Foreign Decree of Divorce - Validity

If any person re-marry as per the divorce passed by the foreign country and the same is not validated as per the provisions of Section 13 of Civil Procedure Code 1908. Remarriage will be considered as committing an offense of bigamy as per the provisions of Indian Penal Code.

Please read the below mentioned judgment to clarify the above mentioned position of law.

Equivalent Citation: 2003IIAD(Delhi)14, 102(2003)DLT822, I(2003)DMC443, 2003(67)DRJ58

IN THE HIGH COURT OF DELHI

Suit No. 108 of 2003 and I.A. 576/2003

Decided On: 23.01.2003

Appellants: Harmeeta Singh
Vs.
Respondent: Rajat Taneja

Hon'ble Judges:
Vikramajit Sen, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Geeta Luthra and Sanjeev Sahai, Advs

Subject: Family

Catch Words

Mentioned IN

p>Acts/Rules/Orders:

Hindu Adoptions and Maintenance Act, 1956; Hindu Marriage Act; Contempt of Courts Act; Specific Relief Act - Section 41

Case Note:

Civil Procedure Code, 1908 - Section 13--Foreign judgment--Applicability--In the event the marriage is dissolved by a decree in America, in consonance with principles of Private International Law which are embodied in Section 13 of the Code of Civil Procedure, 1908, inter alia, this decree would have to be confirmed by a Court in this country--If the Husband were to remarry in the United States of America on the strength of the Decree of Divorce granted in that country, until this Decree is recognized in India he would have committed the criminal offence of bigamy and would have rendered himself vulnerable to be punished for bigamy.

Hindu Law - Scope--Plaintiff and Defendant were married which was performed and celebrated in style according to Sikh rites and ceremonies, thereforee, it is the Hindu Marriage Act which would govern all disputes between them pertaining to their marriage, division of properties and maintenance.

Matrimonial disputes--Jurisdiction--Conflict of law between two countries--Husband initiated proceedings for obtaining a Decree of Divorce in America--Marriage performed in India--Even if the husband were to succeed in obtaining a Decree of Divorce in America, it would be unlikely to receive recognition in India--Courts in India would undoubtedly have jurisdiction over the disputes between the present spouses since the marriage was performed in India--Husband restrain from continuing with the proceedings in the United States of America till further order.

JUDGMENT
Vikramajit Sen, J.
I.A. 577 OF 2003

1. Allowed, subject to all just exceptions. The Court Fee be filed within a week from the date of its receipt by the Plaintiff.

Suit No. 108 OF 2003

2. Plaint be registered as Suit.

3. Issue summons to Defendant in the ordinary process, by registered A.D. Post, electronic mail as well as facsimile, returnable for 12th March, 2003. Service be effected on all the addresses disclosed in the plaint.

I.A. 576 OF 2003

4. Issue notice of this application to the Defendant, returnable on 12th March, 2003.

5. Matrimonial disputes between estranged spouses are the most bitterly fought litigation raising myriad awkward questions. Not unoften, the jurisdiction of more than one Court can be invoked where the husband and wife have started residing in different territories, either nationally or internationally. It must then be decided that from amongst them which Court should be best suited and thereforee competent to exercise jurisdiction. Where the choice is between forums within the same nation or Community of countries, the difficulty is usually easily resolved. Judges within the same national boundaries tend to be open to relinquishing their jurisdiction in favor of the Court most conveniently placed, keeping the parties in view. Regretfully, this does not happen where trans-border challenges are laid by the sparring spouses, as even Judges who are normally intellectually liberated and not parochial, succumb to innate chauvinism. The endeavor of Judges in every corner of the world should be to look only towards alleviating the human suffering that is endemic in every matrimonial dispute, since persons who may otherwise be willing to forgo their rights and go a long way to arrive at a compromise in other litigation, would fight to the very end. I have passed these Orders after fresh reflection, and would be subject to modification after hearing the Respondent.

6. A startlingly similar situation to that in the present case had arisen before me over three years ago in the dispute between the newly married Anubha who was domiciled in India till her marriage to her husband Vikas, who was gainfully employed and resident in the United States of America. Shortly after their marriage in India and their departure to United States of America, she was allegedly compelled by the conduct of Vikas to leave the matrimonial home. Lacking necessary financial resources, and other support, she was compelled to return to India. She filed an action in the High Court of Delhi, for Maintenance under the Hindu Adoptions & Maintenance Act, 1956, in the course of which the following Orders were passed on 5.11.1999.

