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Commonwealth Law Bulletin Routledge
Vol. 32, No. 3, 431-442, September 2006 T.yF-o,,&,dC.p

Enforcement of Foreign Judgments and Foreign Arbitral

Awards in the Indian Civil Jurisdiction

ANIL MALHOTRA and RANJIT MALHOTRA

Advocates, Malhotra & Malhotra Associates, Chandigarh, India

With the increasing number of contentious and litigated matters involving the Indian juris-
diction arising, a common question that comes up at the end of each such matter relates to
the enforcement and execution of foreign judgments and overseas arbitration awards in
India. It is at this stage that the successful litigant now ventures on Indian soil before the
competent forum for seeking the enforcement of the relief awarded to him or her. It is in
that context that this article seeks to set out the current position in law regarding the possi-
ble solutions available in the Indian jurisdiction. The scope of this article is limited to civil
disputes.
By looking at the current trends and practices, it appears that the disputes in such
matters broadly relate to three areas of law. First is commercial litigation - of all kinds - in
which it is sought to implement and execute in the Indian jurisdiction the decrees and/or
orders and judgments of foreign courts. The second category invariably revolves around
commercial disputes that were subjected to other modes of alternative dispute resolution,
ie arbitration proceedings. The third area is family and matrimonial matters; there is an
increasing trend to seek enforcement of orders and judgments of foreign courts in such
matters. In all these three areas, there are Indian law reports which to clearly show position
of the law. We address each of these three areas separately below, setting out the law in
each one.

A) Enforcement in India of Judgments and Orders of

Foreign Courts
The Indian Code of Civil Procedure, 1908 (the Code or CPC) was enacted to consolidate
and amend the laws relating to the procedure of the Courts of Civil Judicature in India. The
substantive provisions of law are contained in the sections, whereas the procedural provi-
sions are set down in the corresponding orders and rules of the Code. Section 44A of the
CPC lays down the provisions for execution of decrees passed by courts in reciprocating
territories in the following terms:
44A. EXECUTION OF DECREES PASSED BY COURTS IN RECIPROCATING
TERRITORY. - Where a certified copy of a decree of any of the superior Courts

*This paper was first presented at the 72nd biennial conference of the International Law Association
held in Toronto, 4-8 June 2006. Reprinted with permission of the authors.

0305-0718 print/1750-5976 online/06/030431-12

02006 Commonwealth Secretariat
DOI: 10.1080/03050710601074468
 Anil Malhotra & Ranjit Malhotra

of any reciprocating territory has been filed in a District Court, the decree may
be executed in India as if it had been passed by the District Court.
(2) Together with the certified copy of the decree shall be filed a certificate from
such superior court stating the extent, if any, to which the decree has been
satisfied or adjusted and such certificate shall, for the purpose of proceedings
under this section, be conclusive proof of the extent of such satisfaction or
adjustment.
(3) The provision of section 47 shall as from the filing of the certified copy of
the decree apply to the proceedings of a District Court executing a decree
under this section, and the District Court shall refuse execution of any such
decree, if it is shown to the satisfaction of the Court that the decree falls
within any of the exceptions specified in clauses (a) to (f) of section 13.
Explanation I. -'Reciprocating territory' means any country or territory outside
India which the Central Government may, by notification in the Official Gazette,
declare to be a reciprocating territory for the purposes of this section; and 'supe-
rior Courts', with reference to any such territory, means such Courts as may be
specified in the said notification.
Explanation 2. - 'Decree' with reference to a superior Court means any decree
or judgment of such Court under which a sum of money is payable, not being a
sum payable in respect of taxes or other charges of a like nature or in respect of
a fine or other penalty, but shall in no case include an arbitration award, even if
such an award is enforceable as a decree or judgment.

