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IN THE HIGH COURT OF BOMBAY
J.A. Patil, J.
Shiv Indersen Mirchandani of Bombay another .... Plaintiffs.
Versus
Natasha Harish Advani alias Natasha
Vijaykumar Tolaram Mirchandani others.... Defendants.
Notice of Motion No. 837 of 2001 in Suit No. 1458 of 1983, decided on 5-12-2001.
Advocates appeared :
E.S. Kotwal, for plaintiffs.
Setalwad, for defendants Nos. 1(a), 1(b) 3.
D.V. Merchant, for defendant Nos. 4 to 7.
The Court held that the Swedish Court had jurisdiction to grant a divorce to the parties, as both parties had voluntarily submitted to its jurisdiction and the wife had a real and substantial connection with Sweden. The Court also held that the divorce decree was not obtained by fraud or in violation of natural justice, and that it was therefore conclusive and binding in India. As a result, the subsequent marriage of the deceased husband to the plaintiff was valid, and the plaintiff's son was the legitimate son of the deceased husband.
Fact of the Case:
The deceased Indrasen Tolaram Mirchandani, was an industrialist and had a large business interest in several companies including defendant Nos. 9 and 10. He was the Karta and manager of Indrasen Tolaram Mirchandani HUF. He was an Indian national having Indian domicile. On 13-9-1952 he contacted Civil marriage with defendant No. 8 Barbro Baeck, a Christian woman of Sweden in New York. After the marriage both of them lived together first in New York for some time and then in India till May 1958 and were blessed with two children, a son Rajiv (defendant No. 2) and a daughter Kavita (defendant No. 3). It appears that there were some serious differences between the deceased and defendant No. 8 who alongwith both the children went back to Sweden to live there permanently. Four years thereafter, i.e. on 15-6-1962 she obtained a decree of judicial separation from the District Court Vasterbegslags, Sweden and two years thereafter i.e. 23-4-1964, the deceased and defendant No. 8 obtained from the same Court a decree of divorce by mutual consent. The deceased thereafter, returned to India married for the second time to Chandra (plaintiff No. 2) as per Hindu Vedic rites on 30-8-1964. The couple got a son-Shiv (plaintiff No. 1) on 13-11-1967.
Finding of the Court:
The Court held that the Swedish Court had jurisdiction to grant a divorce to the parties, as both parties had voluntarily submitted to its jurisdiction and the wife had a real and substantial connection with Sweden. The Court also held that the divorce decree was not obtained by fraud or in violation of natural justice, and that it was therefore conclusive and binding in India. As a result, the subsequent marriage of the deceased husband to the plaintiff was valid, and the plaintiff's son was the legitimate son of the deceased husband.
Issues: 1. Whether the plaintiff No. 2 has any locus to file the above suit or to file a caveat to challenge the Will of the deceased? 2. Whether the plaintiff No. 1 has any right to any part of the properties of HUF to which the deceased was entitled? 3. Whether plaintiff No. 1 is entitled to any reliefs against defendant Nos. 9 or 10?
Ratio Decidendi: The Court relied on the following principles in reaching its decision: * The domicile of the wife follows that of the husband. * A wife can acquire a domicile of her own if she has a real and substantial connection with a country other than the country of her husband's domicile. * A foreign judgment will be recognized in India if it is passed by a court of competent jurisdiction, if it is not obtained by fraud or in violation of natural justice, and if it does not offend against the public policy of India.
Final Decision: The Court held that the Swedish Court had jurisdiction to grant a divorce to the parties, as both parties had voluntarily submitted to its jurisdiction and the wife had a real and substantial connection with Sweden. The Court also held that the divorce decree was not obtained by fraud or in violation of natural justice, and that it was therefore conclusive and binding in India. As a result, the subsequent marriage of the deceased husband to the plaintiff was valid, and the plaintiff's son was the legitimate son of the deceased husband.
J.A. PATIL, J.:---"Marriages are settled in heaven and they are performed on earth."
Whether and where a marriage can be dissolved is a matter in the domain of the earthly law governing the spouses. But the matrimonial laws are not common everywhere in the world and they differ from country to country. The problem arises when the parties have their domicile in one country and one of them obtains matrimonial relief in a foreign country. The moot question posed in this Notice of Motion is whether the decree passed by a Swedish Court can be recognised by this Court, as being conclusive, or not.
2. This is a case where a Hindu domiciled in India got married in civil form in New York to a Swedish woman of Christian religion, who lived with him after the marriage for about six years and bore two children to him. Thereafter, she separated from him and went back alongwith her two children to Sweden. Six years after the separation, the man went to Sweden where both of them by mutual consent obtained a decree of divorce. The man then returned back to India and got married to a Hindu woman in Vedic form of marriage from whom he has a son. The children of the first marriage now raise a dispute about the validity of the divorce of their mother and also the validity of the second marriage of their father. They have taken out the present Notice of Motion praying for trying the following issues as preliminary issues---
(a)(i) Whether the plaintiff No. 2 has any locus to file the above suit or to file a caveat to challenge the Will of the deceased?
(ii) Whether the plaintiff No. 1 has any right to any part of the properties of HUF to which the deceased was entitled?
(iii) Whether plaintiff No. 1 is entitled to any reliefs against defendant Nos. 9 or 10?
They have further prayed that the order dated 29-3-1984 in Notice of Motion No. 1471/1983 be suitably modified and/or varied to exclude payment of the income from the HUF of the deceased to the plaintiffs. Shri Setalwad, the learned Counsel for defendant Nos. 1(a), 1(b) and 3 submitted that he is pressing for findings on issue Nos. (i) (ii) above and also for the second relief. For proper appreciation, the relevant facts may be stated briefly as under:
The Facts
3. The deceased Indrasen Tolaram Mirchandani, was an industrialist and had a large business interest in several companies including defendant Nos. 9 and 10. He was the Karta and manager of Indrasen Tolaram Mirchandani HUF. He was an Indian national having Indian domicile. On 13-9-1952 he contacted Civil marriage with defendant No. 8 Barbro Baeck, a Christian woman of Sweden in New York. After the marriage both of them lived together first in New York for some time and then in India till May 1958 and were blessed with two children, a son Rajiv (defendant No. 2) and a daughter Kavita (defendant No. 3). It appears that there were some serious differences between the deceased and defendant No. 8 who alongwith both the children went back to Sweden to live there permanently. Four years thereafter, i.e. on 15-6-1962 she obtained a decree of judicial separation from the District Court Vasterbegslags, Sweden and two years thereafter i.e. 23-4-1964, the deceased and defendant No. 8 obtained from the same Court a decree of divorce by mutual consent. The deceased thereafter, returned to India married for the second time to Chandra (plaintiff No. 2) as per Hindu Vedic rites on 30-8-1964. The couple got a son-Shiv (plaintiff No. 1) on 13-11-1967.
4. According to the plaintiffs on 30-3-1976 the deceased effected a partial partition in respect of 195 equity shares of a company belonging to the HUF. The deceased died on 30-7-1982. Since before his death he was seriously ill as a result of which his mental condition was not sound. After the death of the deceased, defendant Nos. 4 to 7 set up his Will dated 28-5-1982, claiming themselves to be the executors under the said Will. But according to the plaintiffs the said Will appears to have been b
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