S. Saravanan vs Deepa

R.S. Ramanathan, J.—The Respondent in O.P. No. 1417 of 2008 on the file of Principal Family Court, Chennai, is the revision Petitioner.

The Respondent herein filed O.P. No. 1417 of 2008 before the Principal Family Court against the revision Petitioner for restitution of conjugal

rights and in that application, the revision Petitioner filed I.A. No. 2030 of 2009 to decide the maintainability of the O.P. No. 1417 of 2008 as a

preliminary issue, in view of the divorce decree granted earlier in favour of the revision Petitioner herein and that application was dismissed by the

Principal Family Court Judge and aggrieved by the same this revision is filed.

The case of the revision Petitioner is that the Respondent was his wife and he filed application for dissolution of marriage in Case No. 1-05-FL-

125461 before the Superior Court of California to dissolve the marriage between him and the Respondent herein and as there was no appearance

for the Respondent before the Superior Court of California despite service of summons that Court passed an order of dissolution of marriage on

the ground of irreconcilable differences and therefore, the marriage between the Petitioner and Respondent was already dissolved by a Competent

Court and hence the application filed by the Respondent herein for restitution of conjugal rights is not maintainable and therefore that question must

be taken as a preliminary issue.

The Respondent herein, who was also the Respondent in I.A. No. 2030 of 2009 filed counter stating that the order passed by the Superior

Court of California was an ex parte order and United States of America is not a reciprocating country to India and therefore, any judgment passed

by a foreign court cannot be construed as a valid judgment as per Section 13 of the CPC It is further stated that summons in that proceedings was

not served on her. The learned Family Court Judge relying upon the judgment in Hon''ble Supreme Court rendered in Y. Narasimha Rao and

Others Vs. Y. Venkata Lakshmi and Another, held that the order passed by the Superior Court of California dissolving the marriage between the

parties is without jurisdiction and unenforceable in India and is also not binding upon the Respondent and dismissed the application. Aggrieved by

the same, this Revision is filed by the Petitioner husband.

Mr. R. Thiyagarajan, learned senior counsel appearing for the revision Petitioner submitted that as per Section 13 of CPC and as per the

judgment rendered in Y. Narasimha Rao and Others Vs. Y. Venkata Lakshmi and Another, a Foreign judgment cannot be relied upon.

Nevertheless, the learned senior counsel submitted that when the parties submitted to the jurisdiction of the Foreign Court then they are bound by

the judgment and in this case, the Respondent herein went to America and participated in the proceedings and submitted to the jurisdiction of the

Foreign Court by filing application to set aside the ex parte order of divorce, filed various applications for spousal support and for other reliefs and

the Petitioner''s counsel at America also agreed for setting aside the ex parte decree of divorce but refused to grant spousal support and other

reliefs prayed for the Respondents and thereafter the Respondent did not prosecute the case and those applications were dismissed and therefore,

having regard to the fact that the Respondent submitted to the jurisdiction of the Foreign Court, she is bound by the judgment rendered by the

Superior Court of California and hence the present petition filed by the Respondent before the usual Family Court for restitution of conjugal right in

O.P. No. 1417 of 2008 is not maintainable.

On the other hand, Mr. V. Balu, learned Counsel for the Respondent submitted that the Foreign Court is not having jurisdiction to entertain the

application as admittedly, the marriage took place at Chennai according to Hindu rites and the Respondent was severely assaulted and she was

forced to return to India and thereafter, the revision Petitioner filed application for divorce before the Superior Court of the State of California and

the ground on which dissolution of marriage was sought for namely irreconcilable differences is not a ground available in India for divorce and

United States of America is not a reciprocating country for India and hence as per the judgment rendered in Y. Narasimha Rao and Others Vs. Y.

Venkata Lakshmi and Another, , the judgment rendered in case No. 1-05-FL-125461 by the Superior Court of California is not valid in India and

the said decree is unenforceable and is not binding on the Respondent. The learned Counsel for the Respondent further submitted that the

Respondent has not submitted to the jurisdiction of the Foreign Court and she filed only application, to set aside the ex parte decree and she has

not filed her statement contesting the said application filed by the revision Petitioner herein and the filing of other applications such as application for

spousal support cannot be considered as submitting to the jurisdiction of the Foreign Court.

The point for consideration in this revision is:

Whether the Respondent submitted to the jurisdiction of the Foreign Court by filing of an application to set aside the ex parte order or by filing

various applications for spousal support and for other reliefs?

Admittedly, both parties are Indians and the marriage between them took place in Chennai. Both parties are governed by Hindu Marriage Act.

It is also not in dispute that under the Hindu Marriage Act, as it stood today irreconcilable differences is not a ground for divorce. In these

circumstances, we will have to see whether the Respondent submitted to the jurisdiction of the Foreign Court.

As agreed by both the counsels, the law has been settled by the Hon''ble Supreme Court judgment rendered in Y. Narasimha Rao and Others

Vs. Y. Venkata Lakshmi and Another, . The Hon''ble Supreme Court while interpreting Section 13 of CPC held as follows:

Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction.

We are of the view that 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.

Clause (b) of Section 13 states that 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 should 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. 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.

The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise 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 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 Clause (f) of Section 13, since such a judgment would obviously be in breach of the

matrimonial law in force in this country.

Clause (d) of Section 13 which 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. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it

should not be deemed sufficient that the Respondent has been duly served with the process of the court. 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 filed 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. It is for this reason that we find that the rules of Private International Law of some countries insist, even in

commercial matters, that the action should be filed in the forum where the Defendant is either domiciled or is habitually resident. It is only in special

cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This

jurisdictional principle is also recognised by the Judgments Convention of the European Community. If, therefore, the courts in this country also

insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the Respondent is domiciled or

habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied.

