1995 Supreme(Del) 390

High Court Of Delhi
VINA KALIA - Appellant
Versus
JATINDER NATH KALIA - Respondent
First Appeal Order 158 of 151
Decided On : 05/05/1995

A foreign judgment of divorce obtained by the husband from the Nevada State Court in U. S. A. in absentum of the wife without her submitting to its jurisdiction will not be valid and binding on a Criminal Court in proceedings for maintenance under Section 488, Criminal P. C. when it is found from the facts on record that the decree of divorce was obtained by fraud or by making a false representation as to a jurisdictional fact viz. , that the husband was a bona fide resident and was domiciled in Nevada.

Headnote:

HINDU MARRIAGE ACT - DIVORCE - FOREIGN JUDGMENT - VALIDITY - JURISDICTION - MAINTENANCE - QUANTUM - ENHANCEMENT - INFLATION.

Fact of the Case:

The appellant-wife filed a petition for divorce against the first respondent-husband under the provisions of Section 13 (1) (i), (i-a) and (i-b) of the Hindu Marriage Act, 1955 (for short the Act ) seeking divorce on the grounds of adultery, cruelty and desertion. The first respondent-husband was allegedly living with the second respondent in adultery with whom, he said, he had married after his divorce from the petitioner. Both the respondents are residents of the United States of America. This petition for divorce was filed in September, 1984 in the Court of the District Judge, Delhi. The petitioner said she and the first respondent were married in India according to Hindu rites on 12 October, 1968 and that two daughters were born to her in 1970 and 1971. In February, 1972 the first respondent left for England to pursue further studies and in 1973 he went to Canada. From there he wrote a letter to the petitioner to join him in Canada. That was in June, 1973. In November, 1973, however, he wrote another letter to the petitioner that she should not come to Canada as he was interested in getting their marriage dissolved. In August, 1975 the first respondent filed a petition for divorce in the Supreme Court of Nova Scotia in Canada on the ground that his marriage with the petitioner had permanently broken down. The petitioner could not contest these proceedings, she having no means to go to Canada. On 22 December, 1975 the Supreme Court of Nova Scotia granted a divorce decree in favour of the respondent-husband to be made absolute within three months. This decree of divorce was made final on 19 May, 1976. The Court at Nova Scotia further ordered that respondent-husband would pay to the petitioner an amount of Rs. l,000. 00 per month for her maintenance and for that of the children w. e. f. 1 July, 1976 till she remarried.

Finding of the Court:

The Supreme Court at Nova Scotia was not the Court of competent jurisdiction as under the Act the Supreme Court at Nova Scotia could not be a Court of competent jurisdiction. The silence of the wife could not confer jurisdiction on that Court. Silence here is not because of her own volition but because of the constraints which she could not overcome to contest the proceedings there. The foreign judgment on which the husband relied has no legal validity in this country. The impugned order of the Additional District Judge holding that the petition of divorce filed by the wife was not maintainable has to be set aside.

Issues: 1. Whether in view of the decree of divorce passed by the Supreme Court of Nova Scotiain Canada could it besaid that the petition filed by the wife was barred by principles of estoppel and res-judicata, 2. Could a decree for divorce be granted under the Act in this appeal as prayed by the wife; 3. Whether the learned Trial Judge was right in dismissing the petition of wife for grant of maintenance even though her petition for divorce was held to be not maintainable; and 4. Whether this Court has jurisdiction to pass an order of maintenance and the quantum to be fixed.

Ratio Decidendi: 1. The Supreme Court at Nova Scotia was not the Court of competent jurisdiction as under the Act the Supreme Court at Nova Scotia could not be a Court of competent jurisdiction. The silence of the wife could not confer jurisdiction on that Court. Silence here is not because of her own volition but because of the constraints which she could not overcome to contest the proceedings there. The foreign judgment on which the husband relied has no legal validity in this country. The impugned order of the Additional District Judge holding that the petition of divorce filed by the wife was not maintainable has to be set aside. 2. The parties have not been living as husband and wife since over 23 years. Respondent-husband has already married and has three children. The wife could not join husband for no fault of her and, as the record shows, the husband never wanted her to join her in Canada and left her in lurch in this country to fend for herself with her two minor daughters. His very conduct shows great deal of cruelty towards wife. He has deserted her. First he said, he would send her the ticket to come to Canada to join him and then he told her within three months thereafter that he was seeking divorce from her. As I have held that decree of divorce granted by foreign Court is nullity the consequence would be that the husband is living in adultery with the second respondent. It would be harsh on the second respondent to be so held, but then that is theposition in law. Ail the grounds for divorce alleged by the wife stand proved on record. I, therefore, do not think that I should remand the matter back to the Trial Court for him to go into the formality of holding proceedings and then pass a decree for divorce. The appeal is in continuation of the proceedings from the Trial Court and following the law laid down by the Supreme Court in Romesh Chander v. Smt. Savitri [jt 1995 (1) S. C. 362], I would allow the petition for divorce filed by the wife on the grounds as are available in law which the appellant-wife has alleged and stand proved. 3. The appellant-wife is entitled to maintenance at the rate of Rs. 10,000. 00 per month as from the date of the application, which is I November, 1986, and then convert the same into permanent alimony under Section 25 of the Act. This maintenance shall stand enhanced at the rate of 12% per annum taking into account the inflation element which is double figure these days. If, however, the first respondent pays US dollars 33,000 to the appellant in lumpsum towards permanent alimony her claim for increase in monthly maintenance will stand waived. The first respondent shall pay a marriage expense of Rs. 10 lakhs which in terms of US dollars would again be around 33,000, by means of a fixed deposit receipt in the name of the daughter which she shall be able to encash at the time of her marriage.

Final Decision: The appeals are allowed. The petition for divorce filed by the wife is allowed and a decree of divorce is granted in favour of the petitioner-wife and against the respondent-husband. The application for grant of maintenance is allowed and the appellant-wife is entitled to maintenance at the rate of Rs. 10,000. 00 per month as from the date of the application, which is I November, 1986, and then convert the same into permanent alimony under Section 25 of the Act. This maintenance shall stand enhanced at the rate of 12% per annum taking into account the inflation element which is double figure these days. If, however, the first respondent pays US dollars 33,000 to the appellant in lumpsum towards permanent alimony her claim for increase in monthly maintenance will stand waived. The first respondent shall pay a marriage expense of Rs. 10 lakhs which in terms of US dollars would again be around 33,000, by means of a fixed deposit receipt in the name of the daughter which she shall be able to encash at the time of her marriage.