Dr.

Ram Manohar Lohiya National Law

University, Lucknow

Conflict of Laws

Recognition of Foreign Judgments in India:

Enforceability of Foreign divorce decrees in India

Under The Guidance Of: Submitted by:

Dr. P.K. Gautam Ravi Gangal
Asst. Professor (Law) Roll no. 96 (8th Semester)
 ACKNOWLEDGMENT

I would like to thank respected Mr. P.K. Gautam, the faculty lecturer on Conflict of Laws for
giving me the opportunity to work on this project. I thank him for his encouragement and
support without which it would have been very difficult to complete this project. Co-
operation of the library staff in providing with the sources of material is also involved in this
work. The help of my University’s library, Dr. Madhu Limaye Library and its internet facility
has been immense.
Contents
INTRODUCTION....................................................................................................................................................4
Public vis-á-vis Private International Law...........................................................................................................4
SUPREME COURT IN Y. NARASIMHA RAO v. Y VENKATA LAKSHMI.....................................................5
Facts of the Case..................................................................................................................................................5
Issues Involved.....................................................................................................................................................6
Critical Analysis of the Verdict............................................................................................................................6
 Influence of English Law.......................................................................................................................7
 Section 13 of the Civil Procedure Code................................................................................................8
CONCLUSION......................................................................................................................................................11
BIBLIOGRAPHY..................................................................................................................................................12
INTRODUCTION
RECOGNITION OF foreign divorce decrees in India is dealt with under the provisions of
section 13 of the Code of Civil Procedure 1908 (CPC) and section 41 of the Indian
Evidence Act. A foreign divorce is also recognised on the basis of existence of a real and
substantial connection between the parties and the court which exercised the divorce
jurisdiction.1
The laws at present in India, statutory or judge-made are not being emancipatory to the
growing trend of deserted wives. The Sixty-Fifth Law Commission Report 2 also could not
improve the situation.

Public vis-á-vis Private International Law

The law regulates the conduct of the society in its most desirable and benign form. It
maintains the order in the society and eliminates unhealthy delinquencies and deviations.
Thus, law plays an important role in developing a civilised society. The law of a country is
generally based on its social, economic, and political ideologies and notions. These
ideologies and notions are essentially different in various societies. This usually gives rise to
“conflict of laws” which is generally taken care of by the “Private International Law”. An
important aspect of the Private International Law is that it is territorial oriented and society
specific. Thus, the laws of the country in question prevail, if there is a conflict between the
two laws of the different sovereign States. The “Public International Law” on the other hand
primarily encompasses within its ambit the Treaties and conventions which are required to be
uniformly followed by the “Member Countries”3. To appreciate the concept better it is
inevitable to analyse the concept of International law in some detail. The expression
“International law” is synonymously used for the term “Public International Law”. It is
different from “Private International Law” that is a law of different States. The rules of
Private International Law have been formulated to avoid conflicts that arise due to conflicting
laws of different States. The Public and Private International Law differs in many crucial
aspects that primarily decide which law will govern the situation. The chances of
“sovereignty clash” are more in case of Private International Law as compared to its
counterpart.
1
Marggarate v Chacko, A.I.R. 1971 Ker. 1.
2
Law Commission of India, Sixty- Fifth Report on Recognition of Foreign Divorce Decrees in India (1976)
3
Praveen Dalal, “The mandates of WTO”, http://perry4law.blogspot.com/2005/05/mandates-of-wto.html
accessed on 29/03/2017.
 he rules of Private International Law in India are not codified and are scattered in
different enactments such as the Civil Procedure Code, the Contract Act, the Indian
Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some rules
have also been evolved by judicial decisions. The problem in India is complicated by the fact
that there exist different personal laws and no uniform rule can be laid down for all citizens.
The distinction between matters which concern personal and family affairs and those which
concern commercial relationships, civil wrongs etc. is well recognised in other countries and
legal systems. The law in the former area tends to be primarily determined and influenced by
social, moral and religious considerations, and public policy plays a special and important
role in shaping it.4

SUPREME COURT IN Y. NARASIMHA RAO v. Y VENKATA

LAKSHMI
The Supreme Court in Y. Narasimha Rao v. Y. Venkata Lakshmi5, positioned itself to
deal with the rules of private international law pertaining to recognition of foreign divorce
decrees in India. In the process it looked into significant issues arising there from, viz., the
question of basis of foreign court's jurisdiction on the facts of the case, the applicable law
and the vexed question of submission to the foreign court's jurisdiction by the parties.

