* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 990/2010
SHEENAM RAHEJA ... Plaintiff
Through: Mr. Deepak Anand, Advocate
along with plaintiff in person.
versus
AMIT WADHWA ..... Defendant
Through: Defendant is ex parte.
% Date of Decision : September 10, 2012
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
JUDGMENT
: REVA KHETRAPAL, J.
1. The plaintiff has filed the present suit seeking a decree of declaration in favour of the plaintiff and against the defendant, declaring that the proceedings initiated by the defendant for the dissolution of marriage between the parties on the ground of irreconcilable differences, arising out of File No.1-09-FL-149089, pending before the Superior Court of California, County of Santa Clara, San Jose, USA are illegal, invalid and void ab-initio.
2. During the pendency of the present suit, however, a decree of dissolution was passed by the Superior Court of California, County of CS (OS) No.990/2010 Page 1 of 21 Santa Clara, San Jose, USA in favour of the defendant/Husband and thereupon the plaintiff amended her plaint to seek appropriate orders declaring the order of dissolution of marriage dated January 14, 2011 and January 18, 2011 passed by the Superior Court of California as null and void and non-est in the eyes of law.
3. The plaintiff and defendant were married on 15th April, 2000 according to Hindu rites and ceremonies at New Delhi. The marriage was duly registered under the Hindu Marriage Act, 1955 on 24th April, 2000. From the wedlock two female children were born on 17th August, 2001 and 2nd July, 2004, aged 9 years and 6 years respectively. Both the children are presently in the custody of the defendant, who, as detailed in the plaint, has taken them away clandestinely. Shorn of details, the marriage of the plaintiff ran into troubled waters on account of cruelty inflicted upon her by the defendant, his mother, sister and other relatives. The mother and sister of the defendant publicly humiliated the plaintiff for dowry, whenever she visited India, even though for short spells. On account of said cruelty and harassment, the plaintiff had become unwell, and on 7th July, 2008, when the plaintiff came to India along with her two CS (OS) No.990/2010 Page 2 of 21 children she had to be hospitalized at New Delhi. During this period the mother-in- law of the plaintiff, without the knowledge and consent of plaintiff, preponed the already confirmed tickets of the two children for 17th August, 2008 and took them away with her to USA on 5th August, 2008. The aforesaid act of the plaintiff's mother-in-law naturally caused apprehension in the mind of the plaintiff about her safety and security in USA, as it became clear to her that the defendant had no intention to call her to USA. The mother-in-law of the plaintiff with malafide intentions locked the matrimonial home i.e H-87, Kirti Nagar, New Delhi and all the belongings of the plaintiff therein. Since the parents of the plaintiff had limited financial resources, the plaintiff in order to withdraw money from her savings bank account visited the State Bank of Patiala, Branch Pusa Road, New Delhi and was flabbergasted to discover that her savings had already been withdrawn fraudulently by the defendant and his relatives by forging her signatures. On coming to know that her bank account had been cleaned out in this manner, the plaintiff informed the law enforcing agencies and got registered FIR bearing No.164/2009 under Sections 420/467/468/471/120-B IPC with the CS (OS) No.990/2010 Page 3 of 21 Economic Offences Wing, Crime Branch (Delhi Police), where the matter is still pending for investigation. To be noted at this juncture that the plaintiff had also lodged a complaint in USA against the defendant for domestic violence committed in the USA.
4. As averred in the plaint, the plaintiff in the third week of March, 2010, through a whisper campaign amongst close relatives of the plaintiff and defendant, came to know that the defendant has filed some proceedings before a Court in USA. The plaintiff checked the website of the said Court and came to know that a case for dissolution of marriage of the parties on the ground of irreconcilable differences had been filed by the defendant before the Superior Court of California, County of Santa Clara, San Jose, USA. It is the allegation of the plaintiff that the plaintiff was never served with the petition and other pleadings by the defendant, who has played a fraud on the judicial process to the extent that he did not even disclose the address of the plaintiff to the Californian Court. The plaintiff on 8th April, 2010 after obtaining copies of the Court papers through her friends in USA sent a letter to the Court at California, disputing the jurisdiction of the said Court to entertain the petition of the defendant for CS (OS) No.990/2010 Page 4 of 21 dissolution of her marriage, solemnized and registered under the provisions of the Hindu Marriage Act, 1955. The plaintiff also instituted the present suit seeking a declaration that the proceedings before the Superior Court at California were illegal, invalid and void ab-initio.
