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PETITIONER: Y. NARASIMHA RAO AND ORS.

       Vs.

RESPONDENT: Y. VENKATA LAKSHMI AND ANR.

DATE OF JUDGMENT09/07/1991

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. MISRA, RANGNATH (CJ)

CITATION:  1991 SCR  (2) 821        1991 SCC  (3) 451  JT 1991 (3)    33        1991 SCALE  (2)1

ACT:     Hindu  Marriage  Act, 1955: Section 19.  Dissolution  of marriage-Court to which petition should be presented-Parties marrying  in  India under Hindu Law-Husband’s  petition  for dissolution  of  marriage in  Foreign  Court-Fraud-Incorrect representation   of  jurisdictional  facts-Husband   neither domiciled  nor had intention to make the foreign  state  his home  but  only technically  satisfying the  requirement  of residence  of 90 days for the purpose of obtaining  divorce- Divorce  decree by foreign court on a ground  not  available under the 1955 Act-Enforceability of.     Civil  Procedure  Code, 1908:  Section  13.  Matrimonial dispute-Foreign judgment-When not conclusive.     Clause (a)-‘‘Court of competent jurisdiction’’-Which is.     Clause (b)-Judgment on merits-What is.     Clause  (c)-Judgment founded on a ground not  recognised by Law of India-Effect of.     Clause  (d)-Judgment obtained in proceedings opposed  in principles   of  natural  justice-Effect  of-Principles   of natural justice-Scope of.     Clause (e)-‘Fraud’-Scope of-Judgment obtained by  fraud- Effect of.     Clause (f)-Judgment founded on a breach of law in  force in India-Effect of.     Section   14-Presumption   as  to   foreign   judgments- Expression  ‘‘Certified copy of a foreign  judgment’’-Should be read consistent with requirement of Section 86 of  Indian Evidence Act.     Indian   Evidence  Act,  1872.  Section   41-‘‘Competent court’’-Which is.                                                        822     Section  63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and  86. Foreign judgment-Photostat copy-Admissibility of.     Private    International    Law-Matrimonial     dispute- Recognition  of  foreign judgment-Rules for  recognition  of foreign  matrimonial judgment laid down-Hague convention  of 1968  on  the recognition of divorce and  legal  separations- Article 10-Judgment Convention of the European Community.     Words and phrases ‘‘Residence-Meaning of’’.

