Delhi High Court restrain NRI from seeking divorce in USA- Anti suit Injunction granted.

 

 

Delhi High Court restrain NRI from seeking divorce in USA- Anti suit Injunction granted.

 

The Delhi high court has come to the rescue of a woman allegedly deserted by her husband who has filed for divorce in the US.

In a recent ex-parte order, Justice Mukta Gupta restrained the husband from proceeding with the divorce petition filed in a Texas court. She took into account that the couple had tied the knot in India and now the woman doesn’t possess a valid visa to travel to the US and contest the divorce plea.

“The balance of convenience lies in favour of the wife and if injunction isn’t granted, she will suffer irreparable loss,” Justice Gupta said

HC accepted the argument of the woman’s lawyer, Prabhjit Jauhar, that since they were married in India in accordance with Hindu Marriage Act, 1955, their marriage could only be dissolved under the provisions of the Act. He further said the US court has no jurisdiction to resolve the marriage.

———————————————————————————————————-

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 CS(OS) 2386/2013

NIDHI PRAKASH ….. Plaintiff

Through: Mr. Prabjit Jauhar and Ms. Anupama Kaul, Advocates.

versus

RAJNEESH VARMA ….. Defendant

Through: None.

CORAM:

HON’BLE MS. JUSTICE MUKTA GUPTA

O R D E R

02.12.2013

I.A. No. 19497/2013 (Exemption)

Allowed, subject all just exceptions.

I.A. No. 19496/2013 (Exemption)

Allowed, subject to the Plaintiff filing the original documents
before admission/denial of the documents.

Application is disposed of.

CS(OS) 2386/2013

Plaint be registered as a suit.

Issue summons in the suit to the Defendant on the Plaintiff taking
steps through Registered AD, Courier and email, returnable on 10th
January, 2014.

CS(OS) 2386/2013 Page 1 of 4

I.A. No. 19494/2013 (u/Order XXXIX Rule 1 and 2 CPC) and I.A. No.
19495/2013 (u/Sections 20, 23 and 26 of Domestic Violence Act)

Issue notice to the Defendant on the Plaintiff taking steps through
Registered AD, Courier and email, returnable on 10th January, 2014.

The case of Plaintiff is that the parties got married on 25th June,
12 in India as per the Hindu Rites and Customs and left for USA on 4th
July, 2012. The parties were residing in a rental accommodation at 1114,
1200, South Dairy Ashford 77077, Houston, Texas. It is stated that the
Defendant had been treating the Plaintiff with cruelty. The Defendant
and his family members also raised demands from the Plaintiff?s parents
pursuant to which 5,000/- USD were transferred into the account of the
Defendant. The Defendant booked the tickets of the Plaintiff to India on
27th June, 2013 with return ticket for 22nd August, 2013 to Houston back.
It was represented to the Plaintiff by the Defendant and his family
members that after spending some time with her parents and parents of the
Defendant at Bangalore, the Plaintiff would come back to USA in August,
2013 and the Defendant would also visit India during the said period for
two weeks as the Defendant?s sister was also likely to deliver the second
child. It was never CS(OS) 2386/2013
Page of 4 disclosed to the Plaintiff that the Defendant had
applied for his green card and that the name of the Plaintiff had not
been included in the green card petition as spouse. The Plaintiff was on
H4 dependant visa when she went to USA after marriage and thus after
obtaining the green card by the Defendant, the work permit visa of the
Defendant would cease to operate and thus the visa of the Plaintiff
enabling her to stay in USA would also automatically cease to operate.
Since July, 2013, the Plaintiff is residing at New Delhi with her
parents. The Defendant wrote emails to the Plaintiff stating that her
coming to Texas would have no effect as he wanted to separate. The
Defendant has filed the divorce petition in the Harris County Court,
Texas on the ground that the marriage has become unsupportable on account
of discord or conflict of personality and has prayed that the divorce be
granted to the Defendant. The Plaintiff has not submitted to the
jurisdiction of the Harris County Court, Texas till date nor has filed
any written statement. Thus the Plaintiff seeks an ad-interim ex-parte
anti suit injunction against the Defendant.