Facts of the Case

Factually, this case concerns with the issue of granting recognition to a divorce decree
passed by the Missouri court in the U.S.A., in favour of the appellant-husband.

The appellant, Narasimha Rao married the respondent (Venkata Lakshmi) in 1975 in
India. They resided together for about 4 to 5 months after marriage. Thereafter the appellant
left for a placement in the medical service in the United States. The respondent, who joined
the appellant for some time, returned to India. The appellant, in the first instance had filed a
petition for divorce in an Indian court in 1976. He later obtained a divorce decree from the
court in Missouri (U.S.A.) dissolving his marriage with the respondent. He also filed an
application in 1980 in the Indian court for dismissal of his divorce petition filed earlier in
1976 in view of the divorce decree he had obtained from Missouri court in 1980. The
parties were in fact separated in 1978. Having obtained the divorce decree from the
Missouri court, the appellant underwent a second marriage in India. The respondent (first
4
‘Recognition Of Foreign Divorce Decree In India And Its Judicial Enforcement’, Perry4Law Blog,
http://perry4law.org/blog/?p=1089 accessed on 29/03/2017.
5
1991(2) SCALE p.1.
wife) soon thereafter filed a criminal complaint for the offence of bigamy against the
husband (appellant). The present case is an appeal arising out of this criminal complaint
filed by the first wife-respondent.

Issues Involved
The issue before the Supreme Court concerns with the recognition of the decree of
dissolution of appellant's first marriage from the Missouri court in U.S.A. If the Indian
courts recognise the foreign divorce decree, the appellant's second marriage would become
valid in India. If not, the appellant-husband would be liable for bigamy under the Indian
penal laws for having contracted a second marriage during the subsistence of his first
marriage. Further, in effect, the appellant and the respondent (wife) would be considered as
legally wedded in India, while they are treated as divorced under the Missouri laws in
United States.

The Supreme Court addressed itself to the larger question as to whether "the courts in
this country should recognise foreign divorce decrees, presuming that the foreign court
by its own rules of jurisdiction had rightly entertained the dispute and granted a valid
decree of divorce according to its law." Clearly, the court refrained from following its
earlier decision in a similar case, Satya Vati V. Teja Singh.6 The court in that case, after a
discussion at length of the legal positions in the U.K., U.S.A., and without much dwelling
upon the Indian law on the subject, disposed it off on a narrow ground viz., that the
appellant-husband had played fraud on the foreign court representing to it incorrect facts for
the exercise of jurisdiction.

Critical Analysis of the Verdict

The court in the present case is well aware of the primitive and least developed
conditions of the rules of private international law in India even after 43 years of
independence. It aptly observed that "we cannot lose sight of the fact that today more than
even in the past, the need for definitive rules for recognition of foreign judgements in
personal and family matters, and particularly in matrimonial disputes, has surged to the
surface....A large number of foreign decrees in matrimonial matters is becoming order of
the day. A time has, therefore, come to ensure certainty in the recognition of the foreign
judgements in these matters."7

6
A.I.R. 1975 S.C. 105.
7
Supra note 3 at 5.
Thus, the judicial initiative to provide the necessary changes to the existing situation in the
form of "minimum rules of guidance for securing certainty" is indeed a welcome move. As
will be seen the Supreme Court without waiting for the legislative beginning has rendered
these guidelines within the framework of the present statutory provisions through a rational
and flexible interpretation to achieve the purpose. The court has rightly pointed out that the
provisions of section 13 CPC,8 are capable of appropriate interpretation "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 cornerstones of our societal
life."9