HEADNOTE:     The  first  appellant  and  the  first  respondent  were

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married  at  Tirupati on 27.2.1975 according to  Hindu  Law. They  separated in July 1978. The appellant-husband filed  a petition for dissolution of the marriage in the Sub-Court of Tirupati  stating that he was a resident of  South  Claiborn Avenue, New Orleans, Louisiana, and that he was a citizen of India and that he and his wife last resided together at  New Orleans,  Louisiana. Subsequently he filed another  petition for  dissolution of marriage in the Circuit Court St.  Louis Country, Missouri, USA alleging that he has been a  resident of  the  State of Missouri for 90 days or  more  immediately preceding th filing of the petition by refusing to  continue to live with the appellant in the US and particularly in the State of Missouri. But from the averments made by him in the petition before the Sub-Judge, Tirupati it was obvious  that he  and his wife had last resided together at  New  Orleans, Louisiana  and never within the jurisdiction of  th  Circuit Court of St. Louis Country in the State of Missouri.     The   respondent-wife  filed  her  reply   raising   her objections to the maintainability of the petition. She  also clearly  stated that her reply was without prejudice to  her contention  that she was not submitting to the  jurisdiction of the foreign court.     The  Circuit Court Missouri assumed jurisdiction on  the ground  that  the 1st Appellant had been a resident  of  the State   of  Missouri  for  90  days  next   preceding    the commencement  of the action in the Court. In the absence  of the  respondent-wife  the Circuit Court, Missouri  passed  a decree  for dissolution of marriage on the only ground  that the  marriage  has  irretrievably down.  Subsequent  to  the passing  of the decree by the Circuit Court,  Missouri,  the appellant filed an application for dismissal of his  earlier petition  before the Sub-Court of Tirupati and the same  was dismissed.                                                        823     On 2nd November 1981 the last appellant married appellant No.  2.  Thereafter,  the 1st-respondent  filed  a  criminal complaint against the appellants for the offence of  bigamy. The  appellants filed an application for their discharge  in view of the decree for dissolution of marriage passed by the Circuit  Court,  Missouri.  The  Magistrate  discharged  the appellants  by holding that the complainant-wife had  failed to  make out a prima facie case against the appellants.  The respondent preferred a Criminal Revision Petition before the High  Court which set aside the order of the  Magistrate  by holding  (i)  that  a  photostat copy  of  the  judgment  of Missouri  Court was not admissible in evidence;  (ii)  since the  Learned Magistrate acted on the photostat copy  of  the judgment,  he  was  in error  in  discharging  the  accused. Accordingly  the  High  Court  directed  the  Magistrate  to dispose  of the petition filed by the appellants  for  their discharge  afresh in accordance with law. Aggrieved  by  the decision  of the High Court the appellants filed  appeal  in this Court.     Dismissing the appeal, this Court,     HELD:  1. The decree dissolving the marriage  passed  by the  foreign court is without jurisdiction according to  the Hindu  Marriage Act as neither the marriage  was  celebrated nor  the  parties last resided together nor  the  respondent resided  within  the jurisdiction of  that  Court.  Further, irretrievable  breakdown  of  marriage is not   one  of  the grounds  recognised by the Act of dissolution  of  marriage. Hence, the decree of the divorce passed by the foreign court was  on  a  ground  unavailable  under  the  Act  which   is applicable  to  the  marriage.  Since  with  regard  to  the jurisdiction of the  forum as well as the ground on which it

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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. [828H, 829A, 828E, 834H, 835A]     2. Residence does not mean a temporary residence for the purpose  of  obtaining a divorce but habitual  residence  or residence  which is intended to be permanent for  future  as well. [829E]     Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971, referred to.     3.  The  rules  of Private  International  Law  in  this country  are  not codified and are  scattered  in  different enactments  such as the Civil Procedure Code,  the  Contract ACt, the Indian Succession Act, the Indian Divorce Act,  the Special Marriage Act etc. In addition, some                                                        824 rules  have  also  been evolved by  judicial  decisions.  In matters  of  status or legal capacity  of  natural  persons, matrimonial   disputes,  custody  of   children,   adoption, testamentary  and intestate succession etc. the  problem  in this  country  is complicated by the fact that  there  exist different personal laws and no uniform rule can be laid down for all citizens. Today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes  has  surged  to the surface.  A  large  number  of foreign decrees in matrimonial matters is becoming the order of the day. A time has, therefore, come to ensure  certainty in  the  recognition  of  the  foreign  judgments  in  these matters.  The  minimum rules of guidance  for  securing  the certainty need not await legislative initiative. This  Court can  accomplish the modest job within the frame-work of  the present   statutory  provisions  if  they   are   rationally interpreted and extended to achieve the purpose. Though  the proposed rules of guidance in this area may prove inadequate or miss some aspects which may not be present to us at  this juncture, yet a begining has to be made as best as one  can, the  lacunae and the errors being left to be filled  in  and corrected by future judgments. [829H, 830A, 831C, F-H]     4. The relevant provisions of Section 13 of the CPC  are capable   of  being  interpreted  to  secure  the   required certainty in the sphere of this branch of law in  conformity with  public  policy, justice, equity and  good  conscience, and  the rules so evolved will protect the sanctity  of  the institution  of marriage and the unity of family  which  are the corner stones of our social life. [832A]     4.1  On an analysis and interpretation of Section 13  of CPC  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 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