The parties were married in India as per the Hindu Marriage Act,
1955. The Plaintiff in the absence of a valid visa is not in a position
to CS(OS) 2386/2013 Page 3 of
4 travel to USA. Further the Court at Texas is a forum non-convenience
to the Plaintiff. In view thereof, I am of the considered opinion that
the Plaintiff has made out a prima facie case in her favour for grant of
ad-interim ex-parte anti suit injunction. The balance of convenience
also lies in favour of the Plaintiff and in case no injunction is
granted, she will suffer irreparable loss. Consequently the Defendant,
his attorney, representatives etc. are restrained from further proceeding
with the petition filed before the Court of Harris County, Texas in Court
File No. 201363296 till the next date of hearing.

Compliance under Order XXXIX Rule 3 CPC be made within one week.

Order dasti.

MUKTA GUPTA, J.

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Divorce on ground of desertion,mental cruelty and false criminal complaints by wife.

 

Divorce on desertion,mental cruelty and false criminal complaints by wife.

Conjugal Rights of Marriage:  

. The respondent also denied conjugal rights to the

appellant so as to coerce him to stay separate from his mother. On

the above referred allegations touching mental agony and torture

divorce petition was filed.

 

Criminal Complaints filed by wife.

. The appellant immediately sent a notice on 9.5.03 asking the

respondent to join the company and cohabit with the appellant but

instead of joining the company of the appellant the respondent

initiated criminal case under section 498A of IPC not only against

the appellant and his mother but three other near relations who

were staying separately including the uncle, aunt and husband of

the aunt. All the persons accused of having committed the offence

under section 498A of IPC were arrested by the police and they

were detained in custody.

 

Mental torture:

. According to the learned counsel for the appellant arrest

and detention of the family members and near relations of the

appellant in false case has caused him utmost mental torture.

 

Desertion :

 

———————————————————————————————————

“There can not be absolutely two opinions regarding

legal proposition that if the wife filed false criminal cases

against the husband, her conduct does amount to causing

mental cruelty and torture to him, therefore, the husband

becomes entitled for a decree of divorce. The necessary

condition for constituting such legal cruelty is that the wife

has indulged into making false and reckless allegation by

filing false complaint to the police. A singular complaint filed

by wife under section 498A of IPC against the husband and

his family members can not indicate the tendency of wife to

indulge into making such false allegation.”

We fail to understand the logic behind the reasoning adopted by

the family court to hold that a singular complaint of this nature

under section 498A of IPC resulting in arrest and detention of the

family members and relatives thereby causing utmost

embarrassment, humiliation and suffering does not constitute

mental cruelty. It is illogical that more than one complaint are

necessary to be filed to constitute mental cruelty. In our view,

embarrassment, humiliation and suffering that is caused on account

of arrest and detention of appellant and his family members and

relatives in a false case does constitute mental cruelty to enable the

husband to seek decree of divorce on this sole ground. In our

considered opinion, the approach of the family court is wholly

perverse and the reasoning cannot be sustained in law. In regard to

other circumstances the family court has observed :

————————————————————————————

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

 

FAMILY COURT APPEAL NO. 66 OF 2006

 

Ajay Ashok Khedkar …. ….. ….. ….. Appellant.

V/s

Sou. Laleeta Ajay Khedkar….. …. ….. ….Respondent.

 

Mr.Hitesh Vyas, Adv. For the appellant.

Mr.Sachin S. Pande, Adv. For the respondent.

CORAM: A.P.DESHPANDE AND SMT. R.P. SONDURBALDOTA, JJ.

Date:12th April, 2010.

ORAL JUDGMENT: (Per Deshpande, J.)

 

This is family court appeal filed by the unsuccessful husband

whose petition for divorce has been dismissed by the Family Court.

