“H (an NRI) is divorced in Texas, and to marry – he is free;
No, he has a wife in India, Indian Law says, doesn’t he ?,
H is, therefore married and not so, all at the same time;
perfectly legal at one place; in the second, his act – a crime.”
This limerick reflects a classic case of conflict of laws. Picture this : H is an NRI & W an Indian woman who get married in Delhi. Soon thereafter, they move to Texas in the United States, where the husband resides and works. They live in Texas for about three years. Unfortunately, relations between the spouses turn sour, constraining H to file a divorce case in Texas Court seeking dissolution of marriage on the grounds of cruelty and irretrievable breakdown of the relationship. W receives the summons from the court, however, instead of participating in the court proceedings, she takes the next flight back-home, to her parental house in Delhi. The court in Texas grants H a decree of divorce on the ground of irretrievable breakdown of marriage, having regard to the fact that the allegations levelled by the husband in his divorce petition had gone un-rebutted.
The question that now arises is : whether the foreign divorce decree holds good in India ? If not, who ought to challenge it, and how ? Will it make a difference if the decree is granted also on the grounds of cruelty ? To complicate matters further, what if H marries another lady (let’s call her W-2) in Texas, six months thereafter. Would he liable for bigamy in India ?
Another situation that may also be visualised is : where H & W have a child out of the wedlock – ‘C’. However, subsequently there is bad blood between the parties and W insists that they part ways. When this proposal is resisted by H, W insists that she would leave for India along with the child, nonetheless. Apprehending that the child may be taken away. H approaches the court in Texas, which passes an order restraining W from taking the child out of the jurisdiction of the court. W, nevertheless, and in defiance of the restraining order, succeeds in going to India along with the child. Now, what remedy does H have ? Would the act of W qualify as ‘child abduction’, thereby entitling the husband to a writ of habeas corpus. Can he seek compliance of the child custody order of Texas Court in India, on the ground of principle of comity of courts ? Or, can the Indian Court embark on a full fledged scrutiny of the matter in order to independently decide the question of ‘welfare of the child’ ?
Let us further assume, for the sake of argument that – H had filed the divorce petition after W had left for India and not before. Whether W on her arrival in India, could have sought an anti-suit injunction in an Indian Court, seeking to restrain H from proceeding with the divorce case in Texas on the ground of lack of jurisdiction with the Texas Court, and her inability in participating in the proceedings? Can an Indian Court restrict a person from prosecuting a lis before a foreign court, if yes, what would be the considerations that will govern the exercise of such a power ?
These are some of the vexed legal questions being posed to Indian courts today, which have assumed significant importance in view of the fact that, in an increasingly globalising world, the Indian diaspora has now spread itself across continents. What compounds the problem is that this geographical migration does not mark a complete cutting of umbilical cord of customs, traditions and practices of their communities and Parties retain their cultural identities and affinities, wherever they go. They also prefer entering into alliances in their own country for a gamut of reasons. The laws prevailing in the countries (to which they subsequently move to) concerning : marriage, divorce, child custody – may or not be in consonance with the Indian Law. This leads to a situation of a proverbial ‘conflict of laws’; the onerous duty of resolving which falls on the Indian Judiciary. Faced with such cases, which are needless to state, extremely commonplace these days, the court has to walk the tightrope between two competing considerations : one one hand – the principle of due deference to a foreign court order (called the principle of ‘comity of courts’), and on the other hand – court’s allegiance to the domestic law in India and protection of the rights of its people.
This article is an endeavour to use the above illustrations as springboards to initiate an analysis of the knottiest problems of NRI Marriage and Divorce. We’ll try briefly revisiting the first principles of law relating to NRI Marriages, Solemnisation, validity and dissolution, and also the question of conclusiveness of foreign judgments in India. We shall also touch upon the possible grounds of challenge to foreign judgments, and Procedure thereof. In the last bit we talk about Child Custody issues with a conflict-of-laws element, and finally, the much debated issue of ‘anti-suit injunctions’.
Section 1 – NRI MARRIAGES
Provisions relating to solemnisation, registration and validity of marriage, law governing marriage, divorce and ancillary matters.
What is an NRI Marriage ?
