple was blessed with two children, a son and a daughter.

4. On 21st June, 2008, the petitioner returned to Mumbai along with the children, and since then the petitioner along with her children is residing in Mumbai, whereas the respondent continues to reside in Dubai. On 12th November, 2014 the petitioner filed a petition for divorce on the ground of cruelty. The petitioner also claimed maintenance and accommodation for herself and the children.

5. The respondent, by application dated 16th January, 2015 questioned the maintainability of the divorce petition filed by the petitioner. The respondent claimed that the petitioner had come to Mumbai on 21st June, 2008 with return tickets for Dubai on 31st August, 2008. The petitioner, however, did not return to Dubai and his efforts to convince her to return to Dubai rendered futile. The ensuing matrimonial discord led the respondent to file a petition for divorce being Petition No.8 of 2012 in Dubai Court. The respondent claimed that the petitioner was duly served with summons issued by Dubai Court, despite which the petitioner failed to appear in the Court, either personally or through her representative. Hence the matter proceeded in the absence of the petitioner in Dubai (UAE Court). The Dubai (UAE) Court by judgment dated 1st November, 2012 granted the petition for divorce. A copy of the said judgment was sent to the petitioner by DHL Express Courier. However, the petitioner refused to accept the same.

7. The petitioner claimed that she had not received any summons from the Court at Dubai and that the issue raised in the said matrimonial proceedings was not adjudicated by the Dubai Court on merits. The petitioner further claimed that the Court at Dubai was not competent Court to adjudicate the issue. It is contended that the forum as well as the grounds on which the relief is granted are not in accordance with the matrimonial law that govern the parties. The petitioner therefore claims that the decree is without jurisdiction and is not conclusive.

14. At the outset, it may be mentioned that in the petition before the Family Court at Bandra, apart from divorce, the petitioner has also sought maintenance and accommodation for herself and the minor children, whereas the petition before the Dubai Court was simplicitor for divorce. It is thus evident that the issues as regards maintenance and accommodation were not adjudicated before the Dubai Court. Hence, the entire petition before the family court, which also covered issues of maintenance and accommodation, could not have been dismissed by invoking the principles of res-judicata.

17. From a plain reading of these provisions it is clear that a foreign judgment is conclusive between the parties as to any matter directly adjudicated upon, unless it is marred by any of the disqualifications under clauses (a) to (f) of Section 13 of the Code of Civil Procedure,1908. Besides there is a presumption about the competency of the court. This presumption however is rebuttable.

19. The law is thus well settled that a decree of a foreign court, in respect of matrimonial proceedings, is conclusive in India only when it is passed by a Court of competent jurisdiction and it is in accordance with the law that governs the matrimonial matters between the parties. Any other Court would be without jurisdiction, unless the case is covered by any of the three exceptions carved out by the Apex Court in para 20 of Y. Narasimha Rao (supra)

20. There can be no dispute that the Court in Dubai would have no jurisdiction to entertain the petition in accordance with the provisions of the Hindu Marriage Act, 1955 unless the case was covered by any of the three exceptions carved out by the Apex Court in Y. Narasimha Rao.

21. It is to be noted that the petitioner had neither submitted nor consented to the jurisdiction on the Dubai Court to adjudicate the action in accordance with the provisions of the Hindu Marriage Act and the grounds available therein. Hence exceptions (ii) and (iii) are not applicable to the facts of the present case.

The controversy centers around exception (i), which refers to the 'forum', where the "respondent" is domiciled or habitually and permanently resides.

23. In the present case the issue is regarding the binding nature of a foreign judgment in a matrimonial dispute, when the spouses are admittedly governed by Hindu Marriage Act.

31. It is thus evident that under the Hindu Marriage Act, factum of separation and animus to desert or intention to bring cohabitation to end are essential requisites of desertion. The Dubai Court has not considered the aspect of animus deserendi and has granted divorce solely on the ground that the parties were living separately for a period of more than two years. It is therefore evident that the Dubai court had not considered the real controversy between the parties and hence the said judgment cannot be said to be a judgment on merits of the case.

34. It is also pertinent to note that the petition for divorce was filed in Dubai while the petitioner was domiciled in India. The Apex Court, in Surinder Kaur Sandhu (supra) stressed the need to protect the wife against the burden of litigating in inconvenient forum. Hence apart from serving the petitioner with summons, it was necessary to ensure that the petitioner was in a position to remain present before the court at Dubai and contest the proceedings effectively. The judgment of Dubai Court does not indicate that the respondent herein had ensured effective contest by making all necessary provisions for the petitioner to defend the petition, including the cost of travel, residence, and litigation. Hence, in terms of the ratio of the judgment in Y. Narasimha Rao (supra), the proceedings were in the breach of principles of natural justice. Consequently, the judgment is unenforceable in terms of clause (d) of section 13 CPC.

35. For the reasons recorded above, the judgment of Dubai Court ceases to be conclusive, and consequently the same could not operate as res-judicata. Following the dictum of the Apex court in the case of Sondur Gopal (supra), it can be safely held that the parties being Hindus and Indian domiciles are governed by the provisions of Hindu Marriage Act. The Family Court Bandra has jurisdiction to try the divorce petition. Consequently, the marriage petition filed by the petitioner before the family court could not have been dismissed on the basis of the judgment of Dubai Court, which is not binding and enforceable in India.

36. Under the circumstances, and in view of the discussion supra, the appeal is allowed. The impugned order is set aside. The petition No. A-3072 of 2016 is restored to file. Parties are directed to appear before the Family Court, Bandra, Mumbai on 18th September, 2017 at 11 a.m. No orders as to costs.

In view of the above, Civil Application No. 154 of 2016 does not survive, and the same is accordingly disposed of.

Foreign judgment FCA 56-16

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 56 OF 2016 WITH CIVIL APPLICATION NO. 154 OF 2016 IN FAMILY COURT APPEAL NO.56 OF 2016

Shilpa Sachdev adult, Indian Inhabitant, Appellant (Original Petitioner)
v/s. Anand Sachdev Adult, Indian Inhabitant present at PO Box NO.51273, Dubai UAE ..Respondent (Original Respondent)

CORAM: A.S.OKA & SMT. ANUJA PRABHUDESSAI, JJ.

JUDGMENT RESERVED ON: 5TH DECEMBER, 2016
JUDGMENT PRONOUNCED ON : 11th AUGUST, 2017.
JUDGMENT (PER ANUJA PRABHUDESSAI, J.) :