QUESTION 4A

Satya v. Teja (1975) SC

Coram: H.R.Khanna, Y.V.Chandrachud, JJ.

Facts: Satya married Teja in July, 1955 in Punjab as per Hindu rites and ceremonies. In 1959,
Teja left for the US for higher studies in forestry at New York University and Utah University
for his Doctorate. In 1965, Satya filed a maintenance application under Section 488 of the Code
of Criminal Procedure. Teja appeared with a decree of divorce granted by the State of Nevada,
US in 1964 that Satya ceased to be his wife and therefore, he contended that no maintenance was
required to be paid. From the Judicial Magistrate First Class, it went to the High Court of Punjab
& Haryana and lastly, an appeal was preferred before the Supreme Court.

Held: The Nevada Divorce Decree was not recognised and enforced in India and the ground was
competent jurisdiction of courts and fraud as per Sections 13(a) and Section 13(e) of the 1908
Code. There was fraud with respect to the jurisdictional fact. The jurisdictional facts given by
Teja were incorrect and therefore, there was fraud as to jurisdictional fact. The Nevada court
assumed and exercised jurisdiction to pass the divorce decree on the basis that the Respondent
was a bona fide resident of and domiciled in Nevada. Domicile being a jurisdictional fact was
open to attack on the ground that Respondent was not bona fide resident of Nevada, much less
was he domiciled in Nevada. SC observed in ¶47 that prior to institution of the divorce
proceedings the Respondent might have stayed, but never lived in Nevada. Teja made a false
representation to the Nevada Court that he was a bona fide resident of Nevada. Having secured
the divorce decree, he left Nevada almost immediately thereafter rendering it false that he had
the ‘intent to make the State of Nevada his home for an indefinite period of time.’ Importantly,
from 1960-64, Teja stayed in Utah and since 1965, he lived in Canada. Teja only went to Nevada
as a bird of passage, resorted to the court there solely to found jurisdiction and procured a decree
of divorce on a misrepresentation that he was domiciled in Nevada. In ¶49, Chandrachud, J.
observes that Teja only went to Nevada for forum hunting, found a convenient jurisdiction which
would easily purvey a divorce to him and left it even before the ink on his domicilary assertion
was dry. Therefore, the decree of Nevada lacked jurisdiction. In ¶54, he went on to observe that
there was fraud as to the jurisdiction of the Nevada Court and that the Respondent successfully
invoked the jurisdiction of the Nevada Court by lying to it on jurisdictional facts. Like always,
the judgment by Chandrachud, J. is erudite and contributed to the development of jurisprudence
of recognition and enforcement.

Y. Narasimha Rao v. Y. Venkata Lakshmi (1991) SC

Facts: Lakshmi and Rao married at Tirupati in 1975 as per Hindu rites and traditions. They
separated in July 1978 and Rao filed a divorce petition in St. Louis County, Missouri, USA. In
1980, the Circuit court granted a decree of dissolution of marriage since the marriage was
irretrievably broken. Thereafter, Rao married another woman and Lakshmi filed a complaint for
the offence of bigamy. Rao and the second wife filed an application for the discharge of charges
based on the divorce decree. The Magistrate discharged him of all charges. Lakshmi preferred an
appeal and HC set aside the Magistrate’s decision and thereafter, Rao preferred an appeal to the
Supreme Court. The HC held that the Photostat copy of the divorce was not admissible as
evidence.

Held: Under the provisions of the Hindu Marriage Act, 1955, only the District Court within the
local limits of whose civil jurisdiction the marriage was solemnized would have the jurisdiction
to entertain the divorce petition. Second, irretrievable breakdown of marriage was not one of the
grounds recognised by the 1955 Act. In ¶14, the Court observed that since with regard to the
jurisdiction of the forum as well as on the ground on which it is passed under the foreign decree
was not in accordance with the Act under which the parties were married, and that the
Respondent had not consented to the jurisdiction of the court or consented to its passing, it
cannot be recognised by the courts in India. Third, the Photostat copy of the divorce decree
would have to be certified by the representative of the Central Government in the US as required
under Section 86 of the Indian Evidence Act, 1872. Therefore, the document was not admissible
in evidence for want of certificate under Section 86 of the Act.

In addition to the decision on facts, the SC also laid down the principles with respect to Section
13 of the 1908 Code. They are as follows:

A. Section 13(a) 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
submit themselves to the jurisdiction of the Court.

B. Section 13(b) should be interpreted to mean that first, a decision of the foreign court
should be on the ground available under the law which the parties are married and second, that
the decision should be a result of the contest between parties. The latter requirement is only
fulfilled when the respondent is duly served and voluntarily and unconditionally submits 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 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 acquiescence to the
jurisdiction of the Court which may be valid in other matters and areas should be ignored and
deemed inappropriate.

C. Section 13(c) states that where the judgment is founded on a refusal to recognise the
law of the country in cases in which such law is applicable, the judgment will not be recognised
by Courts in this country. The marriages which take place in India can only be either under the
customary law or the statutory law in force in this country. Hence, the only law that can be
applicable to the matrimonial disputes is the one 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 Section 13(f), since such a
judgment would obviously be in breach of the matrimonial law in force in this country.

