Semester -7

Project On Private International Law

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES.

Project submitted on the topic Conflict of Laws: Enforcement of Foreign Divorce laws in India
SUBMITTED BY:ANKIT KUMAR KETAN KOTHARI AYUSH SANGHAL AMAN GARG H.B.KESHAVA BA.LLB SECTION-A

Submitted to:Ms. Anuradha Nayak

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Conflict Of Laws: An Overview Of Enforcement Of Foreign Judgments And Foreign Awards In India with a special reference to divorce laws. A reasoned and cautious approach by the Indian courts concerning the enforcement of foreign judgments and the enforcement of foreign awards augurs well for the development of legal jurisprudence in India. Introduction With the advent of globalisation and with India poised as a major international and global player in the world economy, it is apposite to consider the law concerning enforcement of foreign judgments in India. This is primarily enshrined in Section 13 of the Code of Civil Procedure, 1908, which is a rather slender section; despite its brevity in terms of the statute, it has been subjected to the judicial scrutiny of various High Courts and the Supreme Court of India, through a tapestry of significant case law. The subject of the present article falls within the ambit of what is considered in law as the doctrine of conflict of laws or what has often been described as Private International Law. A trenchant exposition of this subject has been eloquently summarised by J H C Morris, in his classical treatise, The Conflict of Laws in the following terms: The conflict of laws is that part of the private law of a particular country which deals with cases having a foreign element. Foreign element simply means a contact with some system of law other than that of the forum, that is the country whose courts are seized of the case. The Code of Civil Procedure, as its name suggests, governs all aspects of civil procedure. It is therefore somewhat surprising to find this law ensconced in an otherwise elaborate statute concerning procedural law. The Supreme Court of India has held in Sardar Maloji Nar Singh Rao vs. Sankar Saran,4 that the rules laid down in Section 13 are rules of substantive law and not merely of procedure. The Relevance of Enforcement of Foreign Judgments and Foreign Awards During the course of my legal practice overseas in Dubai between 1982 and 1997, I had the opportunity to examine and handle cases which pertained to the enforcement of judgments and arbitration awards passed in different parts of the world; the enforcement having to be done in the jurisdiction of Dubai, United Arab Emirates. This work galvanised my interest in the subject and after my return to India in 1997, I came across a wealth of case law enunciated by the Supreme Court, which proved to be both instructive and illuminating. There have been instances when divorce decrees passed by courts overseas, concerning non resident Indians [NRIs], have been tested by the courts in India. Further, decrees obtained by banks overseas are brought for enforcement in the courts in India, particularly in those cases where NRIs who may have been guarantors for banking facilities abroad, have left their overseas jurisdictions and returned to India. As India is entrenched in the global arena, it is therefore a logical sequitur that Indias

