ARTICLE REVIEW

Submitted by
Ramasayi Gummadi
BC0180042

NAME OF THE ARTICLE: Recognition of Foreign Divorce Decrees in India- A case for
Contextual Interpretation by Lakshmi Jambholkar

SUMMARY AND ANALYSIS

The article merely talks about the effect of a divorce degree that so is passed by a foreign
court in Indian Law. It is very important to note that the applicability of foreign decree at the
end of the day cannot be read with that of the territorial jurisdiction especially when it comes
to the branches of Law like Family Law owing to the fact that they can lead to an area of
ambiguity and the resolution of such an ambiguity is a tedious process. The article starts off
with a basic introduction with regards to the foreign divorce decrees by stating that the same
is dealt with as under Section 13 of the Code of Criminal Procedure,1908 and Section 41 of
the Indian Evidence Act. Section 13 of the Code of Civil Procedure states as follows-

“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  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 India”

Which merely states that any foreign decree that has not been pronounced by the Court of
Competent jurisdiction as in that country, anything which is not based on a well settled and
justified principle of International Law, that had been obtained by fraud, that has not been
given taking into due consideration the due merits of the case, that has its judgement in
contrary to the Principle of Natural justice and that although Is proper with regards to the
Law of the foreign country is contrary to any law that is in force in India, at the end of the
day will not be applicable as under this provision. With that having been said, taking into
consideration a practical example, homosexuality was legalised in India in the year 2018 and
in USA in the year 2003. Now assuming that a competent family court in USA issues a
decree to deem a homosexual couple as married, the decree will not be deemed as conclusive
in India before 2018 because, it is in breach of a law that Is in force in India. The author as in
this article discusses with regards to the case of Y.Narasimha Rao v. Y.Venkata Lakshmi 1
which is one of the most important cases tried that tried to amplify the provisions of Private
International Law, a branch of Law that is not well substantiated as under the Indian Law.

The mere facts of the case are that, the appellant, Narasimha Rao married the respondent
Venkata Lakshmi in India in the year 1975. They resided in India together for about 4-5
years followed by which they had relocated to USA for quite sometime, post which the
Respondent returned to India and the appellant who filed a divorce petition in an Indian Court
In the year 1976 later obtained a decree of divorce from the court in Missouri in USA in the
year 1980. On having received the divorce decree from the Missouri Court in 1980 the
appellant proceeded to marry for the second time in India followed by which the first wife
who is the respondent over here filed a criminal complaint for the offence of bigamy against
the husband and the present case is merely an appeal to the case that so was filed by the
respondent initially. With that having been said, it is important to note that this is case mainly
dealt with the issue of granting recognition of enforcing a divorce decree that was obtained
from a foreign court which indeed is a breakthrough with regards to the concept of private
international law and not to mention, in my opinion the court saw an immediate need to
decide upon this issue because of the fact that If the court recognises such a divorce decree
then in such a case the second marriage will be considered valid as under the Indian law and
if the court doesn’t recognise the applicability of the decree the husband will be tried for
bigamy as under the Indian law for getting married even though his first wife is alive. Not to
mention, it is important to note that the court has to sort out this case to overcome the
ambiguity surrounding the marital status of the couple owing to the fact that if the court
doesn’t recognise such a decree then the couple who are lawfully divorced in Missouri are
legally wedded as under the Indian Law which is unfair. It was rightly pointed out by the

1
1991 SCR (2) 821
author that in the aforementioned case, the Supreme Court had failed to take note of the case
of Satya Vati v. Teja Singh2 which had its decree narrowly missed out from recognition as
under the Indian Law owing to the mere fact that the appellant husband had played fraud on
the foreign court by giving in incorrect facts for the exercise of jurisdiction. Irrespective of
anything in my opinion the Supreme Court had not recognised such a decree in the previous
case only based upon the fact that the divorce was obtained by fraud which is an ground for
nullity of such a decree as under Section 13 of the CPC but at the end of the day in my
opinion if not for the fact that there was an element of fraud in the judgement, the court
would’ve taken the decree into account and pronounced them divorced.