The word ‘NRI Marriage’, though quite commonplace, is not defined anywhere and is not a legal term. It is commonly used as an broad phrase to connote a marriage between : an Indian, residing in India with another Indian, residing in a country other than India. The Indian residing in another country, may continue to hold Indian Citizenship (in which case, he/she will be an NRI, that is, a Non Resident Indian) or he/she may have acquired citizenship of that country (in which case, he will technically be a PIO, that is – a Person of Indian Origin) or other Indian Expatriates. However, marriages in both these cases are usually bracketed together under the phrase ‘NRI Marriages’. An overwhelming number of these marriages are arranged marriages; the considerations for entering into such a union may be diverse. Upward social mobility, cultural bond, material aspirations are some of the considerations.
Despite a huge public outcry for a special law governing NRI Marriages, there is no specific legislation in that regard. An NRI Marriage, therefore, may solemnized under either : The Hindu Marriage Act, 1955, The Special Marriage Act, 1954 or The Foreign Marriage Act, 1969 or any other personal law governing the parties.
A personal Law such as the Hindu Marriage Act, 1955, applies not just to Hindus, but also to Buddhist, Jains and Sikhs, residing in India, irrespective of the question whether they are domiciled in India or not. Hindu Marriage Act, 1955 also does not apply to Schedule Tribes and Marriage and Divorce in that regard is governed by their own Customary Laws. However, they can get married and get their marriage registered under the Special Marriage Act, in which case they are governed by the Special Civil Code.
With respect to residence of the parties, the Kerala High Court has ruled that Hindu Marriage Act, 1955 applies to all Hindus even if they reside in different parts outside India. However, both parties must be Hindu by religion in any of its forms and they satisfy the conditions and have performed the ceremonies provided in the Hindu Marriage Act, 1955. There can be no denial by local authorities to register marriages under Hindu Marriage Act, 1955 between Hindus having foreign domicile who have solemnised marriages under Hindu Marriage Act, 1955. Therefore, an NRI can get married to an spouse domiciled in India, or two NRIs can also get married in India as per the Hindu Marriage Act.
The Hindu Marriage Act, 1955 permits solemnisation of marriage of two Hindus, who are citizens of India. Here, the marriage is solemnised as per traditional Hindu Rites and Ceremonies and performance of those ceremonies gives the marriage what can be termed ‘Legal Sanctity’. As opposed to this, Special Marriage Act, 1954 is a completely secular law, permitting a civil marriage. A marriage is totally devoid of religious trappings and is akin to a civil contract. No religious ceremony is prescribed. The marriage is performed in the office of the Registrar of Marriages. The designated officer administers the marriage vows to the couple. After this, the couple along with the three witnesses, has to sign-in the register of marriages maintained by the Registrar. The relevant page in the register will also be counter signed by the officiating authority and will bear the seal of the sub-registrar of marriage of that district. The extract from this register is usually issued to the parties and is titled as a ‘Marriage Certificate’ which bears the seal of the officiating authority. Under this Act, “any two persons “ may marry, irrespective of caste, religion or even nationality. Even two foreigners may marry under this Act. Historically, the Special Marriage Act, 1954 was enacted as a prelude to a future common civil code. The parties by their consent could opt for the application of the Special Marriage Act and be governed by the secular law. It was aimed that such a law will encourage inter-caste/inter-religious unions, and thereby strengthen the bond of fraternity.
The Special Marriage Act also allows registration under the Act, of any marriage performed under any other form, law upon fulfilment of certain conditions. After the registration, all the provisions of the act will become applicable to such parties and they will no longer be governed by their special laws.
However, the Act provides for a mandatory waiting period of one month. This makes the process tedious for couples looking to marry in a hurry. This eventually constrains the parties to marry under the Hindu Marriage Act (usually a no frills wedding at an Arya Samaj Temple) and registering their marriages immediately as the Hindu Marriage Act does not envisage any notice period requirement.
With respect to non Indians, The Foreign Marriage Act, 1969 is a specific legislation which is applicable to a Marriage of an Indian Citizen to a Non Indian solemnised abroad. This act stipulates that marriages, where one of the parties is an Indian Citizen and the other is a non Indian, would be governed by the provisions of the Special Marriage Act, 1954. In a nutshell, The Foreign Marriage Act, 1969 provides that a Marriage performed outside India will be regarded as correct and valid provided it is performed in accordance with the law of the country where the marriage was performed. The test of formal validity of the marriage in such cases is, therefore lex loci celebrationis. That is to say, ‘Law of the land where the marriage was celebrated’
Registration of marriage
Once the marriage is solemnised, the next question that crops up relates to ‘Registration’. A marriage between two Hindus, may be registered under Hindu Marriage Act, or the Special Marriage Act. In the latter, there is a notice process, whereby objections are invited to the marriage from people at large, before the Certificate of marriage is granted, while in the former, this period is not insisted upon. However, if one of the spouses is a foreigner and not a Hindu by religion at the time of marriage ceremony, they will have to get their marriage compulsorily registered under Special Marriage Act, 1954.
