FOREIGN JUDGEMENTS UNDER

THE CODE OF CIVIL PROCEDURE

1. Section 2(5) and 2(6) of the CPC - definition of foreign judgement and courts
2. Section 13
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 recognise 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].
Part 1: EVALUATION OF THE FRAMEWORK FOR ENFORCEMENT
OF FOREIGN DECREES IN INDIA

1. Section 14 - presumption of correctness

● what are the rules of law that govern divorce in Private International Law?

It is predominantly held and accepted (at least, in the West) that the rules of law governing
instances of divorce between married couples ought to be lex domicilli i.e. the law of the
country in which the couple is domiciled.

However, we note that the Indian Supreme Court has held an opposing view in Y. Narasimha
Rao v. Y. Venkata Lakshmi.
CASE LAW - Y. Narasimha Rao v. Y. Venkata Lakshmi

In Y. Narasimha Rao, the Supreme Court dealt with this specific issue of pragmatism, where an
Indian husband residing in the United States obtained a decree for divorce from the Missouri
court in the US. Later he sought to enforce the same divorce decree in India against his wife.
What is more, is that the husband, after obtaining the said decree got married in India for a
second time. Therefore, the question before the Supreme Court becomes even more significant
– if the court finds that the foreign divorce decree is valid, then his second marriage would also
become valid. Otherwise, i.e., if the court finds that the foreign divorce decree is invalid, then
the husband would become liable for bigamy under the Indian Penal Code, 1860 (IPC).
The SC sought the incorporation of provisions that allow decrees on divorce granted by Indian
courts to be made executable in foreign courts on two grounds:

(i) the principle of comity and

(ii) reciprocal arrangements under the CPC.

The principle of comity, means that the courts of one country, understand and respect the
decision of the courts of another country, unless they have good reason to do otherwise.

This principle emerged from the decision in Elizabeth Dinshaw v. Arvand M. Dinshaw.
 Elizabeth Dinshaw v. Arvand M. Dinshaw

Where it was held that the judge, in India, should pay regard to the orders of the proper
foreign court unless, he believes, beyond any reasonable doubt, that doing so would inflict
serious harm to one of the parties. This principle has been upheld by the courts many
times.
 The Hindu Marriage Act 1954

Under Section 1, Hindus married under the Act but are domiciled in territories outside India, are
also individuals to whom the provisions of the Act apply.

● Section 13 of the Hindu Marriage Act which prevents any other grounds of valid divorce
than the ones laid therein.

This point was addressed again, in Y. Narasimha Rao where the court decided that, for a foreign
divorce decree to be recognized by Indian courts, it is necessary that the grounds for divorce in that
decree be the ones recognized by Indian law.
 Dicey’s “contractual theory of divorce”

According to which:
“Right to a divorce depended upon the terms of the marriage contract, and,
therefore, upon the law under which the marriage was celebrated. Hence they
[the English courts] held that jurisdiction in matters of divorce belonged
exclusively to the courts of the country under the law of which the marriage took
place, which generally the country where the marriage was celebrated."

The above view, as observed in Vilayat Raj and Y. Narasimha Rao, observed one side of
the argument in this issue of private international law.
Is there any other answer?

One way out is suggested by the practice in the West which is the merger of choice-of-law
argument and the choice-of -jurisdiction argument, and therefore, apply the law of the forum (lex
fori).

This solution bears a unique benefit i.e., of pragmatism.

It does so, by forcing the court away from argumentation concerning the choice of law or
jurisdiction, and towards arguments regarding the appropriateness of the forum thus approached.
This is a pragmatic solution for its implicit reliance of principles of natural justice. Indeed,
here, when proceedings are started in in matters of personal laws, across national
boundaries – this was also observed by the court in Y. Narasimha Rao where it may, if the
court deems fit, be made necessary for the requiring the petitioner to “make all the
necessary provisions for the respondent to defend including the cost of travel, residence
and litigation.”
Such an approach is highly desirable for it adequately addresses the possibility of “forum
shopping” by the husband or the wife, wherein the plaintiff seeks a particular forum for
granting of a foreign divorce decree and later enforce it in their home state. This problem
particularly hurts the respondents in any such matter, for they are caught off guard, and
have to litigate in a foreign court, where they may not be able to resist the plaintiff.
Section 13(d) of CPC provides that a foreign judgement will not be conclusive where the
proceedings in the foreign court were opposed to natural justice.
 CONCLUSION

Firstly, we have assessed the legal framework, by relying primarily on the jurisprudence of Indian courts,
in the legal interpretation of various sections of the CPC like Section 44-A and 13. The jurisprudence laid
down by important judgements like Alcon Electronics and Y. Narasimha Rao, was analyzed.

Secondly, we also dealt with the issues arising concerning the applicable rules to personal law matters, in
the domain of private international law. The personal law matters that were discussed in this work
specifically focused on the recognition and enforcement of foreign divorce decrees in India, and how the
judgement of the court in Y. Narasimha Rao has influenced the major contention between the choice-of-
law and choice-of-jurisdiction.