CPC, IEA and ISA- relationship with PIL

• A RECAP
CPC – Section 13,14,20,44A

• Section 13 – foreign judgment needs to be recognized.

• Circumstances under which judgment is not recognized
• When a judgment is not pronounced by competent court eg.
Narasimha Rao v. Venkatalakshmi – where the Missouri Court does
not have jurisdiction.
• When the judgment is given without the merits of the case. -
Narashima Rao v Venkatalakshmi 1991

 Couple got married in Tirupati on Feb 27 1975 and separated in 1978. The couple
resided together in India for a duration of 4 to 5 months after that she had left to
her parents home, while her husband had gone to USA and finally got placed in
Charity Hospital in Louisiana, New Orleans.
 After he settled there, wife also joined him in New Orleans. Later on husband
alone moved to Chicago, while wife left back to India. Thus last place for
matrimonial home was New Orleans. Later on husband moved to Missouri and
resided there for 90 days, obtained domicile and finally filed for divorce in
Missouri.
 Wife promptly filed a reply petition stating that she was not submitting to the
jurisdiction of Missouri Court. In spite of that, Missouri Court granted an exparte
decree on grounds of ‘irretrievable breakdown of marriage.’
 After the grant of divorce Narashima Rao underwent a second marriage, which
left the first wife filing for both restitution of marriage as well as a case for
bigamy, in India. The same was dismissed by magistrate court based on the
foreign decree. An appeal was made before High Court which reversed the
judgment of the trial court.
 Supreme Court upheld the judgment of High Court and observed as follows:
 ►Missourie court doesn’t have jurisdiction - No Jurisdiction as judgment not
delivered from a court having jurisdiction based on place of last matrimonial
residence nor had the wife submitted to the jurisdiction of Missouri Court which
granted the divorce decree.
 ► Decree obtained by fraud as the husband resided for mere 90 days in Missouri
just to obtain domicile certificate and apply for divorce. He had no intention to
reside there permanently.
 ► Under Hindu Law ‘irretrievable breakdown of marriage’ is not a ground for
divorce and thus this foreign decree is a breach of matrimonial laws of India.
 ► A mere Photostat instead of a certified copy as laid down in S.86 of Indian
Evidence Act does not make a valid documentary evidence of the foreign divorce
decree.
 ► Thus, in this case, the second marriage was valid in the eyes of law of United
States but an instance of Bigamy in the eyes of Indian Law!
• 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; - venkatalakshmi case -

• where the proceedings in which the judgment was obtained are opposed to
natural justice;

• where it has been obtained by fraud;

• where it sustains a claim founded on a breach of any law in force in India.

• Joao Gloria Pires V Ana Joaquina Pires 1967

• In this case it was held that section 13 is not exhaustive but only inclusive in
nature.

• Moloji V Shankar 1962

• In this case it was held that section 13 embodies the principles of private
international law and that an Indian Court will not enforce a foreign
judgement if it is not from a competent court.
Competent jurisdiction

• When does a Foreign Court have Jurisdiction?

• When a person is subject of the foreign nation where the judgment is given.

• When the person is resident in foreign nation when action was filed and summons served upon
him.

• When the plaintiff or petitioner chooses the foreign court and issues summons which is accepted
by the other party and he appears voluntarily.

• When by an agreement a person has contracted himself to the forum where he obtained the
foreign judgment
• Merits of the Case:
In Narashima Rao v Venkatalakshmi case it was observed that a foreign judgment will be recognised only if it
is a speaking order.
• Incorrect Application of Indian / International / Foreign Laws:

• Simpson V Fogo 1863

In this case it was held that, if a foreign judgment is apparently perverse with deliberate refusal to apply
generally accepted PIL doctrines, then there is no need to recognise such a foreign judgment.