The appellant and the respondent’s marriage was solemnized as per

Hindu rites and customs at Pune on 8.3.2001. The marriage was

an arranged marriage and after the marriage the respondent came

to reside with the appellant. The appellant’s mother resides along

with the appellant. The petition for divorce was filed on the

ground of mental cruelty under section 13(1)(ia) of the Hindu Marriage Act, 1955.

 

2. According to the petitioner on the wedding night itself the

respondent alleged that she was deceived in regard to income of

the appellant. The respondent allegedly stated that the salary of

the appellant as informed to her was much more than what he was

actually receiving. It is also alleged that with reference to the

number of spectacle the respondent taunted the appellant by saying

that she was made to perform marriage with a blind person.

Touching those issues the respondent allegedly started quarreling

with the petitioner and insulting the petitioner. It is the case of the

appellant that since beginning the behaviour of the respondent was

arrogant and rude and immediately after the marriage the

respondent was insisting that the petitioner should stay separately

from his mother in one of the two flats owned by the appellant’s

family situated at Raviwar Peth, Pune. According to the appellant

he tried to convince the respondent that his mother is old and there

is no one else to look after her and hence refused to stay separately.

It is also the case of the appellant that the respondent gave threats

that she would commit suicide if the appellant fails to reside

separately. The respondent also denied conjugal rights to the

appellant so as to coerce him to stay separate from his mother. On

the above referred allegations touching mental agony and torture

divorce petition was filed.

3. Sometime in December 2002 the respondent went to the

house of her parents for delivery. She delivered a girl child on

26.2.03. Despite passage of enough time the respondent did not

join the company of the appellant. According to the appellant

because of the insistence on the part of respondent to stay

separately the marital life was disturbed and peace and harmony

was lost.

On 3.5.03 the father of the respondent brought the

respondent to the house of the appellant but without meeting the

appellant or his mother respondent’s father went away. On 6.5.03

the respondent called her parents and brother at the house of the

appellant. The near relations of the respondent quarreled with the

petitioner and his mother and after creating a scene threatened the

appellant that they would implicate the appellant and members of

his family in false criminal cases. So threatening the appellant,

father and brother of the respondent took her away along with

them. While leaving the appellant’s residence they said that only if

he resides separately the respondent will be sent back. The

appellant immediately sent a notice on 9.5.03 asking the

respondent to join the company and cohabit with the appellant but

instead of joining the company of the appellant the respondent

initiated criminal case under section 498A of IPC not only against

the appellant and his mother but three other near relations who

were staying separately including the uncle, aunt and husband of

the aunt. All the persons accused of having committed the offence

under section 498A of IPC were arrested by the police and they

were detained in custody. This is the main circumstance which is

relied upon by the learned counsel for the appellant to contend that

lodging of false case which resulted in arrest and detention of

family members of the appellant is singularly sufficient enough to

hold that the respondent is guilty of causing mental cruelty and

agony to the appellant and thus pressed for grant of decree of

divorce. According to the learned counsel for the appellant arrest

and detention of the family members and near relations of the

appellant in false case has caused him utmost mental torture.

During pendnecy of divorce petition the said criminal case came to

be decided by a judgment dated 13.5.05 by Judicial Magistrate,

First Class, Pune acquitting the appellant and all his family

members from the charge under section 498A of IPC.

4. Perusal of the judgment clearly reveals that the prosecution

utterly failed to prove the case put forth by the complainant. The

Judicial Magistrate has recorded categoric finding that the

complainant’s own testimony falsifies the prosecution case that the

complainant was treated cruely and was harassed by the accused

persons with a view to coerce her and her parents to meet their

unlawful demand of Rs.50,000/.

