Grounds for decree for dissolution of a Muslim marriage

A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Continue reading

Divorce under the Muslim Law that parties could not live within the limits of God.

There is the well known incident in the case of Jameela, wife of Sabit Bin Kais, who hated her husband although the husband was extremely fond of her. It is said that Jameela requested the Holy Prophet to get her husband to divorce her on her giving him her garden. Sabit Bin Kais was very ugly and Jameela, his wife, is reported to have said “if I had no fear to God, I should have struck him on the face whenever he approached me”. Thereupon the Prophet asked Sabit Bin Kais to take back the garden and divorce Jameela. This illustration shows the recognition of the Prophet of the rights of a Muslim wife to ask for divorce or dissolution of marriage when it was shown that the parties could not live within the limits of God.

In 1986 (1) Cur CC 240 (1) (Pak) (SC), a Pakistan case is reported, wherein it is stated thus :

“In cases of dislike by the wife of her husband, Islam concedes the right to the wife in circumstances of extreme discord and where life becomes torture for both, on account of the fixed a version on the part of the spouses, to see dissolution of marriage on the ground of Khula. This right however, is not an absolute right by which the wife can herself dissolve the marriage but is a controlled right. The success of the right depends upon the Quazi’s reaching the conclusion that the spouses cannot live within the limits of God.”

15. In view of the discussions made above, it is manifest that the marriage between the parties has irretrievably broken down and on this score too, a wife is entitled to the dissolution of marriage, which is covered by the residuary ground as envisaged in Section 2(ix) of the Dissolution of Muslim Marriage Act, 1939, which runs thus :–

“2. ……

(ix) On any other ground which is recognised as valid for the dissolution of marriages under Muslim Law.”

In the aforesaid connection, reference may also be made to Mohammed Usman v. Sainaba Umma, AIR 1988 Ker 138.

Difference between a Khula divorce and a Mubara’at divorce

Khula literally translates to ‘extinguishment’ in Arabic. See Radd-ul-Muhtar, Vol. II, p. 916. Khula is mentioned in the Quran in Chapter II, verse 229, and in Chapter IV, verse 127. For a detailed explanation of khula, see Muhammadan Law, Vol. II, Syed Ameer Ali, Kitab Bhavan: New Delhi: 1996, p. 466 – 477; Muslim Law of Marriage, Divorce and Maintenance, M.A. Qureshi, Deep & Deep Publications: New Delhi (1992), p. 266; Fyzee, p. 163-66; Mulla’s Principles of Mahomedan Law, 19th ed., M. Hidayatullah and Arshad Hidayatullah, N.M. Tripathi Private Ltd.: Bombay (1999), p. 265-67. Continue reading

Union cabinet approved Triple Talaq Ordinance-makes it punishable offence

September 19, 2018 :- In a News brief the law minister said :

Ravi Shankar Prasad:

‘We have approved the ordinance on Triple Talaq’

‘We came to know about 430 Triple Talaq cases, 239 before the judgement and 201 after the judgement’

‘We always tried to have a word with Congress on this issue. I tried to have a word with Ghulam Nabi Azad five times but he refused to take any decision on this’

‘Sonia Ji being distinguished women leader did not take any action on this issue and she never supported us due to vote bank politics. I approached them 5-6 times’

‘Women of the Muslim community are helpless in our country. We came to know that major cases are coming from Uttar Pradesh. There was an urgency to bring this ordinance’

‘Under this ordinance, only the woman (victim) or her blood relatives can register a case’

‘Magistrate can appoint a bail but after consultations of the victim’

‘Mothers are entitled for maintenance of herself as well as her children from the accused with consultation of the magistrate’

‘Appeal to Sonia Ji, Mamata Ji, Mayawati Ji that you should think about humanity and not about vote bank politics’ Continue reading

Aviral Bhatla Vs Bhawana Bhatla[ALL SC 2009 FEBRUARY]

KEYWORDS:- DOMESTIC VIOLENCE-SETTLEMENT

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DATE:-18-02-2009

AIR 2009 SCW 6622 : (2009) 3 SCALE 120 : (2009) 3 SCC 448

(SUPREME COURT OF INDIA)

Aviral Bhatla Appellant
Versus
Bhawana Bhatla Respondent

(Before : Arijit Pasayat And Asok Kumar Ganguly, JJ.)

