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foreign divorce, – The short lived marriage which got solemnized on 24.6.1999 was dissolved on 17.4.2000 by a decree passed by Superior Court of California, County San Diego, Family Division, in Case No.D.454571 ABC, filed by the husband/appellant herein. 1.1. The wife filed the suit before the 1st Additional Principal Family Court, Chennai, for a declaration that the decree of divorce passed by the Superior Court of California is abinitio void, inoperative and not binding on the plaintiff, which came to be decreed. What is crucial is that the wife has challenged jurisdiction of the Foreign Courts. Only, if a party applies for leave to participate in the proceedings without challenging the jurisdiction one can infer that the party has submitted to the jurisdiction of the Court. But, in this case, the wife on receipt of summons has challenged the jurisdiction of the Foreign Court.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Poor pay sees lawyers stop legal aid work

Poor pay sees lawyers stop legal aid work (Photo credit: publik16)

DATED: 24.02.2012

CORAM:

THE HONOURABLE MRS. JUSTICE R.BANUMATHI
and
THE HONOURABLE MRS. JUSTICE S.VIMALA

C.M.A.No.929 of 2002
against
O.S.No.38 of 2000

Bhashyam Ramesh @ Rajagopalan
rep. by Power Agent
Mr.V.S.Vhasyam … Appellant/Defendant

.. Vs ..

R.Saroja @ K.K.Saroja
35/2, T.P.Koil Street,
Triplicane, Chennai-5. … Respondent/Plaintiff

Civil Miscellaneous Appeal in C.M.A.929 of 2001 is filed under Section 19 of the Family Court Act,1984, against the judgment and decree of the 1st Additional Family Court at Madras, passed in O.S.No.38 of 2000, dated 19.12.2000.

For Appellant : Mr.Kuberan for M/s. Rank Associates
For Respondent : Mr.K.Ethirajalu

JUDGMENT
S.Vimala, J.

The short lived marriage which got solemnized on 24.6.1999 was dissolved on 17.4.2000 by a decree passed by Superior Court of California, County San Diego, Family Division, in Case No.D.454571 ABC, filed by the husband/appellant herein.
1.1. The wife filed the suit before the 1st Additional Principal Family Court, Chennai, for a declaration that the decree of divorce passed by the Superior Court of California is abinitio void, inoperative and not binding on the plaintiff, which came to be decreed. The said judgment passed by the 1st Additional Principal Family Court, decreeing the suit, is under challenge in this appeal.

2. Brief facts:-
The marriage between the appellant and the respondent took place on 24.6.1999 at Sholingapuram, Vellore District as per Hindu Rites and Customs. They started living as husband and wife at Virugambakkam at Chennai. The appellant left the respondent on 12.7.1999 for United States, with promise to take her soon. After going to U.S.A. the communication and the contact between the sources came to an end, as the husband became mute.
2.1. The plaintiff/wife filed a petition for Restitution of Conjugal Rights in O.P.No.383 of 2000. The plaintiff received the summons from the Superior Court of California on 1.10.99. She expressed her desire to contest her proceedings by sending the defence statement in writing. She also prayed for waiver of payment of fee. Thereafter, a decree of divorce was passed by the foreign Court on 17.4.2000.
2.2. Contending that the decree of divorce passed on 17.4.2000 by the Superior Court of California is not binding upon her, the wife filed a suit for declaration to that effect. In the suit, the appellant remained exparte. The main contention of the respondent/plaintiff before the Family Court was that decree for dissolution of marriage made by a foreign Court cannot be regarded as a binding decree on the parties in India. After perusing the oral and documentary evidence, the Family Court has decreed the suit granting the prayer of the plaintiff.