The Magistrate has totally

disbelieved the version of the complainant/wife and has acquitted

the accused persons. On a careful reading of the judgment

rendered in the case of prosecution under section 498A of IPC one

thing is crystal clear and it can be safely assumed that the wife had

filed a false case not only against her husband and motherinlaw

but had unnecessarily roped in other near relations. It is obvious

that on account of arrest and detention of the husband and his

family members respondent has treated the appellant with utmost

mental cruelty and the appellant has suffered agony. It will not be

out of place to mention that the complaint filed by the wife was

calculatedly designed in as much as it was a sort of counter blast to

the divorce petition filed by the husband. The appellant had filed

divorce petition on 16.6.03 whereas the complaint was lodged by

the respondentwife

on 11.7.03.

5. Learned counsel for the appellant submits that the appellant

and his family members including ladies who did not stay along

with the appellant were arrested and detained causing utmost

humiliation and embarrassment and agony to the appellant. This

solitary incidence would itself constitute mental cruelty even if

other circumstances are not taken into account and thus the trial

court has erred in law in dismissing the divorce petition. Para 29 of

the judgment of family court deals with this aspect of the matter by

observing :

“There can not be absolutely two opinions regarding

legal proposition that if the wife filed false criminal cases

against the husband, her conduct does amount to causing

mental cruelty and torture to him, therefore, the husband

becomes entitled for a decree of divorce. The necessary

condition for constituting such legal cruelty is that the wife

has indulged into making false and reckless allegation by

filing false complaint to the police. A singular complaint filed

by wife under section 498A of IPC against the husband and

his family members can not indicate the tendency of wife to

indulge into making such false allegation.”

We fail to understand the logic behind the reasoning adopted by

the family court to hold that a singular complaint of this nature

under section 498A of IPC resulting in arrest and detention of the

family members and relatives thereby causing utmost

embarrassment, humiliation and suffering does not constitute

mental cruelty. It is illogical that more than one complaint are

necessary to be filed to constitute mental cruelty. In our view,

embarrassment, humiliation and suffering that is caused on account

of arrest and detention of appellant and his family members and

relatives in a false case does constitute mental cruelty to enable the

husband to seek decree of divorce on this sole ground. In our

considered opinion, the approach of the family court is wholly

perverse and the reasoning cannot be sustained in law. In regard to

other circumstances the family court has observed :

“At the most one can infer that this conduct of the

respondent may have caused some disharmony between the

couple but in no way it can be said that it was sufficient to

constitute a mental cruelty to petitioner or his mother.”

Without deliberating on all the circumstances in detail we are of

the clear view that cumulative effect of the behaviour and conduct

of the respondent is good enough to draw an inference that

respondent has caused utmost mental pain and suffering which

constitute mental cruelty to the appellant and hence the appellant

is entitled for decree of divorce on the ground of cruelty.

6. This brings us to the consideration of question of granting

maintenance to the girl child who is aged about 8 years. The

family court in exercise of powers under section 24 had granted

interim maintenance of Rs.700/p.

m. whereas this Court by an

interim order has raised it to Rs.1000/p.

m. The appellant so also

the respondent are both gainfully employed. They are earning in

the range of Rs.5000 to 7000 per month each. The child is in

custody of the respondentmother.

Learned counsel for the

appellant on instructions from his client who is present in the court

submitted that the appellant would pay a sum of Rs.1.5 lacs

towards permanent alimony for the maintenance of child. Having

found the said amount insufficient we persuaded the counsel for

the appellant to raise the amount so that monthly interest on the

said amount works out in the range of Rs.2000 per month. The

mother of the appellant has come forward to contribute further

sum of Rs.1.5 lacs towards maintenance of the child. In our view if

the appellant pays sum of Rs.3 lacs by way of permanent alimony

for the maintenance of child the said amount if kept in fixed

deposit can fetch interest of Rs.2000/per month and the same

could be utilized by the respondent for upbringing of the daughter.

