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TMI Blog1974 (10) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... 1958. On January 23, 1959 the respondent, who was working as a Forest Range Officer at Gurdaspur, left for U.S.A. for higher studies in Forestry. He spent a year in a New York University and then joined the Utah State University where he studied for about 4 years for a Doctorate in Forestry. On the conclusion of his studies, he secured a job in Utah on a salary of the equivalent of about 2500 rupees per month. During these 5 years the appellant continued to live in India with her minor children. She did not ever join the respondent in America as, so it seems, he promised to return to India on completing his studies. On January 21, 1965 the appellant moved an application under section 488, criminal Procedure Code, alleging that the respondent had neglected to maintain her and the two minor children. She prayed that he should be directed to pay a sum of Rs. 1000/- per month for their maintenance. Respondent appeared through a counsel and demurred that his marriage with the appellant was dissolved on December 30, 1964 by a decree of divorce granted by the 'Second Judicial District Court of the State of Nevada and for the County of Washoe, U.S.A.'. He contended that the appellant had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y annulled by a decree of divorce granted by a foreign court". In one sense, this frame of the question narrows the controversy by restricting the inquiry to Hindu marriages. In another, it broadens the inquiry by opening up the larger question whether marriages solemnised in this country can at all be dissolved by foreign courts. In any case, the High Court did not answer the question and preferred to rest its decision on the Le Mesurier doctrine that domicil of the spouses affords thee only true test of jurisdiction. In order to bring out the real point in controversy, we would prefer to frame the question for decision thus : Is the decree of divorce passed by the Nevada Court in U.S.A., entitled to recognition in India ? The question is a vexed one to decide and it raises issues that transcend the immediate interest which the parties have in this litigation. Marriage and divorce are matters of social significance. The answer to the question as regards the recognition to be accorded to the Nevada decree must depend principally on the rules of our Private International Law. It is a well- recognized principle that "Private international law is not the same in all countries". Chesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntries that not unoften a man and a woman are husband and wife in one jurisdiction but treated as divorced in another jurisdiction. We have before us the problem of such a limping marriage. The respondent petitioned for divorce in the Nevada court on November 9, 1964. Paragraph 1 of the petition which has a material bearing on the matter before us reads thus : "That for more than six weeks preceding the commencement of this action plaintiff has been, and now is, a bona fide resident of and domiciled in the County of Washoe, State of Nevada, with the intent to make the State of Nevada his home for an indefinite period of time. and that he has been actually, physically and corporeally present in said County and State for more than six weeks." By Para IV, the respondent alleged : "That plaintiff is a student who has not yet completed his education, that by defendant's choice she and the minor (1) The Conflict of Laws, R. H. Graveson, Sixth Ed., (1969) pp. 3, 5, 6. (2) "The Conflict of Laws", Dicey & Morris, Eighth Ed., (1967) p. 10. (3) "Private International Law", Martin Wolff Second Ed., (1950) p. 11. (4) See G. Melville Bigelow's Note to Story's "Commentaries on the Conflict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been actually, physically and corporeally present in said county and State for more than six weeks. The second paragraph of the part refers to the factum of marriage between the appellant and the respondent, the third contains the finding that 7.50 Dollars per month for each of the two minor children was a "reasonable sum for plaintiff to pay to defendant as and for the support, care, maintenance and education of the said minor children", the fourth recites that there was no community property to be adjudicated by the Court and the fifth contains the findings : "That the plaintiff and defendant have lived separate and apart for more than three (3) consecutive years without co-habitation, and that there is no possibility of a reconciliation between them." The part of the Judgment headed "Conclusions of Law" consists of two paragraphs.The first paragraph states : "That this Court has jurisdiction over the plaintiff and over the subject matter of this section." The second paragraph says : "That the plaintiff is entitled to the relief hereinafter granted." The operative portion of the Judgment, "Decree of Divorce" says by its first paragraph : "That plaintiff, Teja Singh, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1964), 8 American Journal of Legal History pp. 136, citing the American author, Livermore, Comity, as said by Livermore is a matter for sovereigns, not for Judges required to decide a case accor- ding to the rights of parties. In determining whether a divorce decree will be recognised in another jurisdiction as a matter of comity, public policy and good morals may be considered. No country is bound by comity to give effect in its courts to divorce laws of another country which are repugnant to its own laws and public policy. Thus, where a "mail-order divorce" granted by a Mexican court was not based on jurisdictional finding of domicile, the decree was held to have no extraterritorial effect in New Jersey. State vs. Najjar, 2 N. J. 208 American