A reading of the above provision indicates that for a decree of a foreign court of a recipro-
cating territory to be executed in India, the foreign country must be notified as a recipro-
cating territory by the Government of India in the Official Gazette. Most countries,
including UK, have been so notified by the Indian Government. By a notification dated I
March 1953, published in the Gazette of India, the United Kingdom of Great Britain and
Northern Ireland has been notified to be a reciprocating territory under s 44A of the CPC.
Hong Kong was recognised as a reciprocating territory under the provisions of s 44A by a
notification dated 18 November1968 issued by the Government of India. Thus, the process
of being notified as a reciprocating territory is a prerequisite to the invoking of s 44A of the
Code.
Sections 38 and 39, which are dealt with in Pt II of the Code relating to execution, deal
with the courts by which decrees may be executed, and read as follows:

38. COURT BY WHICH DECREE MAY BE EXECUTED. - A decree may be executed

either by the Court which passed it, or by the Court to which it is sent for execu-
tion.
39. TRANSFER OF DECREE. - (I) The court which passed a decree may, on the appli-
cation of the decree-holder, send it for execution to another court of competent
jurisdiction, -
(a) if the person against whom the decree is passed actually and voluntarily resides
or carries on business, or personally works for gain, within the local limits of
the jurisdiction of such other Court, or
(b) if such person has no property within the local limits of the jurisdiction of the
Court which passed the decree sufficient to satisfy such decree and has prop-
erty within the local limits of the jurisdiction of such other Court, or
 Foreign Judgments in the Indian Civil Jurisdiction

(c) if the decree directs the sale or delivery of immovable property situate outside
the local limits of the jurisdiction of the Court which passed it, or
(d) if the Court which passed the decree considers for any other reason, which
it shall record in writing, that the decree should be executed by such other
Court.
(2) The Court which passed a decree may of its own motion send it for execution to
any subordinate Court of competent jurisdiction.
(3) For the purposes of this section, a Court shall be deemed to be a Court of
competent jurisdiction if, at the time of making the application for the transfer of
decree to it, such Court would have jurisdiction to try the suit in which such
decree was passed.
(4) Nothing in this section shall be deemed to authorise the Court which passed a
decree to execute such decree against any person or property outside the local
limits of its jurisdiction.

Order XXI of the CPC prescribes the procedural provisions relating to execution of
decrees and orders in India. Rule 22 of Order XXI lays down the requirement for notice to
be issued in execution; and it states as follows:
22. NOTICE TO SHOW CAUSE AGAINST EXECUTION IN CERTAIN CASES. -
(I) Where an application for execution is made, -
(a) more than two years after the date of the decree, or
(b) against the legal representative of a party to the decree or where an appli-
cation is made for execution of a decree filed under the provisions of
section 44A, or
(c) against the assignee or receiver in insolvency, where the party to the
decree has been adjudged to be an insolvent,
The Court executing the decree shall issue a notice to the person against whom execution
is applied for requiring him to show cause, on a date to be fixed, why the decree should not
be executed against him:
Provided that no such notice shall be necessary in consequence of more than two years
having elapsed between the date of the decree and the application for execution if the appli-
cation is made within two years from the date of the last order against the party against
whom execution is applied for, made on any previous application for execution, or in conse-
quence of the application being made against the legal representative of the judgment-
debtor if upon a previous application for execution against the same person the Court has
ordered execution to issue against him.

(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court
from issuing any process in execution of a decree without issuing the notice
thereby prescribed, if for reasons to be recorded, it considers that the issue
of such notice would cause unreasonable delay or would defeat the ends of
justice.
In pursuance of a notice received by a judgment debtor from an Indian Court in response
to execution proceedings for enforcement of a judgment or decree of a foreign Court, it is
open to the judgment debtor to adopt any of the defences laid down in s 13 of the CPC
which reads as follows:
434 Anil Malhotra & Ranjit Malhotra

13. WHEN FOREIGN JUDGMENT NOT CONCLUSIVE. - A foreign judgment shall

be conclusive as to any matter thereby directly adjudicated upon between the
same parties or between parties under whom they or any of them claim litigating
under the same title except -

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

(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect
view of international law or a refusal to recognise the law of 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 India.