• Viswanath V Abdul Wajid

• Foreign judgment may be impeached on ground that its founded on inaccurate view of Indian and
International Law.
• Opposed of Principles of Natural Justice:

The key principles of natural justice are:

• No man can judge his own case.

• Audi Altrem Partem – Hear both sides

• Speaking orders

• In Narashima Rao v Venkatalakshmi case if ex parte without hearing both sides then such a foreign
judgment will not be recognised in India.
• By Fraud

• Satya v Tej Singh 1975

• Couple had two years of married life in India, after that husband went to USA to study
for four years and then got a job in Utah. He refused to return to India and filed for
divorce in Nevada. Exparte divorce was granted to him by the Nevada Court. His wife
in India filed a maintenance suit.When the husband defended that he had obtained
divorce in Nevada Court, the Indian court refused to recognise this decree. The Indian
Court pointed out that he had fraudulently obtained the decree as he was not a
resident of Nevada State. The trial court ordered maintenance payment in favour of
the wife.
• This trial court ruling was overruled by High Court in appeal,
holding that domicile of the wife follows domicile of the husband.

• But Supreme Court reversed High Court order as it felt that Tej
Singh had obtained the decree fraudulently by representing that
he was domiciled in Nevada, while he had no intention of settling
there permanently.
• S.14 CPC: Presumption of Foreign Judgment:-

• 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
want of jurisdiction. Thus, in case a certified copy of foreign judgment is presented before an
Indian Court, it will be presumed by the Indian Court that the judgment was awarded by some
competent foreign court.

• Narashima Rao v Venkatalakshmi

• In this case it was held that uncertified Xerox copy will not be accepted as evidence for a foreign
judgment.
Section 20

• Suit shall be instituted

• 1. defendant actually or voluntarily resides or carries business or
personally for gain.
• If more than one defendants, at the commencement of suit
actually or voluntarily resides.
• Cause of action arises in the local limits.
• Frontier Bank Ltd V Prakashwati Bhal

• Prakashwati deposited Rs.2050/- in Frontier Bank in Dera Ismail Khan. When communal
disturbances broke out in 1947, she had asked the bank to transfer their account to New Delhi. The
bank failed tro comply with her wishes and thus a case was filed in Delhi. One of the key question
was whether the Delhi Court had jurisdiction. The Punjab and Haryana H.C. held that u/S.20 the
Court had jurisdiction since one of the branches of the bank is located in Delhi. It further went on
to observe that cause of action arose in Pakistan but Explanation II to S.20 clarifies that a
corporation shall be deemed to carry on business at its sole or principal office in India or, in
respect of any cause of action arising at any place where it has also a subordinate office, at such
place.

• Thus in this case it was held that the Bank was carrying on business at Delhi and consequently it is
within the competence of the civil court of Delhi to dispose the case.
• Satya v Tej Singh

• Tej Singh merely fulfilled 30 day residence requirement for State

of Nevada to get domicile. After obtaining divorce he setup his
new residence in Utah, thus Court held that there was no animus
manendi [intention of permanently residing] and held that the
judgment was obtained by fraud, thereby answering that the
foreign judgment is not recognised in India.
Section 44 A - Foreign decree of a reciprocating territory be executed
as an Indian decree

• By virtue of section 44A of the CPC, a decree of any superior court of a reciprocating territory shall
be executed in India as a decree passed by the Indian district court.
• A reciprocating territory is defined in Explanation I to section 44A as: "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 "superior
courts", with reference to any such territory, means such courts as may be specified in the said
notification.
• A judgment from a court of a reciprocating territory can be directly enforced in India by filing an
execution application. Section 44A (1) of the CPC states that where a certified copy of a decree of
any superior court of a 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 (meaning that the entire scheme of
execution of decrees as laid down in Order 21 of the CPC will be applicable).
• While filing the execution application the original certified copy of the decree along with a certificate
from the superior court stating the extent to which the decree has been satisfied or adjusted has to
be annexed to the application.
• Thus this section lays down that if there is no reciprocity between
India and the country that delivered the foreign
• judgment, then a fresh suit must be filed on basis of the foreign
decree. In this fresh suit, the foreign judgment will be
• treated as a piece of evidence against the defendant.
ISA – SECTION 4-19 (CHAP 2)

• EVERY PERSON HAS DOMICILE

• - DOMICILE – RESIDENCE AND INTENTION TO SETTLE
PERMANENTELY
Section 4-19 – domicile

• Section 4 – personal laws will be applicable.