In the result we pass the following order:

(i) The marriage of the appellant and respondent stands dissolved by a decree of divorce under section 13(1)(ia);

(ii) The appellant shall pay sum of Rs.3 lacs by way of permanent alimony for the maintenance of the girl child. The said amount of Rs.3 lacs shall be invested in fixed deposit in a nationalized bank and the respondent is permitted to withdraw the interest accrued thereon quarterly. The amount of Rs.3 lacs shall be invested in the fixed deposit within two months from today in the name of the minor child and the respondent would be shown as her guardian;

(iii) The said sum of Rs.3 lacs shall be kept invested in fixed deposit till the child attains majority.

(iv) Appeal is allowed with no order as to costs.

 

At this stage the learned counsel for the respondent seeks stay of this order. Having regard to the peculiar facts and circumstances we do not find any reason to stay the impugned order. Hence the prayer is rejected.

 

 

 

 

Ex parte divorce decree by foreign court invalid.

Ex parte divorce decree by foreign court invalid.

Delhi High Court.

“From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.”

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ C.R.P.148/2011 % Date of Decision: April 22, 2013

PRITAM ASHOK SADAPHULE ….. Petitioner Through: Mr.Rakesh Taneja, Advocate
versus
HIMA CHUGH …. Respondent Through: Mr.Prashant Mendiratta, Adv.

CORAM: HON’BLE MS. JUSTICE VEENA BIRBAL VEENA BIRBAL, J. *

1. By this revision petition challenge has been made to order dated 22nd September, 2011 passed by the ld.Addl. District Judge-1, New Delhi District, Patiala House Courts, New Delhi in HMA No.15/2011 whereby the application of the petitioner/husband under section 13 of the CPC has been dismissed. 2. Briefly the facts relevant for the disposal of the present petition are as under:-
The parties met each other in England in the year 2004 and developed liking for each other. On 5th March, 2005, both got married at New Delhi. After about one week of marriage, they went back to England on 12th March, 2005. With the passage of time, disputes and differences arose between them as a result of which they could not live together. In September, 2009, respondent/wife had lodged a complaint of domestic violence, cruelty and assault against the petitioner/husband in Ilford Police Station, England. It is alleged that respondent/wife also invoked the jurisdiction of UK Family Court (Brentford County Court) for Non-Molestation and Occupation order.
CRP 148/2011 Page 2 of 10
in September, 2009. Thereafter, she had come back to India in December, 2009. In March, 2010, respondent/wife lodged FIR against the petitioner/husband, his parents and family members being FIR no.46/2010 under Section 498-A/34 IPC, P.S. Tilak Nagar, Mumbai. Petitioner/husband has filed a petition for quashing of aforesaid FIR which is pending disposal before the Bombay High Court.

3. In December, 2010, petitioner/husband had filed a divorce petition before the Ilford County Court in UK for dissolution of marriage by a decree of divorce on the ground that the respondent had misbehaved with him and that he could not reasonably be expected to live with her. It is alleged that respondent was served with the divorce petition on 19th November, 2010.

4. On 21st December, 2010, respondent/wife had filed a suit being Civil Suit (OS) No.2610/2010 before this court praying for a grant of decree of permanent injunction against the petitioner for continuing with the divorce petition before the court in UK. During the pendency of aforesaid divorce petition, respondent had filed a complaint before learned MM, Dwarka, New Delhi under The Protection of Women from Domestic Violence Act, 2005. The same was dismissed on 24th December, 2010 by the concerned ld.MM, as not maintainable. Respondent filed an appeal against the said order which was dismissed vide order dated 28.3.2011.
5. The respondent/wife also filed a petition under section 13(1)(ia) of the Hindu Marriage Act i.e. HMA No.15/2011 in February, 2011 praying for dissolution of marriage with petitioner on the ground of cruelty which is pending disposal before learned Addl. District Judge, Delhi.

