Rupak Rathi Petitioner v. Anita Chaudhary

RAJIV NARAIN RAINA, J.

This is a rather strange and awkward case to deal with. The petition has been filed under Article 227 of the Constitution of India challenging the order dated 5th April, 2013 passed by the learned District Judge, Panchkula declining an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (‘CPC’ for short) filed by Rupak Rathi in a divorce petition instituted by his wife Anita Chaudhary under Section 13 of the Hindu Marriage Act, 1955 (‘HMA’) praying for dissolution of marriage. Nevertheless, the issues involved have a wide import on other cases of the kind with serious ramifications on the applicability of the last of the three exceptions carved out by the Supreme Court in Y. Narasimharao v. Y. Venkata Lakshmi; (1991) 3 SCC 451 in para. 20 of the ruling on recognition of foreign matrimonial decrees sought to be enforced in India and where the three exceptions for the first time have been carved out from the basic rule that the jurisdiction assumed by the foreign Court as well as the grounds on which the relief is granted by a foreign court must be in accordance with the matrimonial law under which the parties are married. I would come to those three exceptions and especially exception (iii) in the course of the discussion on which the fate of this case turns, but not before noticing a few seminal facts which are not disputed by the parties and which would influence later events as they happened, impacting the view ultimately taken in concluding this case.

2. The complexity of the matter has arisen from divorce proceedings instituted by Rupak Rathi, husband of Anita Chaudhary, the respondent in this petition, in Brentford County Court (‘BCC’ for short) in the United Kingdom on 17 March, 2011. While those proceedings were pending, Anita Chaudhary filed a divorce petition in the Court of the learned District Judge, Panchkula through her father holding her general power of attorney to file a petition under Section 13 of the HMA on her behalf on the ground of cruelty practiced by Rupak Rathi upon her. The pendency of the proceedings in the English Court is duly mentioned in the divorce petition instituted on 17 May, 2011. In such circumstances, both the proceedings ran parallel for sometime, the first concluding in a decree of divorce in the English court on 31st January, 2012. The other is from which the present petition arises.

3. The decree nisi was passed by the BCC on 7 June, 2011 and made absolute on 31 January, 2012 vide P-7. It may be noted that the decree nisi was passed by the BCC on the ground that the marriage of the parties had broken down irretrievably. The proceedings were concluded without any adjudication on the merits of the case. Rupak Rathi calls it a consent order. He made use of the decree of divorce secured before the English Court in the presence of Anita Chaudhary, who then indisputably was living in her temoprory matrimonial home in the United Kingdom, and approached the matrimonial court at Panchkula through an application of 18 July, 2012 under Order VII Rule 11 CPC praying for rejection of the divorce petition on the ground that the UK divorce decree passed on 31 January, 2012 was binding between the parties. Therefore, the divorce petition filed by the wife on grounds of cruelty was barred by the principles of both res judicata and estoppel and the learned District Judge, Panchkula had no jurisdiction to entertain the divorce petition as the matter inter-parties stood settled by the English decree. The application was contested by Anita Chaudhary by filing a reply alleging that the BCC had no jurisdiction to pass the decree of dissolution of marriage on the impermissible ground of irretreivable breakdown of marriage not available in HMA and further still, that both the parties are domiciled in India and are governed by the Hindu law under which they were married in Panchkula in the State of Haryana, India on 7 March, 2010.

4. A few more relevant facts are necessary for the narration of events overarching the case. After the couple were married in Panchkula according to Hindu rites and ceremonies, they re-located in the United Kingdom in September, 2010 and set up matrimonial home in the foreign jurisdiction. The marriage did not last long and turned sour.

5. The ensuing matrimonial discord led Rupak Rathi to file for divorce in BCC on 17 March, 2011 on the ground that the marriage had irretrievably broken down. In para. 13 of the petition presented in the English Court, the husband alleged in sub para. 4 that throughout the marriage and whilst in United Kingdom, the respondent wife has had an improper relation with a man, namely, the landlord of the property where the parties resided as tenants. This had caused the petitioner great hurt. The BCC following its local law and procedure in matrimonial actions, issued a Certificate of Entitlement to a decree on the petition on account of irretrievable breakdown of marriage as a ground for divorce by issuing such certificate on 19 May, 2011. On 7 July, 2011, the BCC issued decree nisi holding that the marriage had broken down irretrievably and called upon the parties to show sufficient cause in six weeks as to why the decree be not made absolute. In the Ancillary Relief Application filed before the BCC, an order was made on 18 October, 2011 staying the application for decree absolute until final orders were passed in the aforesaid application. When the matter was taken up on 31 January, 2012 before the BCC, the Minutes of Consent Order on ancillary relief application, were decided in directing that it is “ordered by consent subject to decree absolute”.