D. Section 13(d) pertains to 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 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 and contest effectively the said proceedings. The
requirement should equally apply 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 the 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.

E. Section 13(e) which requires that Indian Courts will not recognise a foreign judgment
if it has been obtained by fraud is self-evident. In view of Satya v. Teja, it must be understood
that the fraud need not only be in relation to merits of the matter but can also relate to
jurisdictional facts.

In ¶20, the Court laid down the rule for recognising a foreign matrimonial judgment in
this country. 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 which the parties are
married. The exceptions to this rule are as follows:

i. Where the matrimonial action is filed in the forum where the Respondent is domiciled
or 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.

Analysis of the two cases: Satya’s case was a civil case pertaining to maintenance and Rao’s
case was a criminal case pertaining to bigamy. Both cases discussed Section 13 extensively. The
65th Law Commission of India Report was based on Satya v. Teja and proposed a separate bill
with respect to foreign divorce decrees but because of the then Government, the bill was never
introduced. One need not think too much on which government was in power back then. The
labours of the 65th LCI Report have not fructified since April, 1976 and SC observed that
despite 43 years of Independence, no action had been taken by the Parliament. SC’s obiter in
Rao’s case was also that the domicile of the wife does not attach to the domicile of the husband.

 Neerja Saraph v. Jayant Saraph 1994

Court suggested some provisions for a new legislation for registration of NRI marriages to curb
the abandonment of wives by NRI husbands by unilaterally getting divorce decrees from foreign
courts.

But feasibility of a legislation safeguarding interests of women may be examined by

(1) No marriage between a NRI and an Indian woman which has taken place in India may be
annulled by a foreign court;

(2) Provision may be made for adequate alimony to the wife in the property of the husband both
in India and abroad.

(3)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 Civil
Procedure Code which makes a foreign decree executable as it would have been a decree passed
by that court.

<ENTER CONCLUSION AS PER CASE>

<NISHA IS NOT BOUND BY THE DECREE AND CAN CHALLENGE ON BASIS OF

QUESTION 4B

Dinesh Singh Thakur v. Sonal Thakur (2018) SC

Facts: Dinesh and Sonal married on 20.02.1995 as per Hindu rites and begot 2 children.
Dinesh was working in the USA and took the Respondent wife to the USA on a dependant Visa.
Both the parties got citizenship of US in May 2003. They obtained Person of Indian Origin
(“PIO”) Status in June 2003 and Overseas Citizenship of India (“OCI”) in July 2006. The
Husband filed a petition for divorce under Section 13 before the Family Court, Gurugram which
was pending for adjudication. Thereafter, the wife filed a petition in Florida, USA for divorce on
the ground of irretrievable breakdown of marriage. Thereafter, the husband filed a civil suit
before the Family Court, Gurugram for permanent injunction and declaration to restrain the
Respondent wife from pursuing the petition for divorce before the Court in the USA. Husband
had filed this anti-suit injunction. There were proceedings at various stages and finally, the
husband preferred a special leave petition before the Supreme Court.

Husband’s Contentions: It was contended that the wife seeking a decree of divorce in a
foreign court on the ground of irretrievable breakdown of marriage which is not a ground of
divorce under the Hindu Marriage Act, 1955 is liable to be stayed. Second, the wife along with
the minor children were residing in India since 2003 and filing the petition for divorce in the
Court at USA after receipt of the notice in the divorce petition filed by the Appellant husband in
India, is an abuse of the process of law and amounted to multiplicity of proceedings. Third, the
Court at Gurugram would be the convenient court to both parties.

Wife’s Contentions: She contended that the petition before the Florida Court was not only
for dissolution of marriage of the parties but also for claiming various other reliefs such as
equitable distribution of marital assets, child support, alimony, partition, and other reliefs that are
not available under the Indian Law. Irreparable loss or injury would be caused to the wife and
children in case the proceedings before the Florida Court were stayed.

Held: SC held that though the wife was amenable to the jurisdiction of the Family Court,
Gurugram, there was nothing on record to hold that the other party would suffer grave injustice if
the injunction was not granted. Even if the injunction was declined, it cannot be said that the
ends of justice will be defeated and injustice would be perpetuated. There was no dispute to the
fact that both the parties are permanent citizens of the US. Undisputedly, the Florida Court has
concurrent jurisdiction in the given case. The mere fact that the Respondent wife has filed the
case on the ground which is not available to her under the Act, does not mean that there is
likelihood of her succeeding in getting a decree for divorce. Specifically, in view of the fact that
the Appellant has raised this contention before the Circuit Court, Florida and both parties will
produce evidence with regard to the other question whether their marriage is governed by the Act
or any other law. Foreign Court cannot be presumed to be exercising its jurisdiction wrongly
even after the Appellant being able to prove that the parties in the present case continue to be
governed by the law governing Hindus in India in the matter of dispute between them. The
proceedings in the foreign court could not be said to be oppressive or vexatious. The appeal was
accordingly dismissed.

<NISHA CAN FILE FOR ANTI SUIT INJUCTION, AS THEYRE NOT AUSTRALIAN
CITIZENS AND NO COMPETENT JURISDICTION, PURSIONG LITIGATION WILL
BE VEXATIOUS, SO SHOULD ALLOW INJUNCTION IN GUJARAT CIVIL COURT>