5. During the pendency of this suit, the plaintiff learnt that a final order of dissolution of marriage was granted by the Superior Court of California, County of Santa Clara, San Jose, USA in favour of the defendant on January 14, 2011 (vide notice of entry judgment dated January 18, 2011). The plaintiff now seeks to assail the said order of dissolution of the marriage as null, void and non-est by amendment of the plaint.
6. Summons of the institution of the present suit were issued to the defendant on 18th May, 2010. By an order of the same date this Court opined that prima facie the continuance of proceedings in the Superior Court of California, County of Santa Clara, San Jose, USA would act to the prejudice of the plaintiff, as she did not appear to have any means to contest the said proceedings, and, in the circumstances, the defendant was restrained from proceeding further CS (OS) No.990/2010 Page 5 of 21 with the aforesaid case. The defendant was duly served with the order of this Court along with the copy of plaint and application by all modes including E-mail, Registered A.D post and UPC at the local address and at the USA address-3651, Cabernet, Vineyards Circle, San Jose, CA 95117, USA. Acknowledgement dated 5th June, 2010, signifying the receipt of the copy of the plaint and the injunction order of this Court, duly served upon the defendant by the United States Postal Service and Indian Postal Service, are placed on record by the plaintiff. It is pleaded that despite being aware of the restraint order passed by this Court, the defendant knowingly, wilfully and intentionally continued to proceed with the case in USA in breach of the interim injunction passed by this court. The plaintiff also served upon the defendant legal notice dated 12th October, 2010, making the defendant aware of the consequences ensuing from the breach of injunction order dated 18th May, 2010 passed by this Court, but to no avail.
7. Mr. Deepak Anand, the learned counsel representing the plaintiff, had drawn my attention to the fact that the order of the Superior Court of California, County of Santa Clara, San Jose, USA CS (OS) No.990/2010 Page 6 of 21 dated September 3, 2010 unequivocally shows that the order of this Court was on the file of the said Court. The relevant portion of the order of the Superior Court of California states:
"The Court notes that it received a letter from Wife dated May 28, 2010, to which she attached a non-certified copy of an order dated May 18, 2010, from the High Court of New Delhi in New Delhi, India. The order, which appears to bear two case numbers-6701/2010 and 99/2010 (sic.)-purports to prohibit Husband from proceeding with his divorce action in California based on the theory that California recognizes divorce based on a finding of irreconcilable differences which, according to the order, is contrary to Indian marriage law."
8. After noting that this Court had prohibited the husband from proceeding with the divorce action in California, the Court at California, however, observed that the Indian order did not indicate that the husband was ever served with the Indian order. The learned counsel for the plaintiff contended and I think rightly so, that the said observation is of no consequence in view of the fact that there is proof of service upon the defendant on 5th June, 2010, through the United States Postal Service, which even bears the signatures of the defendant, namely, Amit Wadhwa with the date and time of service i.e 05-June-2010 - 10.35 A.M endorsed on it. This is quite apart from CS (OS) No.990/2010 Page 7 of 21 the fact that the defendant was served through all other modes including E-mail, proof whereof has been placed on record. The learned Superior Court of California, despite full and complete knowledge of the existence of the injunction order passed by this Court, authorized the defendant to proceed with his request to enter the plaintiff's default in case bearing No.1-09-FL-149089 for legal separation and dissolution of marriage initiated by the defendant in USA.
9. The learned counsel for the plaintiff on the aforesaid facts and on the basis of the affidavits by way of evidence filed by the plaintiff contends that the marriage between the parties having been solemnized and registered under the provisions of the Hindu Marriage Act, 1955 in New Delhi, within the jurisdiction of this Court, its dissolution could be effected only under the said Act. Both the parties are Indian citizens holding Indian passports and are permanent residents of India, hence are governed by Indian laws. The Superior Court of California does not have the jurisdiction to grant decree of divorce as per the provisions of Hindu Marriage Act, 1955, as neither the marriage between the parties was solemnized in USA nor the CS (OS) No.990/2010 Page 8 of 21 plaintiff was residing within the jurisdiction of the Superior Court of California at the time of the presentation of the petition. The jurisdiction assumed by the foreign Court as well as the grounds on which the relief is claimed must be in accordance with the matrimonial law under which the parties are married i.e. the Hindu Marriage Act, 1955. The plaintiff and the defendant have both resided together in India and hence as per Section 19 of the Hindu Marriage Act, 1955, the jurisdiction for the grant of decree of divorce vests with the Courts in India. It is further the contention of the learned counsel for the plaintiff that the plaintiff has till date not submitted herself to the jurisdiction of the foreign Court i.e Superior Court of California, County of Santa Clara, San Jose, USA nor was she represented through counsel and the Court passed the decree in her absence.