6. In the meantime, Rupak Rathi filed an application on 8 December, 2011 requesting BCC to consider issuing an order that the consent order and the decree absolute be endorsed and signed by the Judge for it to be used in foreign jurisdictions. This request was made in para. 3 of part-3 of the application. The Minutes of Consent Order in laminated form are produced at page 76 of the paperbook. An order was made in the printed format of Minutes of Consent Order with pen noting that “Applicant's Application of 08.12.11 at Paragraph 3 Part-3 is Hereby Dismissed”. It may be noted that in the intervening period between the issuance of the Minutes of Consent Order and making the decree nisi absolute, parties according to English law were given time to settle ancillary matters between the parties to crease out issues of custody, property, inheritance, pension, welfare reforms etc. and for them to arrive freely at mutual settlements. The issue of custody does not arise in this case as no child was born of the marriage. It is not discernible from the record as to what transpired in the intereggnum but the decree was made final and absolute and the said marriage was thereby dissolved on 31 January, 2012 for the reason of irretrievable breakdown of marriage. It was also, in the Certificate of Entitlement, the laminated copy of which is placed on record at page 73 of the paperbook (P-7), recorded by the BCC that the Court certifies that the petitioner (Rupak Rathi) has sufficiently proved the contents of the petition and is entitled to a decree of divorce on the grounds that the marriage has irretrievably broken down. The fact found proved being the respondent's unreasonable behaviour. Nevertheless, it may be further noted that on 7 June, 2011 the Deputy District Judge Gittens sitting at BCC held on 7 June, 2011, while issuing decree nisi, that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. This appears to me to be inter alia a bone of contention as conclusion was reached without any reasons recorded after contest. I should record that when the decree was made absolute on 31 January, 2012, Anita Chaudhary was a signatory to the orderin which the specific prayer of Rupak Rathi to allow the decree absolute to be used in foreign jurisdictions was rejected as prayed for by the husband on 18 December, 2011. However, it is not possible to comment any further on Certificate of Entitlement to a decree of divorce dated 19 May, 2011 and the order dated 7 June, 2011 as produced in this petition in the original with the stamp of BCC. These are the facts leading to the decree made absolute by the English Court.

7. Two days before the English Court issued the certificate of entitlement to a decree on 19 May, 2011, Anita Chaudhary, acting through her father, had already instituted a divorce proceedings before the Matrimonial Court at Panchkula on 17 May, 2011 when notice was issued to the respondent-Rupak Rathi. The present petition was filed before this Court by Rupak Rathi as seen from the stamps of the Registry dated 13 May, 2013. It was re-filed on 15 May, 2013. The matter came up, for the first time for hearing on 16 May, 2013 when the learned counsel for the petitioner made a request to place on record the certified copy of the order and the decree passed by the Court in England. The matter was adjourned to 3rd July, 2013 for the purpose. On 3 July, 2013, after arguing before the Bench for sometime, counsel sought an adjournment to show that the Court in England which passed the decree (P-7), dissolving the marriage between the parties had jurisdiction to pass the said decree. The matter was adjourned to 15 July, 2013. On 15 July, 2013, the counsel for the petitioner sought further adjournment to search relevant case law in support of the case, for which reason last opportunity was granted, and the matter stood posted for 29 July, 2013. On the next date of hearing, the learned counsel relied upon the decision of the Supreme Court in Y. Narasimha Rao's case (supra) contending that the respondent had consented to divorce in the foreign Court and the parties were residing within the jurisdiction of the foreign Court and therefore the judgment and decree passed by BCC dissolving the marriage between the parties by divorce is binding on the parties. On this submission, notice of motion was issued for 20 September, 2013. The respondent on due service appeared before this Court on 20 September, 2013. When the matter came up for hearing on 31 January, 2014 and sensing the far reaching consequences of the case, this Court requested Mr. Anil Malhotra, an Advocate of this Court to act as amicus curiae since he is well versed with subject matter law on matrimonial actions arising out of the decrees passed by foreign Courts and as to the nature and scope of their binding effect on an Indian Court since he has co-authored books on the subject, including “Acting for Non-resident Indian Clients” (London 2005), Jordan Publishing Limited, Bristol, UK and “India, NRIs and the Law”, Universal Law Publishing Company, New Delhi, 2009. Both the learned counsel graciously accepted the presence of Mr. Malhotra to assist as a neutral amicus principally for elucidation and the interpretation of Y. Narasimha Rao with respect to exception (iii) carved out for the guidance of Indian Courts therein by the Supreme Court and its applicability to the case at hand.

8. Learned amicus curiae has presented his submissions in writing together with a compendium of judgments on the subject which were taken on record on 17 February, 2013. Hard copies of the same were supplied to both the learned counsel appearing for the parties and soft copies were sent through e-mail as directed on 7 March, 2014. Since the application filed in the BCC, U.K praying for allowing the decree in foreign jurisdictions was rejected but was not on record, counsel was requested to place the same on record to help the court to take a view at the final hearing. The arguments were heard at length on all sides and the judgment was reserved on 13 March, 2014 which are being pronounced today.

9. At the outset, the learned counsel informed the Court that since no stay was granted in the present proceedings against the order declining the application under Order VII Rule 11 CPC, the proceedings continued and have reached culmination, meaning thereby, the evidence stands recorded. Since Mr. J.S Bedi, learned counsel appearing for the petitioner has insisted that he wants a decision on the law involved on the application under Order VII Rule 11 CPC and to test the correctness of the order impugned rejecting the aforesaid application, and that this Court should remain free to opine not only on the application under Order VII Rule 11 CPC but on the legal issues arising out of interpretation of the exceptions carved out in para. 20 of Y. Narasimha Rao and to lay the matter at rest between the parties without touching upon the merits of the case, I have taken up the matter for due consideration of the issues involved. However, one thing is certain that both the parties want divorce; one, on the ground of the binding nature of the divorce decree granted by the BCC, U.K on the Indian Court, while the wife presses her petition under Section 13 of the HMA on the grounds available therein which does not include as at present, irretrievable break down of marriage as a ground of divorce under the Hindu marriage law. In view of the submissions pressing decision, this Court cannot possibly hold that culmination of evidence before the learned Matrimonial Court at Panchkula renders the present petition only an academic exercise. Therefore, I venture to express an opinion on the subject matter in the peculiar facts of this case.