As the author rightly points out, even after several years of independence the Indian Courts
are very much primitive with regards to the conditions of International Law as applicable
with regards to the private laws such as marriage and family matters as under the Indian Law.
A development is important atleast under this heading owing to the fact that this issue is very
much problematic and at the end of the day and at one point of time it can lead to a judicial
impropriety. The Court in the present case has very rightly pointed out the provisions of
Section 13 of CPC and mentioned that the issue at hand can be solved with an appropriate
interpretation of the aforementioned provision in reference to the aspects of justice, good
conscience and public policy such that the decision that the court seeks to take protects the
sanctity of marriage and the unity of family which merely frame up the society with the
marriage and family being the prime institutions that form the society and bind the same. The
article tries to approach the issue by merely suggesting that the courts just like earlier should
follow the rule as laid down in the English law, for, even earlier the principles laid down in
English Law were very much referred to and followed in the Indian Cases. Not to mention, it
is important to understand that the Indian Law had been following the English Law with
regards to the domicile which had been revised as early as 1937 which merely indicates that
the rule on domicile that has been used In the case of Teja Singh in the year 1971 is very
much outdated and not to mention the Indian Judiciary had used a dead English Law to
determine the outcome of an important case which Is merely a matter of concern. Although
the status quo of the case still remains the same, the court took a different approach in
determining the outcome of this case based on the recommendations of the 65 th Law
Commission Report in 1976. It is important to understand that the guidelines laid down by
the Supreme Court merely made it clear to the reader that the Private International Law is one
2
AIR 1975 SC 105
arena which merely began and progressed based on the precedents alone and only later on
was it joined by statutes on the subject.

The court merely began with an interpretation of Section 13(a) of the CPC by stating that the
provision must be interpreted to mean that the court that is recognised by the married parties
as a court of competent jurisdiction will be taken into consideration as a competent court that
has a jurisdiction to maintain any dispute that so arises and not to mention both the parties
should subject themselves to the jurisdiction of that court. This interpretation is more or less
flawed because at the end of the day it makes the jurisdiction of the court a wish of the couple
who are married while however it is imperative to note that irrespective of their wish to
subject themselves to a court or not as under the facts and circumstances of the
aforementioned case, as soon as there is a shift of location they will automatically be subject
to the law of the location to which they have shifted to and as a consequence, they will be
subject to the courts inevitably. The aspect of voluntariness that is construed over here is just
impractical in my opinion and the jurisdiction cannot depend upon the voluntariness of the
parties. Further, the court with regards to Section 13(b) of CPC observed that the clause
should be interpreted to mean that- a) the decision of the foreign court must be on a ground
that is available under the law under which the parties are married and b) Such a decision.
Must be a result of the contest between both the parties. As per my interpretation, I would
like to substantiate that the requirement for the purpose if considering a judgement on merit
will be fulfilled if and only if the respondent is duly served and voluntarily accepts to the
jurisdiction of the foreign court and either contests the claim or agrees to the passing of
decree by marking his or her presence in such a competent court or without such a presence.
Not to mention, the court’s point of view that the mere filing of a reply to the claim that is
raised In the court will not be considered as a decision on the merits of the case if there is no
submission to the jurisdiction of the court or an appearance in the court, very well reiterates
the point. With regards to section 13(c) 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
nothing else can be made applicable. With that having been said, I would like to opine that if
the foreign judgement is of the nature such that the same is not a ground for pronouncement
as under the current applicable law, such a judgement will have to be deemed as the one that
is formed on the defiance of the law and at the end of the day the same will be unenforceable
in the country of applicable law. If a judgement comes under the scope of this section, this
would automatically come under the purview of Section 13(f) owing to the fact that if the
given judgement is in defiance to the applicable law at hand, it will automatically be
considered as something that is in breach of the law of India or being specific, in this case,
the matrimonial law.