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pivotal role may pave the way for more judicial precedents being rendered by our courts in the realm of Private International Law. Judgments of the Supreme Court Concerning Section 13 Despite the staccato nature of Section 13, some of the Supreme Courts finest decisions on Private International Law have been rendered in the context of this section. A judgment of a foreign court to be conclusive between the parties, it must be a judgment pronounced by a court of competent jurisdiction. Such a judgment must be by a court, competent both by the law of the State which has constituted it and in an international sense, it must have directly adjudicated upon the matter which is pleaded as res judicata. In order to operate as res judicata, a foreign judgment must have been given on the merits of the case. A judgment is said to have been given on the merits when, after taking evidence and after applying his mind regarding the truth or falsity of the plaintiffs case, the judge decides the case one way or the other. For instance, in In Narsimha Rao vs. Venkata Lakshmi, the Supreme Court observed that if a foreign judgment has not been given on the merits of the case, the courts in India will not recognise such a judgment. In International Woollen Mills Limited vs. Standard Wool (UK) Limited the Supreme Court has rendered a well-reasoned decision, and has also given a comprehensive exhaustive analysis, with reference to the ingredient of Section 13(b), dealing with the merits of the case. A judgment based upon an incorrect view of International Law or a refusal to recognise the law of India, where such law is applicable, is not conclusive. In other words, a foreign judgment may be impeached on the ground that it is founded upon an inaccurate view of the law of India or of International Law. In Narsimha Rao vs. Venkata Lakshmi, the Supreme Court of India noted 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. A foreign judgment is made conclusive as to any matter, thereby directly adjudicated upon between the same parties. But it is the essence of a judgment of a court that it must be obtained after due observance of the judicial process, i.e. the court rendering the judgment must observe the minimum requirements of natural justice, it must be composed of impartial persons, acting fairly, without bias, and in good faith, it must give reasonable notice to the parties concerned and afford each party adequate opportunity of presenting his case. The concept of audi alteram partemis deemed to be of universal, not merely of domestic application. In a few leading decisions, it is heartening to observe the Supreme Court having been vigilant to detect an element of fraud in some of the judgments rendered by foreign courts. It is a wellestablished principle of Private International Law that if a foreign judgment is obtained by fraud, it will not operate as res judicata. In Chengalvaraya Naidu vs. Jagannath, the Supreme Court has categorically ruled as follows: It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non-est in the eyes of law. Such a
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judgment/decree by the first court or by the highest court, has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. In Satya vs. Teja Singh, a husband obtained a decree of divorce against his wife from the Nevada Court in the USA averring that he was domiciled in America. The Nevada Court derived jurisdiction to entertain and hear the divorce petition on the basis of averment that the applicant was a bona fide resident of and domiciled in Nevada. Since the statement was not true and as the applicant never lived in Nevada, the Supreme Court of India ruled that the Nevada Court had no jurisdiction to pass a decree of divorce and it was a nullity. In the incisive words of the court: It is therefore wrong to think that judgments in rem are inviolable. Fraud in any case bearing on jurisdictional facts, vitiates all juridical acts whether in rem or in personam. Where a foreign judgment is founded on a breach of any law in force in India, it cannot be enforced in India. Similarly, a decree for divorce passed by a foreign court cannot be approved or recognised by an Indian court, if under the Indian law the marriage is indissoluble.16 The pithy observations of the Supreme Court in Satya vs. Teja Singh, with regard to public policy are indicative of the caution that the court has rightly exercised while considering the recognition and enforcement of foreign judgments. CONCLUSIVENESS OF FOREIGN JUDGMENTS IN INDIA [Section 13 Civil Procedure Code] ACCEPTANCE OF FOREIGN JUDGMENTS: Acceptance of foreign judgement when not contradictory to principle of law laid down by Indian legislature. If such foreign judgement is contrary to Indian law it will not be acceptable 1. Exparte decree of the foreign Court cannot be presumed to be on merit by the aid of Section 114(e) of Evidence Act. Where ex parte judgment passed granting decree for money but nothing indicated whether any documents were looked into or whether merits of the case considered. Such judgements will not be enforceable in India.2 CONCLUSIVENESS OF FOREIGN JUDGMENTS:

AIR 2003 Cal.105 Murari Ganguly and others Vs.Kanailal Garai and others.

M/s International Woollen Mills Vs.M/s Standard Wool (U.K.) Ltd. AIR 2001 SC 2134 2001(5)SCC 265 2001 (3) Rec Civ R 158 2002 (1) Mad LW 28 2001(2) LR 1765 2001(20 Cur CC 148 2001 (2) Civil Court C 448 2001 (44) All LR 354 2001 (3) All Mah LR 554

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Where a judgment is given on merit by a foreign Court, taking into consideration, Indian law, covering same ground as covered by the English Law under which the decree was granted, the conclusiveness of the decree, will not b e open to challenge.3 Where the judgment was not on merit and the judgment was given ex parte only on the basis of pleadings and documents of the plaintiff Defense filed before Hongkong Court not taken into consideration Held the judgment being not on merit did not have force of law- For execution of such decree prior permission of Central Govt. was necessary. AIR 1990 Bom.170 Algemene Bank Nederland NV Vs. Satish Dayalal Choksi. FOREIGN COURT DECREE: Decree passed by foreign Court cannot be challenged by a stranger to the proceedings unless it is proved that he had any preexisting rights and interest, which affected the decree adversely. Any subsequent event cannot clothe such a stranger with a right to challenge such a decree.4 FOREIGN DIVORCE DECREE: Foreign divorce decree where husband and wife were Hindus and governed by Hindu Marriage Act. When suit for judicial separation and maintenance was pending in Indian Court, husband obtained decree of divorce from the Court in USA though wife did not submit to the jurisdiction of USA, held, such decree obtained by husband was not enforceable in India.5 GRANT OF PROBATE BY FOREIGN COURT: Grant of Probate by Foreign Court supplemented by ancillary probate under Section 228 of Indian Succession Act Decision of the probate Court will be binding without approaching the Civil Court Such judgment will operate judgment in term and cannot be challenged in the Civil Court6 Decree of Divorce passed by a Foreign Court- Grounds mentioned under Section 13 Clauses (a) to (f) not satisfied Neither was there any proof to bring the case within the ambit of said clauses of Section 13 C.P.C. Held, the decree passed by the foreign Court will be binding on the parties The law contained in Sections 13 and 14 C.P.C. which is not merely rules of

