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SUPREME COURT OF INDIA
(Andhra Pradesh High Court)
P.B. Sawant, Ranganath Mishra
Y. NARASIMHA RAO AND OTHERS, APPELLANTS
VERSUS
Y. VENKATA LAKSHMI AND ANOTHER, RESPONDENTS.
Criminal Appeal No. 385 of 1991
decided on July 9, 1991.
Held: Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted [Q the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country antl is, therefore, unenforceable. (Para 14)
Further held: Accordingly, we dismiss the appeal and direct the learned Magistrate to proceed with the matter pending before him according to law as expeditiously as possible, preferably within four months from now as the prosecution is already a decade old. (Para 16)
(ii) Civil Procedure Code, 1908 - Section 13 - When foreign judgment not conclusive Foreign decrees in matrimonial matters Minimum rules of guidance laid down by Supreme Court to judge its conclusiveness Relevant provisions of Section 13, C.P.C. are capable of being interpreted for such guidance. (Para 12)
(iii) Hindu Marriage Act, 1955 - Section 13 - C.P.C., 1908 - Section 13 - Foreign divorce granted on a ground not recognised in H.M. Act- Appellant also played a fraud as foreign court representing to it incorrect jurisdictional facts of 90 days residence - Such decree in not enforceable in India. (Paras 7 & 8)
(iv) Evidence Act, 1872 - Section 63 (1) & (2) r/w 65 (e) & (I) & 14 r/w.86 - Photocopy of original foreign decree of divorce - Whether admissible in evidence? (Yes, if certified u/s. 86).
Held: The High Court, as stated earlier, set aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. The High Court is not correct in its reasoning. Under Section 74 (1) (iii) of the Indian Evidence Act (hereinafter referred to as the "Act") documents forming the acts or records of the acts of public judicial officers of a foreign country are public documents. Under Section 76 read with Section 77 of the Act, certified copies of such documents may be produced in proof of their contents. However, under Section 86 of the Act there is a presumption with regard to the genuineness and accuracy of such certified copy only if it is also certified by the representative of our Central Government in or for that country that the manner in which it had been certified is commonly in use in that country for such certification.
Section 63(1) and (2) read with Section 65 (e) and (f) of the Act permits certified copies and copies made from the original by mechnical process to be tendered as secondary evidence. It photostat copy is prepared by mechanical process which in itself el1sures the accuracy of the original. The present photostat copies of a judicial record of the Court of St Louis is certified for the Circuit Clerk by the Deputy Clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Act and also in the manner required by the provisions of the said section. Hence the photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by. Section 86 of the Act. The expression "certified copy" of a foreign judgment in Section 14 of the Code has to be read consistant with the requirements of Section 86 of the Act. (Para 15)
JUDGMENT
J. - Leave is granted. Appeal is taken on board for final hearing by consent of parties.
2. Appellant 1 and respondent 1 were married at Tirupati on February 27, 1975. They separated in July 1978. Appellant 1 filed a petition for dissolution of marriage in the Circuit Court of St. Louis County Missouri, USA. Respondent 1 sent her reply from the here under protest. The Circuit Court passed a decree for dissolution of marriage on February 19, 1980 in the absence of respondent 1.
3. Appellant 1 had earlier filed a petition for dissolution of marriage in the Sub-Court of Tirupati being O.P. No. 87 of 1976. In that petition, appellant 1 filed an application for dismissing the same as not pressed in view of the decree passed by the Missouri Court. On August 14, 1981 the learned Sub-Judge of Tirupati dismissed the petition.
4. On November 2, 1981, appellant 1 married appellant 2 in Yadgirigutta. Hence, respondent 1 filled a criminal complaint against the appellants for the offence of bigamy. It is not necessary to refer to the details of the proceedings in the said complaint. Suffice it to say that in that complaint, the appellants filed an application for their discharge in the view of the decree for dissolution of marriage passed by the Missouri Court. By his judgment of October 21, 1986, the learned Magistrate discharge the appellants holding that the complainant, i.e., respondent 1 had failed to make out a prima facie case against the appellants. Against the said decision, respondent 1 preferred a criminal revision petition to the High Court and the High Court by the impugned decision of April 18, 1987 set aside the order of the Magistrate holding that a photostat copy of the judgment of the Missouri Court was not admissible in evidence to prove the dissolution of marriage. The court further held that since the learned Magistrate acted on the photostat copy, he was in error in discharging the accused and directed the Magistrate to dispose of the petition filed by the accused, i.e., appellants herein for their discharge, afresh in accordance with law. It is aggrieved by this decision that the present appeal is filed.
5. It is necessary to note certain facts relating to the decree of dissolution of marriage passed by the Circuit Court of St. Louis County, Missouri, USA. In the first instance, the court assumed jurisdiction over the matter on the ground that appellant 1 had been a resident of the State of Missouri for 90 days next preceding the commencement of the action and that petition in that court. Secondly, the decree has been passed on the only ground that there remains no reasonable likelihood that the marriage between the parties can be preserved, and that the marriage is, therefore, "irretrievably broken". Thirdly, respondent 1 had not submitted to the jurisdiction of the court. From the record, it appears that to the petition she had filed two replies of the same date. Both are identical in nature except that one of the replies begins with an additional averment as follows : "without prejudice to the contention that this respondent is not submitting to the jurisdiction of this honble court, this respondent submits as follows". She had also stated in the replies, among other things, that (i) the petition was not maintainable, (ii) she was not aware if appellant 1 had been living in the State of Missouri for more than 90 days and that he was entitled to file the petition before the court, (iii) the parties were Hindus and governed by Hindu law and they were married at Tirupati in India according to Hindu law, (iv) she was an Indian citizen and was not governed by laws in force in State of Missouri and, therefore, the court had no jurisdiction to entertain the petition, (v) the dissolution of the marriage between the parties was governed by the Hindu Marriage Act and that it could not be dissolved in any other way except as provided under the said Act, (vi) the court had no jurisdiction to enforce the foreign laws a
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