The Author now explains as to lex domicile as to how it governs divorce as under the Private
International Law. In short it refers to the statement that the aspects of marriage and divorce
are questions of personal status and it is the domicile that plays a very important role in
determining the same. Not to mention, the author also mentions that the supreme court’s line
of argumentation with regards to the decision of the current case is based on the law under
which the parties are married. The author also mentioned that the function of domicile in the
creation of the status Is directed to the question of the choice of law (which could translate to
choice of jurisdiction) which is very much relevant. This causes a grave conflict as in the case
of the current scenario because of the fact that the domicile of the husband is as under the US
court which applied the American Matrimonial law in deciding the case while at the end of
the day it is imperative to understand that this goes against the choice of jurisdiction of both
the parties. In my opinion, based on the facts and circumstances of the case, it is pretty clear
that there is no outward acceptance towards filing or contesting the divorce trial as under the
American Court by the wife and not to mention this can also be seen when the wife had
merely replied that the grounds of divorce as under which the court had awarded the decree
of divorce is clearly unavailable as under the Indian Law under which they are married.
Further, one cannot take a defense that the domicile of the husband will extend to that of the
wife owing to the fact that it would always make sense to deal with the matrimonial issue at
hand by taking into consideration the law under which they were married. For Example,
assuming that a Hindu couple gets married as under the Hindu Marriage Act and the husband
converts himself to Islam while proceeding to marry a Muslim woman, it translates to
Bigamy which is not an offense as under the Muslim law while it is a ground of divorce as
under the Hindu Marriage Act. Assuming he wants to file a divorce, he can very well do so,
but should only take into cognizance the law in which they were married under, that is, the
Hindu Law and him pronouncing Talaq to his first wife will not render divorce. I support the
views of the Court wherein it stated that there should be a proper reading of the laws as under
question or as under this case the American Marital Law as well as the Hindu Marriage
Act,1955 along with due consideration of Principles of Natural Justice which will make sure
that the judgement that so is delivered is balanced. Now, integration of the laws under
consideration won’t make sense because at the end of the day there are instances where two
laws could very well contradict each other and not to mention leaving It to the decision of the
court would only mean that the entire crux of this issue is upon the discretion of the court that
is dealing with the issue at hand. Not to mention neither the court nor the article talks as to
the validity of the courts to pronounce a judgement completely on the lines of equity, good
conscience and Natural Justice if the two laws under consideration are clashing. Not to
mention it is important to understand that it is highly doubtful as to how a ‘balance can be
struck’, as mentioned by the Court. With regards to Section 13(d) of the Code, it calls for the
application of the Principles of Natural Justice by the foreign court with the Supreme Court
laying down its full emphasis on their actual practise in family law matters while also
emphasizing on the fact that the provisions will have to be followed in all stages. With that
having been said, I agree with the court’s as well as the author’s point of view that the mere
following of the principles of Natural Justice would make it such that either of the couples
don’t engage in “Rudderless matrimonial adventurism” and at the end of the day it would
also prevent any one of the couple exploiting the other by filing a case in the most convenient
forum that is more likely to get the filing party to win, or as per the facts and circumstances
of this case, where the individual can easily obtain a quick divorce with less or no resistance
from the respondent. The Section 13(e) is self explanatory where it very well states that the
foreign decree that is obtained by fraud will not be made enforceable and not to mention it is
imperative to note that the same. Had been the basic ground being the Satyavati case.

We can say that as it was rightly opined by the author, the supreme court has taken a new
approach with regards to the issue of jurisdiction which is not necessarily completely fool-
proof and practical, but at the end of the day is a landmark step towards the issue of the
recognition of foreign decrees in India. I however do not support the author when the author
opines that there needed no new laws but rather the court has done the right thing in
interpreting the current laws, owing to the fact that the scope of those “current laws” are way
to ambiguous and there are several gaps that needed to be filled and at the end of the day the
courts on this matter cannot always depend upon precedents alone. It is important to note that
the alternative jurisdiction must be based on consent and voluntary submission of both the
parties. The law for the same however needs a development. It is important that the
housewives who were deserted by the misuse of these gaps in the legislations must be given a
relief and it has to be ensured that this doesn’t happen in the future. While the Principles of
Natural Justice are not the most perfect answer to the issue at hand, they are apt in controlling
the issue until proper legislations for the Same arrive.