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TMI Blog1974 (10) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... al Appeal No. 187 of 1970 - - - Dated:- 1-10-1974 - Chandrachud, Y. V. And Khanna, Hans Raj,JJ. V. C. Mahajan, Urmila Kapur, Kamlesh Bansal and Sobha Dikshit, for the Appellant. B. P. Maheshwari, Suresh Sethi, R. K. Maheshwari and Randhir Jain, for the Respondent. JUDGMENT This appeal by special leave arises out of an application made by the appellant under section 488, Code of Criminal Procedure, 1898. it raises issues for beyond the normal compass of a summary maintenance proceeding designed primarily to give quick relief to a neglected wife and children. Are Indian courts bound to give recognition to divorce decrees granted by foreign courts ? That, broadly, is the question for decision. Satya, the appellant herein, married the respondent Teja Singh on July 1, 1955 according to Hindu rites. Both were Indian citizens and were domiciled in India at the time of their marriage. The marriage was performed at Jullundur in the State of Punjab., Two children were born of the marriage, a boy in 1956 and a girl in 1958. On January 23, 1959 the respondent, who was working as a Forest Range Officer at Gurdaspur, left for U.S.A. for higher studies in Forestry. He spent a y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the wife, without exception, follows the domicil of the husband, the learned Judge held that since the respondent was domiciled in Nevada so was the appellant in the eye of law. The Nevada court had, therefore, jurisdiction to pass the decree of divorce. In coming to this conclusion the learned Judge relied principally on the decisions of the Privy Council in (i) Le Mesurier v. Le Mesurier, [1895] A. C. 517 and (ii) Attorney General for Alberta v. Cook; 1926 A.C. 444. and of the House of Lords in (1) Lord Advocate v. Jaffray, [1921] 1. A. C. 146 and (ii) Salvesen or 'Von Lorang v. Administrator of Austrian Property. [1927] A.C. 641 In Le Mesurier's case which is often referred to, though not rightly, as the "starting point", it was held that "according to international law, the donmcil for the time being of the married pair affords the only true test of jurisdiction to dissolve their marriage". The High Court framed the question for consideration thus : "whether a Hindu marriage solemnised within this country can be validly annulled by a decree of divorce granted by a foreign court". In one sense, this frame of the question narrows the controversy by restricting the inquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether it is a problem of municipal law or of Conflict of decided in accordance with Indian law. it is another matter that the Indian conflict of laws may require that the law of a foreign country ought to be applied in a given situation for deciding a case which contains a foreign element. Such a recognition is accorded not as an act of courtesy but on considerations of justice. (4) It is implicit in that process, that the foreign law must not offend against our public policy. We cannot therefore adopt mechanically the rules of Private International Law evolved by other countries. These principles vary greatly and are moulded by the distinctive social, political and economic conditions obtaining in these countries. Questions relating to the personal status of a party depend in England and North America upon the law of his domicil, but in France, Italy, Spain and most of the other European countries upon the law of his nationality. Principles governing matters within the divorce jurisdiction are so conflicting in the different countries that not unoften a man and a woman are husband and wife in one jurisdiction but treated as divorced in another jurisdiction. We have before us the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e".The preliminary recitals show that the respondent appeared personally and through his attorney, that the appellant "failed to appear or to file her answer or other responsive pleadings within the time required by law after having been duly and regularly served with process by publication And mailing as required by law", that the case came on for trial on December 30, 1964 and that evidence was submitted to the court for its decision. The next part of the judgment, "Findings of Fact", consists of five paragraphs which, with minor modifications, are a verbatim reproduction of the averments contained in the respondent's petition for divorce. The relevant portion of that petition is extracted above. The first paragraph of this part may usefully be reproduced : "That for more than six weeks preceding the commencement of this action, the plaintiff was, and now- is, a bona fide resident of and domiciled in the County of Washoe, State of Nevada with the intent to make the State of Nevada his '-home for an indefinite period of time, and that he has been actually, physically and corporeally present in said county and State for more than six weeks. The second paragraph of the part refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitute a subject reserved to the individual States and does not belong to the United States under the American Constitution. Article IV, section 1, of that Constitution requires that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State". The Validity of a divorce decree