" I.A. 10872/99 in S. No. 1966/99

Arguments in this case had been heard on 1.11.1999 and orders were reserved by me. Since I had intended to research the matter particularly in regard to the position prevailing in the EEC Countries the orders could not be pronounced. It will also be appropriate to mention that there has been a delay in hearing the matter for the reason that the Defendant Mr. Vikas Agrawal had not filed his Replies in this court within the time permitted to him.

The matter was mentioned before me in the morning and pursuant to notice issued to the Defendant, Mr. S.D. Singh, learned counsel for the defendant is present in court. The next date of proceedings in the United States of America are scheduled for 9.11.1999 and due to the Court vacations it is not possible to pronounce the orders before that date. It is submitted that if hearing takes place in the Courts at Connecticut, U.S.A. these proceedings may be rendered infructuous.

I feel compelled to record that the Plaintiff before me is undoubtedly residing in India and has neither submitted to the jurisdiction of the American Courts nor is presently represented by counsel before that Court. She is, thereforee, not in a position to draw the attention of that Court to the fact that, since the parties have married in India, Indian Court would definitely and indisputably have jurisdiction in deciding matrimonial issues at least under the Hindu Marriage Act. No doubt, it has been contended before me that the Hindu Adoption & Maintenance Act may not be available to the Plaintiff, but a decision on this issue will be given by me later. Whether the Courts in America have jurisdiction or not would undoubtedly be considered by Courts in that Country. Without in any manner desiring to interfere with the judicial proceedings in the United States of America, the question of jurisdiction of Courts in Connecticut, USA, is at least debatable; for the reason that, on undisputed facts, neither of the parties is presently residing in Connecticut, U.S.A., and their joint residence within the territorial jurisdiction was for a significantly short period of two months.

It has become fashionable to speak of our world as a global village. There is bound to be a manifold increase in cross border disputes such as the present one, and the question of which is the appropriate forum/Court to decide the lis is certain to remain a vexed one. In every such dispute, a Judge is bound to reflect on this point, at the very threshold. But I have the comparative advantage of hearing counsel for both parties. Because of economic constraints, the Plaintiff may not be able to make any representation on her behalf in the U.S.A. Mindful of judicial comity I am passing these orders with responsibility, as I am sure, would the Superior Judge seized with the Divorce proceedings.

For the present, in the interest of justice, and since no permanent prejudice is likely to be caused to the Defendant if the hearing in divorce case pending in the Superior Court, State of Connecticut, U.S.A. is deferred for a short period, I restrain the Defendant from proceeding further in the Superior Court, State of Connecticut, U.S.A for a period of thirty days from today."

7. On 9.3.2000 lengthy Orders were again passed after hearing the Husband's counsel, the relevant portion of which is extracted below:

"On further reflection I am also satisfied, prima facie, that the defendant appears to have committed contempt of this Court. When the matter came up for hearing on 18th August, 1999 notice, simplicitor, was issued to the defendant. It will be relevant to mention that the present suit is for the grant of maintenance under Section 18 of the Hindu Adoption and Maintenance Act and that, through a string of judgments of this Court as well as of other courts, it is well settled that interim orders of maintenance can be granted. On the following date of hearing, that is on 6th October, 1999 the defendant was represented by Mr. M.D. Adkar with Mr. S.D. Singh, Advocates. The learned counsel for the plaintiff had pressed for an injunction restraining the defendant from proceedings with divorce proceedings in the United States. On the request of learned counsel for the defendant arguments were deferred for a period of three weeks in order to enable him to file a reply. It is unfortunate that after obtaining the indulgence of this court the Defendant has attempted to over-reach this court. On 5th November, 1999 orders were passed in the presence of the counsel for the parties. The following extract of those orders is extremely relevant:

"For the present, in the interest of justice, and since no permanent prejudice is likely to be caused to the defendant if the hearing in divorce case pending in the Superior Court, State of Connecticut, U.S.A is deferred for a short period, I restrain the Defendant from proceeding further in the Superior Court, State of Connecticut, U.S.A for a period of thirty days from today."