Broadly under the Muslim, Christian and Parsi religions, the provisions of registration are more entrenched. The essential prerequisites for marriage and registration are laid down clearly. Under laws governing Christians and Parsis, as well as Special Marriage Act, formalities for the solemnisation of a marriage are strictly laid down and the priest is to provide a certificate of registration or alternatively, the marriage has to be registered with the Registrar of Births, Deaths and Marriages.
In contrast to this, Hindu Marriages, are based on different practices which are not uniform and thus not entrenched with clarity.
In India there is no umbrella legislation making registration of marriages an essential condition. The Supreme Court in Seema v. Ashwani Kumar has held : that all marriages shall be compulsorily registered and that the State Governments shall initiate action for rule-making in this regard. However, on the ground level there is a huge diversity of legislations and localised practices. The Law Commission of India in its 211th Report has recommended enactment of a “Marriage and Divorce Registration Act” to be made applicable in the whole of India and to all citizens irrespective of their religion and personal law and without any exceptions or exemptions, however there is great legislative apathy in this regard and the law has not been enacted. It goes without saying that a compulsory marriage registration legislation will rule out dishonest denials of marriage and will go a long way to protect the rights of spouses.
S. 8 of the Hindu Marriage Act merely provides for registration of an already solemnised marriage. Therefore, the act of registration is not entrenched within the solemnisation. Unlike, the Special Marriage Act, it does not provide for marriage through a civil authority. Registration comes after the marriage has been solemnised and is complete. The parties may appear before the Registrar within one month of marriage, or even thereafter, with an application for condonation of delay. Parties appear before the Registrar along with parents/guardians or other winesses.
For registration of the marriage, the marriage ought to be valid marriage as per the conditions laid down in Section 7 of the Hindu Marriage Act. Section 7 states that a Hindu Marriage may be solemnised in accordance with the Customary Rites and Ceremonies of either party thereto. A hindu marriage in order to be valid does not mandatorily require witnesses. The essence of validity of the marriage is the rites and ceremonies. This usually connotes ‘Saptapadi’. The word, Saptapadi means “Seven steps”. After tying the Mangalsutra, the newly wed couple take seven steps around the holy fire, that is called Saptapadi. This is usually held to be the core ceremonies, unless parties peculiar customs provide otherwise. In a number of cases it has been held that a mere exchange of garlands or putting vermillion on the head of the bride, is not sufficient to constitute a valid marriage.
As per the clear provisions of Section 8(5) The non registration of marriage does not detract from the validity of the marriage in any way, although may have implications in terms of fine etc.
If the marriage is solemnised in India under any of these laws, the question of Validity of the marriage, Divorce, Maintenance, Child Custody, Spousal Property matters are regulated by that law only, under which the marriage took place, regardless of the fact, that the parties may choose settle abroad in any part of the world, thereafter. Therefore, an Indian takes the Personal Law with him/her, wherever she chooses to go and settle.
Foreign Courts may also exercise jurisdiction over these subjects. However, their laws may be not be in consonance with the Indian Laws. This results in a situation of conflict of different legal regimes. Questions as to recognition and validity of foreign court decisions arise; These questions are resolved through what are known as ‘rules of private international law’. There is no comprehensive codified body of Private International Rules in India and the applicable rules are spread over various acts such as Hindu Marriage Act, Special Marriage, Code of Civil Procedure, Indian Succession Act. These questions arise mostly in cases of foreign judgments of divorce.
The law relating to foreign judgments.
Section 13 of the Code of Civil Procedure provides that a judgment of a foreign court is also conclusive in India under normal circumstances, in a lis between the same parties. This is based on the reasonable jurisprudential principle of res judicata, which places an ‘flogging of a dead horse’ and repeated litigation on the same points. This seeks to prevent wastage of precious judicial time & expense and also to ensure finality and certainty in human relations and commercial transactions.
Foreign Judgments are, therefore, conclusive in Indian Courts regarding any matter directly adjudicated between the same parties. It must be also be flagged that a decree of divorce obtained by a foreign court is not required to be sanctified or legitimised by an Indian Court.
