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2019 Supreme(Bom) 2353
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
C.V. Bhadang, J.
Mr. Jose Sousa - Appellant
Versus
Mrs. Ema Mata Fernandes - Respondent
Misc. Civil Application (Main) No. 185 of 2018
Decided On : 22-04-2019
Shri J. Vaz, Advocate, for the Appellant; Ms. S. Linhares, Advocate, Mr. Amogh Prabhudessai, Additional Government Advocate, for the Respondent
Headnote:
Portuguese Civil Procedure Code 1939 - Article 1102 - Civil marriage - Acquired Portuguese citizenship - Decree of divorce - Applicant was a citizen of India of Goan origin, born at Margao - First respondent is an Indian citizen of Goan origin - Applicant was married to first respondent in a civil marriage at Margao and their marriage is registered before Sub Registrar of Salcete at Margao under Entry no. - It appears that disputes and differences arose between parties in initial period of the marriage and parties separated and applicant has been residing in London since year, when he went there for purpose of work - Applicant has since acquired Portuguese citizenship in year, while first respondent continues to be an Indian citizen - Applicant made an unsuccessful attempt to get petition restored - Applicant thereafter filed a second petition being Matrimonial Petition no. before competent court for dissolution of marriage on ground of alleged harassment and ill-treatment meted out to applicant by first respondent - Whether judgment of Family Court at Bardford, U.K can be confirmed – Held, Court will assume that ground about parties living apart for a continuous period for at least five years is available to applicant, still applicant has not shown as to how Family Court at Bradford, U.K. would have jurisdiction to entertain petition only on basis of residence of applicant in U.K - Thus, it is not shown on basis of any such Council Regulations that Family Court at Barfard had jurisdiction to entertain petition, even assuming that parties were governed by said Council Regulations - True copy of judgment produced at pages 12 to 14 of compilation also does not show as to on which grounds decree of divorce has been granted - Decree dated refers to an earlier decree made in cause on which is not produced in this application - First respondent to Family Court at Bradford, would show that a specific ground of absence of jurisdiction was raised, however, judgment as produced in this application does not show that same has been dealt with in any manner- There is absolutely no reference to said aspect - Thus on basis Court do not find that judgment can said to be conclusive - In result civil application is hereby dismissed
JUDGMENT
C. V. Bhadang, J. - By this application under Article 1102 of the Portuguese Civil Procedure Code 1939 (Code, for short), the applicant is seeking confirmation of the judgment and order dated 9/6/2017 (as amended on 10/10/2017) passed by the Family Court at Bradford, U.K, by which, the marriage between the applicant and the first respondent, has been dissolved, by a decree of divorce.
2. The brief facts are that, the applicant was a citizen of India of Goan origin, born at Margao. The first respondent is an Indian citizen of Goan origin. The applicant was married to the first respondent in a civil marriage on 1/6/1985 at Margao and their marriage is registered before the Sub Registrar of Salcete at Margao under Entry no.836/1985. It appears that disputes and differences arose between the parties in the initial period of the marriage and the parties separated and the applicant has been residing in London since the year 2005, when he went there for purpose of work. The applicant has since acquired Portuguese citizenship in the year 2009, while the first respondent continues to be an Indian citizen. The applicant and the first respondent resided together in Goa as husband and wife until the year 2005 and from the time the applicant left for U.K, they have been residing separately.
3. It appears that the applicant filed Matrimonial Petition no.14/2010 against the first respondent on the ground of "incompatibility and continuous fights and beakerings", which came to be dismissed in default. The applicant made an unsuccessful attempt to get the petition restored. The applicant thereafter filed a second petition being Matrimonial Petition no.25/2013/A before the competent court for dissolution of marriage on the ground of the alleged harassment and ill-treatment meted out to the applicant by the first respondent. That petition was dismissed on 30/6/2015 and that has attained finality, when an appeal preferred there against, by the applicant, was dismissed on 22/12/2015.
4. The applicant thereafter filed a petition for dissolution of marriage before the Family Court at Bradford, U.K on 12/1/2017 on the ground of (i) there being an irretrievable breakdown of marriage and/or (ii) the parties to the marriage having lived apart for a continuous period of at least five years immediately preceding the presentation of the petition. The applicant claimed that the Family Court at Bardford had jurisdiction to hear the case in accordance with Article 3 (1) of the Council Regulations (EC) No.2201/03 of 27/11/2003.
5. It appears that a notice of the petition was served on the first respondent, who sent a detailed reply thereto inter alia taking exception to the jurisdiction of the Family Court at Bradford to entertain the petition. It was contended that the parties were Indian nationals of Goan origin at the time of their marriage. Their marriage was solemnized at Margao, where it is registered and thus the Family Court at Bradford, U.K. would lack jurisdiction to entertain the petition only on the ground that the applicant has been residing in U.K. It was pointed out that the marriage was solemnized as per the Family Laws applicable in Goa and although the applicant has acquired Portuguese Citizenship in the year 2009, the first respondent continues to be an Indian National and therefore, the marriage between the parties cannot be dissolved in accordance with the provisions of the foreign law.
6. The first respondent claimed that since the applicant left for U.K. she has been maintaining herself and has brought up two children on her own. She is running a mini grocery shop at Cortalim and is deriving meager income and is some how making a living. She pointed out that she is financially unable to appear and contest the petition before the Bradford Court. The first respondent also pointed out that there were two earlier petitions filed by the applicant before the competent court in Goa in which he has failed to obtain a decree of divorce.
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