 Influence of English Law

It is common knowledge that the courts in India have all along been depending on English
law. Further it is true that the courts in India have also not noticed the periodical changes in
the English law. This is obvious, particularly in the area of matrimonial causes than in any
other field. How else one can explain the ruling of Punjab and Haryana High court in Teja
Singh Vs. Satyavathi10 that it lacked the jurisdiction as it was not a court of domicile, on the
lines of the English rule laid down in Le Mesurier v. Le Mesurieft11 where it ruled that on
marriage a woman takes the domicile of her husband and her domicile is the same as his with
all its changes so long as the marriage lasts and even after marriage until she takes steps to
acquire a separate domicile and that the husband's domicile is the basis of matrimonial
jurisdiction. The Punjab & Haryana High Court was dealing here with a case of deserted wife
in India in the year 1971 while the English rule on the subject had changed as early as in
1937. It may well mean either a clear confession of the Indian courts following dead English
laws or that the India society is 75 yrs. behind in its understanding of the Social and legal
problem of institution of marriage. The Supreme court on its turn in this very same case could
not throw any light on the situation either. However, the case was decided entirely on a
8
Under section 13 of the Code of Civil Procedure (1908) a foreign judgment is not conclusive as to any matter
thereby directly adjudicated upon between the parties if:

(a) it has not been pronounced by a court of competent jurisdiction;

(b) it has not been given on the merits of the case;
(c) it is founded on an incorrect view of international law or a refusal to recognise the law of India in cases
in which such law is applicable;
(d) the proceedings are opposed to natural justice;
(e) it is obtained by fraud;
(f) it sustains a claim founded on a breach of any law in force in India.
9
Supra note 3 at 5.
10
A.I.R. 1971 P. & H. 80.
11
(1895) A.C. 517.
different, ground altogether with a recommendation for a Law Commission Report to carry
out the necessary improvements in the subject.12 The status quo remained the same despite
the labours of the Law Commission in its 65th report submitted in 1976.

It is under these circumstances that the Supreme Court has laid down the foregoing rules
of guidance and paved the way for further developments by future judgements in matters of
recognition of foreign divorce decrees in India. It may not be out of place to point out that,
unlike other areas, private international law is one arena which made its beginnings and
progress mainly through judge made law, joined by statutes on the subject later.

 Section 13 of the Civil Procedure Code

The court began with section 13(a) of CPC,13 dealing with the competence of the foreign
court's jurisdiction to pronounce the judgment that was sought to be recognised by the
Indian court. According to the court's view "this clause 14 should be interpreted to mean that
only that court will be court of competent jurisdiction which the Act or the law under which
the parties are married recognises as a court of competent jurisdiction to enter-tain the
matrimonial dispute."15 Further, "[a]ny other court should be held to be a court without
jurisdiction unless both parties voluntarily and unconditionally subject themselves to the
jurisdiction of that court."16

Secondly, in the case of section 13(b) of C.P.C.,17 the court observed, "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." 18 In the opinion of the court, the latter
requirement for the purpose of considering a judgment on merit, "is fulfilled only when the
respondent is duly served and voluntarily and unconditionally submits" to the jurisdiction of
the foreign court and "contests the claim, or agrees to the passing of the decree with or
without the appearance." The court further observed in this connection that, "(a) mere filing
of the reply to the claim under protest and without submitting to the jurisdiction of the court

12
See, Supra note 3 at 5.
13
Supra note 3.
14
S. 13(a) C.P.C., supra note 6.
15
Supra note 3 at 5.
16
Ibid.
17
See, supra note 6.
18
See, supra note 3 at 5.
or an appearance in the court....for objecting to the jurisdiction of the court, should not be
considered as a decision on the merits of the case."