This pays due homage to the principles of comity of courts and the upshot of this is that the courts shed their parochialism and be more internationalist, or atleast, tolerant in their outlook.
Similarly, Section 41 of the Indian Evidence Act, which provides that a final judgment of a competent court in the exercise of matrimonial jurisdiction is conclusive proof that the legal character which it confers or takes away accused or ceased at the time declared in the judgment for that purpose.
There are, however, certain exceptions to this general principle, where a foreign judgment is not taken to be conclusive and may not be recognised by the Indian Law. Such exceptions are laid down in the six clauses (a) to (f) of Section 13 :
In a nutshell, In the following six cases, a foreign judgment will not be considered conclusive:
(1) Foreign judgment not by a competent court;
(2) Foreign judgment not on merits;
(3) Foreign judgment against International or Indian Law;
(4) Foreign judgment opposed to natural justice;
(5) Foreign judgment obtained by fraud; and
(6) Foreign judgment founded on a breach of Indian Law.
Let us touch upon them briefly :-
(1) Foreign judgment not by a competent court
It is a fundamental principle of law that the judgment or order passed by the court which has no jurisdiction is null and void. Thus, a judgment of a foreign court, in order to be conclusive between the parties, must be a judgment pronounced by a court of competent jurisdiction. Such judgment must be by a court competent both by the law of the State which has constituted it and in an international sense and it must have directly adjudicated upon the “matter” which is pleaded as res judicata.
As to which courts can entertain a petition relating to matrimonial cases, is governed by personal law applicable according to the religion between the parties. For e.g. : A hindu couple, whose marriage is solemnised as per Hindu Rites and Ceremonies, would be governed by the Hindu Marriage Act, 1955 [for short ‘HMA’]. Section 18 of HMA provides that three courts shall have jurisdiction to deal with a matrimonial matter :- the courts of the place where the couple got married, last resided together as husband and wife and where the woman resides. However, there are certain exceptions to this, but more on that afterwards.
The leading authority on this point is Y. Narmismha Rao v. Venkat Lakshmi, where ‘A’ a husband obtained a decree of divorce against B (wife) from an American court on the ground that he was a resident of America. Thereafter, he remarried with a woman ‘C’. B filed a criminal complaint against A and C for bigamy back home in India. A and C filed an application for discharge. Dismissing the application, the Supreme Court held that the decree of dissolution of marriage was passed by a court without jurisdiction inasmuch as, neither the marriage was solemnised nor the parties last resided together in America, therefore the american court had no jurisdiction to grant the divorce as per Indian Law. The Foreign Divorce Decree was not held invalid in Indian Law on ground of lack of jurisdiction.
The court in this case went on to hold that the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under the parties are married. The court also recognised certain exceptions to this principle :-
- where the matrimonial action is filed in the forum where the respondent is domiciled or habitually or permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married;
- where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married;
- 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.
Therefore, there are situations where a court may be vested with jurisdiction if the parties submits to the jurisdiction of the court. Such conduct is taken as ‘acquiescence’ and springs out of the principle that a person subjecting himself to the jurisdiction of a court willingly, cannot turn back and challenge the decision on jurisdictional grounds, if the decision happens to go against him or her.
(2) Foreign judgment not on merits
In order to operate as res judicata, a foreign judgment must have been given on merits of the case. Merit is the inherent goodness of truthfulness of a case. A judgment is said to have been given on merits when the same has been passed, after enquiring into the truth or falsity of the plaintiff’s case, the judge decides the case one way or the other. Thus, when the suit is dismissed for default of appearance of the plaintiff; or for non-production of the document by the plaintiff even before the written statement was filed by the defendant, or where the decree was passed in consequence of default of defendant in furnishing security, or after refusing leave to defend, such judgments are not on merits. It need not be gainsaid, that a petitioner ought not to become entitled to something, which he otherwise would not, merely because there is no opposition. For a decision to be on merits, the court is duty bound to examine the petitioner’s case within itself. However, at the time time, the mere fact of a decree being ex parte will not necessarily justify a finding that it was not on merits.
The acid test for deciding whether the judgment has been given on merits or not is to see whether it was merely formally passed as a matter of course, or by way of penalty for any conduct of the defendants, or is based upon a consideration of the truth or falsity of the plaintiff’s claim, notwithstanding the fact that the evidence was led by him in the absence of the defendant. In the latter case, the judgment can be said to be on merits and conclusive on the fact being agitated.