The provision of Clause (e) of Section 13 of which requires that the courts in this country will not recognise a foreign judgment. It it has been

obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh it must be understood that the fraud

need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.

From the aforesaid discussion 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 as discussed above 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 relied although the jurisdiction of the forum is not in accordance with the provisions of the

matrimonial law of the parties.

Therefore, it is seen from the above judgment that unless the Respondent voluntarily and effectively submitted to the jurisdiction of the Foreign

Court and contesting the claim which is based on the ground available and the matrimonial law under which the parties are married the judgment of

the Foreign Court cannot be relied upon. As stated supra, the ground on which the revision Petitioner applied for dissolution of marriage was

irreconcilable differences. As per Section 13 of the Hindu Marriage Act, irreconcilable differences is not one of the grounds for divorce. Further,

the Court which granted the decree must be a competent Court that has been considered by the Hon''ble Supreme Court in the very same

judgment 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. Admittedly, the parties got married in Chennai under the Hindu Marraige Act

and therefore, the Foreign Court did not have jurisdiction to entertain the matrimonial dispute in respect of marriage that took place in India as per

the Hindu Marriage Act. Therefore, unless the Respondent submitted to the jurisdiction of the Foreign Court, the judgment rendered the Foreign

Court cannot be enforce in India against the Respondent.

It is submitted Mr. R. Thiyagarajan, learned senior counsel that by filing application to set aside the ex parte decree of divorce and by filing

various applications for various relief, the Respondent submitted to the jurisdiction of the Foreign Court and therefore, as per the judgment

rendered in Y. Narasimha Rao and Others Vs. Y. Venkata Lakshmi and Another, , the decree is binding on the Respondent.

Mr. V. Balu, learned Counsel for the Respondent has submitted that by filing an application to set aside the ex parte decree, the Respondent

cannot be said to have submitted to the jurisdiction of the Foreign Court. Further, the application to set aside the ex parte decree without filing a

written statement or counter cannot be construed as submitting to the jurisdiction of the Foreign Court for the reason that after setting aside the ex

parte order, the Respondent might have taken the plea that the Foreign Court has no jurisdiction to entertain such dispute and therefore, in the

absence of filing any written statement, the mere filing of an application to set aside the ex parte decree will not amount to submitting to the

jurisdiction of the Family Court. According to the learned Counsel for the Respondent that filing of an application to set aside the ex parte decree

will not amount to submitting to the jurisdiction of the Court.

According to me, by way of analogy Section 34 of the Arbitration Act, 1940 can be relied upon to find out whether an application to set aside

the ex parte decree will amount to submitting to the jurisdiction of the Court. As per Section 34 of the Arbitration Act, 1940 whether any party to

an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to that agreement or any

person claiming under him, any party to such legal proceedings made at any time before filing written statement or taking any other steps in the

judicial proceedings applied to the judicial authority before which proceedings are pending to stay the proceedings. While interpreting the phrase

taking any other steps in the proceeding, the Hon''ble Supreme Court held in the judgment reported in the matter of Food Corporation of India and

Anr. v. Yadav Engineer and Contractor AIR 1982 SCC 1302 held as follows:

Giving the expression ""taking any other steps in the proceedings"" such wide connotation as making an application for any purpose in the suit such

as vacating stay, discharge of the receiver or even modifying the interim orders would work hardship and would be inequitous to the party who is

willing to abide by the arbitration agreement and yet be forced to suffer the inequity of ex parte orders. Therefore, the expression ""taking any other

steps in the proceedings"" must be given a narrow meaning in that the step must be taken in the main proceeding of the suit and it must be such step

as would clearly and unambiguously manifest the intention to waive the benefit of the arbitration agreement and to acquiesce in the proceedings.

Each and every step taken in the proceedings cannot come in the way of the party seeking to enforce the arbitration agreement by obtaining stay of

proceedings.

...Therefore, unless the step alleged to have been taken by the party seeking to enforce arbitration agreement is such as would display an

unequivocal intention to proceed with the suit and acquiesce in the method of resolution of dispute adopted by the other party, namely, filing of the

suit and thereby indicate that it has abandoned its right under the arbitration agreement to get the dispute resolved by arbitration any other step

would not disentitle the party from seeking relief u/s 34. Contesting the application for interim injunction or for appointment of a receiver or for

interim relief by itself without anything more would not constitute such step as would disentitle the party to an order u/s 34.

Further in the judgment rendered in Sharda Talkies Vs. Dhadiwal Exhibitors, Raipur, it has been held that application for setting aside the ex

parte decree will not amount to taking other steps in the suit. In the matter of Charan Das and Sons Vs. Harbhajan Singh-Hardit Singh, , the

Punjab High Court held that application to set aside will not amount to taking a step in the proceedings. Therefore, by filing an application to set

aside the ex parte decree it cannot be stated that the Respondent has submitted to the jurisdiction of the Foreign Court. Further this Court, also

held in the judgment reported in T. Siva Raman Vs. P. Renganayaki, following the Supreme Court judgment rendered in Y. Narasimha Rao and

Others Vs. Y. Venkata Lakshmi and Another, that in the absence of any evidence to show that the husband and wife entered in to a matrimonial

agreement in United States not to institute any legal action for divorce in India, the dissolution of marriage granted by the Foreign Court is not valid

and the application filed by the wife for restitution of conjugal rights in India is maintainable. Considering all these aspects, I am of the view that the

learned Principal Family Court Judge has elaborately discussed all these aspects and dismissed the application, relying upon the judgment of the

Hon''ble Supreme Court rendered in Y. Narasimha Rao and Others Vs. Y. Venkata Lakshmi and Another, and held the petition filed by the wife

of restitution of conjugal rights is maintainable and I do not find any reason to interfere with the order of the lower Court and the revision is

dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.