The view of the learned District Judge in dismissing the application under Order VII Rule 11 CPC.

10. Before I deal with the case law on the subject, it would not be out of place to examine the view broadly of the learned District Judge, Panchkula in passing the impugned order but before I do so, a few words on the defence taken by Rupak Rathi in the Panchkula Court praying for dismissal of the divorse petition instituted by his wife would be in order and are thus briefly outlined. In the application suplemmented by written arguments submitted before the Matrimonial Court at Panchkula, it was stated that the petition is not maintianable and is barred by the law of res judicata and the principle of estoppel by conduct. Section 11 of the Code of Civil Procedure was pressed into service to contend that no Court shall try any suit or any issue in which the matter directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court shall be agitated. It is urged that the UK decree was passed in the presence of the wife and with her consent. The claims between the parties are taken to be settled before the decree nisi was made absolute. It is submitted that the wife could have availed remedy against the order dated 7 June, 2011 passed by the Deputy District Judge Gittens adversely commenting on the behaviour of the respondent being such that the petitioner cannot reasonably be expected to live with her. That order is final and binding. I may record here that the adverse comment did not flow from findings of fact recorded through adversarial adjudication before BCC.

11. It was further contended that the law in India is crystal clear regarding the applicability of a foreign judgment or the conclusiveness of a foreign judgment as prescribed under Section 13 CPC. Section 13 reads as follows:-

“Section 13—When Foreign Judgment not conclusive: A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same 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].”

12. On the strength of these provisions, it is urged that if the foreign judgment is marred by any of the disqualifications mentioned in the Section, then only it is not conclusive but if it passes all the litmus tests for its conclusiveness, the same is applicable and cannot be termed as not conclusive. In the present case, it is urged that the judgment passed by the County Court in UK has been passed by taking into consideration the applicable laws, the financial and social background of the parties and thus, is applicable in India also. The decree being legal and valid and not having been challenged in any way, attains finality and is good enough reason for dismissal of the divorce petition. It was further submitted that notice on the matrimonial action suffers from suppressio veri and suggestio falsi and the conduct of the petitioner prima facie amounts to gross contempt of Court and therefore she is not entitled to be heard on merits. If the wife has unconditionally subjected herself to the jurisdiction of the Court in the United Kingdom in a petition for decree of divorce with mutual consent, it does not lie in her mouth to invoke the jurisdiction of the Court at Panchkula or that the foreign court had no jurisdiction to decide the dispute. The decision of the Supreme Court in Y. Narasimha Rao cited in support of the respondespondent husband.

13. To turn to the view taken by the learned District Judge on the moot application under Order VII Rule 11 CPC in the impugned order dated 5

April, 2013 I find valuable reason and the same is best put in the District Judge's own words without any gloss or add-ons:-

“A perusal of the record shows that after the petition was filed, the present application was filed. The issue can only be examined when the parties have completed the pleadings and they are given an opportunity to formally lead evidence and show that the case falls or does not fall under any of the clauses of Section 13 of the Civil Procedure Code. Section 14 of the Civil Procedure Code places a presumption regarding foreign judgment which are purported to be certified copy. The applicant had taken the plea that the proceedings were barred by resjudicata. The plea can only be examined when there is a plea. The applicant is yet to file his written statement. Therefore, it is held that the question cannot be examined at this stage and can be decided only after the pleadings are completed and evidence has been led. The application is dismissed.”

13. In short, what the learned District Judge, Panchkula has held is that whether the case falls or does not fall under any of the clauses of Section 13 CPC read with Section 14 thereof, a plea of res judicata is such a plea which can be examined only on receiving written statement and the issue is not capable of being examined before the pleadings are completed and the evidence led by the parties. It is this order which has brought the petitioner to this Court.

The ratio of exception (iii) in Y. Narasimha Rao case

14. Both the learned counsel for the parties have placed strong reliance on the judgment of the Supreme Court rendered in the aforesaid case. It is the case of the petitioner that the matter falls in exception (iii) carved out by the Supreme Court, while the learned Amicus Curiae on the other hand and, therefore, the learned counsel for the respondent adopting the submissions of Mr. Malhotra, has relied on the rule laid down by the Supreme Court in para. 20 of the judgment and that exception (iii) has to be read in the context of the primary rule from which the exceptions flow. Before proceeding any further with the discussion, para. 20 of the judgment, in which the heart of the case lies, is reproduced:

“20. From the aforesaid discussion the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.” (emphasis supplied). (underlined for emphasis)

15. There can be no gainsaying that the parties married at Panchkula in the State of Haryana according to Hindu rites and ceremonies and are governed by the provisions of the Hindu Marriage Act, 1955 and in the normal circumstances, only the District Court within the local limits of whose original civil jurisdiction, the marriage was solemnized or the respondent, at the time of the presentation of the petition resides or the parties to the marriage last resided together or the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at the time, residing outside the territories to which the Act extends or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive, has jurisdiction to entertain the petition. This position is borne by statutory law.