Most matrimonial cases, where the conflict of law situation arises is where one of the spouses leaves jurisdiction of the foreign court on receipt of summons/motion for appearance. Whether in such cases, the judgment is on merits or not, would depend essentially on the question as to whether the foreign court in its order considered the veracity of the petitioner’s case or not.
(3) Foreign judgment delivered in contravention of principles of International or Indian law
A judgment based upon an incorrect view of international law or a refusal to recognise the law of India where such law is applicable is not conclusive. But the mistake must be apparent on the face of the proceedings. Most judgments in matrimonial cases are hit by the mischief of this clause. Most indian laws permit the party to seek divorce on the ground of cruelty, adultery, desertion etc. However, irretrievable breakdown is not recognised as a ground for divorce by itself. Since many countries such as US, Europe, Australia recognise irretrievable breakdown as ground for divorce. Divorce under this ground, also known as ‘no fault divorce’ is the most commonly invoked ground for divorce, in view of the difficulty in proving a divorce based on fault. This is a situation where the conflict of law takes place.
The case of Anoop Beniwal v. Jagbir Singh Beniwal65 is illustrative in this regard, it relates to a matrimonial dispute between the parties leading to a divorce case being filed by the husband in England on the basis of the English Act, that is the Matrimonial Causes Act, 1973. The particular ground under which the suit was filed was “that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.” This ground is covered by S. 1(1)(2)(b) of the Matrimonial Causes Act, 1973 (i.e the english law). The decree was obtained in England and came to India for enforcement thereafter. The respondent/wife claimed that since the decree was based on the English Act, there was refusal by the English Court to recognise the Indian Law. However, the court negatived her contentions and held that under the Indian Hindu Marriage Act under S. 13(1)(ia), there is a similar ground which is “cruelty” on which the divorce may be granted. Therefore the English Act, only used a milder expression for the same ground and therefore there was no refusal to recognise the law of India. Thus the decree was enforceable in India.
(4) Foreign judgment in violation of principles of Natural Justice.
It is the essence of a judgment of a court that it must be obtained after due observance of the judicial process, i.e., the court rendering the judgment must observe the minimum requirements of natural justice- it must be composed of impartial persons, act fairly, without bias, and in good faith; it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case.
Thus, a judgment given without notice of the suit to the defendant or without affording a reasonable opportunity of representing his case is opposed to natural justice. Similarly, a judgment against a party not properly represented in the proceedings or where the judge was biased is contrary to natural justice and, therefore, does not operate as res judicata.
But the expression”natural justice” in clause (d) of Section 13 relates to the irregularities in procedure rather than to the merits of the case. A foreign judgment of a competent court, therefore, is conclusive even it is proceeds on an erroneous view of the evidence or the law, if the minimum requirements of the judicial process are assured; correctness of the judgment in law or on evidence is not predicated as condition for recognition of its conclusiveness by the municipal court. Thus, a foreign judgment is not open to attack on the ground that the law of domicile had not been properly applied in deciding the validity of adoption or that the court disagrees with the conclusion of the foreign court, if otherwise the principles of natural justice have been complied with.
In the context of matrimonial cases, it is not sufficient to merely aver that the defendant was served, it must also be demonstrated that the respondent/defendant was in a position to appear and participate effectively in the proceedings and put up a contest, and if the respondent is not in a position to do so, for financial reasons, arrangements must be made to enable her to do so, so as to ensure an adequate opportunity.
(5) Foreign judgment obtained by fraud
It has been said, “Fraud and justice never dwell together” (Fraus et jus nunquam cohabitant); or “Fraud and deceit ought to benefit none” (fraus et dolus nemini patrocinari debent).
Lord Denning observed, “No judgment of a court, no order of a Minister, can be allowed to stand, it it has been obtained by fraud.” Cheshire rightly states, “It is firmly established that a foreign judgment is impeachable for fraud in the sense that upon proof of fraud it cannot be enforced by action in England.” All judgment whether pronounced by domestic or foreign courts are void of obtained by fraud, for fraud vitiates the most solemn proceeding of a court of justice.
Explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was “mistaken”, it might be shown that it was “misled”. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment can not be brought on the ground that is has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside if the court was imposed upon or tricked into giving the judgment.
In A.V. Papayya Sastry v. Govt. of A.P., the Supreme Court observed: ”Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the cost of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of ‘finality of litigation’ cannot be stretched to the extend of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants.”