6. The ld. Ilford County Court in UK had passed a Decree Nisi on 9th May, 2011 stating therein that marriage between the parties has been broken
CRP 148/2011 Page 3 of 10
down irretrievably and ordered that the said marriage be dissolved unless sufficient cause be shown within six weeks as to why the same be not made “absolute”. A copy of the said decree was placed by the petitioner before the ld.Addl. District Judge, New Delhi on 10th June, 2011 hearing HMA 15/2011. Respondent filed a detailed representation before the Ld. Ilford County Court in UK on 15th June, 2011 opposing making the divorce decree absolute. However, the decree passed by the Ilford County Court was made „absolute‟ on 21st June, 2011. Thereafter, in July, 2011 an application under section 13 of CPC was filed by the petitioner for dropping the divorce proceedings against him on the ground that marriage between the parties has already been dissolved by a decree of divorce by Ilford County Court in U.K., as such divorce petition filed by respondent/wife has become infructuous. Reply was filed by the respondent to the aforesaid application contending therein that decree of divorce passed by the foreign court is not recognised in Indian Law. It was further stated that the ground on which the foreign court had dissolved the marriage i.e., irretrievable breakdown was no ground for dissolution of marriage under the Hindu Marriage Act, as such, the said decree cannot be recognised in India.

7. After considering the contentions of the parties, the learned trial court relying on the judgment in Y Narashimha Rao & ors vs. Y.Venkata Lakshimi & another: (1991) 3 SCC 451, has dismissed the said application.
8. Aggrieved with the same, present petition is filed.

9. Learned counsel for the petitioner has contended that respondent-wife has not obtained any declaration from a competent court declaring the foreign decree of divorce as null and void, as such, same cannot be treated
CRP 148/2011 Page 4 of 10
as a nullity by the ld.trial court. In support of his contention, learned counsel has relied upon the judgment of this court in Harbans Lal Malik vs. Payal Malik 171 (2010) DLT 67. It is further contended that respondent was served with summons issued by the Ilford County Court on 19th November, 2010 and she also made a representation there. In these circumstances, it cannot be said that she has not subjected herself to the jurisdiction of the said court. It is further contended that participating or not participating before the foreign court by the respondent is immaterial. The exceptions are given in Section 13 of CPC as to when a foreign judgment is not conclusive and binding. It is contended that in the present case none of the exceptions as stated therein exist.

10. On the other hand, learned counsel for the respondent has contended that present petition is liable to be dismissed inasmuch as the petitioner seeks to enforce a decree of divorce granted by a foreign court which is not recognised in India and it would be opposed to public policy if the said decree is afforded any recognition. It is contended that the sole ground of the petitioner hinges on averring that respondent should have obtained declaration from a competent court declaring the foreign decree as null and void. It is contended that petitioner is misleading the court inasmuch as petitioner himself made a voluntary statement before the ld.trial court that he would be filing an application under section 13 of the CPC and thereafter had moved the said application which was ultimately rejected and now the petitioner cannot turn around and contend that respondent should have approached the competent court seeking declaration of foreign divorce decree as null and void.

11. Learned counsel for the respondent has contended that judgment of
CRP 148/2011 Page 5 of 10
the Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) is clearly applicable to the facts of the present case. It is contended that foreign divorce decree was an ex parte decree wherein respondent could not contest. The said decree is not recognised in India, as such, petitioner is not entitled for any relief.

12. The Supreme Court in Y Narsimha Rao and ors v Y.Venkata Lakshmi (supra) declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of CPC has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced 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
CRP 148/2011 Page 6 of 10
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 judgment 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 without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.
The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of
CRP 148/2011 Page 7 of 10
Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.
Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied.
The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognise a foreign
CRP 148/2011 Page 8 of 10
judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.

13. From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may Le as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled 01 habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private international Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainly in the most vital field of national life and conformity with pubic policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable
CRP 148/2011 Page 9 of 10
section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law which determines the jurisdiction and judges the merits of the case.” 13. It is admitted position that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies and both are governed by Hindu Marriage Act, 1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under the Hindu Marriage Act. The Supreme Court in Y.Narasimha Rao and Ors vs. Y.Venkata Lakshmi and Anr (supra) has already held that foreign decree of divorce granted on a ground which is not recognized in India.