16. Under Section 13 of the Code of Civil Procedure, 1908, a foreign judgment is not conclusive as to any matter directly adjudicated upon between the parties if (a) it has not been pronounced by a court of competent jurisdiction; (b) it has not been given on the merits of the case; (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice; (e) it is obtained by fraud; (f) it sustains a claim founded on a breach of any law in force in India. Therefore, Section 13 CPC is the major premise, upon which, the matrimonial actions have to be tested with respect to cases where foreign judgments obtained by a party are pressed in India to act as res judicata, estoppel, waiver, acquiescence and the like. It is trite that no decree of divorce obtained from the English Court on a ground not available under the HMA, which personal law is applicable to the marriage between the parties, can be sustained on ground of irretrievable break down of marriage. In order to first understand and then resolve the issue in the facts presented in this case, it would be necessary to refer to paragraphs 7, 16, 17, 20 to 22 of the judgment in Y. Narasimha Rao as urged by Mr. Malhotra. These paragraphs are reproduced by repeating core para. 20 in the setting in which it lies in the judgment:-

“7. ……The Circuit Court of St. Louis County, Missouri had, therefore, no jurisdiction to entertain the petition according to the Act under which admittedly the parties were married. Secondly, irretrievable breakdown of marriage is not one of the grounds recognised by the Act for dissolution of marriage. Hence, the decree of divorce passed by the foreign court was on a ground unavailable under the Act.

16. Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the court either in person or through a representative for objecting to the jurisdiction of the court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiscence to the jurisdiction of the court which may be valid in other matters and areas should be ignored and deemed inappropriate.

17. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. 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 disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.

20. From the aforesaid discussion the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

21. The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence - permanent or temporary or ad hoc, forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife's domicile follows that of her husband and that it is the husband's domiciliary law which determines the jurisdiction and judges the merits of the case.

22. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is, therefore, unenforceable.” (underlined for emphasis)

17. A close analysis of para. 20 leaves no manner of doubt that the major premise or what we may call the rule which is clearly statutory in nature with reference to both Section 13 CPC and Section 13 HMA, that if a foreign Court enters upon a matrimonial action brought by a Hindu husband against a Hindu wife married under the Hindu Law, then both the jurisdiction and grounds have deservedly to be in accordance with HMA. Here, the word jurisdiction refers to the right, power, as well as authority to interpret and implement the law, or simply put in a nut shell, the authority and power to decide a lis. Court jurisdictions are limited by physical boundaries as well as by subject matter. The original jurisdictional court in the present case by all means is the court of the District Judge exercising territorial jurisdiction in India and the grounds on which the action can be brought, must be one which are mentioned in Section 13 of HMA. But that is not the end of the matter. There can be cases where parties confer jurisdiction on the foreign Court and the said Court will assume jurisdiction available to the Matrimonial Court in India but would remain confined to adjudicate the action in accordance with the matrimonial law of the parties i.e HMA and the grounds available therein. The legal principle being that when a Hindu couple tied by the nuptial knot according to Hindu rites travel abroad with intention to settle down and reside there to set up matrimonial home, they carry their personal laws on their back, off loading it in a foreign court for adjudication in the event parties intend to litigate for dissolving the marriage, mutually or by contest on one or more of HMA recognized principles. A foreign Court can then grant a valid decree of dissolution of marriage but the adjudication must be upon one of the available grounds in the Indian law. Since irretrievable breakdown of marriage is not available in HMA, the twin test of forum jurisdiction and relief based grounds would remain unsatisfied and the foreign Court decree would not be binding in India nor recognized. From this major premise or fixed point anchored and rooted in Section 13 of both HMA and CPC, the exceptions carved out by the Supreme Court would need to be examined.