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Mrs.Anoop Beniwal Vs. Dr.Jagbir Singh Beniwal:AIR 1990 Del.305 . [Deva Prasad Reddy Vs. Kamini Reddy and another, AIR 2202 Kant. 356 2002 (4) Rec. Civ R 758 2003 (1) Marri LJ 252 2002 (3) ICC 657 2002 (2) DMC 482 2002 (4) Civ LJ 295]
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[AIR 2003 Del. 175 Smt.Anubha Vs. Vikas Aggarwal and Others]

[ AIR 1992 Mad. 136 1991 (2) LW 487 Alagammai and other Vs- V.Rakammal]

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procedure but rules of substantive law recognizing conclusiveness of a foreign judgment In such circumstances the foreign decree will be binding on the parties7. FOREIGN JUDGMENT Application for recognition of foreign judgment filed which could be refused if it is found contrary to the public policy of the country where such judgment is sought to be invoked according to law of the said country. In the field of Private International Law courts refused to apply rule of foreign arbitral award if it is found that the same was contrary to public policy.8 CUSTODY OF MINOR CHILD: Where by judgment of a foreign court, custody of child was given to mother who was foreign national In the absence of any exceptions under Section 14 and 14, the judgement of foreign court, will be binding on the parties. In view of the said order of the foreign judgment, the mother will be entitled to custody of the child.9 Order of Supreme Court of Ontario (Canada) granting interim custody of the child with the mother However father removed the child without authorization, in India- Held order of the Ontario Court was fully valid and given effect to Mere allegation that the mother was living in adultery, will be of no consequence.10 RECOVERY OF DEBTS DUE TO BANK AND FINANCIAL INSTITUTIONS ACT 1993 Where Decree was passed for recovery by a Foreign Court, the Tribunal under the said Act can start execution proceedings related to the said foreign judgment. In this regard provision of Section 44-A will not prevail over Section 17 of 1993.11 EXECUTION OF FOREIGN DECREE Decree of foreign Court Execution of such decree, will be barred when it is found that decree was not on merit where the decree was passed ex parte, only on the pleadings of plaintiff without evidence, such decree is not executable.12

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[AIR 1991 Ori 263 : Dr.Padmini Mishra Vs Dr. Ramesh Chandra Mishra ] 1990 70 Cut. LT 673 [AIR 1994 SC 860 Renusagar Power Company Ltd., Vs. General Electric Co.] 1994(1) SCC Supp 644. 9 [AIR 1994 P & H 309 Mrs.Jacquiline Kapoor Vs. Surinder Pal Kapoor] 1994(3) Pun LR 544 10 [AIR P & H 103 Mrs.Kuldeep Sidhu Vs. Chanan Singh and others]
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Act [Bank of India Vs.Harshadrai Odhavji AIR 2002 Bom. 449 : 2002(3) Mah LR 735 : 2002 (3) Bank Cas 182 : 2002 (4) Cur CC 5 : 2002 (5) Bom CR 228.
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Gurdas Mann and others Vs. Mohinder Singh Brar. AIR 1993 P & H 92 : 1993(1) Pun LR 518 : 1993 HRR 222]

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Where ex parte decree passed in a summary procedure under Rule 14 of Rules of Supreme Court of England It was found that plaintiff evidence was not considered and defendant had filed no defense Therefore, such foreign judgment was not executable in India.13

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[ Middle East Bank Ltd. Vs. Rajendra Singh Sethia AIR 1991 Cal. 335]

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