3. The husband has challenged the judgment of the Family Court on the following contentions:-
(i) The wife/respondent after receiving the summons from the Superior Court of California sent her response to the petition and contested the matter by raising various defences. Considering the defences raised, the Superior Court has passed an order on merits. The wife having submitted herself to the jurisdiction of the Foreign Court is now estopped from questioning the jurisdiction of the Foreign Court.
(ii) The Family Court has no jurisdiction and power to entertain the suit.
(iii) Even though the husband remained exparte, there is a duty caused upon the Family Court to see whether the relief sought for is within the scope, ambit and jurisdiction of the Court.
(iv) The judgment of the Family Court did not take into account the participation of the wife before the Superior Court of California.
(v) The respondent/wife did not dispute the jurisdiction of Superior Court of California. Therefore, the suit challenging jurisdiction of Superior Court of California is not maintainable.

4. In view of the contentions raised in the grounds of appeal the following points arises for determination:-
(i) Whether the suit filed by the wife/respondent before the Family Court in O.S.No.38 of 2000 is maintainable?
(ii) Whether the Family Court has got jurisdiction to entertain the suit?
(iii) Whether the conduct of the wife in sending response to the Superior Court of California would amount to submitting herself to the jurisdiction of Foreign Court? If so, the wife having submitted herself to the jurisdiction of Foreign Court is whether estopped from disputing the legality of the order passed by the Foreign Court?
(iv) Whether the decree of divorce passed by the Foreign Court is legal and valid and binding upon the wife ?

5. The first contention of the learned counsel for the appellant is that the Family Court cannot grant a decree as prayed for in the petition, just because the husband remained exparte and has got an independent duty to examine the validity and the legality of the issues raised irrespective of the stand taken by the parties to the case.
5.1. This contention is correct provided the order of the Lower Court is without consideration of evidence and Law. But, in this case, the Family Court while passing the judgment has not passed a mechanical order, just because the respondent has remained exparte. The Family Court has not only considered the evidence of the wife and also the judgment reported in 1955 (a) Law Weekly 53 Dr. David C. Arumainayagam Vs. Geetha C. Arumainayagam by the Madras High Court wherein, it has been held that a decree for dissolution of marriage made by a foreign Court cannot be regarded as binding on the parties in India. The legal proposition has been correctly applied. Therefore, the contention that the Family Court has mechanically passed the order is not correct and therefore, the Judgment of the Family Court is correct.

6. The second contention of the learned counsel for appellant is that the Family Courts in India have no competency and jurisdiction to declare the Judgment of a Foreign Court as null and void. But, the contention of the learned counsel for the respondent is other way round, and it is his contention that it is not the Family Court which lacks jurisdiction and competency but, it is only the Foreign Court which lacks jurisdiction and competency to pass a decree for divorce.
6.1. In order to appreciate the contentions raised on both sides, it is appropriate to consider the decision reported in Ruchi Majoo Vs. Sanjeev Majoo reported in (2011) 6 SCC 479 wherein the Hon’ble Supreme Court has pointed out, (though in the context of the case of child custody) that as no system of private international law exists that can claim universal recognition on this issue, Indian Courts have to decide the issue regarding the validity of the decree passed by foreign court in accordance with Indian law. The relevant portion of the observation of the Hon’ble Supreme Court is extracted hereunder:
“Recognition of decrees and orders passed by foreign courts remains an eternal dilemma inasmuch as whenever called upon to do so, courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 CPC as amended by the Amendment Acts of 1999 and 2002. ………….”
“Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. Judicial pronouncements on the subject are not on virgin ground. Since no system of private international law exists that can claim universal recognition on this issue, Indian Courts have to decide the issue regarding the validity of the decree in accordance with Indian law. Comity of courts simply demands consideration of any such order issued by foreign courts and not necessarily their enforcement.” (emphasis supplied)

6.2. The learned counsel for the respondent has relied upon the following rulings in order to support the contention that the Foreign Court has no jurisdiction to pass a decree for divorce when the marriage has taken place in India under the provision of Hindu Marriage Act.

a) 2010 (4) CTC 822 (R.Sridharan Vs.The presiding Officer, Principal Family Court, Chennai-600 106 and another)