18. Admittedly, exceptions (i) and (ii) do not apply to the facts of this case and should not detain us except to understand their interconnectivity with the rule and exceptions. The controversy here centres around exception (iii) where the respondent consents to the grant of relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law between the parties. The word, “relief” and “grounds” has been employed in the major premise or what we may call the statutory rule. In exceptions (i) and (ii) the words “grounds” or “ground” have been used in the rule and also in exceptions (i) and (ii) but not in exception (iii). The word, “relief” has been used in the rule and in exceptions (i) and (iii) but not in exception (ii). The first exception talks of ‘forum’ where the respondent is domiciled or habitually and permanently resides and this is clarified by the conjunction “and” to mean that the “relief” is granted on a ground available under HMA. The second exception, as I see, falls in the category of cases contested by the respondent spouse based on grounds available under HMA. After such contest on one of the grounds mentioned in Section 13, the final decree though rendered by a foreign Court may be binding. Exception (iii) applies in cases which are not contested and are based on consent. It follows that when ‘contest’ and ‘consent/s’ are referable to grounds available under HMA, only then can relief flow. This is for the reason that there is no estoppel against the statute. What is meant by consent to the grant of relief even though the English Court's jurisdiction is contrary to HMA is the moot point presenting some difficulty. The rule in para. 20 confers and recognizes jurisdiction by assumption conferred on a foreign Court to act in accordance with the mandate of Indian matrimonial law. The Supreme Court chose not to use the word “grounds” in exception (iii) and this is how some ambiguity is felt after the heated debate on the interpretation of exception (iii) vehemently argued by the respective counsel and the learned amicus from many angles and prisms or points of view. It is, however, well settled that the words used in a judgment cannot be read as one would read words used by the legislature in enactments which latter have to be given their ordinary and plain meaning. In cases of ambiguity in the statutory rule and of the words used by the Parliament, then the court can step in to harmonize the provisions in a way which is in consonance with the objects and reasons for which the Act was passed and to further the intention of the law. If we were to read exception (iii) in isolation as interpreted by Mr. Bedi appearing for the husband, it would destroy the rule itself, the rule as delineated in Y. Narasimha Rao itself in para. 20 and the foreign Court would wrongly have assumed jurisdiction in passing a decree of dissolution of a Hindu marriage de hors the grounds available in HMA on which the relief was not sought. It is another matter whether it is granted or denied on merits. There is a difference between the words “relief” and “jurisdiction” of the “forum” in exception (iii). Even in the rule, the forum has no jurisdiction but is assumed to have one when it acts on a principle permitted by Section 13 HMA to be the grounds for dissolution of marriage by a decree of divorce. It is for this reason the Supreme Court used the word “may” when it observed while carving out the three exceptions that the “exceptions to this rule may be as follows”. To my mind, if any other interpretation is placed on the word ‘relief” in exception (iii), it may result in grant of an illegal decree of dissolution of marriage made available to a party on the ground of irretrievable breakdown of marriage which is an impermissible ground of divorce not so far heralded into the Hindu law of marriage. Exception (i) no doubt gives sufficient latitude to a foreign court to grant matrimonial relief on foreign soil to a Hindu seeking divorce from Hindu spouse in accordance with HMA principles. Exception (ii) requires voluntary submission to foreign jurisdiction but relief is contested on HMA grounds. Exception (iii) is consent based for relief to the respondent but not to the petitioner in forum conveniens; “although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties”. When the Supreme Court carved out this last exception it avoided introducing the word ‘grounds’. If it were employed, the meaning then would have admitted no further debate and full effect would have to be given to the declaration under Article 141 of the Constitution of India and for this Court to act in aid. However, since an exception cannot be seen to obliterate the rule itself or to rewrite it, then what the Supreme Court, in my humble view, in fact meant was a consent based decree obtained on foreign soil on HMA grounds and not otherwise. Therefore, HMA law would have to be read into exception (iii) to align it with the rule and not create a new rule since then it would not qualify as an exception to a rule. Reading the exception in isolation, will, in my considered view, be in violation of the rule itself. Thus, in cases of contested and consented decrees both would suffer HMA standards, failing which, the foreign court will be overstepping Parliamentary mandates in India and the decrees so obtained cannot be recognized in India unless falling in exceptions (i) and (ii). This is more so, as I see, when exception (i) talks neither of contest nor consent. Otherwise, there would hardly be any visible distinction between exception (i) and exception (iii) because even in exception (i) the assumed jurisdiction of the foreign court was not in accordance with the provisions of the matrimonial law of the parties or the relief granted was not in accordance with the matrimonial law under which the parties are married. This would be the ‘just and equitable’ rule to follow for the protection of women who are the most vulnerable sections of society as observed in para. 21 of Y. Narasimha Rao itself. Besides, consent to a foreign decree not questioned or litigated in court by parties makes no lis and remains good till it lasts. However, this is not a matter of law but of personal choice where the arms of law may not reach. But consent itself is a question of evidence if the mode and manner in which it was given is taken to a court of law for determination.

19. It was to guard against such eventualities besetting transnational marriages among migrating Hindu couples, the overseas dispora of Hindus and its expatriate community living abroad while retaining domicile in India as per the provisions of HMA and facing matrimonial divorce proceedings or threatened by foreign court decrees, ex parte, contested or by consent that the Supreme Court in Neerja Saraph v. Jayant V. Saraph, (1994) 6 SCC 461 a few years later cautioned, observed and hoped as follows:-

“But the rule of domicile replacing the nationality rule in most of the countries for assumption of jurisdiction and granting relief in matrimonial matters has resulted in conflict of laws. What is this domicile rule is not necessary to be gone into. But feasibility of a legislation safeguarding interests of women may be examined by incorporating such provisions as-

(1) 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 Section 44-A of the Civil Procedure Code which makes a foreign decree executable as it would have been a decree passed by that court.

The appeals are disposed of accordingly. Any observation made shall not be taken as expressing of any opinion when the case is decided on merits.”

20. Other than Neerja Saraph's case (supra), the learned amicus curiae has placed reliance on paragraphs 14, 19, 20, 28 to 30 of the judgment of the Supreme Court rendered in Sondur Gopal v. Sondur Rajini., (2013) 7 SCC 426 after noticing the provisions of section 1(2) HMA in which it has been laid down:-

“14. Bearing in mind the principle aforesaid, when we consider Section 1(2) of the Act, it is evident that the Act extends to the Hindus of whole of India except the State of Jammu and Kashmir and also applies to Hindus domiciled in India who are outside the said territory. In short, the Act, in our opinion, will apply to Hindus domiciled in India even if they reside outside India. If the requirement of domicile in India is omitted altogether, the Act shall have no nexus with India which shall render the Act vulnerable on the ground that extra-territorial operation has no nexus with India. In our opinion, this extra-territorial operation of law is saved not because of nexus with Hindus but Hindus domiciled in India.

19. Section 2(1) provides for the application of the Act. The same reads as follows:-

2. Application of Act.- (1) This Act applies -(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.”

20. This section contemplates application of the Act to Hindu by religion in any of its forms or Hindu within the extended meaning i.e Buddhist, Jaina or Sikh and, in fact, applies to all such persons domiciled in the country who are not Muslims, Christians, Parsi or Jew, unless it is proved that such persons are not governed by the Act under any custom or usage. Therefore, we are of the opinion that Section 2 will apply to Hindus when the Act extends to that area in terms of Section 1 of the Act. Therefore, in our considered opinion, the Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.”

28. …For all these reasons, we are of the opinion that both the husband and wife are domicile of India and, hence, shall be covered by the provisions of the Hindu Marriage Act, 1955. As on fact, we have found that both the husband and wife are domicile of India, and the Act will apply to them, other contentions raised on behalf of the parties, are rendered academic and we refrain ourselves to answer those.

