JUDGMENT :

D. Bharatha Chakravarthy, J.

Prayer: First Appeal filed under Section 96 of C.P.C r/w under Order 41 R 1 of C.P.C to set aside the preliminary judgment and decree dated 30.01.2017 made in O.S.No.4 of 2013, on the file of the learned Family Court Judge, Puducherry.

A. The Question:

1. We are called upon to resolve a conundrum under Private International Law/Conflict of Laws, involving French Law, as to, “Whether or not a wife, who has suffered a decree of divorce in the Court of Superior Instance at France with further orders of liquidation of property, can maintain a suit for partition and separate possession of her half share in the community properties before the Family Court at Puducherry, without applying to the Notaires with the respective Chamber of Notaires at France, within a period of three months, in view of Article 1444 of French Civil Code?“

B. The Foreign Element :

2. In this case, the Appellant/Defendant, was the Husband and the Respondent/Plaintiff was the wife, since divorced. For the sake of convenience, they are referred as Husband and Wife, in this judgment. Both parties to the suit, are admittedly French Nationals and their claims and contentions relate to the rights and liabilities arising out of the divorce granted and hence the foreign element.

C. The French Law :

3. Under the French law, the marital relationship of a husband and wife is under two different regimes. They can have a contract regime, which would mean that terms of their prenuptial contract would govern their interse relationship, whereby they can mutually agree as to whether their properties would remain separate property or common property, their financial relationship etc. In the absence of a contract, they would be under community regime (comminute legalé). Articles 1401 to 1495 of the French Civil Code deal with the community regime. The english translation of the relevant Articles 1401 and 1402 reads as follows :

'Art. 1401 - The assets of the community comprise acquisitions made by the spouses together or separately during the marriage, and coming both from their personal activity and from savings made on the fruits and incomes of their personal property.

Art. 1402 - Any property, movable or immovable, shall be deemed an acquisition of the community where it is not proved that it is a separate property of one of the spouses in accordance with a provision of law.

Where a property is one of those which do not display proof or mark of their origin, personal ownership of a spouse, if disputed, shall be established in writing. Failing an inventory or other contemporaneously constituted proof, the judge may take into consideration all writings, in particular family instruments of title, registers and papers, as well as bank documents and invoices. He may even admit testimonial or presumptive evidence, where he observes that it was materially or morally impossible for one spouse to obtain a writing. https://www.fd.ulisboa.pt/wp-content/uploads/2014/12/Codigo-Civil-Frances-French-Civil-Code-' english-version.pdf

Thus, the husband and wife, subject to other limitations and liabilities, are entitled to equal share of the community estate.

4. Article 1441, reads as follows :

'Art. 1441 - A community is dissolved:

1° By the death of one of the spouses;

2° “By declared absence” (Act no 77-1447 of 28 Dec. 1977);

3° By divorce;

4° By judicial separation;

5° By separation of property;

6° By change of matrimonial regime. Vide 1 supra

Thus, upon divorce, the community is dissolved and subject to other rights and liabilities, the husband and wife are entitled to 50% each of the community estate.

5. To understand the process of separation, it is useful to read, Articles 1443-1444 together :

'Art. 1443- Where through the disorder of the affairs, misadministration or misconduct of one spouse, it appears that the upholding of the community imperils the interest of the other spouse, the latter may sue in court for separation of property. Any voluntary separation is v