courts generally abhor the collusive Mexican mail-order divorces and refuse to recognise them. Langner vs. Langner, 39 N. Y. S. 2d. 9181 Mail order divorces are obtained by correspondence by a spouse not domiciled in Mexico. Lately, in his well-known book on divorce says that "The facilities afforded by the Mexican courts to grant divorces to all and sundry whatsoever their nationality or domicile have become even more notorious than thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Cohen 319 Mass. 31; Corpus Juris Secundum, Vol. 27B, p. 799-Footnote 29 : 'Residence', 'domicil' In Lane v. Lane 68 N. Y. S. 2d. 712 it was held that under the Nevada law, intent to make Nevada plaintiff's home is a necessary jurisdictional fact without which the decreeing court is powerless to act in divorce action. Accordingly, a husband who did not become a bona fide resident of Nevada, who continued lease of his New Jersey apartment, who failed to transfer his accounts, who continued his business activities in New York City, and who departed from Nevada almost immediately after entry of divorce decree, was held never to have intended to estabilish a fixed and permanent residence in Nevada, and, therefore any proof, which he submitted to Nevada court in his divorce action, and on which such finding by court of bona fide residence was based was held to constitute a fraud on such court. Idleman vs. Edelman, 161 N. Y. S. 2d 717 A survey of American law in this jurisdiction would be incomplete without reference to a decision rendered by the American Supreme Court in Williams v. State of North Carolina 89 L. Ed. 1577 the second Williams case. Mr. Williams and Mrs. Hendrix who were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners to establish a false and fictitious domicile in Nevada.... And Nevada has no interest that we can respect in issuing divorce, decrees with extraterritorial effect to those who are domiciled elsewhere and who secure sham domicils in Nevada solely for divorce purposes." Those then are the principles on which American courts grant or refuse to grant recognition to divorce decrees passed by foreign courts which includes the courts of sister States. Shorn of confusing refinements, a foreign decree of divorce is denied recognition in American courts if the judgment is without _jurisdiction or is procured by fraud or if treating it as valid would offend against public policy. Except where the issue of jurisdiction was litigated in the foreign action or the defendant appeared and had an opportunity to contest it, a foreign divorce may be collaterally attacked for lack of jurisdiction, even though jurisdictional facts are recited in the judgment. Such recitals are not conclusive and may be contradicted by satisfactory proof. Domicil is a jurisdictional fact. Therefore, a foreign divorce decree may be attacked, and its invalidity shown, by proof that plaintiff did not have, or that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6), pp. 997, 1000. " in Dolhpin v. Robbins (1859) 7 H. L. Cas. 390 and Shaw v. Gould, (1868) L. R. 3.H. L. 55 the House of Lords declined to grant validity to Scots divorces as in the former case parties were not bona fide domiciled in Scotland and in the latter, residence in Scotland did not involve the acquisition of a Scots domicil. These were cases of "migratory" divorces and the court applied the universalist doctrine that questions of personal status depended, as a matter of "universal jurisprudence", on the law of domicil. In this climate, the decision of the Court of Appeal in Niboyet V. Niboyet (1878) 4 P. D. 1. came as a surprise. The majority took the view that if the spouses actually resided in England and were not merely present there casually or as travellers, the English courts were competent to dissolve their marriage even though they were not actually domiciled in England. Several Christian European Countries had by this time adopted the test of nationality in preference to that of domicil in matters of personal status. The dissenting Judge, Brett L. J. preferred in Niboyet's case to stick to the domiciliary test but he perceived how a strict application of the tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to assume jurisdiction must be equally effective in the case of a foreign court". Section 40(1) (a) and (b) of the Matrimonial Causes Act, 1965 confer upon a wife the right, in some circumstances, to sue for divorce in England even if the husband is not domiciled there the time of the proceedings. The decision in Travers v. Holley[1953] (2) All. E. R. 794. was accepted as correct by the House of Lords in Indyka V. Indyka. [1967] (2) All. E. R 689. 209 The husband, a Czech national married his first wife, also a Czech national, in Czechoslovakia. He acquired an English domicil in 1946 but his wife who was continuously residing in Czechoslovakia obtained in 1949 a decree of divorce in that country in 1949 the husband married his second wife in England who petitioned for divorce on the ground of cruelty. The husband cross-petitioned for nullity alleging that the Czech divorce would not be recognised in England since England was the country of common domicil and the decree of the Czech Court was therefore without jurisdiction. The House of Lords upheld the. validity of the Czech divorce. Though the decision in Indyka broadened the prevalent rules for recognition of foreign decree an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive according to the law of that country. Section 3 provides for the validity of an overseas divorce or legal separation to be recognised if, at the date of institution of proceedings in the country in which it was obtained, either spouse was habitually resident in that country or either spouse was a national of that country. In a country comprising territories in which