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SUPREME COURT OF INDIA
H.R. KHANNA AND Y.V. CHANDRACHUD, JJ.
Smt. Saliya, Appellant
Versus
Teja Singh, Respondent.
Criminal Appeal No. 187 of 1970, D/1-10-1974.
- Effect of decree obtained by fraud.
Held by the. Supreme Court,
The decree of divorce obtained by respondent from the Nevada Court is prima facie, a complete answer of the appellant's claim for maintenance under section 488 of the Code of Criminal Procedure. If that decree is valid the appellant's (wife's) claim for maintenance, though not her children's must fail. But the essence of the matter is whether the decree of divorce procured by fraud and if so, is it entitled to recognition here.
(Para 37)
Held further,
The Nevada Court assumed and exercised jurisdiction to pass the decree for divorce on the basis that the respondent (husband) was a bona fide resident of and was domiciled in Nevada. Domicil being a jurisdictional fact, the decree is open to the collateral attack that the, respondent was not a bona fide resident of Nevada much less was he domiciled in Neveda Court: that the respondent was a bonafide resident of and was domiciled in Neveda is not conclusive and can be contradicted by satisfactory proof. The appellant did not appeal in Nevada Court, was unrepresented and did not submit to the jurisdiction of that court. (Para 38)
Held on facts,
The respondent went to Nevada forum hunting, found a convenient jurisdiction which would easily purvey a divorce to him and left, it even before the ink of his domiciliary assertion was dry. Thus, the decree of the Nevada Court lacks jurisdiction. It can receive no recognition in our courts.
(Le Mesurier Vs. Le Mesurier 1926 AC. 444 distinguished.)
(Paras 43 & 44)
Code of Civil Procedure 1908, Sec. 13(a), Hindu Marriage Act, 1955 - Private International Law, - Recognition of foreign decree annulling Hindu Marriage - Decree obtained by fraud on court-Decree whether can be challenged-Recognition as a matter of comity whether possible-Conclusiveness if foreign Judgment in Criminal proceeding.
Where the husband wrongly giving his place of residence within the jurisdiction of the foreign court obtained decree of divorce against his wife, in case of the wife claiming maintenance u/s 488 Cr. P.C. challenging recognition of the foreign decree,
Held, that the answer to the question as regards the recognition to be accorded to the foreign decree must depend principally on the rules of our Private International Law. It is a well recognised principle, that Private International Law is not the same in all countries. There is no system of Private International Law which can claim universal recognition. It is thus a truism to say that whether it is problem of Municipal law or of Conflict of Laws, every case must be 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 recognition is accorded not as an act of courtesy but on consideration of justice. It is implicit that the foreign law must not offend against our public policy.
(1895 AC. 517, 1926AC. 444 & 1921 (1) AC. 146 Relied upon).
(Para 8)
The rules of Private International Law evolved by other countries can not be adopted mechanically in this country. These priniciples vary greatly and are moulded by the distinctive social, political and economic condition obtaining in these countries. Principles governing matters within the Divorce Jurisdiction are so conflicting in differnt countries that not often a man and woman are husband and wife in one Jurisdiction but treated as divorced in another Jurisdiction. (Para 9)
No country is bound by comity to give effect in its courts to divorce laws of another country which are repugnant to its own laws and public policy. (Para 17)
If a decree of divorce is to be accorded full faith and credit in the court of another jurisdiction it is necessary that the Court granting the decree has jurisdiction over the proceeding. A decree of divorce is thus treated as a conclusive adjudication of all matters in controversy except the jurisdictional fact on which it is founded. Domicile is such a jurisdictional fact. A foreign divorce decree is therefore subject to collateral attack for lack of jurisdiction even where the decree contains the findings or recitals of jurisdictional facts. A foreign divorce decree is therefore subject to collateral attack for lack of jurisdiction even where the decree contains a recital or findings of jurisdictional fact. (Para 18)
To confer jurisdiction on the ground of Plaintiff's residence and entitle the decree to extraterritorial recognition, the residence must be actual and genuine and accompanied by an intent to make the State his home. A mere sojourn or temporary residence as distinguished from legal domicile is not sufficient. (Para 19)
A foreign decree of divorce is subject to collateral attack for fraud or for want of jurisdiction either of the subject matter of the parties, provided that the, attacking party is estopped from doing so. A foreign decree of divorce obtained by fraud is void, fraudulent simulation of domicile is impermissible. (Para 20)
Judgement of the Neveda court was invalid. If the judgement falls under clauses (a) to (e) of Sec. 13, it will cease to be conclusive in any matter adjudicated thereby. (Para 47)
Evidence Act (1 of 1872) Sec. 41 - Judgement in rem-Effect of fraud.
Held, that Judgements in rem are not inviolable. Fraud in any case bearing on Jurisdictional facts invalidate all Judicial acts, whether in rem or in personam. (1963 (2) SCR 22 at p. 42 relied on). (Para 49)
Judgment
CHANDRACHUD. J.:- This appeal by special leave arises out of an application made by the appellant under Sec. 488, Code of Criminal Procedure, 1898. It raises issues far 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.
2. 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 year in a New York University and then joined the Utah State University where he studied for about 4 years for a Doctorate in Forestry. On the conclusion of his studies he secured a job in Utah on a salary of the equivalent of about 2500 rupees per month. During these 5 years the appellant continued to live in India with her minor children. She did not ever join the respondent in America as, so it seems, he promised to return to India on completing his studies.
3. On January 21, 1965 the appellant moved an application under Section 488, Criminal Procedure Code, alleging that the respondent had neglected to maintain her and the two minor children. She prayed that he should be directed to pay a sum of Rupees 1000/- per month for their maintenance.
4. Respondent appeared through a counsel and demurred that his marriage with the appellant was dissolved on December 30, 1964 by a decree of divorce granted by the Second Judicial District Court of the State of Nevada and for the County of Washoe. U.S.A. He contended that the appellant had ceased to be his wife by virtue of that decree and, therefore, he was not liable to maintain her any longer. He expressed his willingness to take charge of the children and maintain them.
5. The Judicial Magistrate, First Class, Jullundur held by her judgment dated December 17, 1966 that the decree of divorce was not binding on the appellant as the respondent had not "permanently settled" in the State of Nevada and that the marriage between the appellant and the respondent could be dissolved only under the Hindu Marriage Act, 1955. The learned Magistrate directed the respondent to pay a sum of Rs. 300/per month for the maintenance of the appellant and Rs. 100/per month for each child. This order was confirmed in revision by the Additional Sessions Judge, Jullundur, on the ground that the marriage could be dissolved only under the Hindu Marriage Act.
6. In the third round of litigation, the husband succeeded in a Revision Application filed by him in the High Court of Punjab and Haryana. A learned single Judge of that Court found that "at the crucial time of the commencement of the proceedings for divorce before the Court in Nevada, the petitioner was domiciled within that State in United States of America". This finding is the corner-stone of the judgment of the High Court. Applying the old English rule that during marriage the domicil 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 AC 517 and (ii) Attorney General for Alberta v. Cook 1926 AC 444 and of the House of Lords in (i) Lord Advocate v. Jaffrey, 1921 AC 146 and (ii) Salvesen or von Lorang v. Administrator of Austrian Property. 1927 AC 641. In Le Mesurier s case which is often referred t
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