Transfer Petn. (Civil) Nos. 431 with 1052 of 2008, Decided on : 18-02-2009.

Hindu Marriage Act, 1955—Sections 9 and 13(1)(ia)—Criminal Procedure Code, 1973—Section 125—Protection of Women From Domestic Violence Act, 2005—Section 12—Dowry Prohibition Act, 1961—Section 4.

Counsel for the Parties:

Ajai Bhalla, Abhinav Jain, Shefali Jain, K. D. Prasad, Abha R. Sharma, for Appellants

Pinky Anand, Geeta Luthra, D. N. Goburdhan, Jatin, for Respondent.

Judgment

Arijit Pasayat, J—These transfer petitions have been filed by Aviral Bhatla (hereinafter referred to as the ‘husband’) seeking transfer of several cases pending before learned Chief Judge, Family Court, Gwalior, in proceedings under Section 9 of the Hindu Marriage Act, 1955 (in short the ‘Act’) and Section 125 of the Code of Criminal Procedure, 1973 (in short the ‘Code’). The parties were married on 20-1-2006 at Surajkund, Haryana. It appears that there were some irreconcilable differences between the parties and despite concerted and serious efforts the parties were not able to resolve their disputes and were living separately since 10-10-2007. It appears that after the transfer petitions were filed before this Court, learned counsel for the parties made efforts to bring about a comprehensive settlement of the dispute relating to the matrimonial discord. The Mediation Centre of the Delhi High Court also played a vital role in arriving at a settlement. The details of the litigations between the parties are as follows :

(i) The petitioner has filed a case/petition under Section 13(1)(ia) read with Section (iii) of the Hindu Marriage Act, 1955 titled Aviral Bhatla vs. Bhawna Bhatla bearing case No. 48/07 which is pending in the Court of Mr. Ashok Bhardwaj, ASG Gurgaon, Haryana.

(ii) Respondent has filed a case under The Protection of Women from Domestic Violence Act, 2005 being complaint case No. 3086/1/2007 dated 3-11-2007, under Section 12 of the Domestic Violence Act, which is pending in the Court of Ms. Veena Rani Metropolitan Magistrate at Patiala House, New Delhi.

(iii) Respondent has filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 in Gwalior bearing No. 501(a)/07 against the Petitioner pending before Ms. Saroj Maheshwari Jain, Chief Judge, Family Court, Gwalior. The said proceedings have been stayed by this Hon’ble Court in the Transfer Petition No. 1052/2008.

(iv) Respondent has filed a petition u/S. 125 Criminal Procedure Code, 1973 being case No. 435 of 2007 titled as Bhavna Bhatla vs. Aviral Bhatla, pending before Ms. Saroj Maheshwari Jain, Chief Judge, Family Court, Gwalior (MP). The Petitioner has filed a transfer petition for the transfer of this matter bearing Transfer Petition No. 431/2008 and such proceeding has been stayed by this Court in the Transfer Petition No. 431/2008.

(v) Respondent has filed an FIR bearing No. 68/2007 dated 26-11-2007, against Petitioner and his family members under Section 406 r/w 34 and 498A of the IPC read with Section 4 of Dowry Prohibition Act which is pending investigation in Mahila Police Station Padav, Gwalior.

(vi) That petitioner’s father has filed a case bearing Case No. 18664/1/08 titled as M.K. Bhatla vs. Chitvan Sharma and Ors. u/Ss. 420, 465, 468, 471 and 120B pending before the Court of Mr. Sudesh Kumar MM Patiala House, New Delhi.