In Narasimha Rao’s case, the Supreme Court categorically stated that marriages performed under the Hindu Marriage Act can be dissolved only under the said Act. Naturally, the provisions of the Hindu Marriage Act with regard to jurisdiction would also come into play. Section 19 clearly gives jurisdiction to the Court to deal with Matrimonial proceedings initiated by the wife, if she is residing within the jurisdiction of the said Court. There is no question of the Second Respondent initiating Divorce proceedings before the Court at United States of America invoking the provisions of the Hindu Marriage Act. The moment the Appellant has married the Second Respondent, he has subjected himself to the jurisdiction of the Court designated to deal with matrimonial disputes under Section 19 of the Hindu Marriage Act.
Applying the ratio to the facts of this case, it is clear that the moment the appellant/husband herein has married the respondent wife, he has subjected himself to the jurisdiction of the Courts designated (Family Courts), to deal with matrimonial disputes under Section 19 of the Hindu Marriage Act. There is no question of the husband/appellant initiating divorce proceedings before the Superior Court of California as the husband could not have initiated the proceedings, invoking the provisions of Hindu Marriage Act. The marriage between the appellant and respondent herein could be resolved only on the grounds set out under Section 13 of the Hindu Marriage Act. It is not the case of the appellant/husband that application for divorce could be made before the Superior Court of California on the grounds mentioned in the Hindu Marriage Act. Therefore, as contended by the learned counsel for the respondent, the Foreign Court i.e. The Superior Court of California which is not a Court of competent jurisdiction and only the Family Court at Chennai which has complete competency and jurisdiction.
b) In 2010 (5) CTC 858 (Deepalakshmi Vs.K.Murugesh) a Single Judge of this Court has held as under:-
“Thus, it is clear that only that Court will be a Court of competent jurisdiction which the Act or the law under which the parties are married recognises as a Court of competent jurisdiction to entertain the matrimonial dispute. Any 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. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial dispute is the one under which the parties are married, and no other law….
Therefore, the decisions quoted above would clearly go to show that the Superior Court of California is not a court of competent jurisdiction to decide the matrimonial dispute of the appellant/husband as they have married under the Hindu Marriage Act and the marriage having been taken place in India. Therefore, the finding of the Family Court that order passed by the Foreign Court is not binding upon the wife is correct.

7. It is an admitted case of both parties that the wife received summons from the superior Court of California and has sent written response it. According to the learned counsel for the appellant the sending of written response amounts to submitting herself to the jurisdiction of Superior Court of California and therefore, the suit filed by wife challenging the judgment of the Superior Court of California is not maintainable.
7.1. Therefore, the question falling for consideration is whether the conduct of the wife in sending response to the Superior Court of California would amount to submitting herself to the jurisdiction of Foreign Court? If so, the wife having submitted herself to the jurisdiction of Foreign Court is estopped from disputing the legality of the order passed by the Foreign Court is the issue to be decided.
7.2. The learned counsel for the husband has relied upon the decision reported in Supreme Court Reports (1963) (Shaligram Vs. Daulat Ram), wherein it has been held as follows:-
That a person who appeared in obedience to the process of a foreign Court and applied for leave to defend the suit without challenging the jurisdiction of the Court must be held to have voluntarily submitted to the jurisdiction of such Court and therefore this decree did not suffer from any defect which a foreign decree would suffer without such submission.(underlining added)
7.3. From the facts and circumstances available in this case whether the conduct of the wife in submitting a written representation in response to the summons issued can be construed as amounting to voluntarily submitting herself to the jurisdiction of the Superior Court of California is to be considered. It is necessary to consider the content of the written representation sent by the wife.
7.4. By perusal of the response, it is seen the wife has raised very pertinent issue regarding (a) jurisdiction of the Foreign Court (b) maintainability of the petition for divorce within one year of the marriage (c) maintainability of the petition filed by the husband seeking divorce in a foreign court which lacks jurisdiction, when the wife has initiated a proceeding for Restitution of Conjugal Right in a competent court and (d) inability of her to submit herself to the jurisdiction of the superior court of California.
The details are as extracted below:
(a) Issue regarding jurisdiction:
” Both spouses are admittedly Hindus and born at Tamilnadu and brought up at Tamilnadu and their marriage was solemnized in Tamilnadu, India, under the Hindu rites and Customs. So, if at all the parties wanted to seek any remedy that should be under the Courts at Tamilnadu and under the HINDU MARRIAGE ACT.”
(b) The next issue raised by the wife is with reference to maintainability of petition for divorce under Section 14 of the Hindu Marriage Act under which no petition for divorce could be presented within one year of the marriage.
“As per the Hindu Marriage Act, no spouse is entitled to terminate the marriage within one year from the date of its solemnisation. But unfortunately, the petitioner herein seeks dissolution of marriage, within one year, that Too from the Superior Court of California.”