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with  the provisions of the matrimonial law of the  parties. [834B-D]                                                        825     5.  The High Court erred in setting aside the  order  of the   learned  Magistrate  only  on  the  ground  that   the photostat copy of the decree was not admissible in evidence. In the instant case photostat copies of the judicial  record of the Court of St. Louis is certified for th Circuit  Clerk by  the  Deputy  clerk who is a public  officer  having  the custody of the document within the meaning of Section 76  of the  Indian Evidence Act also in the manner required by  the provisions of the said section. Hence the photostat copy per se  is  not  inadmissible in evidence.  It  is  inadmissible because   it   has  not  further  been  certified   by   the representative  of  our  Central Government  in  the  United States  as required by Section 86 of the Act. Therefore  the document  is  not  admissible in evidence for  want  of  the certificate  under Section 86 of the Act and not because  it is  a  photostat copy of the original as held  by  the  High Court. [835B, E, F-G]     6. The Magistrate is directed to proceed with th  matter pending  before  him according to law  as  expeditiously  as possible, preferably within four months. [835G]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 385 of 1991.     From  the  Judgment  and Order dated  18.4.1988  of  the Andhra  Pradesh High Court in Crl. Revision Petition No.  41 of 1987.     M.C. Bhandare and Ms. C.K. Sucharita for the Appellants.     C.N. Sreekumar and G. Prabhakar (for the State) for  the Respondents.     The Judgment of the Court was delivered by     SAWANT,  J. Leave is granted. Appeal is taken  oj  board for final hearing by consent of parties.     The 1st appellant and the 1st respondent were married ar Tirupati on February 27, 1975. They separated in July  1978. The  1st  appellant  filed a  petition  for  dissolution  of marriage in the Circuit of St. Louis Country Missouri,  USA. The 1st respondent sent  her reply from here under  protest. The  Circuit  Court  passed  a  decree  for  dissolution  of marriage  on  February 19, 1980 in the absence  of  the  1st respondent.                                                        826     2.  The 1st appellant had earlier filed a  petition  for dissolution  of marriage in the Sub-Court of Tirupati  being O.P. No. 87/86. In that petition, the 1st appellant filed an application  for dismissing the same as not pressed in  view of   the decree passed by the Missouri Court. On August  14, 1991  the  learned  sub-Judge  of  Tirupati  dismissed   the petition.     3.  On November 2, 1981, the 1st appellant  married  the 2nd  appellant  in  Yadgirigutta,  1st  respondent  filed  a criminal complaint against the appellants for the offence of bigamy.  It is not necessary to refer to the details of  the proceedings in the said complaint. Suffice it to say that in that  complaint,  the appellants filed  an  application  for their  discharge  in view of the decree for  dissolution  of marriage  passed  by  Missouri Court. By  this  judgment  of October  21,  1986, the learned  Magistrate  discharged  the appellants  holding  that  the complainant,  i.e.,  the  1st respondent had failed to make out a prima facie case against