(vii) The Petitioner has filed two Transfer Petitions bearing TP (C) No. 1052 of 2008 and TP (Crl.) No. 431 of 2008 before this Court inter alia praying transfer of the petition u/S. 9 of the Hindu Marriage Act, 1955 filed by the Respondent pending before the Chief Judge, Family Court at Gwalior and transfer of proceedings under Section 125 Criminal Procedure Code, 1973 filed by Respondent pending before the Chief Judge, Family Court at Gwalior (MP).

The agreed terms of settlement are as follows :

“That the Petitioner agrees and undertakes that he shall pay an amount of ` 12 lacs (Rupees Twelve Lacs) to Respondent in the form of a Pay Order in favour of Ms. Bhavna Bhatla, at the time of making of statements/grant of divorce/quashing of all the criminal and civil proceedings as a full and final settlement of all her claims. Furthermore the petitioner agrees and undertakes to hand over all the household articles as mentioned in settlement agreement dated 14-11-2008 before Ld. Mediator of High Court of Delhi in the presence of both the parties, which are lying at House No. E-8/10, 3rd Floor, Malviya Nagar, New Delhi, within 7 days from the date of signing of the present petition, the same will be collected by the respondent and the expenses for the transportation will be borne by her.

The respondent agrees and undertakes that after the receipt of ` 12 lacs, she and/or any of her family member will have no claim on account of alimony (past, present and future, maintenance, dowry, stridhan or will have no right of claim on any of the property movable or immovable, self acquired, ancestral, joint or HUF of the petitioner or his parents, or his family for any past, present or future claims which have all been settled in terms of the present Consent Terms. Similarly, petitioner and his family members will also have no claim against the respondent and her family members.

That both the parties agree and undertake that all the cases/complaints in any forum or Court which have been filed by the parties and their family members against each other including the ones listed above will be treated as compromised and settled in terms of the present application of divorce by mutual consent under Article 142 of the Constitution of India and this Court may also pass order for quashing of Criminal proceedings as mentioned above.”

2. In view of the factual situation and the settlement arrived at by the parties we direct that a decree of divorce by mutual consent be passed. All the proceedings referred to above which are pending shall stand quashed. We record our appreciation for the effective manner in which the Mediation Centre of Delhi High Court helped the parties to arrive at a settlement.

3. The transfer petitions are accordingly disposed of.

Pankaj Mahajan Vs Dimple @ Kajal[ALL SC 2011 SEPTEMBER]

KEYWORDS:-DIVORCE-MENTAL CRUELTY-INSANITY OF WIFE-

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DATE:-30-09-2011-

  • “Husband had placed ample evidence on record that the Respondent-wife is suffering from “mental disorder” and due to her acts and conduct, she caused grave mental cruelty to him and it is not possible for the parties to live with each other, therefore, a decree of divorce deserves to be granted in favour of the Appellant-husband. In addition to the same, it was also brought to our notice that because of the abovementioned reasons, both Appellant-husband and the Respondent-wife are living separately for the last more than nine years. There is no possibility to unite the chain of marital life between the Appellant-husband and the Respondent-wife”

 

JT 2011 (13) SC 50 : (2011) 11 SCALE 278

(SUPREME COURT OF INDIA)

Pankaj Mahajan Appellant
Versus
Dimple @ Kajal Respondent

(Before : P. Sathasivam and B.S. Chauhan, JJ.)

Civil Appeal No. 8402 of 2011 (Arising out of S.L.P. (Civil) No. 29641 of 2009) : Decided On: 30-09-2011

Hindu Marriage Act, 1955—Section 13(1)(iii)—divorce—Mental insanity of wife—Decree for divorce set aside by High Court—Respondent-wife suffering continuously/intermittently from incurable mental disorder of such nature that appellant-husband cannot be reasonably expected to live with her—Besides, from date of delivery of child, child was periodically taken care of by her grand­parents—Respondent-wife was not of sound mind and she did not look after household work rather she used to give threats to commit suicide—Acts of respondent-wife are of such magnitude and consequence as to cause pain, agony and suffering to appellant-husband which amounted to cruelty in matrimonial law—divorce granted.