29. In the result, we do not find any merit in the appeal and it is dismissed accordingly but without any order as to costs.

30. In view of our decision in Civil Appeal No. 4629 of 2005 (Sondur Gopal v. Sondur Rajini.) holding that the petition filed by the appellant for judicial separation and custody of the children is maintainable, we are of the opinion that the writ petition filed by the respondent for somewhat similar relief is rendered infructuous. On this ground alone, we allow this appeal and dismiss the writ petition filed by the respondent.” (underlined for emphasis)

21. The next reliance of the learned amicus is on the following decisions of the Supreme Court, Bombay High Court and of Delhi High Court:-

The Delhi High Court in CRP No. 148 of 2011, Pritam Ashok Sadaphule v. Hima Chugh decided on 22nd January, 2013 has held as follows:-

“13. It is admitted position that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies and both are governed by Hindu Marriage Act, 1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under the Hindu Marriage Act. The Supreme Court in Y. Narasimha Rao v. Y. Venkata Lakshmi (supra) has already held that foreign decree of divorce granted on a ground which is not recognized in India.

16. The reliance placed by learned counsel for the petitioner on the judgment of Harbans Lal Malik… v. Payal Malik…. (supra), is of no help to him. The facts of the said case are entirely different. The learned trial court has also considered the judgment of this court in Harmeeta Singh v. Rajat Taneja reported in (2003) DMC 443 and Mrs. Veena Kalia v. Dr. Jatinder Nath Kalia reported as 59 (1995) Delhi Law times 635 in coming to the conclusion that decree of dissolution of marriage granted by the Ilford County Court, Essex, UK cannot be recognised as the facts of the case fall within the purview of the exceptions of Section 13 of CPC. In view of the above discussion, no illegality is seen in the impugned order which calls for interference of this court. Petition is dismissed.”

The Delhi High Court in para. 18 of the Judgment in Harmeeta Singh v. Rajat Taneja, 2003 (2) RCR (Civil) 197, has ruled as follows:

“18. ….. In the event that the marriage is dissolved by a decree in America, in consonance with principles of private international law which are embodied in Section 13 of the Civil Procedure Code, 1908, inter alia, this decree would have to be confirmed by a Court in this country. Furthermore, if the Defendant (Husband) were to remarry in the United States of America on the strength of the Decree of Divorce granted in that country, until this Decree is recognized in India he would have committed the criminal offence of bigamy and would have rendered himself vulnerable to be punished for bigamy. The confusion would be confounded insofar as the parties are concerned.”

The Bombay High Court in Navin Chander Advani v. Leena, 2005 (2) HLR 582, laid down:

“2. ……. Thus, from reading these averments it appears that the husband and wife both are Indian citizens, domiciled in India. However, they have performed their marriage according to Hindu rites on 19 July, 1998 in U.S.A Let the fact as it is what we find that since the parties are Indian citizens and domiciled in India, the courts in India will have jurisdiction. The family court has jurisdiction to deal with the matters under the Special Marriage Act and equally under the Hindu Marriage Act. It has even jurisdiction to deal with matrimonial matters where the parties are Muslims. Except, the Parsi Marriage Act for all other marriages the Family Court is having jurisdiction. While deciding the matter the Family Court is only expected to look into personal law of the parties.”

Again the Delhi High Court in Monia Khosla v. Amardeep Singh Khosla, AIR 1986 Delhi 399, observed:

“11. It is well settled that strong proof is required for the purposes of establishing that the domicile of origin has been abandoned and a new one has been acquired. For this purpose, the best evidence, in fact the only evidence, during the life time of a person who is said to have abandoned his domicile of origin, would be the evidence of such person, the respondent husband. There was no evidence in this case before the Additional District Judge by the husband. The proceedings were ex parte. There was no suggestion and no question was put to the wife that the domicile of origin of the husband had been abandoned. Soon after the marriage the husband had declared his intention of the Registrar of Marriages that his intention was to retain D-249, Defence Colony, New Delhi, as his permanent home. In view of this declaration before an authority functioning under the Hindu Marriage Act strong evidence was required from the husband to say that he had abandoned the Indian Domicile which is suggested by the name he bore, a name which would be borne by a person born in India. There was no evidence that a Canadian Passport had been acquired by the husband.

12. In this view of the matter I set aside the finding of the Additional District Judge that the domicile of the respondent husband was not an Indian domicile, and therefore, the court had no jurisdiction to try this matter, in view of Section 1(1) of the Act.”

The Supreme Court in Vishnu Dutt Sharma v. Manju Sharma., JT 2009 (7) SC 5, laid down the following dicta:

“10. On a bare reading of Section 13 of the Act, reproduced above, it is crystal clear that no such ground of irretrievable breakdown of the marriage is provided by the legislature for granting a decree of divorce. This Court cannot add such a ground to Section 13 of the Act as that would be amending the Act, which is a function of the legislature.