In light of the above statutory provisions in Indian civil law, a litigant from a foreign jurisdiction
can make an application to the civil court within whose jurisdiction the decree is sought to
be executed for enforcing the judgment or decree of the foreign court. Section 14 of the Code
states 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
competent jurisdiction, unless the contrary appears on the record; but such presumption may
be displaced by proving that the foreign court lacked jurisdiction. In defence to the application
for execution, the judgment debtor can use any of the grounds given in s 13 CPC to claim that
the foreign judgment is not conclusive and cannot be executed. The most commonly adopted
ground used as a defence under s 13 of the CPC is that the judgment and decree of the foreign
court are not based on the merits of the case and hence cannot be executed in India.
The conditions for seeking execution of a foreign decree in India have been very well
summed up by the Indian Supreme Court in MV AL Quamar v Tsaviliris Salvage (International)
Limited, reported as All India Reporter 2000 SC 2826, where (at 2832, para 6) it was stated
as follows:

6. A mere glance at that provision, read with relevant explanations shows that before
it is invoked by any decree-holder, he must satisfy the following conditions.
I. A decree-holder who seeks execution must be armed with a money decree
passed by any of the superior Courts of any reciprocating territory, being any
foreign country or territory which the Central Government may, by notifica-
tion in official gazette, has declared to be a reciprocating territory for the
purpose of the Section.
2. Such an execution petition can be entertained by the executing Court in India
being the District Court that will be clothed with the legal fiction as if the said
foreign decree was passed by itself and whose aid and assistance are required
for executing such a decree.
3. Such a decree can be put up for execution before a District Court in India being
the principal Civil Court of original jurisdiction and which will include the local
limits of the original civil jurisdiction of a High Court.
4. Once such execution petition is filed before the appropriate District Court the
entire machinery of Section 47 for execution of Indian decrees would automat-
ically get attracted.
 Foreign Judgments in the Indian Civil Jurisdiction 435

5. In such execution proceedings, the judgment-debtor of a foreign Court decree

will be entitled to satisfy the executing Court in India that the foreign decree
cannot be executed against him as it is hit by any of the exceptions specified in
Clauses (a) to (f) of Section 13 of the CPC.

In the context of what constitutes a judgment on the merits of the case, the law laid down
by the Indian courts, and more particularly by the Supreme Court of India, has dealt with
this issue and in the matter of M/s International Woollen Mills v M/s Standard Wool (UK)
Limited, reported as All India Reporter 2001 SC 2134, the Apex Court stated (at 2142, paras
27 and 28):
It cannot be said that the expression judgment on the merits implies that it must have
been passed after contest and after evidence had been let in by both sides. An ex parte
judgment in favour of the plaintiff may be deemed to be a judgment given on merits if
some evidence is adduced on behalf of the plaintiffs and the judgment, however, brief, is
based on a consideration of that evidence. Where however no evidence is adduced on the
plaintiff's side and his suit is decreed merely because of the absence of the defendant
either by way of penalty or in a formal manner, the judgment may not be one based on
the merits of the case.
After analysing the law on the subject, the Indian Supreme Court has been pleased to hold
that a foreign judgment may be conclusive between the parties so far as the foreign jurisdic-
tion is concerned, but for the purpose of s 13 of the CPC, such a judgment cannot be
accepted as one given on the merits of the case and to that extent the law in India is different
from the law in other jurisdictions where foreign judgments given for default of appearance
of defendants are also accepted as final and conclusive between the parties. Therefore, a
decree pronounced by a Court of competent foreign jurisdiction solely on account of the
default of a litigant and by way of penalty, without considering the question on merits and
whether the claim is well founded or not and whether there is any evidence to sustain it or
not, cannot in Indian law be termed to be a decree on merits and cannot be enforced in the
Indian jurisdiction.
The views of the Bombay High Court in Algemene Bank Nederland NV v Satish Dayalal
Choksi, reported as All India Reporter 1990 Bombay 170, and those of Punjab and Haryana
High Court in Gurdas Mann v Mohinder Singh Brar, reported as All India Reporter 1993
Punjab and Haryana 92, also follow the above view which has been consistently followed
ever since the decision of the Privy Council in D T Keymer v P Vishwanathan Reddi, reported
in All India Reporter 1916 Privy Council 12 1. Thus, the view is consistent that if the contro-
versy raised in the action has not been the subject of direct adjudication by the court in the
foreign jurisdiction, the decree cannot be executed in India. However, this does not
preclude a litigant from showing to the satisfaction of the Court that the case falls within
any of the other exceptions specified in clauses (a)-(f) of s 13 of the Code. Once, however,
the decree-holder is able to establish their case and none of the conditions in s 13 are appli-
cable, the decree of the foreign court can be executed in India. Therefore, it is only where
the Indian court is satisfied that the decree of the foreign court can be executed in India that
leave is granted under Ord XXI r 22 of the CPC for the purposes of executing the decree
and every decree of any foreign court cannot be executed simpliciter by approaching an
Indian court. Section 44A thus cannot be attributed to any specific jurisdiction, but is an
independent and an enabling provision available to a foreign citizen who wises to enforce a
foreign decree.
Thus, to sum up and as laid down by the Supreme Court of India in AIR 2000 SC 2826
(at 2853, para 57), the position is as follows:
 Anil Malhotra & Ranjit Malhotra