Counsel for the Parties:

Nidhesh Gupta, Sr. Adv., Tarun Gupta and S. Janani, Advs.

B.K. Satija and H.D. Talwani, Advs.

JUDGMENT

P. Sathasivam, J—Leave granted.

2. This appeal is directed against the final judgment and order dated 06.08.2009 passed by the High Court of Punjab & Haryana at Chandigarh in FAO No. M-123 of 2006 whereby the High Court allowed the appeal filed by the Respondent herein and set aside the judgment and decree dated 29.04.2006 passed by the Additional District Judge(Ad-hoc)-cum-Presiding Officer, Fast Track Court, Ropar filed under Section 13 of the Hindu Marriage Act, 1955 (in short ‘the Act’).

3. Brief facts:

(a) The marriage of Pankaj Mahajan-Appellant husband and Dimple @ Kajal, Respondent-wife, was solemnized on 02.10.2000 at Amritsar. After the marriage, the parties cohabited and resided together as husband and wife at Amritsar in the parents’ house of the Appellant-husband, but later on shifted to a rented house in Tilak Nagar, Shivala Road, Amritsar. On 11.07.2001, a female child was born, who is now in the custody of the Respondent-wife.

(b) After the marriage, the Appellant-husband found that the Respondent-wife was acting in very abnormal manner, as she used to abruptly get very aggressive, hostile and suspicious in nature. In a fit of anger, she used to give threats that she would bring an end to her life by committing suicide and involve the Appellant-husband and his family members in a criminal case, unless she was provided a separate residence. On one occasion, she attempted to commit suicide by jumping from the terrace but was saved because of timely intervention of the Appellant-husband.

(c) Succumbing to the pressure of the Respondent-wife, the Appellant-husband shifted to a rented house on 28.11.2001 at a monthly rent of ` 3,200/- and started living with her, but the behaviour of the Respondent-wife became more aggressive and she repeated threats of suicide even in the rented house. On enquiry, the Appellant-husband came to know that the Respondent-wife was suffering from acute mental depression coupled with schizophrenia even prior to the marriage and was taking treatment for the same. The Appellant-husband hoping that the Respondent-wife would become alright took her to various doctors, but her mental condition did not improve and she became more and more violent and aggressive. She insulted and humiliated the Appellant-husband in front of his colleagues and relatives several times and even on one occasion she pushed the Appellant-husband from the staircase causing fracture in his right forearm.

(d) On 23.03.2002, the Appellant-husband wrote a letter to his mother-in-law stating therein that the Respondent-wife was repeatedly threatening to commit suicide and even on 19.04.2002, he wrote a letter to the SSP, Amritsar regarding the factum of repeated threats to commit suicide given by the Respondent-wife. On 24.05.2002, the Appellant-husband filed a petition under Section 13 of the Act in the District Court at Amritsar for dissolution of marriage by a decree of divorce. By order dated 29.04.2006, the Additional District Judge, Ropar, granted a decree of divorce in favour of the Appellant-husband.

(e) Being aggrieved by the above-said order, the Respondent wife filed FAO No. M-123 of 2006 before the High Court of Punjab & Haryana at Chandigarh. The High Court, by order dated 06.08.2009, allowed the appeal filed by the Respondent wife and set aside the judgment and decree dated 29.04.2006 passed by the Additional District Judge(Ad-hoc)-cumPresiding Officer, Fast Track Court, Ropar. Aggrieved by the said decision, the Appellant-husband has preferred this appeal before this Court by way of special leave petition.

4. Heard Mr. Nidhesh Gupta, learned senior counsel for the Appellant-husband and Mr. B.K. Satija, learned Counsel for the Respondent-wife.

