2014 Supreme(P&H) 293

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajiv Narain Raina
Civil Revision No. 3130 of 2013(O&M)
Rupak Rathi
v.
Anita Chaudhary
{Decided on 09/04/2014}

Headnote:Divorce--Foreign Judgment--Principles summarized for guidance of matrimonial courts to safeguard interest of Hindu women married to NRIs living in India and abroad.

       (A) Civil Procedure Code, 1908, S.13--Foreign Judgment--It is not conclusive as to any matter directly adjudicated upon between the parties if (a) it has not been pronounced by a court of competent jurisdiction; (b) it has not been given on the merits of the case; (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice; (e) it is obtained by fraud; (f) it sustains a claim founded on a breach of any law in force in India. (Para 16)

       (B) Civil Procedure Code, 1908, S.13--Divorce Decree--Foreign Judgment--Held; It is trite that no decree of divorce obtained from the English Court on a ground not available under the HMA, which personal law is applicable to the marriage between the parties, can be sustained on ground of irretrievable break down of marriage--Hindu Marriage Act, 1955, S.13. (Para 16)

       (C) Civil Procedure Code, 1908, S.13--Divorce--Foreign Judgment--Principles summarized for guidance of matrimonial courts to safeguard interest of Hindu women married to NRIs living in India and abroad--These principles should be applied on a case to case basis while dealing with applications under O.7 R.11 CPC in context of Hindu Marriage Act, S.13 CPC--Hindu Marriage Act, 1955, S.13. (Para 24)

       As it is not prudent to lay down any strait jacket formula of universal application and some free play in the joints of matrimonial courts should be left while dealing with different fact situations presented before them:-

       (i) If the spouse aggrieved by the foreign matrimonial decree has not submitted to the jurisdiction of the foreign court or consented to the passing of the foreign Court judgment, it ought not to be recognised being unenforceable under Section 13 CPC--This position of law ought to be applied to the facts of the individual case.

       (ii) There may be occasions that a spouse relying upon the judgment of a foreign matrimonial court, upon receipt of a summon or notice from a court of competent jurisdiction under the HMA, may not choose to file a written statement in response to a petition seeking a matrimonial cause under HMA in Punjab, Haryana or Chandigarh--Instead, the contesting spouse may prefer to move an application under Order VII Rule 11 CPC seeking to rely upon or invoke the provisions of Section 13 CPC--Thus, it may be contended before the court of competent jurisdiction under the HMA that since the matrimonial action between the parties has already been decided and concluded by a Court in the foreign jurisdiction, the adjudication in the matter in issue between the same spouses based on the same matrimonial cause of action is barred by the principle of res judicata and spouses are estopped in law from agitating the same again.

       (iii) It is respectfully contended that wherever both or any spouse arrayed in a matrimonial cause in a matrimonial action under HMA contest, dispute, question or oppose any above such application under Order VII Rule 11, CPC involving interpretation of the principles laid down under Section 13 CPC thereby necessitating requirement of detailed pleadings and evidence of spouses, no summary decision may seem possible to decide the matter in the preliminary stage.

       (iv) In the above situation, there may also be circumstances involving application of issues of domicile as also applicability of Sections 1 and 2 of the HMA regarding extra territorial application of the provisions of HMA--Determination of these issues may also require parties to put their pleadings and testimony as well on the record of the Court of competent jurisdiction under the HMA.

       (v) The application of the provisions of the CPC finding mention under Section 21 HMA, the Court of Competent jurisdiction under the HMA in Punjab, Haryana or Chandigarh may then be guided by the procedural law of pleadings contained in the Orders and Rules of the CPC and Punjab & Haryana High Court amendments, if any, for further proceedings in the matter--Accordingly, filing of a written statement, counter claim, rejoinder and/or other pleadings may be necessitated for having the factual matrix on record leading to the settlement of issues under Order XIV CPC which can only be framed upon allegations made by parties to be read along with the contents of documents produced by spouses--Hence, this procedure may be necessary to be adopted to decide upon the warring claims of spouses relying on averments in support or against the judgment of the foreign matrimonial court between the parties.

       (vi) Based on the above procedural requirements, the Court of competent jurisdiction under the HMA may then examine the process, pleadings, grounds and other details in the passing of the judgment/decree of the matrimonial court of foreign jurisdiction to test it on the anvil of Section 13 CPC and based on the principles laid down by the Apex Court in Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991 (3) SCC 451 and exception (iii) as understood in the present opinion--Hence, in the event of a contest, dispute, opposition to the applicability of the foreign matrimonial judgment in the Indian jurisdiction, a summary disposal may not be possible--To do complete justice to both the spouses and to ensure that prejudice has not been caused to either of them as also that issues of maintenance, settlement of matrimonial property, child custody etc. arising in India have been completely settled between spouses based on provisions of HMA, the Court of competent jurisdiction under the HMA may examine the matter on the lines suggested above.

       (vii)Thereafter, if the issue relating to the jurisdiction of Competent Court under the HMA as also any bar to the matrimonial cause created by any existing law appears to be established, the matrimonial court in Punjab, Haryana or Chandigarh may upon the facts and circumstances of the case take an appropriate decision under Order XIV Rule 2 CPC whether it needs to pronounce judgment on all issues or decide the issue of jurisdiction or maintainability as a preliminary issue--In such circumstances, the Competent Court under the HMA may after forming an opinion take an appropriate decision on the facts of the case as to whether the issue of jurisdiction or maintainability is to be decided as a preliminary issue or pronounce judgment together on all the issues--Accordingly, based on the individual facts and circumstances, the Court ought to take a decision whether to decide the preliminary issue of jurisdiction or maintainability or postpone the settlement of other issues after such preliminary issues has been determined. (Para 24)