10. The learned counsel placed reliance on the provisions of Section 13 of the Code of Civil Procedure, 1908 to contend that the plaintiff is entitled to a decree of declaration as claimed by her. For the sake of facility of reference, the provisions of Section 13 of the CPC are reproduced hereunder:-
CS (OS) No.990/2010 Page 9 of 21
"13. When foreign judgment not conclusive- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between 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 recognize 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."
11. Mr. Anand relied on the decision in the case of Y. Narasimha Rao and Others Vs. Y.Venkata Lakshmi and Another, (1991) 3 SCC 451, where the Hon'ble Supreme Court interpreted each and every clause of Section 13 of the Civil Procedure Code vis-à-vis matrimonial law with a view to secure required certainty and protect the sanctity of the institution of marriage and the unity of family which are the cornerstones of our societal life. Clauses (b), (c), (d) CS (OS) No.990/2010 Page 10 of 21 and (f) of Section 13 were interpreted by the Supreme Court in the following manner :
"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 CS (OS) No.990/2010 Page 11 of 21 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.
18. Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and CS (OS) No.990/2010 Page 12 of 21 when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdictional principle is also recognised by the Judgments Convention of the European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause
(d) may be held to have been satisfied."
12. The Supreme Court thereafter deduced the following rule as regards to the binding effect of a decree of dissolution of marriage passed by a foreign court :-
"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 CS (OS) No.990/2010 Page 13 of 21 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 relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties."
13. Reliance was also placed by Mr. Anand on the decision of Veena Kalia v. Dr. Jatinder Nath Kalia and Anr., 59 (1995) DLT 635, wherein a learned Single Judge of this Court, Hon'ble Mr. Justice D.P.Wadhwa (as his Lordship then was) after noting that the petitioner had never contested the proceedings for divorce filed by the respondent in the Supreme Court at Nova Scotia, held that it would not mean that she conceded the jurisdiction of that Court or that the Supreme Court at Nova Scotia was the Court of competent jurisdiction. The silence of the wife, which the learned Judge observed, was not because of her own volition but because of the CS (OS) No.990/2010 Page 14 of 21 constraints which she could not overcome to contest the proceedings there, could not confer jurisdiction on that Court, more so as the husband was not permanently residing within the jurisdiction of the Supreme Court of Nova Scotia. The Court further observed as under:-
"It is also clear that the ground on which the decree of divorce had been granted by the foreign Court is not a ground on which such a decree could be granted under the Act. Since the petitioner wife was not in a position to contest the proceedings in a foreign Court as she had no means to go there and the foreign Court did not see to it whether the wife was possessed of sufficient funds and her documentation to visit Canada complete, the rules of natural justice stood violated. It is a matter of common knowledge that mere buying an air ticket is not enough to visit Canada. There are various other formalities to be completed. I am of the firm view that the foreign judgment on which the husband relied has no legal validity in this country."
14. In Smt.Anubha v. Vikas Aggarwal & Ors, 100 (2002) DLT 682, this Court relying upon the decision of the Supreme Court in the case of Narasimha Rao (supra), held that as laid down by the Supreme Court, the first and foremost requirement of recognising a foreign matrimonial judgment is that the relief should be granted to the petitioner on a ground available under the matrimonial law under CS (OS) No.990/2010 Page 15 of 21 which the parties are married, or where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married. On the facts of the case before it, the Court further held as under:-
"25. The ground on which the marriage of the defendant was dissolved is not available in the Hindu Marriage Act. The parties are Hindus. Their marriage was solemnised according to the Hindu rites. Their matrimonial dispute or relationship was, therefore, governable by the provisions of Hindu Marriage Act. Since the plaintiff did not submit to the jurisdiction of the USA Court nor did she consent for the grant of divorce in the US Court the decree obtained by the defendant from the Connecticut Court of USA is neither recognisable nor enforceable in India."
15. The learned counsel for the plaintiff also vehemently contended that the defendant-husband has practiced fraud upon the Court at USA inasmuch as no summons were ever served on the plaintiff at any point of time. The proof of service of summons do not have any acknowledgement/receipt/signature of the person to whom the summons and copies were delivered. The issue of service of CS (OS) No.990/2010 Page 16 of 21 summons, however, need not be delved into in view of the observations made hereinafter.