These orders had been passed by the Court fully mindful of the vexed position of law pertaining to the jurisdiction of courts in different countries. On 18th November, 1999 as also on subsequent dates, learned counsel for the defendant did not disclose that the defendant had continued, in contumacious violation of the order of this Court, to prosecute the divorce proceedings in the United States of America . The divorce petition appears to have been concluded ex-parte. There is adequate reason for me to believe that this was achieved without the learned Superior Judge having any knowledge of these proceedings. Mr. S.N. Kumar, learned Senior Advocate appearing for the defendant states that the orders dated 5th November, 1999 had been brought to the notice of the American Court. But conspicuously there is nothing in writing, emanating from the defendant, to support this contention. It has also not been disputed that the father of the defendant has no personal knowledge of the proceedings in the United States since he was not present there. Significantly he has verified his affidavit, which is heavily relied upon by Shri S.N. Kumar, on the basis of knowledge whereas it could only have been on information received by him and, theoretically possibly, believed by him to be true. He can scarcely be considered an appropriate person to assist the Court on the facts and proceedings of the case. For these reasons I consider it proper to issue notice to show cause to the defendant as to why proceedings under the Contempt of Courts Act should not be contemplated against him. Notice to this effect shall be issued by the Registry of this Court through registered post as well as through the Indian Embassy in the United States of America.

Renotify on 1st May, 2000 for further proceedings, inter-alia for recording of the Defendant's statement under Order X of the Code of Civil Procedure and for consideration of cause, if any, is shown, in respect of contempt of court proceedings."

8. In those previous proceedings, the husband, Vikas had assailed the Orders before the Appellate Division Bench without success. He thereupon took the matter up before the Hon'ble Supreme Court, the highest and final Court of this Country. The views of the Apex Court can be found in the case reported as Vikas Agrawal v. Anubha MANU/SC/0316/2002 : [2002]2SCR1084 . The husband's appeal against the Order striking out the defense was dismissed with costs. Paragraph 9 of that Judgment is instructive for the present controversy and hence is reproduced:

"Shri Shanti Bhushan, learned Senior Counsel appearing for the respondent submitted that the questions raised by the learned counsel for the appellant are not relevant, since undisputedly there is non-compliance with the order passed by the Court requiring the defendant to be personally present in the Court. It is submitted that Sections 41(a) and (b) of the Specific Relief Act would not bar passing of an order as passed on 5.11.1999 by the learned Single Judge of the Delhi High Court since such a bar is in relation to the superior courts i.e. to say the courts in India, it would not apply to courts outside India and next that the restraint order is against the party, namely, the defendant, who was restrained from proceeding in the matter for a period of one month (reliance has been placed on Oil and Natural Gas Commission v. Western Co. of North America). It has been held in an appropriate case, it is open to pass a restraint order against a party in proceedings pending in foreign courts. It is further submitted that the learned Single Judge had passed the injunction order on 5.11.1999 for a period of one month, but the decree was granted on 23.11.1999. The defendant was bound by the order and should not have taken any steps in furtherance of the proceedings pending in the American court. On the other hand, the decree of divorce shows that the decree was sought and passed on agreement (no-fault divorce) between the parties, which is described as fair and equitable. The agreement is also stated to be attached with the decree. It is also to be seen that columns meant for alimony etc. were left blank. The defendant was restrained by the learned Single Judge of the Delhi High Court, at the instance of the wife, the respondent from further proceeding in the divorce case. It is submitted that this itself shows that the divorce was far from one on the basis of agreement. In this view of the matter, learned counsel for the respondent submits that the Court rightly felt the need for personal appearance of the defendant for clarification. The defendant failed to appear on one ground or the other and lastly on the ground of apprehension of losing job in America."

9. In the present case the Plaintiff (Wife), namely, Harmeeta Singh and the Defendant (Husband) Rajat Taneja were married in New Delhi. Their marriage was performed and celebrated in style on 24.3.2002 according to Sikh rites and ceremonies. thereforee, it is the Hindu Marriage Act which would govern all disputes between them pertaining to their marriage, division of properties and maintenance. Where a divorce is not prayed for, maintenance can be granted by the Court in terms of the Hindu Adoption & Maintenance Act. The spouses departed for the United States of America on 27.3.2002. The Plaintiff (Wife) has alleged that she was compelled to leave matrimonial home on 27.8.2002 and that her husband had initiated proceedings for obtaining a Decree of Divorce in America on 20.9.2002. They lived together as husband and wife, thereforee, for about six months of which three months only was in the United States of America.