Seeking recognition to the Indian law in cases in which such law is applicable under
second part of section 13(c)19 the court is of the view that "the only law that can be
applicable to the matrimonial disputes is the one under which the parties are married, and no
other law."20 Accordingly, the court pointed out that, "when a foreign judgement is founded
on a jurisdiction or on a ground not recognised by such law, it is a judgement 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 judgement will also be
unenforceable under clause (f)21 of section 13 since such a judgement would obviously be in
breach of the matrimonial law in force in this country."22

The apex court's view mentioned—above as regards the dissolution of marriages

performed under Indian Laws by foreign courts raised a very important issue—what law
governs divorce in Private International Law? The generally held view in the West is lex
domicili. The Supreme Court's recommendation is the law under which the parties were
married. The rationale for the former view appears to be that both" marriage and divorce are
questions of personal status in which domicile plays an important role....

(T)he function of domicile in the creation of this status (marriage) is directed to questions
of choice-of-law...(I)n the dissolution of this status (divorce) the aspect of domicile is related
to the question of choice-of-jurisdiction.23 The above mentioned views in the matter of

19
See, supra note 3 at 5.
20
Supra note 3 at 6.
21
See, supra note 5.
22
Supra note 3, at 6.
23
Graveson R.H., Comparative Conflict of Laws : Selected Essays, vol. 1, p. 286 (1977). See also, for more firm
views of the West on these lines, North P.M. and Fawcett, J.J., Cheshire and North's Private International Law
635 (11th ed. (1987)). It may be interesting to note that the English courts in the early 19th century reflected in
letter and spirit of the present view of the Supreme Court as regards choice of law rules applicable to divorce.
See, R.v. Lolley (1812) 2 Cl & F. 567; Tovey v. Londsay (1873) 1 Dow, 117, McCarthy v. DeCare (1831) 2 R
& M 614 as quoted by Dicey, Dicey and Morris on Conflict of Laws, 8th Ed. by Morris J.H.C. (1967) p. 296.
Dicey describes the present lexdomicili in England as "status theory". The earlier view of the English courts in
his words:
[R]ight to a divorce depended upon the terms of the marriage contract, and, there-fore, 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." He describes this thesis as "contractual
theory of divorce". Dicey's Confliet of laws, ibid.
applicable law to divorces petitioned abroad seem to conflict as is clear in the present case.
In the present case the U.S. court applied the American law being the law of matrimonial
domicile of the petitioner—husband before it. The wife opposed in her reply jurisdiction of
the U.S. court. She also argued in her reply that the ground on which the U.S. court has
granted relief to her husband is not available under Indian law and that the applicable law is
the law under which they were married, viz., the Hindu Marriage Act 1955. Is there any
remedy for such conflicting views in private international law? One answer appears to be
to merge the choice-of-law with the-choice-of-jurisdiction and apply uniformly the law of the
forum as is being done at present in the West but with a difference—by introducing a
substantial procedural changes resulting in a strict adherence to the rules of natural justice in
the real sense of the term as suggested by the Supreme Court in the present case, While
summing up the arguments on choice-of-law rules pertaining to divorce. North, suggested
that "the decision on choice-of law rules in divorce must depend upon a balance between
principle, which undoubtedly points to the application of the personal law, and pragmatism
which favours the lexfori"24 Referring to section 13(d) dealing with recognition of the foreign
decree based on the compliance of principles of natural justice by the foreign court, the
Supreme Court rightly laid its full emphasis on their actual practice particularly in family law
matters. The court pointed out that these principles should be applied at all stages of the
litigation including the appellate proceedings. Indeed the apex court's view that a mere
serving of the court process upon the respondent should not be deemed sufficient for the
purposes of the rule, is very apt. Such an observance is nothing but a lip service or amounts to
the reduction of a fundamental principle of law to a mere formality. Further their lordships
called upon the foreign courts to ascertain and ensure "such effective contest by requiring the
petitioner to make all the necessary provisions for the respondent to defend including the cost
of travel, residence and litigation where necessary." The intention of the court's observation is
obvious in the sense, that such strict observance of principles of natural justice by the foreign
courts exercising jurisdiction in matrimonial causes would not only caution the ambitious
petitioner-husbands but also desist them from entering rudderless matrimonial adventurism.