In the leading case of Satya v. Teja Singh, a husband obtained a decree of divorce against his wife from an American court averring that he was domiciled in America. Observing that the husband was not a bona fide resident or domicile of America, and he had played fraud on a foreign court falsely representing to it incorrect jurisdictional fact, the Supreme Court held that the decree was without jurisdiction and a nullity.
The fraud may be either fraud on the part of the party invalidating a foreign judgment in whose favour the judgment is given or fraud on the court pronouncing the judgment. Such fraud, however, should not be merely constructive, but must be actual fraud consisting of representations designed and intended to mislead; a mere concealment of fact is not sufficient to avoid a foreign judgment.
(6) Foreign judgment founded on breach of Indian law
Where a foreign judgment is founded on a breach of any law in force in India, it would not be enforced in India. The rules of Private International Law cannot be adopted mechanically and blindly. Every case which comes before an Indian court must be decided in accordance with Indian law. It is implicit that the foreign law must not offend our public policy.
Thus, a foreign judgment for a gaming debt or on a claim which is barred under the Law of Limitation in India is not conclusive. Similarly, a decree for divorce passed by a foreign court cannot be confirmed by an Indian court if under the Indian law the marriage is indissoluble.
It is implicit that the foreign law and foreign judgment would not be offend against our public policy.
In the case of Neeraja Saraph v. Jayant Saraph (1994) 6 SCC 461. R.M.Sahai, K. of the SC, in action brought before the court by a deserted wife of a NRI husband for maintenance, made a three-fold recommendation addressed to the legislature for its thoughtful consideration which partake the character of ratio. They are :-
- No marriage between an NRI and an Indian woman which has taken place in India may be annulled by a foreign court [emphasis added];
- provision may be made for adequate alimony to the wife in the property of the husband both in India and abroad; and
- the decree granted by Indian Courts may be made executable in foreign courts, both on principle of comity and by entering into reciprocal agreements like Section 44-A of the CPC which makes a foreign decree executable, as it would have been a decree passed by that court.
PRESUMPTION AS TO FOREIGN JUDGMENT : SECTION 14
Section 14 of the Code declares that the court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a court of foreign judgment, that such judgment was pronounced by a court of competent jurisdiction, unless the contrary appears on the record, or is proved. However, if for admissibility of such copy any further condition is required to be fulfilled, it can be admitted in evidence only if that condition is satisfied.
Thus, in Narasimha Rao v. Venkata Lakshmi (1991) 3 SCC 451 at pp.463-64), The Supreme Court held that mere production of a photostat copy of a decree of a foreign court is not sufficient. It is required to be certified by a representative of the Central Government in America as per Section 86 of the Evidence Act.
SUBMISSION TO JURISDICTION OF FOREIGN COURT
It is well-established that one of the principles on which foreign courts are recognised to be internationally competent is voluntary submission of the party to the jurisdiction of such foreign court. The reason behind this principle is that having taken a chance of judgment in his favour by submitting to the jurisdiction of the court, it is not open to the party to turn round when the judgment is against him and to contend that the court had no jurisdiction.
Submission to jurisdiction of a foreign court may be express or implied. Whether the defendant has or has not submitted to the jurisdiction of a foreign court is a question of fact which must be decided in the light of the facts and circumstances of each case.
ENFORCEMENT OF FOREIGN JUDGMENT
A foreign judgment which is conclusive under Section 13 of the Code can be enforced in India in the following ways:
(1) By instituting a suit on such foreign judgment, or
(2) By instituting execution proceedings.
(1) Suit on foreign judgment
A foreign judgment may be enforced by instituting a suit on such foreign judgment. The general principle of law is that any decision by a foreign court, tribunal or quasi-judicial is not enforceable in a country unless such decision is embodied in a decree of a court of that country. In such suit , the court cannot go into the merits of the original claim and it shall be conclusive as to any matter thereby directly adjudicated upon between the same parties. Such a suit must be filed within a period of three years from the date of judgment.
(2) Execution proceeding
A foreign judgment may also be enforced by proceedings in execution in certain specified cases mentioned in Section 44-A of the Code. The said section provides that where a certified copy of a decree of any of the superior courts of any reciprocating territory has been filed in a a District Court, the decree may be executed in India as if it had been passed by the District Court. When a foreign judgment is sought to be executed under Section 44-A, it will be open to the judgment-debtor to take all objections which would have been open to him under Section 13 if a suit had been filed on such judgment. The fact that out of six exceptions there has been due compliance with some of the conditions and there has been no violation of some of the exceptions is of no avail. The decree can be executed under Section 44-A only if all the conditions of Section 13(a) to (f) are satisfied.