(c) Expressing her anguish that due to distance and financial constraints and lack of legal knowledge that she will not be able to come to California to contest the case she would state thus:-
Further, the respondent is a poor helpless lady and she is unable to meet out her basic needs without the support from her kins. Under such circumstances, how is it possible to the respondent to come over to California and contest the case.
The respondent did not know the existing law at California and the procedure is being adopted at the Superior Court California, Family Division. As a law abiding citizen she is hereby communicated her response to the Hon’ble Court’s notice.
If, the petitioner is a citizen of California, and he is entitled to file a petition for Dissolution of Marriage at California he should reveal the same to the respondent herein before the solemnisation of marriage. Without disclosing such material things to a poor woman and married her and deserted her is not only SIN but also amount to cheating.
(d) After expressing the social stigma faced by the Indian Women, as a divorcee, the respondent has conveyed the message that she has already moved the Indian Courts for restitution of conjugal rights. It is stated as follows:-
The respondent further submits that, she has filed a petition under Section 9 of the Hindu Marriage Act, for Restitution of Conjugal Right before the 1 Additional family Court at Chennai, Tamilnadu, India, in Hindu Matrimonial Original Petition No.383 of 2000 and the same is posted to 4th May 2000 for the appearance of the petitioner herein (let, the petitioner herein may treat this as Notice to him for his appearance in H.M.O.P.383 of 2000 on 4th May 2000)
7.5. Whether the contents of the communication/response sent by the Wife can be construed as amounting to submitting herself to the jurisdiction of California Court is the issue to be decided. The meaning of the word “submit” as downloaded from the site http://www.thefree dictionary.com is as follows:
“1. To yield or surrender (oneself) to the will or
authority of another.
2. To subject to a condition or process.
3. To commit (something) to the consideration or
judgment of another.
4. To offer as a proposition or contention: I submit
that the terms are entirely unreasonable.”
If the written submissions are considered then it would be evident that the wife has offered a proposition challenging the very jurisdiction of the court for consideration. It will not amount to submitting herself to the jurisdiction of the court.
7.6. What is crucial is that the wife has challenged jurisdiction of the Foreign Courts. Only, if a party applies for leave to participate in the proceedings without challenging the jurisdiction one can infer that the party has submitted to the jurisdiction of the Court. But, in this case, the wife on receipt of summons has challenged the jurisdiction of the Foreign Court. While so challenging the wife has categorically stated that due to financial and legal constraints her access to justice has been denied. The contents of written submissions made by the wife to the Superior Court of California itself would clearly go to show that the respondent/wife neither wanted to participate in the proceedings nor subjected herself to the jurisdiction of the Foreign Court, either voluntarily or involuntarily. Under such circumstances, the contention that she has submitted herself to the jurisdiction of the Foreign Court cannot be accepted.

8. The issues discussed above will go to show that the suit filed challenging judgment passed by the Superior Court of California by the wife is perfectly maintainable. The order passed by the Family Court is in accordance with well settled principles and the materials on records. Therefore, the appeal has no merits and is liable to be dismissed.

9. In the result, the appeal filed by the appellant/husband is dismissed with costs. The judgment and decree passed by the 1st Additional Family Court is confirmed.

aes

To

1.I Additional Family Court,
Chennai.

2.The Section Officer,
V.R. Section
High Court,
Madras

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