Our own practice in India in the context of inter-personal law conflicts also is on the same lines as the
present thinking of the Supreme Court.
Thus, in Vilayat Raj v. Sunita, A.I.R. 1983 Del. 351, Justice Leila Seth (as she then was) held that
dissolution of a marriage performed under the Hindu Marriage Act can only be in accordance with that Act
despite the conversion of the petitioner husband to the Muslim faith after the marriage. The husband petitioned
for divorce of his Hindu marriage under the Hindu Marriage Act after he embraced the Muslim faith in this
case.
24
North P.M. and Fawett, J.J., supra note 21 at 635.
There seem to be a slow and steady practice of "forum shopping" by the plaintiff
(husband/wife) to reach a convenient forum for him/her and inconvenient for the respondent
where he/she can obtain a quick divorce on easy grounds with less or no resistance from the
respondent. Conferring jurisdiction to the forum where the defendant either domiciled or
resided habitually has the effect of preventing the forum shopping by the petitioner-husband
on the one hand, and a positive compliance with the basic principle of natural justice viz., the
rule of audi alteram partem on the other. The Supreme Court drew the support of the
European Community Convention (Brussels Convention of 1968 on Jurisdiction and
Enforcement of Judgements in Civil and Commercial Matters) on this jurisdictional principle
and further observed that, "if it is of the forum where the respondent is domiciled or
habitually and permanently resides, the provisions of clause (d) of section 13 CPC may be
held to have been satisfied."25

In considering section 13 (e)26 dealing with recognition of foreign judgments obtained by

fraud, the Supreme Court stood by its own interpretation accorded in Satyavati.27.

CONCLUSION
In the final analysis, it may be pointed out that the Supreme Court has advocated a newer
approach to the question of recognition of foreign divorce decrees in India. Indeed it is not
necessary for introduction of any new theories on the lines of "real and substantial
connections of the parties to the forum" or any new specific legislation altogether for the
purposes. As the Supreme Court has rightly pointed out what is needed is a contextual
interpretation within the existing legal frame, work. The law stated in the words of their
lordships: "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".28 The alternative jurisdiction must be based on consent and voluntary
submission by the parties concerned. The apex court while adapting the prevalent general
law on recognition and enforcement of foreign judgements in India. v/z., section 13 clauses
(a) to (f)29 to the specific needs of divorce decrees, has certainly made the beginning. The
law now needs to be developed, perhaps, by future judgments.
25
Supra note 3 at 6.
26
Supra note 6.
27
Supra note 4.
28
Supra note 3 at 6.
29
Supra note 6.
 The judicial initiative has provided the directions to fill the legal lacunae. Our efforts
should now turn to the ever increasing number of "deserted" Indian wives' position. They are
married but single. Their marriages are limping. A strict adherence to the observance of the
principle of natural justice in the manner suggested by the Supreme Court in this case holds a
possible solution. An opportunity provided in the positive sense for an appropriate
representation, the respondent-wife can at the end of the litigation be sure of her status to be.
The message is for the courts everywhere in the world, dealing with petitions for dissolution
of marriages performed under laws different from those of the forum, to observe strictly the
principles of natural justice, keeping in view, the possible absentee respondents (husbands or
wives) wives, in particular.

BIBLIOGRAPHY
Books
 Halsbury’s Laws of India, Vol 7, p 65.0001
 Conflict of Laws, 6th Edition
 Sir John Woodroffe & Ameer Ali’s Commentary of Code of Civil Procedure, 1908;
4th Edition, Vol I
 The Conflict of Laws, Dicey & Morris, 8th Ed.
Web
 www.manupatra.com
 www.indiankanoon.com
 www.scconline.com
 Enforcement of Foreign Judgments. Available at:
http://www.astrealegal.com/enforcement-of-foreign-judgments/
 Enforcing Foreign Judgments in India. Available at:
http://madaan.com/enforcingjudgment.html
 MSM Blog, EXECUTION OF FOREIGN DECREES/JUDGMENTS IN INDIA.
Available at: https://msmlawfirm.wordpress.com/2009/10/15/execution-of-foreign-
decreesjudgments-in-india/
 ‘Recognition Of Foreign Divorce Decree In India And Its Judicial Enforcement’,
Perry4Law Blog, http://perry4law.org/blog/?p=1089