CHILD CUSTODY AND FOREIGN JUDGMENTS
In Ruchi Majoo v. Sanjeev Majoo – The court held that repatriation of child on the principle of comity of courts is not always desirable; It was reiterated that the primary consideration is the welfare of minor – Father not seriously grudging mother getting custody of minor but wanting them to return to USA, and father having contracted a second marriage – On father’s allegation, Court in USA framing charges of abduction against mother – District Court, Delhi granting custody of minor to mother – Child being happy with his studies and surroundings in Delhi where he had been living for three years – Child being unhappy with his father’s attitude – Mother not wanting to go back to USA because of alleged past traumatic experience –
Held, repatriation of minor to USA, on principle of “comity of courts” does not appear to be an acceptable option worthy of being exercised at this stage – Interest and welfare of the minor being paramount, a competent court in India is entitled and indeed duty-bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication – Respondent’s case that the minor was removed from jurisdiction of American courts in contravention of orders passed by them, is not factually correct – Order by American Court was passed after father had sent his child to Delhi. (Courtesy SCC)
Hence in this case the court did not accept the foreign court’s order concerning child custody as conclusive and binding.
However, in another case, the balance tilted the other side and the court considered the custody order conclusive –
In Surya Vadanan versus State of T.N & Order (2015), A Supreme Court Bench comprising of Justice M.B. Lokur and Justice U.U. Lalit has held that in a case where there is a pre-existing order of a foreign court of competent jurisdiction to decide whether a child should be repatriated to the foreign country and the domestic court decides to conduct an elaborate inquiry (as against a summary inquiry), it must have special reasons to do so. The husband in this case was a citizen and resident of U.K. while the wife is a resident and citizen of India. Four years after the marriage, the wife acquired British citizenship and a British passport. They bore 2 daughters out of the wedlock. After experiencing matrimonial problems, the wife returned to India with the daughters and filed a petition under Section 13(1) (i-a) of the Hindu Marriage Act, seeking divorce. An application for custody was also filed by the wife. Subsequently, the husband decided to initiate legal action and petitioned the High Court of Justice in U.K. for making the children as wards of the court. It seems that along with this petition, he also annexed documents to indicate (i) that he had paid the fees of the children for a private school in U.K. with the intention that the children would continue their studies in U.K. (ii) that the children had left the school without information that perhaps they would not be returning to continue their studies. On 13th November, 2012 the High Court of Justice passed an order making the children wards of the court “during their minority or until such time as this provision of this order is varied or alternatively discharged by the further order of the court” and requiring the wife to return the children to the jurisdiction of the foreign court. Another order was passed by the foreign Court, renewing its request to the administrative authorities of the British Government in India and the judicial and administrative authorities in India for assistance for repatriation of the wards of the court to England and Wales, the country of their habitual residence. A Writ of habeas corpus was rejected by the Madras High Court. The Madras High Court, in its decision, took the view that the welfare of the children (and not the legal right of either of the parties) was of paramount importance. On facts, the High Court was of opinion that since the children were in the custody of the mother and she was their legal guardian, it could not be said that the custody was illegal in any manner.
The Court was concerned with two principles in the present matter. They are (i) The principle of comity of courts and (ii) The principle of the best interests and the welfare of the child. These principles have been referred to “contrasting principles of law” but the Court noted that they are not ‘contrasting’ in the sense of one being the opposite of the other but they are contrasting in the sense of being different principles that need to be applied in the facts of a given case.