different systems of law are in force in matters of divorce or legal separation (e.g. United States or Canada), the provisions of section 3 have effect as if each territory were a separate country. Where the concept of domicil as a ground of jurisdiction for divorce or legal separation supplies, this is to have effect as if reference to habitual residence included a reference to domicile Under section 5, any finding of fact made in proceedings by which a decree was obtained and on the basis of which jurisdiction was assumed is conclusive evidence of the fact found if both spouses took part in such proceedings, and in any other case is sufficient proof of that fact unless the contrary is shown. Section 6 provides that certain existing rules of recognition are, to continue in force, so that decree obtained in the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ze the decree. According to Cheshire : "it is firmly established that a foreign judgment is impeachable for fraud in the sense that upon proof of fraud it cannot be enforced by action, in England." As we have stated at the outset, these principles of the American and English conflict of laws are not to be adopted blindly by Indian courts. Our notions of a genuine divorce and of substantial justice and the distinctive principles of our public policy must determine the rules of our Private International Law. But an awareness of foreign law in a parallel jurisdiction would be a useful guideline in determining these rules. We are sovereign with our territory but "it is no derogation of sovereignty to take amount of foreign law" and as said by Cardozo J. "We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home"; and we shall not brush aside foreign judicial processes unless doing so "would violate some fundamental principle of justice, some prevalent conception of good morals, some deep rooted tradition of the common weal." Loucks v. Standard Oil Co, of New York (1918) 224 N.Y. 99 at p. 111. The decree of divorce obtained b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter dated December 13, 1965 from the Under Secretary, Ministry of External Affairs, Government of India to one Lakhi Singh Chaudhuri, a Member of the Punjab Vidhan Sabha, shows that by then the respondent had taken a job as Research Officer in the Department of Forestry, Alberta, Canada. The trial court decided the maintenance proceeding against the respondent on December 17, 1966. Early in 1967, the respondent filed a revision application in the Sessions Court, Jullundur mentioning his then address as "Deptt. of Forestry, Public Building, Calgary, Alberta (Canada)". The revision was dismissed on June 15, 1968. The respondent filed a further revision application in the High Court of Punjab & Haryana and gave the same Canada address. Thus, from 1960 to 1964 the respondent was living in Utah and since 1965 he has been in Canada. It requires no great persuasion to hold that the respondent went to Nevada as a bird-of-pasage, resorted to the court there solely to found jurisdiction and procured a decree of divorce on a misrepresentation that he was domiciled in Nevada. True, that the concept of domicil is not uniform throughout the world and just as long residence does not by itself e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the respondent urged that this provision occurring in the, Civil Procedure, Code cannot govern criminal proceedings and therefore the want of jurisdiction in the Nevada court to pass the decree of divorce can be no answer to an application for maintenance under section 488, Criminal Procedure Code. This argument is misconceived. The judgment of the Nevada court was rendered in a civil proceeding and therefore its validity in India must be determined on the terms of section 13. It is beside the point that the validity of that judgment is questioned in a criminal court and not in a civil court. If the judgment falls under any of the clauses (a) to (e) of section 13, it will cease to be conclusive as to any matter thereby adjudicated upon. The judgment will then be open to a collateral attack on the grounds mentioned in the five clauses of section 13. Under section 13(e), Civil Procedure Code, the foreign judgment is open to challenge "where it has been obtained by fraud". Fraud as to the merits of the respondent's case may be ignored and his allegation that he and his wife "have lived separate and apart for more than, three (3) consecutive years without cohabitation and that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deliver it, or was obtained by fraud or collusion". It is therefore wrong to think that judgments in rem are inviolable. Fraud, in any case bearing on jurisdictional facts, vitiates all judicial acts whether in rem or in personam. Unhappily, the marriage between the appellant and respondent has to limp. They will be treated as divorced in Nevada but their bond of matrimony will remain unsnapped in India, the country of their domicil. This view, it is urged for the respondent, will lead to difficulties. It may. But "these rules of private international law are made for men and women-not the other way round-and a nice tidy logical perfection can never be acbieved" Per Denovan L.J., Formosa v. Formosa [1962]. 3 All E.R. 419, 424. Our legislature ought to find a solution to such schizoid situations as the British Parliament has, to a large extent, done by passing the "Recognition of Divorces and Legal Separations Act, 1971". Perhaps, the International Hague Convention of 1970 which contains a comprehensive scheme for relieving the confusion caused by differing. systems of conflict of laws may serve as a model. But any such law, shall have to provide for the non-recognition of foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X
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