16. In the instant case, the Superior Court of California has passed the decree of dissolution of marriage on the ground of irreconcilable differences. The said ground, not being a ground available for dissolution of marriage under Section 13 of the Hindu Marriage Act, 1955 under which the marriage between the parties was contracted, it cannot be said that the judgment is passed on merits. Further, it can, by no stretch of imagination, be said that the decision of the Superior Court of California was the result of the contest between the parties. On the contrary, the judgment dated 14.01.2011 shows no application of mind or appreciation of facts and is merely mechanical in its form as well as substance. Moreover, the impugned proceedings and the decree of dissolution are in violation of the principles of natural justice, which the Supreme Court in the case of Narasimha (supra) interpreted to mean something more than mere compliance with the technical rules of procedure. It was observed by the Supreme Court that it should not be deemed sufficient that the respondent had been duly served with the process of the court but it must also be CS (OS) No.990/2010 Page 17 of 21 ascertained whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings and if the foreign court had not ascertained and ensured effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings were in breach of the principles of natural justice. In this regard, the order dated 18.05.2010 passed by this Court and the order dated 03.09.2010 passed by the Superior Court of California are of significance. This Court on 18.05.2010 concluded that prima facie the continuance of proceedings in the Superior Court of California would act to the prejudice of the plaintiff, as she did not appear to have any means to contest the said proceedings, and, in the circumstances, the defendant was restrained from proceeding further with the aforesaid case till the next date of hearing which was 21.10.2010. The Superior Court of California on 03.09.2010, despite being aware of the order of this Court, disregarded the same merely on the technical ground that the order did not indicate that the husband was ever served with the Indian order and in completely ignoring the principles of natural CS (OS) No.990/2010 Page 18 of 21 justice, concluded that the Court had the jurisdiction to hear the husband's petition for dissolution of marriage and that there was no legal basis to stay the divorce proceedings, authorizing the husband to proceed with his request to enter wife's default.
17. The cumulative effect of the aforesaid facts, in my considered opinion, is that the decree of dissolution of marriage passed by the Superior Court of California cannot be said to have been passed on merits nor can it be said to be in compliance with the principles of natural justice. The plaintiff-wife did not contest the claim nor agree to the passing of the decree. In fact, the plaintiff in the present case did not have the wherewithal to contest the impugned proceedings. As noticed above even her bank account had been fraudulently operated by the defendant and his relatives by forging her signatures and First Information Report in this regard was lodged by her being FIR No.164/2009 under Sections 420/467/468/471/120-B IPC, in respect of which Status Report has been filed by the Investigating Agency from time to time. In these circumstances, the judgment, having been passed in default of wife's appearance, is clearly in violation of the principle of audi alteram partem as enunciated by the Supreme Court CS (OS) No.990/2010 Page 19 of 21 with reference to foreign judgments rendered in matrimonial disputes, where the wife is not in a position to contest the case in a foreign jurisdiction, resulting in grave injustice to the wife.
18. Lastly, this Court cannot help but refer to the following observations made by the Hon'ble Supreme Court in Neeraja Saraph (Smt) v. Jayant V.Saraph and Anr, (1994) 6 SCC 461, which case pertained to desertion of an Indian wife by an NRI husband:-
"...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 this domicile rule is not necessary to be gone into. But feasibility of a legislation safeguarding interest 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."CS (OS) No.990/2010 Page 20 of 21
19. Regretfully the plight of women and their exploitation by NRI husbands is yet to be ameliorated through legislative measures as suggested in the said case.
20. In view of the aforesaid, the decree of dissolution of marriage passed by the Superior Court of California in favour of the defendant can not be said to be conclusive under Section 13 of the Civil Procedure Code and hence is not enforceable in India. The decree of dissolution of marriage dated January 14, 2011 and judgment entered on January 18, 2011 passed by the Superior Court of California, County of Santa Clara, San Jose, USA in favour of the defendant be and is hereby declared null and void and unenforceable in India being opposed to the laws in force in this country.
21. Resultantly, the suit stands decreed in terms of the prayer made by the plaintiff. The plaintiff shall also be entitled to recover cost in the sum of Rs.2 lakhs from the defendant.
22. CS(OS) No.990/2010 and IA Nos.182/2012 and 183/2012 stand disposed of.
REVA KHETRAPAL (JUDGE) September 10, 2012/'k' CS (OS) No.990/2010 Page 21 of 21