57. As noticed above Section 44-A is an independent provision enabling a set of liti-
gants whose litigation has come to an end by way of a foreign decree and who is
desirous of enforcement of the same: It is an authorisation given to the foreign
judgments and as noticed above, the Section is replete with various conditions and
as such independently of any other common law rights, an enabling provision for
a foreign decree-holder to execute a foreign decree in this country has been
engrafted on to statute book to wit: Section 44-A of the Code.

Conclusion

Practical experience in seeking actual implementation of the above provisions for execution
of foreign decrees in Indian courts has shown that they provide an effective and composite
remedy under Indian law to foreign decree-holders who are generally otherwise unfamiliar
the Indian legal system. However, the execution of any decree, in proceedings where any
judgment debtor will set up all possible technical hurdles and legal objections to avoid
successful enforcement of the decree, is no easy task. Execution of a decree is sometimes
the start of a new round of litigation. No doubt Ord XXI of the Indian CPC, which contains
106 rules, is the largest independent provision of procedural law which is geared to handle
all possible situations of the execution process. This provides support to the holder of a
foreign decree since s 44A, read with s 13 of the CPC, is a composite, concise and inbuilt
provision of law which is exclusively applicable to execution of foreign decrees.

B) Enforcement of Foreign Arbitral Awards in India

Section 44A of the CPC quoted above excludes from its ambit the execution of foreign arbi-
tration awards even if they are enforceable as a decree or a judgment of a court of law.
However, alternative modes of domestic legislation are available for enforcement of foreign
arbitration awards in India.
The Indian legislation in the field of arbitration that also provides for the enforcement
of foreign awards is the Arbitration and Conciliation Act, 1996 (the 1996 Act). This Act is
based on the United Nations Commission on International Trade Law (UNCITRAL). A
competitive economic environment, as well as the need to provide a workable method for
the enforcement of international business transactions and boosting foreign exchange
earnings in the age of economic reforms, perhaps prompted the 1996 Act as an attempt to
gain the confidence of foreign investors by exhibiting more structure and transparency in
India's legal and dispute resolution system.
Prior to the 1996 Act, Indian arbitration law was in the form of three different
enactments. They were: the Arbitration Act, 1940; the Arbitration Protocol and Conven-
tion Act, 1937; and the Foreign Awards (Recognition and Enforcement) Act, 1961. There-
after, to consolidate and amend the outdated law relating to domestic arbitration,
international commercial arbitration and the enforcement of foreign arbitral awards - and
for other matters connected therewith or incidental thereto - the Indian parliament
adopted the UNCITRAL model law on international commercial arbitration to enact the
1996 Act.
Part II of the 1996 Act (in chapters I and II) deals with the provisions relating to the
enforcement of foreign awards in India. A foreign arbitration award is enforceable in India
under the respective multinational conventions to which India is a party:
 Foreign Judgments in the Indian Civil Jurisdiction 437