• Section 5 – movable and immovable property. Immovable property
in india – indian law will be applied. (Lex situs). Movable property
– law of the country where the owner is domiciled.
• Section 6 – each person can have only one domicile.
• Section 7- domicile of origin (father) legitimate child. Posthumous
child means the child will get the domicile of father.
• Section 8 – with regard to illegitimate child – then domicile of the
mother.
• Section 9- continuance of domicile of origin – until a new domicile
has acquired.
• Section 10 – acquire a new domicile – fixed habitation and a
intention then acquires domicile.
• Section 11 – special mode of acquiring domicile in india - written
declaration - residing in india for one year.
• Section 12– when domicile is not acquired – diplomats and their
family will not get domicile.
• Section 13 – continuance of new domicile – continue till the death
of the person or resume his old domicile.
• Section 14 – minors domicile – domicile of origin (fathers) – of the
child’s parent.exceptions to this – minor getting married/set up
any business with the consent of the parents/ office with relation
to any government.
• Section 15 - women gets domicile by marriage.
• Section 16 – domicile of women during marriage. Exceptions –
divorced/ judicial separation/husband is in jail (life sentence)
• Section 17 – minor cannot acquire a new domicile
• Section 18 – an insane person cannot change domicile unless the
guardian changes the domicile.
• Section 19- succession of movable property in india in the absence
of any proof of domicile – domicile will be India.
IEA –

• WHAT ARE THE PROVISIONS RELATING TO PIL IN IEA

• ► S.45 of IEA Expert Opinion ► S.57 of IEA Judicial Notice ► S.74
of IEA Public Documents ► S.76 of IEA Certified copies of public
documents ► S.78 of IEA Proof of other official documents ► S.82
of IEA Presumption as to document admissible in England without
proof of seal or signature.
SECTION 45

• - EXPERT OPINION
• - OPINION REGARDING FOREIGN LAW
•-
• Khoday Gangadhar Shah V Swaminatha Murali Burdern of Proof is
on the party relying upon it. Bikim Chand V Gulab Chand Bombay
H.C. judgment stated that judgment of highest court of foreign
country is best evidence of law. Jamshed Irani v Banu Irani Expert
is one who has knowledge or opinion and is competent to give
expert evidence irrespective of if he is a legal practioner.
SECTION 57 – JUDICIAL NOTICE

• - ASSUMPTION THAT COURT KNOWS CERTAIN THINGS – ALL LAWS IN

INDIA
• THE PARTY SHOULD BRING THE NOTICE OF THE COURT ABOUT A
FOREIGN LAW.
SECTION 74 – PUBLIC DOCUMENTS

• - PARTIES HAVE TO OBTAIN CERTIFIED COPIES (SECTION 76).

• State V Abdul Rashid Passport from foreign nation admissible to
prove citizenship.
• R v Sunder Record of confession by foreign magistrate is a public
document.
SECTION 78 – PROOF OF OTHER DOCUMENTS

• AUTHORISED BY THE GOVERNMENT

Section 82 - Presumption as to document admissible
in England without proof of seal or signature

• - England or Ireland gets away with the seal or signature then India
also gets away with the same.
• Blackwood & Sons V Parasurama If a particular document is
admissible in England or Ireleand without seal or signature by law,
then it is admissible in India also for the same purpose, as was
observed in this case with respect to copy of probate by H.C. of
England.
• Thank you