passed by a State court is in other States tested at if it were a decree granted by foreign court. In general, a foreign decree of divorce is recognised in any other jurisdiction either on the ground, in the case of a decree of a sister State, that the decree is entitled to full faith and credit under Article IV, Section 1, or in the case of a decree of a foreign court and in some instances a decree of a State court, on, the ground of 'comity'. Corpus Juris Secundum, Vol. 27B, Paragraph 326. pp. 786-787 The phrase "comity of nations" which owes its origin to the theory of a Dutch jurist, John Voet, has, however, been widely criticised as "granting to the ear, when it proceeds from a court of justice". (2) De Nova (1964), 8 American Journal of Legal History pp. 136, citing the American author, Livermore, Comity, as said by Livermore is a matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 704. 205. In Untermann v. Untermann, 19 N. J. 507 a divorce decree obtained by a husband in Mexico, after one day's residence therein, was held invalid. A foreign decree of divorce is subject to collateral attack for fraud or for want of jurisdiction either of the, subject matter or of the parties provided that the attacking party is not estopped from doing So. Cohen vs. Randall, 88 L. Ed. 480 A foreign decree of divorce, obtained by fraud is void. Fraudulent simulation of domicile is impermissible. A spouse who goes to a State or country other than that of the matrimonial domicile for the sole purpose of obtaining a divorce perpetrates a found, and the judgment is not binding on the courts of other States. Corpus Juris Secundum, Vol. 27B, Paragraph 361, p. 847. In regard to the divorce law in force in Nevada it is only necessary to State that though the plaintiff in a divorce action is required to "reside" in the State for more than six weeks immediately preceding the petition, the requirement of residence is construed in the sense of domicil. Cohen vs. Cohen 319 Mass. 31; Corpus Juris Secundum, Vol. 27B, p. 799-Footnote 29 : 'Residence', 'domicil' In Lane v. Lane 68 N. Y. S. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce passed in one State can be impeached collaterally in another State on proof that the court had no jurisdiction even when the record purports to show that it had jurisdiction; (iii) under the American system of law. judicial power of jurisdiction to grant. a divorce is founded on domicile; and (iv) domicile implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The learned Judge observed: "We conclude that North Carolina was not required to yield her State policy because a Nevada court found that petitioners were domiciled in Nevada when it granted them decrees of divorce. North Carolina was entitled to find, as she did, that they did not acquire domiciles in Nevada and that the Nevada court was therefore without power to liberate the petitioners from amenability to the laws of North Carolina governing domestic relations." Murphy J. in his concurring judgment said: "No justifiable purpose is served by im- parting constitutional sanctity to the efforts of petitioners to establish a false and fictitious domicile in Nevada.... And Nevada has no interest that we can respect in issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usband's domicil but that means by a real, not a feigned domicil. From Lolleys case R. vs. Lolley (1 812) 2 Cl. F. 567 n. which is the true starting point of the con. troversy, to Indyka v. Indyka [1967] (2) A. 'P. R. 689 which is treated as the cause celebre, the law has gone through many phases. The period of over a century and half is marked by a variety of views showing how true it is that there is scarcely a doctrine of law which as regards a formal and exact statement is in a more uncertain condition than that which relates to the question as to what effect should be given by courts of one nation to the judgments rendered by the courts of another nation. Lolley's case was for long considered as having decided that a foreign decree of divorce could not ever dissolve a marriage celebrated in England. "Its ghost stalked the pages of the law reports for much of the remainder of the nineteenth century before it was finally laid. The Old Order Changeth-Travers vs. Holley Reinterpreted"by P. R. B. Webb, International Comparative- Law Quarterly, 1967 (Vol16), pp. 997, 1000. " in Dolhpin v. Robbins (1859) 7 H. L. Cas. 390 and Shaw v. Gould, (1868) L. R. 3.H. L. 55 the House of L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These decisions caused great hardship to deserted wives for they had to seek the husband in his domicil to obtain against him a decree of divorce recognizable in England. During something like a game of chess between the judiciary and the legislature, the rigour of the rule regarding the dominance of domicil was reduced by frequent legislative interventions. By section 1 of the Law Reforms (Miscellaneous Provisions) Act, 1949, English courts were given jurisdiction to entertain proceedings for divorce by a wife even if the husband was not domiciled in England, provided that the wife had resided in England for a period of three years immediately preceding the commencement of the proceedings. In Travers v. Holley [1953] (2) All. E. R. 794. the Court of Appeal, drawing on this provision, accepted as valid a decree