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the   appellants.  Against  the  said  decision,   the   1st respondent   preferred a Criminal Revision Petition  to  the High  Court and the High Court by the impugned  decision  of April 18, 1987 set aside the order of the magistrate holding that a photostat copy of the judgment of the Missouri  Court was  not admissible in evidence to prove the dissolution  of marriage.  The  Court further held that  since  the  learned Magistrate  acted on the photostat copy, he was in error  in discharging  the  accused  and directed  the  Magistrate  to dispose  of  the  petition  filed  by  the  accused,   i.e., appellants herein for their discharge, afresh in  accordance with law. It is aggrieved by this decision that the  present appeal is filed.     4. It is necessary to note certain facts relating to the decree  of  dissolution of marriage passed  by  the  Circuit Court  of  St.  Louis Country Missouri, USA.  In  the  first instance, the Court assumed jurisdiction over the matter  on the ground that the 1st appellant had been a resident of the State   of   Missouri  for  90  days  next   preceding   the commencement of the action and that petition in that  Court. Secondly, the decree has been passed on the only ground that there  remains  no reasonable likelihood that  the  marriage between the parties can be preserved, and that the  marriage is,  therefore,  irretrievably broken’’.  Thirdly,  the  1st respondent  had  not submitted to the  jurisdiction  of  the Court. From the record, it appears that to the petition  she had  filed two replies of the same date. Both are  identical in  nature  except that one of the replies  begins  with  an additional  averment as follows: ‘‘without prejudice to  the contention  that  this respondent is not submitting  to  the jurisdiction of this hon’ble court, this respondent sub-                                                        827 mits as follows’’. She had also stated in the replies, among other  things, that (i) the petition was  not  maintainable, (ii)  she  was  not aware if the first  appellant  had  been living  in the State of Missouri for more than 90  days  and that he was entitled to file the petition before the  Court, (iii)  the  parties were Hindus and governed by  Hindu  Law, (iv) she was an Indian citizen and was not governed by  laws in force in the State of Missouri and , therefore, the Court had  no  jurisdiction  to entertain the  petition,  (v)  the dissolution of the marriage between the parties was governed by the Hindu Marriage Act and that it could not be dissolved in any other way except as provided under the said Act, (vi) the  Court had no jurisdiction to enforce the  foreign  laws and  none  of  the  grounds  pleaded  in  the  petition  was sufficient   to grant any divorce under the  Hindu  Marriage Act.     Fourthly, it is not disputed that the 1st respondent was neither  present  nor represented in the  Court  passed  the decree  in  her  absence. In fact, the Court  has  in  terms observed  that it had  no jurisdiction ‘‘in personam’’  over the respondent or minor child which was born out of the wed- lock  and both of them had domiciled in India.  Fifthly,  in the  petition which was filed by the 1st appellant  in  that Court on October 6, 1980, besides alleging that he had  been a  resident  of the State of Missouri for 90  days  or  more immediately preceding the filing of the petition and he  was then  residing at 23rd Timber View Road, Kukwapood,  in  the Country of St. Louis, Missouri, he had also alleged that the 1st  respondent had deserted him for one year or  more  next preceding the filing of the petition by refusal to  continue to  live  with  the  appellant  in  the  United  States  and particularly  in the State of Missouri. On the  other  hand, the averments made by him in his petition filed in the court

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of the Subordinate Judge, Tirupati in 1978 shows that he was a  resident  of  Apartment No.  414,  6440,  South  Claiborn Avenue,  New Orleans, Louisiana, United States and  that  he was a citizen of India. He had given for the service of  all notices  and processes in the petition, the address  of  his counsel  Shri  PR  Ramachandra  Rao,  Advocate,   16-11-1/3, Malakpet, Hyderabad-500 036. Even according to his averments in   the said petition, the 1st respondent had resided  with him  at  Kuppanapudi  for  about 4  to  5  months  after  th marriage.  Thereafter she had gone to her parental house  at Relangi,  Tanuka  Taluk,  West Godawari  District.  He  was, thereafter,  sponsored by his friend Prasad for a  placement in  the medical service in the United States and  had  first obtained employment in Chicago and thereafter in Oak  Forest and  Greenville  Springs  and  ultimately  in  the   Charity Hospital  in Louisiana at New Orleans where he continued  to be emp-                                                        828 loyed.  Again  according  to  the  averments  in  the   said petition,  when the 1st respondent joined him in the  United States, both of them had stayed together as husband and wife at New Orleans. The 1st respondent left his residence in New Orleans and went first to Jackson, Texas and, thereafter, to Chicago  to  stay at the residence of  his  friend,  Prasad. Thereafter  she left Chicago for India. Thus it  is  obvious from  these  averments  in the petition that  both  the  1st respondent and the 1st petitioner had last resided  together at New Orleans, Louisiana and never within  the jurisdiction of  the Circuit Court of St. Louis Country in the  State  of Missouri. The averments to that effect in the petition filed before the St. Louis Court are obviously incorrect.     5. Under the provisions of the Hindu Marriage Act,  1955 (hereinafter  referred to as the ‘‘Act’’) only the  District Court  within  the  local limits  of  whose  original  civil jurisdiction  (i) the marriage was solemnized, or  (ii)  the respondent, at the time of the presentation of the  petition resides, or (iii) the parties to  the marriage last  resided together, or (iv) 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 of more by those  persons who would naturally have heard of him if he were alive,  has jurisdiction to entertain the petition. The Circuit Court of St. Louis Country, 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.     6. Under Section 13 of the Code of Civil Procedure  1908 (hereinafter  referred  to  as  the  ‘‘Code’’),  a   foreign judgment  is  not  conclusive  as  to  any  matter   thereby 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.     7.  As pointed out above, the present decree  dissolving the  marriage  passed  by  the  foreign  court  is   without