i) Under ss 44-52, chapter I, Pt II of the 1996 Act, if a foreign award has been made
in a country which has ratified the New York Convention of 1958 (finds a place in
the first schedule of the 1996 Act), the award can be enforced in India.
ii) Under ss 53-60 in chapter II, Pt IIof the 1996 Act, if a foreign award has been made
in a country which has ratified the Geneva Protocol (contained in the second
Sched of the 1996 Act), or the Geneva Convention of 1927 (contained in the third
Sched of the 1996 Act), the award can be enforced in India.
Therefore, a foreign award can be enforced in India depending on the multilateral interna-
tional convention sought to be enforced by the foreign litigant who is a party to the said
convention. Prior to the 1996 Act, the 1937 Act provided for the enforcement in India of
foreign arbitral awards to which the Geneva Convention applied and the 1961 Act
prescribed the law and procedure for the enforcement in India of foreign arbitral awards to
which the New York Convention applied. Section 85 of the 1996 Act repeals both the 1937
Act and the 1961 Act and provides a composite legislative scheme which contains the provi-
sions of the aforementioned three schedules, ie of the New York Convention, the Geneva
Protocol, and the Geneva Convention. Thus, India continues to be a party to three impor-
tant international instruments for the recognition and enforcement of foreign arbitral
awards.
It may be argued, from a comparative perspective, that there is no change in the legal
position relating to enforcement of foreign awards in India by virtue of the enactment of the
1996 Act. However, under the 1996 Act, any award made outside India, whether or not
made on an arbitration agreement governed by the laws of India, will be treated as a foreign
award.
The Supreme Court of India, in Harendra H Mehta v Mukesh H Mehta, reported as All
India Reporter 1999 SC 2054, following its earlier judgment in Renusagar Power Co Limited v
General Electric Co, reported as All India Reporter 1985 SC 1156, held (at 2065, para 33) that:
... The Foreign Awards Act is a complete Code in itself providing for all the possible contin-
gencies in relation to foreign awards. Once, it is held that an award is a foreign award, the
provisions of the Foreign Awards Act would apply and where the conditions for enforcement
of such an award exist as mentioned in s 7 of this Act, the Court shall order the award to be
filed and shall proceed to pronounce judgment granting award and upon the judgment so
pronounced, decree shall follow.
In the above judgment it was also held that it is not material for the purpose of enforcement
of a foreign award under the said Act, that in any other country other than India, a judgment
has already been passed by a court of competent jurisdiction in terms of that award. There-
fore, the jurisdiction of the Indian courts to enforce the award will not be ousted on any
such ground alone. It has also been settled by the Indian Supreme Court in the above judg-
ment that a foreign award under the provisions of the Foreign Awards Act does not require
registration under the Indian Registration Act, 1908.
In relation to the enforcement of a foreign award, the Indian Supreme Court in Fuerst
Day Lawson Ltd vJindal Exports Ltd, reported as All India Reporter 2001 SC 2293 (at 2303,
para 30), held that there is no need to take out separate proceedings to enable the court
to decide the enforceability of an award or to make it binding as an order of the court or a
decree and execute the award. The Supreme Court made the following observations:

30. Part II of the Act relates to enforcement of certain foreign awards. Chapter I of
this Part deals with New York Convention Awards. Section 46 of the act speaks
as to when a foreign award is binding. Section 47 states as to what evidence the
 Anil Malhotra & Ranjit Malhotra