of divorce granted to the wife by an Australian Court though the husband after acquiring a domicil in New South Wales had reverted to his English domicil at the time of the wife's petition. This was put on the ground that "what entitles an English court to assume jurisdiction must be equally effective in the case of a foreign court". Section 40(1) (a) and (b) of the Matr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted as valid on the ground that the wife had a sufficient connection with the court granting the decree and that if the Nevada decree could be recognised as valid by the other States in America under Article IV, Section 1 of the American Constitution, there was no justification for the English courts to deny recognition to that decree. English courts have thus been attempting to free the law of divorce from the stronglehold of the Council rule. The Recognition of Divorces and Legal Separations Act, 1971 which came into force on January 1, 1972 has brought about important changes in the law of England and Scotland relating to the recognition of divorces and legal separations in the British Isles and abroad. The Act results from the Hague Convention agreed to by most coun- tries in 1970, and ratifies that Convention in accordance with the terms set out in the Act. Section 2 provides for the recognition in Great Britain of overseas divorces and legal separations obtained or judicial or other proceedings in any country outside the British Isles which are effective according to the law of that country. Section 3 provides for the validity of an overseas divorce or legal separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the foreign court, i.e. where the petitioner had successfully invoked the jurisdiction by misleading the foreign court as to the jurisdictional facts, used to provide grounds for not recognizing the decree. In Middleton vs. Middleton, [1966] 1 All. E. R., 168 the husband domiciled and resident in Indiana petitioned for divorce in Illinois. He alleged that he had been resident in Illinois for over a year before taking the proceedings and he alleged further that his wife had deserted him. Both of these allegations, unknown to the Illinois court, were false. The decree was granted and when the wife petitioned in England for a declaration as to the validity of the Illinois divorce, evidence was given that, notwithstanding the fraud, that decree was a lawful decree and would be recognised by the let domiciling, Indiana, Chairns, J. held that the husband's false and fraudulent evidence as to the matrimonial offence was not a ground for refusal to recognise the Illinois decree, but that his fraud as to the jurisdiction of the Illinois court did justify a refusal to recognize the decree. According to Cheshire : "it is firmly established that a foreign judgment is impeachable for fraud in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versity. He then joined the Utah State University where he studied for his doctorate for 4 years. In 1964, on the conclusion of his studies he secured a job in Utah. On August 17, 1964 he wrote a letter (Ex. RW 7/1) to his father Gian Singh from "791 North, 6 East Logan, Utah",, U.S.A. The respondent filed his petition for divorce in the Nevada court on November 9, 1964 and obtained a decree on December 30, 1964. Prior to the institution of the divorce proceedings the rest) respondent might have stayed, but never lived. in Nevada. He made a false representation to the Nevada court that he was a, bona fide resident of Nevada. Having secured the divorce decree, he left Nevada almost immediately thereafter rendering it false again that he had "the intent to make the State of Nevada his home for an indefinite period of time'. The appellant filed the maintenance petition on January 21, 1965. On November 4, 1965 the respondent applied exemption from personal appearance in those proceedings mentioning his address as "791 North, 6 East Logan, Utah, 228, 4th, U. S. A.". The letter dated December 13, 1965 from the Under Secretary, Ministry of External Affairs, Government of India to on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raud in the forefront. If the fact-, referred to by us were pointed out to the High Court, it would probably have seen the futility of relying on the rule in Le Mesurier and then in applying the principle that the wife takes the domicil of the husband. But facts on which we have relied to show a lack of jurisdiction in the Nevada court are mostly facts to be found in the pleadings and documents of the respondent himself. Those incontrovertible facts establish that Nevada was not and could not be the home, the permanent home of the respondent. If the High Court were invited to consider the conduct and projects of the respondent it would have perceived that the respondent had merely simulated a domicil in Nevada. In that event, even applying the Le Mesurier doctrine the Nevada court would have had no jurisdiction to pass the decree of divorce. 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". Learned counsel for the respondent urged that this provision occurring in the, Civil Procedure, Code cannot govern criminal pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 S.C.R. 22 at 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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