10. The law on the vexed question of conflict of law and on the appropriate Court for deciding disputes pertaining to divorce of this genre has undergone substantial changes. The old law in Britain was that the wife would be deemed to have the same domicile as her husband and would, thereforee, have to seek relief in the Court where the husband was domiciled. This almost inflexible rule, not taking into account difficulties faced by the deserted wife, has given way to preference for the Court which is most convenient to both parties. Conventions in the European Community have since been negotiated.

11. This conundrum of competing jurisdictions and laws, has been carefully considered in a number of decisions of the Hon'ble Supreme Court of India. A foreign decree is recognized in India, as in most legal systems, but would have to be jurally investigated before it is given legal efficacy. In Y. Narasimha Rao and Others v. Y. Venkata Lakshmi and Anr., MANU/SC/0603/1991 : [1991]2SCR821 , the Apex Court declined to give its imprimatur to a foreign decree which did not take into consideration the provisions of the Hindu Marriage Act under which the parties were married. In Satya v. Teja, MANU/SC/0212/1974 : 1975CriLJ52 where the husband set up domicile only to perfunctorily fulfill the domicile requirements of ninety days, the foreign decree was not accepted. In Veena Kalia v. Dr. Jatinder Nath Kalia and Anr., MANU/DE/0012/1996 : AIR1996Delhi54 , the Court held that since the wife was not in a position to contest the proceedings in a foreign Court as she had no means to go there, the rules of natural justice stood violated and the foreign decree was held to be a nullity. This brief analysis would lead to the conclusion that even if the husband, namely, Rajat Taneja were to succeed in obtaining a Decree of Divorce in America, it would be unlikely to receive recognition in India. It needs to be emphasised that the marriage was performed in India and was subsequently merely registered in the United States of America. The parties lived together for a very short time in the United States of America. The wife who has lived in India for almost her whole life is presently domiciled in India. The Defendant (Husband) is of Indian origin and his parents and family members are Indian citizens and are domiciled in India. It is alleged and is likely that Rajat holds substantial interests in immovable properties in India. In the event that the marriage is dissolved by a decree in America, in consonance with principles of private international law which are embodied in Section 13 of the Code of Civil Procedure, 1908, inter alia, this decree would have to be confirmed by a Court in this country. Furthermore, if the Defendant (Husband) were to remarry in the United States of America on the strength of the Decree of Divorce granted in that country, until this Decree is recognized in India he would have committed the criminal offence of bigamy and would have rendered himself vulnerable to be punished for bigamy. The confusion would be confounded insofar as the parties are concerned.

12. On the contrary, however, Courts in India would undoubtedly have jurisdiction over the disputes between the present spouses since the marriage was performed in New Delhi. Having financial as well as family support in this country it would be comparatively easy for the Defendant (Husband) to initiate divorce proceedings in this country. The Plaintiff (Wife) would not be in a position to challenge the jurisdiction of Matrimonial Courts in New Delhi. The forum of convenience, which is a concept well recognized and implemented in the United States of America, would thus be New Delhi. The Plaintiff (Wife) has not submitted to the jurisdiction of the Courts in the United States of America. In the context of their residing together as husband and wife, the Plaintiff's stay in the United States of America could well be viewed as transient, temporary and casual. I am quite clear that some of these factors can apply to the husband also in regard to New Delhi, but the fact remains that he could quite conveniently prosecute litigation in New Delhi, whereas it is financially impossible for the Plaintiff (Wife) to do so. Having not received the Spouse Visa she may not even be in a position to enter the United States of America.

13. It is in the above circumstances, till the next date of hearing, I restrain the Defendant (Husband) from continuing with the proceedings in the United States of America arising out of File No. 2-3-06139-1SEA pending in the Superior Court of Washington County of King, Judge / Commissioner Richard D. Eadi / Richard A. Jones. I further direct the Defendant to place a copy of this Judgment before the Judge of the Superior Court of Washington County of King for his worthy perusal.

14. A copy of this Judgment be given dusty under the signature of the Private Secretary of this Court to the counsel for the Plaintiff.

____________________

Jai Bansal
Advocate
Supreme Court/High Court/District Court
Delhi, Mobile 9868566649