11. Learned counsel for the appellant has stated that this Court in some cases has dissolved a marriage on the ground of irretrievable breakdown. In our opinion, those cases have not taken into consideration the legal position which we have mentioned above, and hence they are not precedents. A mere direction of the Court without considering the legal position is not a precedent. If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts. Hence, we do not find force in the submission of the learned counsel for the appellant.” (underlined for emphasis)

Again the Supreme Court in Neelam Kumar v. DayaraniAIR 2011 SC 193, held as follows:

“13. We are not impressed by this submission at all. There is nothing to indicate that the respondent has contributed in anyway to the alleged breakdown of the marriage. If a party to a marriage, by his own conduct brings the relationship to a point of irretrievable breakdown, he/she cannot be allowed to seek divorce on the ground of breakdown of the marriage. That would simply mean giving someone the benefits of his/her own misdeeds. Moreover, in a later decision of this Court in Vishnu Dutt Sharma v. Manju Sharma.2009 (2) R.C.R (Civil) 506: 2009 (2) R.A.J 542: (2009) 6 SCC 379, it has been held that irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under section 13 and granting divorce on this ground alone would amount to adding a clause therein by a judicial verdict which would amount to legislation by Court. In the concluding paragraph of this judgment, the Court observed:

“If we grant divorce on the ground of irretrievable breakdown, then we shall by judicial verdict be adding a clause to Section 13 of the Act to the effect that irretrievable breakdown of the marriage is also a ground for divorce. In our opinion, this can only be done by the legislature and not by the Court. It is for the Parliament to enact or amend the law and not for the Courts.” (underlined for emphasis)

22. Based on the aforesaid judgments, to sum up his submissions in the special facts and circumstances of the case, learned amicus has the following to say:-

1. “that interpreting paragraph 20 of the judgment of the Apex Court in Y. Narasimha Rao's case cited above, it may be humbly submitted that the present matter does not fall within the ambit of the principle stated by the Apex Court in the aforesaid judgment that “the jurisdiction assumed by the Foreign Court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married”. The requirement that the matrimonial action is based on the ground available in the matrimonial law under which the parties are married, when the respondent consents to the grant of the relief, is squarely attracted to the case. Hence, the non applicability of the principle is attracted in the facts of the present case and since there is no adjudication by the English Court of the matter on merits as also because the English Divorce is based on a ground not available under HMA, the non applicability clause would be per se attracted rendering the judgment of the English Court unacceptable under Indian law. If however, the petitioner herein alleges to the contrary and can prove otherwise, he would have to establish the same by appropriate pleadings duly supported by cogent evidence before the District Judge, Panchkula now adjudicating the matter. No summary procedure can be sought to be invoked to by pass this determination.

2. “The Judgment and decree of divorce of the English Court has to be tested on the anvil of Section 13 CPC which provides as to when a foreign judgment shall not be conclusive. In so far the present case is concerned, Section 13 (b) and Section 13 (c) CPC are attracted to the facts of the present case. As per the Judgment of the Apex Court in Y. Narasimha Rao's case cited above, interpreting Section 13 (b) CPC, the decision of the foreign Court should be on a ground available under law of marriage of the parties and the decision should be as a result of contest between the parties. Furthermore, the judgment in Y. Narasimha Rao's case also holds while interpreting Section 13 (c) CPC that where the judgment is founded on a refusal to recognise the law of this Country, the Judgment will not be recognised by Courts in India. Since the judgment of the English Court, per se, can be stated to be in breach of the matrimonial law in force in India, the decree of divorce passed by the English Court on the ground of irretrievable breakdown of marriage, cannot be a bar to prevent an adjudication by a Court of competent jurisdiction under the HMA. Therefore, the impugned order of the District Judge, Panchkula cannot be said to suffer from any infirmity.

3. “On another stream of thought, it may be stated that both parties are Hindus by religion, Indians by nationality and have a permanent domicile in India. Following the dictum of the Apex Court in Sondur Gopal's case settled in 2013, it can be safely stated that the HMA will apply to parties in the present case. The parties were married according to HMA and have a permanent domicile of India. Even viewed from this angle, it would be difficult to stretch the application of English law of divorce to the parties who are Hindus by religion and have a permanent domicile in India. Moreover, as rightly observed by the District Judge in the impugned order, all the issues involved would need determination by appropriate pleadings and recording of evidence. Consequently, any alleged ground of lack of jurisdiction cannot be summarily dismissed in an application under Order VII Rule 11 CPC without any pleadings on record. Therefore, there is no merit, at the present stage in the contentions of a summary dismissal of the divorce petition before the District Judge which will require adjudication.

4. “As a last concluding submission and suggestion the impugned order passed by the District Judge, Panchkula rightly requires determination upon pleadings and evidence of parties to test the applicability of Section 13 CPC to the facts of the case. Unless and until, pleadings are put before the District Judge and the matter is examined on merits after parties are afforded opportunity to lead evidence as to whether the case falls under Section 13 CPC or not, no summary dismissal of the alleged relief sought by the present petitioner is possible. All the contentions advanced by the present petitioner will be required to be put on the anvil for being established by pleadings to be corroborated by cogent testimony. A summary process for such adjudication is not possible. If the present petitioner alleges that his averments be accepted, they have to be first proved. It is accordingly, submitted that until and unless pleadings are placed on record and are substantiated by evidence of parties, it does not appear that the impugned order of the District Judge, Panchkula dated 5.4.2013 seems to suffer from any infirmity.”

23. There is merit in the submissions of the learned amicus curiae. I accept them as fair, reasonable and pragmatic. An adjudication cannot be foreclosed simply on account of presence of the foreign court decree. In the present case moreso as both the parties pursued parallel matrimonial reliefs in different jurisdictions thereby giving rise to conflict on the issue of consent. Accordingly, it was imperative to resolve the issues arising out of such a consent and settle the matter. For the guidance of the courts below and on the valuable suggestions of the learned amicus, which after much thought and deliberation and by weighing all pros and cons emerging from the illuminating debate are accepted by this Court as workable solutions for trial courts to follow when confronted by foreign court matrimonial decrees produced within the jurisdiction of this Court in order to safeguard the interests particularly of Hindu women married to NRIs living in India and abroad.