14. The contention raised by the petitioner that there should be declaration from a competent court declaring the foreign decree null and void has no force as it is the petitioner who had moved an application under section 13 of CPC praying therein that the petitioner has already obtained a divorce decree from a foreign court thereby the marriage between the parties has been dissolved, as such, divorce petition pending before the ld.Addl. District Judge has become infructuous. Pursuant thereto reply was filed by respondent/office opposing the said application. While deciding the said application, the impugned order has been passed.

15. Further the divorce granted by the Ilford County Court in UK is an ex parte divorce decree. Respondent never submitted herself to the jurisdiction of the said court. Respondent lodged a representation dated 15.6.2011 before the Ilford County Court informing that she was in India when the
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divorce petition was filed. She also informed that she was in acute financial difficulty to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the Ilford County Court not to make the divorce decree “absolute”. Respondent also filed CS(OS)2610/2010 before this court praying for grant of a decree of permanent injunction against the petitioner from continuing with the divorce petition before the court in UK. In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court.

16. The reliance placed by learned counsel for the petitioner on the judgment of Harbans Lal Malik vs. Payal Malik (supra), is of no help to him. The facts of the said case are entirely different. The learned trial court has also considered the judgment of this court in Harmeeta Singh vs. Rajat Taneja reported in I(2003) DMC 443 and Mrs.Veena Kalia vs. Dr.Jatinder Nath Kalia and anr reported as 59(1995) Delhi Law times 635 in coming to the conclusion that decree of dissolution of marriage granted by the Ilford County Court, Essex, UK cannot be recognised as the facts of the case fall within the purview of the exceptions of Section 13 of CPC. In view of the above discussion, no illegality is seen in the impugned order which calls for interference of this court. Petition is dismissed.

VEENA BIRBAL, J APRIL 22, 2013

Money Recovery Suit.

 we filing  and  contesting the money recovery suit against the creditors. recovery suit before the district court and high court on behalf of individuals, Companies and financial institution to recover there debt etc. we use to file the recovery suit on two modes.
(1) Simple recovery in case where there are no contract or agreement.

(2) the attorney firm used to file order xxxvii CPC for recovery of money /debt in the cases where there are any written contract, dishonoured  cheque ,bill of exchange,hundies and promissory notes, in which the parties/client seeks only to recover a debt or liquidated demand in money payable by the opposite party/defendant with or without interest, arising.
(3) also file on the basis of on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of debt other than a penalty.

(4) also used to file on the basis on a guarantee, where the claim against the principal is in respect of debt or liquidated demand only.

The order xxxvii CPC is a very good and fast procedure for recovery of the debt. If there is a any written contract between the parties.

will and Probate Cases in India.

“Will” means the legal declaration of the intention of testator with respect to his property which he desired to be carried after effect of his death.
A will is valid disposition by a living person to take effect after his death, to fake effect after his death of his disposable property but in law ultima voluntas in script is used where lands or tenements are devised, and testamentum, when it concerneth chattels.

The word “will” is widely known and used and it has a well understood significance as meaning a disposition which is to take effect on the death of a person. “Will” has been defined in Section 2(h) of the Succession Act to mean the legal declaration of the intention of a testator with respect of his property which he desires to be carried into effect after his death.

Arbitration in India.

We take either of the arbitration cases voluntary or mandatory and can be either binding or non-binding. Non-binding arbitration is, on the surface, similar to mediation. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable.
– Negotiating in the best possible manner
– Conciliating the issues and dispute reasons
– Preparation and putting the disputed case before arbitrator
– Domestic and International Arbitration
– Enforcement of Awards

Foreign Divorce Decree in India.

Foreign Divorce Decree in India/International Divorce Decree
Section 13 of Civil Procedure Code 1908,
When Foreign  Divorce Judgments-decree is  not Conclusive.
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of
1[India] in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in 1[India]