The Court then went on to observe that the “most intimate contact” doctrine and the “closest concern” doctrine of Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698 are very much alive and cannot be ignored only because their application might be uncomfortable in certain situations. According to the Court, it is not appropriate that a domestic court having much less intimate contact with a child and having much less close concern with a child and his or her parents (as against a foreign court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child. A foreign court having the most intimate contact and the closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child has been brought up rather than a domestic court. This is a factor that must be kept in mind. It also stated that there is no reason why the principle of “comity of Courts” should be jettisoned, except for special and compelling reasons. The Court hence observed, “No doubt we expect foreign courts to respect the orders passed by courts in India and so there is no justifiable reason why domestic courts should not reciprocate and respect orders passed by foreign courts.” “If the reluctance to grant respect to an interim or an interlocutory order is extrapolated into the domestic sphere, there may well be situations where a Family Court in one State declines to respect an interim or an interlocutory order of a Family Court in another State on the ground of best interests and welfare of the child,” it added. The Court also stated that there may be situations where an interim or an interlocutory order of a foreign court may be ignored. What needs to be considered is to determine, prima facie, that the foreign court has jurisdiction over the child whose custody is in dispute, based on the fact of the child being ordinarily resident in the territory over which the foreign court exercises jurisdiction. The Court further added a word of caution, stating that since there is no finality to an interlocutory order, it would merely have a persuasive value for a penalizing result. The Court hence directed that the mother should take the children to UK in their summer vacations and comply with the order of the foreign Court. The cost of litigation would be borne by the husband. In case the mother does not comply with the Court’s orders, the father was directed to take the children to U.K. for further proceedings in the High Court of Justice.
Comment : It is therefore clear that the diverging viewpoints, and the law in this regard is still evolving.
ANTI SUIT INJUNCTIONS IN MATRIMONIAL CASES
Simply put, an anti-suit injunction is a judicial order restraining one party from prosecuting a case in another court outside it’s jurisdiction. Such orders are not passed at the drop of a hat, because they involve a court impinging on the jurisdiction of another court, which is not entertained very easily. The Supreme Court of India in Modi Entertainment Network v WSG Cricket Pte Ltd, held that in exercising discretion to grant an anti-suit injunction, the Court must be satisfied of the following aspects, (a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the Court; (b) if the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and (c) the principle of comity- respect for the Court in which commencement or continuance of action or proceeding is sought to be restrained- must be borne in mind.
In Padmini Hindupur vs. Abhijit S. Bellur, The Hon’ble Delhi High Court, granted an anti-suit injunction in favour of the wife against the husband, restraining the husband from prosecuting divorce petition in the foreign court.
On the issue of wife whether to be held entitled to the relief prayed for by her i.e. the grant of an anti suit interim injunction, it was noted that Section 13 of the CPC deals with the recognition of a foreign judgment. It deals with the various alternatives under which a foreign decree may not be recognized by an Indian Court; until and unless, the foreign decree is in conformity with the public policy which is equity and good conscience, such a decree may not been recognized. The provision clearly says that a foreign judgment not been given on merits of the case will not be recognized by the Courts in India. Unless the party after service 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 submitting to the jurisdiction of the Court it should not be considered to be a decision which was rendered on the merits of the case. The wife as per communication to Court in the USA was always aggrieved by the jurisdiction of the US Court and she had even lodged her protest at the very first opportunity.
However, Court while considering a prayer for grant of an anti-suit injunction has to consider that if the injunction is declined, the ends of justice would be defeated and injustice would be perpetuated. Then, the Court should consider the issue of forum conveniens – in case there is more than one forum available, the Court in the exercise of its discretion while granting an anti-suit injunction will examine as to which is the most appropriate forum (forum conveniens) having regard to the convenience of the parties. The Court may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non-conveniens.
It was further held that the principles governing the grant of anti-suit injunction being essentially an equitable relief, the Courts in India has the powers to issue anti-suit injunction to a party over whom it has personal jurisdiction in an appropriate case because the Courts of equity exercise jurisdiction in personam.
It was accordingly held that the present would be a forum of inconvenience for the wife to submit herself to the US Court. She having lodged her protest in regard to jurisdiction of US Court, there was no suppression or concealment of facts and thus she was entitled to the equitable relief as prayed for.
In another case of Nidhi Prakash versus Rajneesh Verma (2013) Delhi High Court again granted an ex-parte interim anti suit injunction restraining the husband from proceeding with the divorce petition at Texas.
Therefore, it is apparent that though courts are generally loath to grant anti-suit injunctions in purely commercial matters, such injunctions are generally granted in family law cases. However, such an injunction can be resisted on the grounds : of submission to jurisdiction, inequitable conduct, suppression of material facts etc.
It is apparent from this discussion that the law in this field is in a constant state of flux and evolving (or one may say, meandering) each day.
The Author Bharat Chugh is a Delhi based Supreme Court Advocate (working at Luthra and Luthra Law Offices as a Counsel) and has advised litigants and courts the world over in matters involving recognition of foreign decrees in India. This article is distillate of his lectures given at various points of time at different fora. Bharat can be reached at firstname.lastname@example.org