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jurisdiction  according to the Act as neither  the  marriage was celebrated nor the parties last                                                        829 resided  together  nor  the respondent  resided  within  the jurisdiction  of that Court. The decree is also passed on  a ground  which  is  not  available under  the  Act  which  is applicable to the marriage. What is further, the decree  has been  obtained by the 1st appellant by stating that  he  was the  resident  of the Missouri State when the  record  shows that he was only a bird of passage there and was  ordinarily a  resident  of the State of Louisiana. He had, if  at  all, only  technically satisfied the requirement of residence  of ninety days with the only purpose of obtaining the  divorce. He  was   neither  domiciled in that State  nor  had  he  an intention  to make it his home. He had also  no  substantial connection  with  the forum. The 1st appellant  has  further brought  no rules on record under which the St. Louis  Court could assume jurisdiction over the matter. On the  contrary, as pointed out earlier, he has in his petition made a  false averment that the 1st respondent had refused to continue  to stay  with him in the State of Missouri where she had  never been.  In the absence of the rules of jurisdiction  of  that court,  we  are not aware whether the residence of  the  1st respondent  within  the State of Missouri was  necessary  to confer  jurisdiction  on  that court, and  if  not,  of  the reasons for making the said averment.     8. Relying on a decision of this Court in Smt. Satya  v. Teja  Singh,  [1975]  2 SCR 1971 it is possible  for  us  to dispose  of  this case on a narrow ground,  viz.,  that  the appellant played a fraud on the foreign court residence does not mean a temporary residence for the purpose of  obtaining a  divorce  but  habitual residence or  residence  which  is intended to be permanent for future as well. We remain  from adopting  that course in the present case because  there  is nothing  on record to assure us that the Court of St.  Louis does  not  assume jurisdiction only on the basis of  a  mere temporary residence of the appellant for 90 days even is such residence is for the purpose of obtaining divorce. We would, therefore,  presume that the foreign court by its own  rules of  jurisdiction  had rightly entertained  the  dispute  and granted a valid decree of divorce according to its law.  The larger  question that we would like to address ourselves  to is  whether even  in such cases, the Courts in this  country should recognise the foreign divorce decrees.     9.  The  rules  of Private  International  Law  in  this country  are  not codified and are  scattered  in  different enactments  such as the Civil Procedure Code,  the  Contract Act, the Indian Succession Act, the Indian Divorce Act,  the Special Marriage Act etc. In addition, some rules have  also been evolved by judicial decisions. In matters of status  or legal  capacity  of natural persons,  matrimonial  disputes, custody of                                                        830 children,  adoption, testamentary and  intestate  succession etc. the problem in this country is complicated by the  fact that there exist different personal laws and no uniform rule can  be laid down for all citizens. The distinction  between matters which concern personal and family affairs and  those which concern commercial relationships, civil wrongs etc. is well  recognised in other countries and legal  systems.  The law in the former area tends to be primarily determined  and influenced  by social, moral and  religious  considerations, and  public  policy plays a special and important   role  in shaping   it.  Hence,  in  almost  all  the  countries   the jurisdicational  procedural and substantive rules which  are

