Foreign judgments on matrimonial disputes are unenforceable in India unless pronounced by a competent jurisdiction and in accordance with natural justice principles.

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. Heard Mr.P.V.Chhatriwala learned counsel for the appellant.

2. Challenge before us is the judgement and order dated 10.05.2024 of the Family Court No.3, Vadodara. By the aforesaid judgement and order, the application of the appellant-original applicant before the Family Court for restitution of conjugal rights under Section 9 of the Hindu Marriage Act has been dismissed.

3. Perusal of the order of the Family Court indicates that one of the grounds on which the learned Family Court has refused to entertain the applicant-appellant’s request for restitution of conjugal rights is that once the parties have obtained a divorce before a Canadian Court, there will be no useful purpose to grant the application under Section 9 to the appellant.

4. Mr.Chhatriwala learned counsel for the appellant would draw our attention to the paper-book, especially the form at page 64. It is his submission that the respondent briefly came over from Canada and entered into a marriage with the appellant. She thereafter left after a brief stay in India for 25 days. He also submits that the respondent through her father as a power of attorney filed an application for divorce by mutual consent under Section 13B of the Hindu Marriage Act and coerce the petitioner to submit to the jurisdiction of the Family Court for mutual consent. However, the application was subsequently withdrawn. A second application was also filed which was also withdrawn. He submits that the respondent now is in Canada and the observation of the Family Court that the Canadian Court has granted a decree of divorce would therefore disentitle the appellant for a decree of restitution of conjugal rights is contrary to law.

5. In support of his submission, he would cite a judgement of the Supreme Court in case of Y. Narasimha Rao and others v. Y. Venkata Lakshmi and Anr reported in 1991 SCC (3) 451. Para 12 of this judgement was pressed into service which reads as under:

“12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression ``competent court'' in Section 41 of the Indian Evidence Act has also to be construed likewise.

Clause (b) of Section 13 states that if a foreign has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or