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

AN ANALYSIS OF ENFORCEABILITY OF DIVORCE DECREE BY A FOREIGN COURT AND ITS MAINTAILIBILTY IN INDIA WITH REFRENCE TO PRIVATE INTERNATIONAL LAW


Authors:

Navnee Gulati, Lloyd Law College

Vanshika Malik, Ramaiah College of Law, Bangalore


Editor:

Shristi Singh, UWSL, Karnavati University

INTRODUCTION

The complicated position regarding the validity of a foreign court verdict of divorce is time and again discussed in elaboration in various statements and decisions by the honorable courts of our country. Indian courts are confronted majorly with the situations wherein the Hindu couples who have been married in India as per the Hindu Law, later or at some point, if they settle in abroad in a foreign country and if by chance they begin to face some matrimonial issues and as a consequence of which they approach the foreign court. The situation arises where it is questioned whether the decree passed by foreign courts has efficacy in India, and how far it is maintainable by Indian Laws keeping in reference Private International Law.

The principle of ‘Comity of Courts’ was laid down by the Court of England and later in the landmark judgment of the Honorable Supreme Court in the case of Elizabeth Dinshaw v. Arvand M. Dinshaw which affirmed that it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.

The rules of Private International Law are though not codified but their abundance is scattered in different enactments such as in the Indian Succession Act, Contract Act, Special Marriages Act, etc. Some international rules have also been developed over a period by judicial decisions.

The principle around which the case of Y. Narasimha Rao v. Venkata Lakshmi revolves is about the court of competent jurisdiction in matters of divorce and whether the ground of divorce in the decision of the foreign court should be a recognized ground under Hindu Marriage Act, 1955.

FACTS

In the present case, the appellant and respondent tied the knot of their marriage on 27th February 1975 in Tirupati according to the Hindu Law. After the marriage appellant filed a petition for the divorce in the Sub -Court of Tirupati stating that he was a Resident of New Orleans and Citizen of India and he and his wife last resided in New Orleans. Subsequently, another petition of divorce [1] was filed by the appellant in Circuit Court St. Louis Country, Missouri. The Circuit Court of St Louis Country assumed its jurisdiction despite the denial by the respondent in her reply of notwithstanding the jurisdiction of the foreign court.

In the absence of charisma of the wife, the court passed a decree of dissolution of marriage. Soon after this decree appellant filed dismissal the divorce petition filed in the Sub Court of Tirupati. The same was approved by the court.

In 1981 the appellant underwent second wedlock, soon after this news eavesdropped to the respondent, and then the respondent was compelled to file a criminal complaint of bigamy against the appellant. The learned magistrate discharged the appellant in the view of decree of dissolution of marriage passed by the foreign court. Thereafter an appeal was filed to the High court by the respondent. The High court reversed the order on the ground that the document submitted as proof is a photostat copy which is not a piece of admissible evidence. The result of this appellant moved to the Supreme Court and applied for the discharge of the High Court Order.

ISSUE

The main highlight concern which arose in the Narasimha Rao’s case is whether the foreign divorce decrees can be enforced under S. 13 of Criminal Procedure Code, 1908 by the courts in this country?

JUDGEMENT

The simple perusing of Section.13 of the CPC clarifies that a foreign court isn't indisputable with regards to any issue in this way legitimately arbitrated upon between the gatherings if

a) it has not been articulated by a court of equipped purview;

b) it has not been given on the benefits of the case;

c) it is established on an off base perspective on global law or a refusal to perceive the law of India in cases in which such law is material;

d) the procedures are against characteristic equity,

e) it is gotten by misrepresentation,

f) it supports a case established on a penetrating of any law in power in India. [2]

Further, the Hindu Marriage Act, 1955, comprises just the Area Court inside the nearby furthest reaches of whose unique common purview:

i. The marriage was solemnized, or

ii. The respondent, at the hour of the introduction of the request lives, or

iii. The gatherings to the marriage last dwelled together, or

iv. The solicitor is living at the hour of the introduction of the appeal, for a situation where the respondent is, at that point, living outside the regions to which the Demonstration expands. [3]

In this manner, observing the above arrangement, Hon'ble Court found the current pronouncement passed by the foreign court was without locale as indicated by the Go about as neither the marriage was praised nor the gatherings last dwelled together nor the respondent lived inside the ward of that Court. Likewise, the lost breakdown of a marriage isn't one of the grounds perceived by the Represent disintegration of marriage.

While choosing the case, the Hon'ble Court set some hard boundaries for foreign wedding decisions in this nation.

The key principle laid by the Hon'ble Court could be summarized as follows:

On the off chance that a couple is hitched according to the Hindu law, at that point –

The foreign court that awards separate from must be satisfactory under Hindu law; and

The foreign court should concede separate from just on the grounds which are admissible under the Hindu Law.

The purview expected by the foreign court just as the grounds on which the help is allowed must be as per the marital law under which the gatherings are hitched. In any case, the Court likewise laid exemptions to the above for a situation where the spouse has petitioned for legal separation in a foreign land:

· The spouse must be domiciled and occupant of that foreign land and the foreign court ought to choose the case dependent on the Hindu Law;

· The spouse intentionally joins in and challenges the cases in the court procedures according to Hindu Law; [4]

The spouse agrees to concede the separation.

With regards to the perception and rules, Hon'ble Court brought up the mistake made in giving thinking by the High court and maintained that the record isn't acceptable in proof for the need of the declaration under Area 86 of the Proof Demonstration for example duplicates ought to be ensured by Focal Government in the US.

In this manner, depending on the above standards, Hon'ble Court excused the application on the ground that the purview of the gathering just as the ground on which the separation order was passed isn't as per the Hindu Law under which the gatherings were hitched, and the respondent had not submitted to the locale of the court or assented to its passing, it can't be perceived by the courts in this nation and was thus held unenforceable and the petition hence was dismissed.

CASE ANALYSIS

An unimportant documenting of the answer to the case under dissent and without submitting to the purview of the court, or an appearance in the Court either face to face or through an agent for questioning the locale of the Court, ought not to be considered as a choice on the benefits of the case.

Clause (b) of Section 13 expresses that if a foreign court has not been given on the benefits of the case, the courts in this nation won't perceive such judgment. This statement ought to be deciphered to mean

(a) that the choice of the foreign court ought to be on ground accessible under the law under which the gatherings are hitched,

(b) that the choice ought to be an aftereffect of the challenge between the gatherings. [5]

The last prerequisite is satisfied just when the respondent is appropriately served and intentionally and unequivocally submits himself/herself to the locale of the court and challenges the case, or consents to the death of the announcement with or without appearance. An unimportant documenting of the answer to the case under dissent and without submitting to the locale of the court, or an appearance in the Court either face to face or through a delegate for questioning the ward of the Court, ought not to be considered as a choice on the benefits of the case. In this regard, the overall standards of the quiet submission to the ward of the Court which might be legitimate in different issues and zones ought to be disregarded and esteemed wrong.

[1] https://indiankanoon.org/doc/989920/ [2]https://indiankanoon.org/doc/989920/#:~:text=Dismissing%20the%20appeal%2C%20this%20Court,the%20jurisdiction%20of%20that%20Court. [3] https://www.jstor.org/stable/43951380?seq=1 [4] https://www.lawyerservices.in/Y-Narasimha-Rao-and-Others-Versus-Y-Venkata-Lakshmi-and-Another-1991-07-09 [5] https://www.scconline.com/blog/post/2019/02/25/decree-of-divorce-granted-by-a-foreign-court-and-its-maintainability-in-india-a-critical-analysis/

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