party applying for the enforcement of a foreign award should produce before the
Court. Section 48 states as to the conditions for enforcement of foreign awards.
As per Section 49, if the Court is satisfied that a foreign award is enforceable under
this Chapter, the award shall be deemed to be a decree of that Court and that
Court has to proceed further to execute the foreign award as a decree of that
Court. If the argument advanced on behalf of the respondent is accepted, the very
purpose of the Act in regard to speedy and effective execution of foreign award
will be defeated.
Examining the changes brought about by the 1996 Act, the Indian Supreme Court in Thyssen
Stahlunion GMBH v Steel Authority of India Ltd, reported as All India Reporter 1999 SC 3923,
held as follows (at 395 1, para 49):
As a matter of fact if we examine the provisions of Foreign Awards Act and the new Act there
is not much difference for the enforcement of the foreign award. Under the Foreign Awards
Act when the Court is satisfied that the foreign award is enforceable under that Act the Court
shall order the award to be filed and shall proceed to pronounce judgment accordingly and
upon the judgment so pronounced a decree shall follow. Sections 7 and 8 of the Foreign
Awards Act respectively prescribe the conditions for enforcement of a foreign award and the
evidence to be produced by the party applying for its enforcement. Definition of foreign
award is same in both the enactments. Sections 48 and 47 of the new Act correspond to ss
7 and 8 respectively of the Foreign Awards Act. While s 49 of the new Act states that where
the Court is satisfied that the foreign award is enforceable under this Chapter (Chapter I,Part
1i, relating to New York Convention Awards) the award is deemed to be decree of that
Court. The only difference, therefore, appears to be that while under the Foreign Awards Act
a decree follows, under the new Act foreign award is already stamped as the decree. Thus if
provisions of the Foreign Awards Act and the new Act relating to enforcement of the foreign
award are juxtaposed there would appear to be hardly any difference.
Therefore, the position in law with regard to implementation of foreign arbitral awards
remains the same in the context of the statutory provisions applicable. Undoubtedly, with
an increasing number of litigants resorting to alternative dispute resolution, for example arbi-
tration, fewer complications should arise when it comes to enforcement of foreign awards.
The focus of the 1996 Act is the minimisation of court intervention in the arbitration process.
In enforcement of foreign arbitration awards, the focus of the 1996 Act is to have minimal
Court intervention. Even Court verdicts, i.e. judicial interpretations indicate such a view.
Maybe, for disputes within India, such alternative dispute settlement mechanisms ought to
be followed rather than conventional and protracted adversary litigation in the Indian Courts.

C) Enforcement in India of Judgments and Orders of

Foreign Courts Arising from Family and Matrimonial
Matters

For the ever-increasing number of Indians migrating and settling in foreign jurisdictions, the
link with their home country is not severed. If family ties, or connections with property and
moveable assets, end for any reason, it often leads to cross-border litigation. There are
many situations where a non-resident Indian invokes the jurisdiction of a foreign court in
the country where he or she is resident and convinces that court to pass orders in his or
her favour and thereafter seeks to enforce those orders in the Indian jurisdiction through
the Indian courts.
 Foreign Judgments in the Indian Civil Jurisdiction

Indian law reports contain judgments on matters relating to marriage, divorce, mainte-
nance, succession, settlement of matrimonial property, child custody, parental abduction of
children from foreign jurisdictions in matrimonial disputes and cases relating to adoption.
Many people seek to enforce, through the Indian courts, foreign court orders in relation to
these matters. Since the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, the Hindu
Succession Act, 1956, the Hindu Adoption and Maintenance Act, 1956, the Hindu Minority
and Guardianship Act, 1956 - or in any other Indian legislation relating to family matters -
do not make any separate provision for the recognition of foreign matrimonial judgments
or other foreign decisions in related matters, the only recourse is to s 13 of the CPC which
is the general provision relating to the conclusiveness of foreign court judgments.
In view of this, the provisions of s of the 13 CPC are fully applicable to foreign court
judgements in matrimonial and/or family matters. The available precedents are the judicial
pronouncements of Indian courts that have interpreted foreign court orders in the best
interests of human relationships, rather than executing them simpliciter in letter and spirit.
The Indian judiciary is extremely humane and considerate in family matters in that it imple-
ments the foreign court orders in a practical way, rather than by a mechanical execution of
the order or judgment of the overseas court. Perhaps this openness and fluidity is possible
since the Indian courts are not strictly bound by foreign court order in family matters, but
instead, when asked to implement or enforce such orders, the Indian courts apply principles
of good conscience, natural justice, equity and fair play, thereby rendering substantial justice
to the parties. This can be best seen in decisions where the Indian court was asked to imple-
ment or execute a foreign court order or judgment.
A very common issue pertains to the recognition and indirect implementation in India
of divorce decrees of foreign courts that are produced by spouses residing in foreign juris-
dictions. Different views have been expressed by different Indian Courts at different points
of time. Consequently, in 199 1, the Supreme Court of India laid down comprehensive guide-
lines for the recognition of foreign matrimonial judgments by the courts in India. Under Art
141 of the Constitution of India, the law declared by the Supreme Court shall be binding on
all courts within the territory of India. The Apex Court, in Y Narasimha Rao v Y Venkata
Lakshmi, reported as Judgments Today 1991 (3) Supreme Court 33, made it clear that Indian
courts would not recognise a foreign judgment if it had been obtained by fraud, which need
not be only in relation to the merits of the matter but may also be in relation to jurisdictional
facts. In this case the Supreme Court declared a divorce decree passed by a US court unen-
forceable in India. The Supreme Court interpreted s 13 of the CPC and laid down broad
principles to be followed by Indian courts, with special emphasis on matrimonial judgments.
Likewise in Smt Neeraja Saraph vJayant V Saraph, reported as Judgments Today 1994
(6) Supreme Court 488, the Apex Court came down heavily on the erring non-resident
husband residing in a foreign jurisdiction who had abandoned his Indian wife without provid-
ing for any maintenance. At 490 and 49 1, paras 4 and 5, the Supreme Court held:

