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IN THE HIGH COURT OF GAUHATI
Amitava Roy, J.
Paul Tushar Biswas - Appellants
Vs.
Addl. Dist. Judge and Anr. - Respondent
W.P. (C.) No. 278 of (SH) of 2003
Decided On: 21.11.2005
CHILD MAINTENANCE - JURISDICTION - FOREIGN COURT - RECIPROCITY - SECTION 43 OF THE INDIAN DIVORCE ACT, 1869 - SECTION 13, 44A AND 45 OF THE CODE OF CIVIL PROCEDURE, 1908 - Held, the California Court had the jurisdiction to entertain the proceedings and render the support order. The child support order passed by the California Court was not for all practical purposes, intended to be subjects to fresh proceedings before the competent Indian Court and orders to be passed by it. The petitioner's conduct in resisting the California proceedings on the plea of Forum Non Conveniens was not compatible with his concern to provide maintenance to the child through an order of the Indian Court.
Fact of the Case:
The petitioner, an Indian national and a permanent resident of California, USA, filed an application under Section 43 of the Indian Divorce Act, 1869 in the Court of the Additional District Judge at Shillong, seeking to assess the amount of child maintenance to be paid by him for the sustenance and education of his minor son. The respondent No. 2, the child's mother, contested the application, questioning the jurisdiction of the learned Court below to entertain and decide the prayer for maintenance. The learned Court below rejected the petitioner's application, holding that there was no reciprocity between India and the State of California and, therefore, in terms of Sections 44A and 45 of the CPC, any order passed by it would not be enforceable in the State of California.
Finding of the Court:
The California Court had the jurisdiction to entertain the proceedings and render the support order. The child support order passed by the California Court was not for all practical purposes, intended to be subjects to fresh proceedings before the competent Indian Court and orders to be passed by it. The petitioner's conduct in resisting the California proceedings on the plea of Forum Non Conveniens was not compatible with his concern to provide maintenance to the child through an order of the Indian Court.
Issues: 1. Whether the California Court had the jurisdiction to entertain the proceedings and render the support order? 2. Whether the child support order passed by the California Court was for all practical purposes, intended to be subjects to fresh proceedings before the competent Indian Court and orders to be passed by it? 3. Whether the petitioner's conduct in resisting the California proceedings on the plea of Forum Non Conveniens was compatible with his concern to provide maintenance to the child through an order of the Indian Court?
Ratio Decidendi: 1. The Court held that the California Court had the jurisdiction to entertain the proceedings and render the support order, as the petitioner was a permanent resident of California, the respondent No. 2 invoked the child support mechanism available in the State of California, and the petitioner did not question the competence or jurisdiction of the California Court on any ground other than an assumed statutory bar perceived by him under Section 43 of the Divorce Act. 2. The Court held that the child support order passed by the California Court was not for all practical purposes, intended to be subjects to fresh proceedings before the competent Indian Court and orders to be passed by it, as the observations of the California Court in its proceedings did not admit those to be so interpreted. 3. The Court held that the petitioner's conduct in resisting the California proceedings on the plea of Forum Non Conveniens was not compatible with his concern to provide maintenance to the child through an order of the Indian Court, as the petitioner had not made any prior efforts to provide maintenance to the child and his sudden animation following the California Court's support order constrained the Court to hold that the concern expressed before the Shillong Court was ostentatious and not real.
Final Decision: The petition was dismissed with no costs.
Amitava Roy, J.
1. The matrimonial alliance between the parties though conclusively determined by a decree of divorce, the issue pertaining to maintenance of their minor son has kept them belligerently engaged in Courts of law. The instant application witnesses a challenge by the petitioner/husband to the judgment and order dated 9.4.2003 passed by the learned District Judge, Shillong, in (Civil) Miscellaneous Application 7(H)/2002 arising out of matrimonial case No. 6(H)/2000 under Section 43of the Indian Divorce Act, 1869 (hereafter referred to as the Divorce Act), rejecting his application to allow him to provide child maintenance to the offspring, Timothy Biswas.
2. I have heard Ms. A. Paul, Advocate assisted by Mr. K. Paul, Advocate for the petitioner and Ms. P.D.B. Baruah, Advocate for the respondent No. 2.
3. The prefatory facts building up the factual edifice would be essential. The petitioner claims to be an Indian National presently residing at California in the United States of America and is serving the Sheriffs Department of the County of Fresno, California. The petition before this Court is through his legally constituted attorney. The parties who profess Christian faith were married on 4.10.1990 at All Saints Church, Shillong, under the Christian Marriage Act, 1872 (hereafter referred to as the Marriage Act). The child, a son named hereinabove was born to them. He is a minor and is presently residing with the mother, respondent No. 2. The petitioner in the year 1999 filed an application under Section10 of the Divorce Act in the Court of the District Judge at Alipore, West Bengal, praying inter alia for a decree for divorce which was registered as Matrimonial Suit No. 388/1999. While the summons in the said proceedings were yet to be served on the respondent No. 2, she also filed an application under Section 10 of the Divorce Act before the learned Additional District Judge, Shillong, seeking dissolution of the marriage. It was amongst others alleged therein that the petitioner had deserted her from the year 1994 and had been living in adultery since February, 1993. The divorce proceeding initiated by the respondent No. 2, registered as Matrimonial Case No. 6(H)/2000, was eventually disposed of by the judgment and order dated 5.7.2002 granting the relief prayed for. The decree of divorce was sanctioned. The petitioner, however, failed to contest the proceedings. While the petition for divorce was pending before the learned Court below at Shillong, on the initiative of the respondent No. 2, a proceeding for child support for the maintenance of the minor son was commenced before the Superior Court of California, County of Fresno being Case No. 01CEFS03419 of 2002, County of Fresno/Petitioner v. Paul Tushar Biswas/Respondent, wherein by an order dated 4.2.2002, the Fresno County Superior Court directed the petitioner to pay a monthly support amount of $ 500 payable w.e.f. 1.2.2002 in favour of the minor child.
4. The Court of the District Judge at Alipore in the meantime, on an application filed by the petitioner in Matrimonial Suit No. 388/99 (renumbered as Matrimonial Suit No. 27/2001 of the Court of the 5th Additional District Judge, Alipore) by order dated 13.2.2001 allowed his prayer for visitation rights to meet the minor child subject to the conditions set out therein. The respondent No. 2 thereafter filed an application for vacating the said order. She also filed an application under Order 7 Rule 11, Code of Civil Procedure for rejection of the plaint. The learned 5th Additional District Judge (to whose file the case was in the meantime transferred) finally by order dated 16.1.2002 rejected the plaint in the Matrimonial Suit 27/01 and vacated all interim orders passed. In doing so, the learned Court took note of a letter written by the petitioner to the Officer-in-Charge, Park Street Police Station mentioning inter alia that he had already obtained a decree of divorce from a Court in the United States of
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