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applied  to disputes arising in this area are  significantly different from those applied to claims in other areas.  That is  as  it  ought  to be. For,  no  country  can  afford  to sacrifice its internal unity, stability and tranquility  for the sake of  uniformity of rules and comity of nations which considerations  are important and appropriate to  facilitate international  trade,  commerce,  industry,   communication, transport,  exchange of services, technology, manpower  etc. This glaring fact of national life has been recognised  both by  the  Hague  Convention of 1968  on  the  Recognition  of Divorce  and Legal Seperations as well as by  the  Judgments Convention  of  the  European Community of  the  same  year. Article  10 of the Hague Convention expressly provides  that the contracting States may refuse to recognise a divorce  or legal   separation   if  such  recognition   is   manifestly incompatible   with  their  public  policy.  The   Judgments Convention of the European Community expressly excludes from its  scope (a) status or legal capacity of natural  persons, (b)  rights  in  property  arising  out  of  a   matrimonial relationship, (c) wills and succession, (d) social  security and  (e) bankruptcy. A separate convention  was  contemplated for the last of the subjects.     10.  We are in the present case concerned only with  the matrimonial  law and what we state here will apply  strictly to  matters  arising  out of and  ancillary  to  matrimonial disputes.  The Courts in this country have so far  tried  to follow  in  these  matters  the  English  rules  of  Private International  Law  whether common law  rules  or  statutory rules.  The dependence on English Law even in matters  which are  purely  personal,  has  however  time  and  again  been regretted.  But  nothing much has been done  to  remedy  the situation.  The labours of the Law Commission poured in  its 65th  Report on this very subject have not fructified  since April  1976,  when  the  Report  was  submitted.  Even   the British were circumspect and hesitant to apply their   rules of  law  in  such matters during their  governance  of  this country  and had left the family law to be governed  by  the customary rules of the diffe-                                                        831 rent communities. It is only where was a  void that they had stepped  in by enactments such as the Special Marriage  Act, Indian  Divorce  Act, Indian Succession Act etc.  In  spite, however, of more than  43 years of independence we find that the  legislature  has not thought it fit to enact  rules  of Private International Law in this area and in the absence of such  initiative  from the legislature the  courts  in  this country  their  inspiration,  as stated  earlier,  from  the English  rules. Even in doing so they have not been  uniform in  practice with the result that we have  some  conflicting decisions in the area.     11.  We cannot also lose sight of the  fact  that  today more   than ever in the past, the need for definitive  rules for recognition of foreign judgments in personal and  family matters, and particularly in matrimonial disputes has surged to  the  surface.  Many a man and woman of  this  land  with different  personal laws have migrated and are migrating  to different  countries  either to make their  permanent  abode there  or  for temporary residence. Likewise there  is  also immigration  of  the  nationals  of  other  countries.   The advancement  in  communication and transportation  has  also made it easier  for individuals to hop from one country   to another.  It is also not unusual to come across cases  where citizens  of  this country have been  contracting  marriages either  in  this  country or abroad with  nationals  of  the other countries or among themselves, or having married here,

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either both or one of them migrate to other countries. There are  also cases where parties having married here have  been either domiciled or residing separately in different foreign countries. This migration, temporary or permanent, has  also been  giving rise to various kinds of  matrimonial  disputes destroying  in its turn the family  and its peace.  A  large number of foreign decrees in matrimonial matters is becoming the  order  of the recognition of the foreign  judgments  in these  matters. The minimum rules of guidance  for  securing the  certainty need not await legislative  initiative.  This Court can accomplish  the modest job within the framework of the  present  statutory  provisions if they  are  rationally interpreted and extended to achieve the purpose. It is  with this  intention  that we are undertaking  this  venture.  We aware  that  unaided and left solely to  our  resources  the rules of guidance which we propose to lay down in this  area may  prove inadequate or miss some aspects which may not  be present  to  us at this juncture. But a begining has  to  be made  as best as one can, the lacunae and the  errors  being left to be filled in and corrected by future judgments.                                                        832     12.  We believe that the relevant provisions of  Section 13  of the Code are capable of being interpreted  to  secure the required certainty in the sphere  of this branch of  law in  conformity with public policy, justice, equity and  good conscience,  and  the   rules so  evolved  will  protect  th sanctity  of  the institution of marriage and the  unity  of family which are the corner stones of our societal life.     Clause (a) of Section 13 states that a foreign  judgment shall  not be recognised if it has not been pronounced by  a court  of  competent jurisdiction. We are of the  view  that this  clause  should be interpreted to mean that  only  that court  will be a court of competent jurisdiction  which  the Act  or  the  law  under  which  the  parties  are   married recognises as a court of competent jurisdiction to entertain the  matrimonial dispute. Any other court should be held  to be   a  court  without  jurisdiction  unless  both   parties voluntarily  and unconditionally subject themselves  to  the jurisdiction  of  that  court.  The  expression  ‘‘competent court’’ in Section 41 of the Indian Evidence Act has also to be construed likewise.     Clause  (b) of Section 13 states that if a  foreign  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 acquiescence to  the  jurisdiction of the Court which may be valid  in  other  matters and areas should  be  ignored  and deemed inappropriate.     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