24. These principles are summarized for guidance of matrimonial courts functioning within the territories over which this court exercises jurisdiction but with a word of caution that they should be applied on a case to case basis while dealing with applications under Order VII Rule 11, CPC in the context of HMA and section 13 CPC as it is not prudent to lay down any strait jacket formula of universal application and some free play in the joints of matrimonial courts should be left while dealing with different fact situations presented before them:-

(i) If the spouse aggrieved by the foreign matrimonial decree has not submitted to the jurisdiction of the foreign court or consented to the passing of the foreign Court judgment, it ought not to be recognised being unenforceable under Section 13 CPC. This position of law ought to be applied to the facts of the individual case.

(ii) There may be occasions that a spouse relying upon the judgment of a foreign matrimonial court, upon receipt of a summon or notice from a court of competent jurisdiction under the HMA, may not choose to file a written statement in response to a petition seeking a matrimonial cause under HMA in Punjab, Haryana or Chandigarh. Instead, the contesting spouse may prefer to move an application under Order VII Rule 11 CPC seeking to rely upon or invoke the provisions of Section 13 CPC. Thus, it may be contended before the court of competent jurisdiction under the HMA that since the matrimonial action between the parties has already been decided and concluded by a Court in the foreign jurisdiction, the adjudication in the matter in issue between the same spouses based on the same matrimonial cause of action is barred by the principle of res judicata and spouses are estopped in law from agitating the same again.

(iii) It is respectfully contended that wherever both or any spouse arrayed in a matrimonial cause in a matrimonial action under HMA contest, dispute, question or oppose any above such application under Order VII Rule 11, CPC involving interpretation of the principles laid down under Section 13 CPC thereby necessitating requirement of detailed pleadings and evidence of spouses, no summary decision may seem possible to decide the matter in the preliminary stage.

(iv) In the above situation, there may also be circumstances involving application of issues of domicile as also applicability of Sections 1 and 2 of the HMA regarding extra territorial application of the provisions of HMA. Determination of these issues may also require parties to put their pleadings and testimony as well on the record of the Court of competent jurisdiction under the HMA.

(v) The application of the provisions of the CPC finding mention under Section 21 HMA, the Court of Competent jurisdiction under the HMA in Punjab, Haryana or Chandigarh may then be guided by the procedural law of pleadings contained in the Orders and Rules of the CPC and Punjab & Haryana High Court amendments, if any, for further proceedings in the matter. Accordingly, filing of a written statement, counter claim, rejoinder and/or other pleadings may be necessitated for having the factual matrix on record leading to the settlement of issues under Order XIV CPC which can only be framed upon allegations made by parties to be read along with the contents of documents produced by spouses. Hence, this procedure may be necessary to be adopted to decide upon the warring claims of spouses relying on averments in support or against the judgment of the foreign matrimonial court between the parties.

(vi) Based on the above procedural requirements, the Court of competent jurisdiction under the HMA may then examine the process, pleadings, grounds and other details in the passing of the judgment/decree of the matrimonial court of foreign jurisdiction to test it on the anvil of Section 13 CPC and based on the principles laid down by the Apex Court in Y. Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451 and exception (iii) as understood in the present opinion. Hence, in the event of a contest, dispute, opposition to the applicability of the foreign matrimonial judgment in the Indian jurisdiction, a summary disposal may not be possible. To do complete justice to both the spouses and to ensure that prejudice has not been caused to either of them as also that issues of maintenance, settlement of matrimonial property, child custody etc. arising in India have been completely settled between spouses based on provisions of HMA, the Court of competent jurisdiction under the HMA may examine the matter on the lines suggested above.

(vii) Thereafter, if the issue relating to the jurisdiction of Competent Court under the HMA as also any bar to the matrimonial cause created by any existing law appears to be established, the matrimonial court in Punjab, Haryana or Chandigarh may upon the facts and circumstances of the case take an appropriate decision under Order XIV Rule 2 CPC whether it needs to pronounce judgment on all issues or decide the issue of jurisdiction or maintainability as a preliminary issue. In such circumstances, the Competent Court under the HMA may after forming an opinion take an appropriate decision on the facts of the case as to whether the issue of jurisdiction or maintainability is to be decided as a preliminary issue or pronounce judgment together on all the issues. Accordingly, based on the individual facts and circumstances, the Court ought to take a decision whether to decide the preliminary issue of jurisdiction or maintainability or postpone the settlement of other issues after such preliminary issues has been determined.

25. For the reasons recorded above, this petition is dismissed as I find no legal infirmity in the impugned order passed by the learned District Judge, Panchkula declining the application under Order VII Rule 11 CPC. However, since the evidence has already been adduced by the parties, the learned District Judge, Panchkula would be free to pass final orders on the merits of the case and whether the grounds of divorce pleaded in the petition and available under Section 13 of the HMA are made out or not warranting grant or refusal of a dissolution of marriage between the parties and other incidental and ancilliary matters thereto. However, nothing said in this order, touching upon the merits of the case, would be taken as an expression of opinion or would influence the trial Court in any manner since purely legal issues have been attempted to be resolved in this opinion with respect to applicability and interpretation of exception (iii) in paragraph 20 of Y. Narasimha Rao and of Order VII Rule 11, CPC.

A copy of this order be brought to the notice of the matrimonial courts in Punjab, Haryana and Chandigarh for guidance.

Hindu Marriage Act, 1955.