Delhi High Court
Prachi Narayan vs Lalit Narayan on 25 November, 2014
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: November 25, 2014
+ CM(M) No.1386/2009 & C.M.No.17191/2009
PRACHI NARAYAN ..... Petitioner
Through: Mr. Arvind K.Nigam, Sr. Advocate
with Mr. Abhimanue Shrestha,
Advocate
versus
LALIT NARAYAN ..... Respondent
Through: Mr. Vedanta Varma & Ms. Meha
Rashmi, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Respondent-husband has sought divorce on the ground of cruelty
and in the petition for divorce, an application under Order 7 Rule 11 of
CPC was filed by the wife, who is petitioner herein and the said
application has been dismissed vide impugned order of 21 st October,
2009.
Rejection of petition filed for divorce on the ground of cruelty is
sought by petitioner-wife on the ground that marriage between the parties
stood already dissolved vide decree of 21st November, 2008 by the court
of competent jurisdiction in United States of America (USA).
The factual background of this case already stands noted in the
impugned order and needs no reiteration. Though the parties were
CM(M) No.1386/2009 Page 1
married in Mumbai on 6th August, 1999 but they had left India for USA
soon after the marriage and two daughters were born out of this wedlock.
Respondent-husband had been residing separately from petitioner-wife
since December, 2006 and in November, 2007 he had returned back to
India without any reason. Petitioner-wife had filed petition for divorce on
the ground of irretrievable breakdown of marriage and respondent-
husband had initially appeared before the concerned court in U.S.A. but
had later on stopped appearing there and a decree of divorce was granted
by the court in U.S.A. on 21st November, 2008, which was challenged by
respondent-husband on the ground that he was not duly served and the
appeal of the respondent-husband was accepted. However, petitioner-
wife had approached Supreme Court of State of Connecticut and the
appellate court's judgment was reversed and trial court's judgment
granting divorce was restored.
To resist petitioner's application under Order 7 Rule 11 CPC
respondent-husband had relied upon Second Part of Clause C of Section
13 of Code of Civil Procedure (CPC) which mandates that where a
judgment is founded on a refusal to recognize the law of this country in
cases in which such a law is applicable, the judgment will not be
recognized by the courts of this country. Clause C of Section 13 of CPC
reads as under:-
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) x x x
CM(M) No.1386/2009 Page 2
(b) x x x
(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.
Aforesaid Clause of Section 13 of CPC has been interpreted by the
Apex Court in Y.Narasimha Rao & Ors v. Y.Venkata Lashmi and Anr.
(1991) 3 SCC 452 (SC), which has been extensively quoted in the
impugned judgment.
At the hearing, learned senior counsel for petitioner had submitted
that rejection of petition for divorce is not sought on the ground of
irretrievable breakdown of marriage because no cause of action survives
in view of grant of divorce by competent court of jurisdiction in U.S.A.
It was pointed out that divorce decree of 21 st November, 2008
(hereinafter referred to as 'foreign judgment') is not an ex parte decree
because respondent-husband had entered appearance and had raised
objection on the ground of lack of territorial jurisdiction and after the said
objection was overruled, he refrained from appearing before the trial
court in U.S.A. However, it was pointed out that the foreign judgment is
on merits and after a contest infact divorce has been granted on the
ground of cruelty. To contend so, attention of this Court was drawn to
the foreign judgment wherein it is noted that the behavior of respondent-
husband is reprehensible and that he has deserted petitioner-wife and the
minor children. Reliance was placed upon a Division Bench judgment in
Meena Chaudhary (DR.) @ Dr. Meena P.N.Singh v. Basant Kumar
CM(M) No.1386/2009 Page 3
Chaudhary & Ors. 187(2012) DLT 264 (DB) in support of above
submissions.
Learned counsel for respondent had supported the impugned order
and had submitted that foreign judgment is on irretrievable breakdown of
marriage, which is not a ground available for divorce in this country and
so in view of Clause C of Section 13 of CPC petitioner's application
under Order 7 Rule 11 CPC has been rightly dismissed by trial court and
there is no substance in this petition.
Upon hearing both the sides and on perusal of impugned order and
the material on record, I find that moot question which falls for
consideration in this petition is whether foreign judgment is based on a
ground, which is not recognized as valid ground for grant of divorce in
this country. A bare perusal of foreign judgment makes it amply clear
that divorce has been granted on the ground that marriage in question has
broken down irretrievably with no possibility of reconciling. Thus,
foreign judgment relied upon by petitioner is not recognized by the
Courts in this country as the instant case comes within the ambit of
Second Part of Clause C of Section 13 of CPC. Moreover, the legal
position reiterated in Meena Chaudhary (supra) has no application to the
facts of the instant case.
Finding no illegality or infirmity in the impugned order, this
petition and the application are dismissed.
(SUNIL GAUR)
JUDGE
NOVEMBER 25, 2014
vn
CM(M) No.1386/2009 Page 4