4.... Various submissions have been advanced on behalf of the father-in-law to support
the order of the High Court including his helplessness financially. Is it a case of any
sympathy for the father-in-law at this stage? In our opinion not. True the decree is
ex parte. Yet it is a money decree. However, no opinion is expressed on this
aspect as the appeal is pending in the High Court. But the order of the High Court
is modified by directing that the execution of the decree shall remain stayed if the
respondents deposit a sum of Rs 3,00,000/- including Rs 1,00,000/- directed by
the High Court within a period of two months from today, with the Registrar of
the High Court...
 Anil Malhotra & Ranjit Malhotra

5. Why the facts of this case have been narrated in brief with little background is to
impress upon the need and necessity for appropriate steps to be taken in this
direction to safeguard the interest of women. Although it is a problem of private
International Law and is not easy to be resolved, but with change in social structure
and rise of marriages with NRI [non-resident Indian ] the Union of India may
consider enacting a law like the Foreign Judgments (Reciprocal Enforcement) Act
1933 enacted by the British Parliament under s (I) in pursuance of which the
Government of United Kingdom issued Reciprocal Enforcement of Judgments
(India) Order 1958. Apart from it there are other enactments such as Indian and
Colonial Divorce Jurisdiction Act 1940 which safeguard the interest so far United
Kingdom is concerned. But the rule of domicile replacing the nationality rule in
most of the countries for assumption of jurisdiction and granting relief in matrimo-
nial matters has resulted in conflict of laws. This domicile rule is not necessary to
be gone into. But feasibility of a legislation safeguarding interest of women may be
examined by incorporating such provisions as:
(I) 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 s
44A of the Civil Procedure Code which makes a foreign decree executable as
it would have been a decree passed by that court.
It will be noted that the proposed guidelines in both the above-mentioned Supreme Court
rulings are meaningful and, if implemented, could mitigate the plight of wives abandoned in
India by foreign husbands. Though the Apex Court has clearly stated the need for suitable
legislation on the subject, as yet no Indian law has been enacted to protect the rights of
deserted and abandoned spouses in India. Therefore, the judgments of Indian courts are the
only available law in India to come to the rescue of hapless Indian spouses who protest
against the uncontested foreign divorce decrees invariably obtained in default by spouses
from overseas jurisdictions. Thus, Indian codified law on the subject is undoubtedly now an
absolute necessity.
Another very commonly litigated issue is in the area of international child abduction
where an overseas-litigating spouse violates a foreign court order and brings his or her child
to India. The other spouse then approaches an Indian court to enforce the foreign court
custody order or to seek the return of his or her children to the foreign jurisdiction. Again,
Indian courts having expressed different views, the Supreme Court, in Dhanwanti Joshi v
Madhav Unde, reported as Judgments Today 1997 (8) Supreme Court 820, followed by the
decisions in Sarita Sharma v Sushil Sharma, reported as Judgments Today 2000 (2) Supreme
Court 258, and Sahiba Ali v State of Maharashatra, reported as Judgments Today 2003(6)
Supreme Court 79, laid down conclusive guidelines in matters of foreign child abduction.
Before the above rulings of the Supreme Court, courts in India were exercising
summary jurisdiction, without going into the merits of each case, regarding the return of
children to foreign jurisdictions when they were brought to India in violation of foreign
court orders. However, the 1997, 1999 and 2003 rulings indicate that irrespective of any
direction or order of a foreign court, the Indian law requires the Indian courts to act in the
best interest and welfare of the minor child in child custody matters. Mere mechanical
implementation of a foreign court is not the route now taken by the Indian courts.
 Foreign Judgments in the Indian Civil Jurisdiction

