Neeraj Sharma
Assistant Professor
School of law
‘Foreign judgment’ means a judgment of a
foreign court.
A foreign judgment means an adjudication by
a foreign court upon a matter before it.
The judgment of a foreign court is enforced
on the principle that where a court of
competent jurisdiction has adjudicated upon
a claim, a legal obligation arises to satisfy
that claim.
In Satya v. Teja singh it was held that
Certain rules are recognized as common to
civilized jurisdiction.
Such recognition is accorded not as an act of
courtesy but on considerations of justice,
equity and good conscience.
A judgment of a foreign court to be
conclusive between the parties must be a
judgment pronounced by a court of
competent jurisdiction.
A competent court means a court having
jurisdiction over the parties and the subject
matter.
Foreign judgment has to be passed only by a
foreign court of competent jurisdiction to
operate as res judicata in the Indian courts.
In order to be conclusive the foreign
judgment must be on the merits i.e. which
involves the application of the mind of the
court to the truth and falsity of the plaintiff’s
case and
A judgment passed after a judicial
consideration of the matter by taking
evidence
A judgment based upon an incorrect view of
International law or a refusal to recognise law
of india where such law is applicable, is not
conclusive.
But the mistake should be apparent on the
face of the proceedings.
The judgment must observe the minimum
requirements of natural justice i.e it must
give reasonable notice to the parties to the
dispute and afford each party adequate
opportunity of presenting his case.
It is well established principle of Public
international law that if a foreign judgment is
obtained by fraud, it will not operate as res
judicata.
A husband obtained a decree of divorce
against his wife from american court averring
that he was domiciled in America.
Observing that the husband was not bonafide
resident or domicile of America, and he had
played fraud on foreign court falsely
representing to it incorrect jurisdictional fact,
the SC held that the decree was without
jurisdiction and nullity.
When a foreign judgment is founded on a
breach of any law in force in India, it would
not be enforced in India.
Thus a foreign judgment for a claim which is
barred under the law of Limitation in India is
not conclusive.
Facts of the case
Y. Narsimha Rao and T. Venkata Lakshmi
were married in Tirupati, India as per Hindu
customs in 1975.
They separated in July 1978
Mr. Rao filed a petition for dissolution of
marriage in the Circuit Court of St. Louis
County Missouri, USA.
Mrs. Lakshmi sent her reply from India under
protest.
The Circuit Court passed a decree for
dissolution of marriage on February 19, 1980
in the absence of Mrs. Lakshmi.
Mr. Rao had earlier filed a petition for
dissolution of marriage in the sub-Court of
Tirupati.
Later, he filed an application for dismissing
the petition in view of the decree passed by
the Missouri Court.
On 2 November 1981, Mr. Rao married
another woman.
Hence, Mrs. Lakshmi filed a criminal
complaint against Mr. Rao for the offence of
bigamy.
In this case A(husband) obtained a decree of
divorce against B(wife) from U.S. Court on the
ground that he was resident of U.S.A
He remarried to C
B filed a criminal complaint against A and C
for bigamy.
A and C filed an application for discharge
Supreme court dismissed the application and
held that the decree of dissolution of
marriage was without jurisdiction.
Neither the marriage was solemnized nor the
Parties last resided together in U.S.A
It was therefore unenforceable in India.
Certain fact w.r.t U.S court decree:
Why U.S court assumed the jurisdiction over
the matter?
On the ground that A had been a resident of
the State of Missouri(USA) for 90 days.
Other reason was:
The decree has been passed on the only
ground that there remains no reasonable
likelihood that the marriage between the
Parties can be preserved
Therefore marriage is “irretrievably broken”
Third reason was:
B has not submitted to the jurisdiction of the
Court
Section 19 of the HMA
As per this section 19, the U.S court, had no
jurisdiction to entertain the petition
2ndly irretrievable breakdown of marriage is
not one of the grounds recognized by the Act
for dissolution of marriage.
Thus decree passed by U.S court was on a
ground unavailable under the Act
Thus the present decree dissolving the
marriage passed by the foreign court is
Without jurisdiction……why?
As
Neither the marriage was celebrated
Nor the parties last resided together
Nor the respondent resided within the
jurisdiction of that court
The appellant husband was
neither domiciled in the State of Missouri
nor had he an intention to make it his home
It was held that
Residence does not mean a temporary
residence for the purpose of obtaining a
divorce
But
Habitual residence or residence which is
intended to be permanent for future as well.
A large number of foreign decrees in
matrimonial matters are becoming the order
of the day.
The key rule laid by the Supreme Court can be
summed up as follows: If a couple is married
under Hindu law,
(a) the foreign court that grants divorce must
be acceptable under Hindu law; and
(b) the foreign court should grant divorce
only on the grounds which are permissible
under Hindu Law.
The two conditions make it almost impossible
for a Hindu couple married in India to get a
legally valid divorce from a foreign court
since no foreign court is an acceptable one
under Hindu Marriage Act and also because
no foreign court is likely to consider the
provisions of Hindu Marriage Act before
granting divorce.
It is not unusual for one of the partners to
obtain a decree of divorce from a foreign
court while the other partner is either in India
or in some other part of the world.
The partner who has obtained divorce may
feel comfortable in the thought that the other
partner has neither protested not contested
the decree of divorce.
However this comfort may be a false one..
Assuming that the husband has obtained the
decree of divorce from a foreign court, some
consequences that may be faced by the man
in due course are as follows:
a) If he remarries, he may be prosecuted for
bigamy.
There is no time limit for the first wife to file
a complaint with the police against the
husband in the matter of bigamy.
in the case of that the couple separated in
1978, the man remarried in 1981 and ten
years later, Supreme Court ordered for
bigamy proceedings to be started against the
man.
Bigamy is punishable under section 494 of
Indian Penal Code with imprisonment of
seven years.
b) Wife (divorced as per foreign law) may file
for maintenance.
c) In case the man dies without making a will,
the first wife will have the right to her share
in the property of the man while the second
wife will get nothing because her marriage
will not be considered legitimate
In a recent case (March 2012), Sunder and
Shyamala tied the knot in Vellore district in
1999,
Sunder went to the USA within a year and did
not communicate with Shyamala after that.
In 2000, she received summons from
Superior Court of California, which
subsequently granted divorce despite the
wife’s defence statement.
Madras High Court held that
the Superior Court of California was not a
court of competent jurisdiction to decide the
matrimonial dispute in this case.
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