Vimal Jayachandran vs Diana Jerine Johnson, Represented through her power agent K. Thavaselvi Jeyanthi Koilraj

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Mad) 924

IN THE HIGH COURT OF MADRAS, MADURAI BENCH
R. VIJAYAKUMAR, J.
Vimal Jayachandran - Petitioner
Versus
Diana Jerine Johnson, Represented through her power agent K. Thavaselvi Jeyanthi Koilraj - Respondent
C.R.P.(MD). No.2594 of 2022 and C.M.P(MD). No.12712 of 2022
Decided On : 08-03-2023

Advocates Appeared:
For the Petitioner: Mr. M. Thirunavukkarasu.
For the Respondent: Mr. M. Vallinayagam Senior Counsel for Mr. S. Muthumalairaja.

Headnote:
Divorce Act 1869 - of Civil Procedure Code,1908 - Section 13(c) and (f) - Constitution of India,1950 - Article 227 - Marriage Registrar - Minnesota for divorce - Order of divorce - Conjugal rights - Held, In affidavit wife has also pointed out that proceedings in U.S.A are without jurisdiction and not unenforceable in India - Ignoring affidavit filed by wife Foreign Court has proceeded with divorce proceedings and passed an erroneous order that wife had filed divorce proceedings in India - It is clear that affidavit filed by wife challenging jurisdiction of Court and right of husband to proceed with divorce proceedings has not at all been considered by Foreign Court and said Court has proceeded to pass divorce decree - Non-consideration of sworn affidavit filed by wife pointing out anti - Suit injunction and passing a divorce decree is clearly opposed to principles of natural justice - Petition stands dismissed.

ORDER :

(Prayer: Civil Revision Case is filed under Article 227 of Constitution of India, to strike off the petition in I.D.O.P.No.170 of 2017 on the file of the I Additional District Court, Tirunelveli by allowing this civil revision petition.)

1. The revision petition has been filed by the respondent/husband in IDOP.No.170 of 2017 on the file of the I Additional District Court, Tirunelveli to strike off IDOP.No.170 of 2017.

Factual Matrix:

2. The revision petitioner and the respondent got married as per Christian Ceremony on 06.02.2012 and the same was also registered with Marriage Registrar of Tisayanvilai on 13.02.2012. After marriage, the wife went to U.S.A where the husband was working. While the couple was in U.S.A, the wife delivered a girl child on 30.07.2013. On 05.02.2014, the wife visited India and returned back to U.S.A on 26.05.2015. On 10.11.2015, the husband had filed a petition before the 1st Judicial District in Family Court, State of Minnesota for divorce. The wife had filed an answer petition and a counter contending that the said Court has no jurisdiction whatsoever to entertain such a divorce petition.

3. Despite the petition filed by the wife pointing out the issue of jurisdiction, the Court proceeded with the divorce petition.

4. The wife had filed IDOP.No.170 of 2017 before the District Court, Tirunelveli on 01.08.2017 through her mother as power agent for the relief of restitution of conjugal rights. In the said petition, the wife had filed I.A.No.114 of 2017 seeking interim injunction restraining the husband from proceeding with the divorce proceedings in U.S.A till the disposal of the main I.D.O.P. An interim order was granted as prayed for on 30.10.2017 granting interim injunction restraining the husband from continuing the divorce proceedings in USA or filing any other case as against wife in any Court of USA till 03.01.2018. The said interim order was passed in the presence of the counsel appearing for the husband. The interim order was extended on 03.01.2018 till 10.01.2018 and it was extended on various dates of hearing and the injunction order is still in force.

5. The 1st Judicial District in Family Court, State of Minnesota, County of Dakota passed an order on 27.02.2018 dissolving the marriage between the parties. Based upon the said divorce order granted by the County Court in U.S.A, the present civil revision petition has been filed by the husband to strike off I.D.O.P.No.170 of 2017 mainly on the ground that once a divorce decree has been granted by a competent Foreign Court, thereafter, restitution of conjugal rights proceedings cannot be permitted to be proceeded with and the same would only amount to abuse of process of the Court.

The contentions of the learned counsel appearing for the revision petitioner are as follows:

6. As per the law applicable to the State of Minnesota, it is enough that any one of the parties have being a resident of the said State for more than 180 days immediately preceding the commencement of the proceedings is entitled to file a Divorce Petition.

7. The husband being a resident of the said State for more than 180 days prior to the filing of the divorce proceedings, the said Court has got every jurisdiction to entertain the divorce petition.

8. The wife had filed her answer and counter affidavit on 03.12.2015. Therefore, the wife had participated in the said proceedings up to the stage of filing of the counter and only thereafter, she had failed to appear before the Court voluntarily and without any reasonable cause. Therefore, the County Court was constrained to proceed further and pass orders on merits. Hence, it cannot be contended that it is an exparte order.

9. The husband had filed the said divorce petition before U.S.A Court alleging that the wife had physically assaulted him and lodged a false police complaint to get him arrested and threatened to damage the career of the husband. Therefore, it could be seen that the divorce petition was not only filed