As far as the forum for securing the return of children is concerned, it is important to
mention that India is not a signatory to the Hague Convention on the Civil Aspects of Inter-
national Child Abduction, 1980. Therefore, parents are left with no remedy but to approach
different administrative and judicial authorities or court in India for implementation of
foreign court orders. Even though Pakistan executed a UK-Pakistan Judicial Protocol on 17
January 2003, signed by the President of the Family Division of the High Court of England
and Wales and by the Chief Justice of the Supreme Court of Pakistan, incorporating and
adopting the provisions of the Hague Convention, India has taken no steps to adopt the
Hague Convention. The Indian courts continue in their tireless efforts to impress upon
parties that the welfare of the child is the paramount consideration in such like matters.
Until then, parties in child abduction cases wait to see if the Indian Parliament either enacts
legislation in relation to matters of child abduction or some other judicial mode is adopted
to implement the Hague Convention. The need to implement the Hague Convention is dire
and urgent.
Another very contentious and complicated area involving both non-resident Indians
and foreigners is the matter of inter-country adoption in India. When foreigners wish to
adopt Indian children, they are faced with a maze of Indian laws and procedures which are
both difficult and complicated to follow. Foreign court orders or other documents from the
country of their origin are of little help and their implementation is obviously difficult and at
times impossible. The Supreme Court of India has, from time to time, laid down guidelines
for inter-country adoptions. The judgments of Laxmi Kant Pandey v Union of India, reported
as All India Reporter 1984 Supreme Court 469, and followed up in the same case, reported
in All India Reporter 1986 Supreme Court 272, and thereafter reported in All India
Reporter 1987 Supreme Court 232, have given guidelines in matters of inter-country child
adoption in the Indian jurisdiction. It is felt that it is in the best interest of the children
involved for an overhaul of the existing adoption law in India to take place and for there to
be an enactment of a uniform, composite and clear law in matters of inter-country child
adoption. Changes are urgently required in this jurisdiction to resolve matters pertaining to
adoption of children from India.

Conclusion

A reading in totality of the matters in the family law jurisdiction relating to family law
disputes arising overseas gives an indication that in such affairs, it is the Indian judicial prece-
dents that provide much of the available guidance on the subject, especially in the absence
of specific legislation. With the large number of Indians now permanently living in overseas
jurisdictions, it has become important that some composite legislation is enacted to deal
with the problems of non-resident Indians to prevent them from importing judgments from
foreign courts to India for implementation of their rights. The answer lies in law that is appli-
cable to them as Indians, rather than letting them percolate the Indian Judicial system with
judgments of foreign jurisdictions which do not find applicability in the Indian system. Hence,
it is the Indian legislature that needs to review this issue and provide composite legislation
for non-resident Indians in family law matters. Until this is done, foreign court judgments in
domestic matters will keep cropping up and courts in India will continue with their salutary
efforts in interpreting them in harmony with the Indian laws and doing justice to parties in
the most fair and equitable way. However, in this process, the Indian judiciary has made one
thing very clear, that is, the Indian courts will not simply mechanically enforce judgments
and decrees of foreign courts in family matters. The Indian courts have now started looking
442 Anil Malhotra & Ranjit Malhotra

into the merits of the matters and deciding matters based on the considerations of Indian
law and the best interest of the parties rather than simply implementing the orders without
examining them. Fortunately, we can hail the Indian judiciary for these laudable efforts and
until such time as the Indian legislature comes to the rescue with appropriate legislation, we
seek solace in our unimpeachable faith in the Indian judiciary which is rendering a yeoman's
service.