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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                                                        833 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  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.     Clause (d) of Section 13 which makes a foreign  judgment unenforceable on th 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 b  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 when they are file 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 jurisdiction principle  is also  recognised by the Judgments Convention of this European Community . If, therefore,  the  courts in this country also  insist  as   a matter  of rule that foreign matrimonial judgment  will   be recognised  only it 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.     The  provision   of  clause  (e)  of  Section  13  which requires that the                                                        834 courts in this country will not recognise a foreign judgment if it has been obtained by fraud, is self-evident.  However, in view of the decision of this Court in Smt. Satya v.  Teja Singh, (supra) it must be understood that the fraud need not be only in relation to the merits of the mater but may  also be in relation to jurisdictional facts.      13.  From the aforesaid discussion the  following  rule can be deduced for recognising foreign matrimonial  judgment in  this country.  The jurisdiction assumed by  the  foreign court as well as the grounds on which the relief is  granted

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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.      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  domicilliary law  which  determines  the jurisdiction and judges the merits of the case.      14. 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                                                        835 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.      15.  The High Court, as stated earlier, set  aside  the order of the learned Magistrate only on the ground that  the photostat copy of the decree was not admissible in evidence. The  High  Court  is not correct in  its  reasoning.   Under Section  74(1)(iii) of the Indian Evidence  Act  (Hereinater referred  to  as the "Act") documents forming  the  acts  or records of the acts of public judicial officers of a foreign country  are public documents.  Under Section 76  read  with Section  77 of the Act, certified copies of  such  documents may be produced in proof of their contents.  However,  under Section  86 of the Act there is presumption with  regard  to the genuineness and accuracy of such certified  copy only if it  is also  certified by the representative of our  Central Government  in or for that country that the manner in  which it has been certified is commonly in use in that country for such certification.      Section  63(1) and (2) read with Section 65(e) and  (f) of the Act permits certified copies and copies made from the original  by mechanical process to be tendered as  secondary evidence.   A  photostat copy is prepared  by  a  mechanical

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process  which  in  itself  ensures  the  accuracy  of   the original.   The  present photostat copies  of  the  judicial record  of  the  Court of St. Louis  is  certified  for  the Circuit  Clerk by the Deputy Clerk who is a  public  officer having  the  custody of the document within the  meaning  of Section  76 of the Act and also in the manner  required   by the  provisions  of the said section.  Hence  the  Photostat copy  per  se  is  not  inadmissible  in  evidence.   It  is inadmissible because it has not further been certified by the representative  of  our Central Government   in  the  United States as required by Section 86 of the Act.  The expression "certified copy" of a foreign judgment in Section 14 of  the Code  has  to  be read consistent with  the  requirement  of Section 86 of the Act.      16. While, therefore, holding that the document is  not admissible  in  evidence for want of the  certificate  under Section 86 of the Act and not because it is a photostat copy of  the  original as held by the High Court, we  uphold  the order  of  the  High Court also on a  more  substantial  and larger ground as stated in paragraph 14 above.  Accordingly, we  dismiss the appeal and direct the learned Magistrate  to proceed with the matter pending before him according to  law as expenditiously as possible, preferably within four months from now as the prosecution is already a decade old. T.N.A.                                      Appeal dismissed.                                                        836