Discussion:

5. It is not in dispute that the petition for dissolution of marriage for granting a decree of divorce under Section 13 of the Act came to be filed by the Appellant-husband before the District Court at Amritsar. The marriage was solemnized between the parties at Amritsar on 02.10.2000. Since the case of the Appellant-husband as well as the Respondent-wife has already been narrated, there is no need to traverse the same once again. The fact remains that it was the Appellant-husband who approached the court for a decree of divorce on the grounds of ‘cruelty’ and ‘unsound mind’ of the Respondent-wife which is incurable, hence we have to see whether the Appellant-husband has made out a case for divorce on these grounds.

6. Section 13 of the Act, which is useful for our present purpose, reads as under:

13. divorce (1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) **********

(i-a) has, after the solemnisation of the marriage, treated the Petitioner with cruelty; or

(ib) **********

(ii) **********

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the Petitioner cannot reasonably be expected to live with the Respondent.

Explanation.-In this clause,-

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;….

Section 13 specifies the grounds on which a decree of divorce may be obtained by either party to the marriage. The onus of proving that the other spouse is incurably of unsound mind or is suffering from mental disorder lies on the party alleging it. It must be proved by cogent and clear evidence.

7. In the case on hand, since the Appellant-husband has approached the District Court for a decree of divorce, the onus is on him to prove the grounds put-forth by him. As regards the ground alleged by the Appellant-husband for a decree of divorce i.e. the Respondent-wife is suffering from unsound mind/mental disorder/schizophrenia, apart from his own evidence as PW-4, various Doctors, who treated her and other witnesses were also examined. From the side of the Appellant-husband, Dr. Paramjit Singh (PW-1), Dr. Ravinder Mohan Sharma (PW-2), Dr. Virendra Mohan (PW-3) and Dr. Gurpreet Inder Singh Miglani (PW-7), who had given treatment to the Respondent-wife for mental disorder, were examined.

8. Dr. Paramjit Singh (PW-1), Professor and Head Psychiatry Department, Medical College, Amritsar in his evidence stated as follows:

The Respondent remained admitted in my Department at Amritsar from 17.12.2001 to 28.12.2001. This disease is Bipolar Affective Disorder. I treated her during this period. She was admitted in Emergency because her disease was in quite serious stage. In this disease, the patient can commit suicide. When she came, she was aggressive and irritable. If the proper treatment is not given to the Respondent then her aggressive nature can be prolonged. The Respondent Kajal was treated by me by giving electric shock for four times during her stay in the ward M.R.I. i.e. Magnetic Resonance Imaging. MRI has got no concern with the disease with which the Respondent was suffering. This disease is treatable but not curable. I have seen the certificate issued by me which is Ex.P1. It bears my signatures and is correct Ex. P2 i.e. Discharge Certificate. I have brought the original record of the Department concerning the Respondent both in-door as well as out-door. A certified copy of the same attested by me is Ex. P3. These are correct according to the original record brought by me today in the court. The Respondent was brought to the Hospital for her admission and treatment by Sh. S.K. Mahajan son of later Sh. Gian Chand and Pankaj Mahajan. I have seen the receipts today in the court which relate to our hospital and the same are Ex. P4 to Ex. P7 and Ex. P8 is the receipt regarding room rent of our Hospital. On 08.10.2002, father of the Respondent had brought her to our hospital and she was treated by me as well as other doctors of department of our hospital from 08.10.2002. After the discharge from the Hospital, the Respondent was brought to our hospital for treatment by her father on 22.01.2002, 02.02.2002, 09.02.2002, 15.04.2002, 08.08.2002, 08.10.2002, 21.11.2002, 05.02.2003 and 20.06.2003.

(Emphasis supplied)

In cross-examination, he admitted that when the Respondent wife was discharged from the hospital, she was not perfectly alright, however, she was able to return home. He further admitted that in the original record of Ex. P3 some entries were made by him and some by junior doctors, who worked with him. All the entries made therein are correct. He also stated that during the treatment, he did not notice abnormal behaviour of the Respondent-wife.

9. Dr. Ravinder Mohan Sharma (PW-2), Senior Medical Officer, Punjab Mental Hospital, Amritsar, stated as under:

According to file No. 57914 the patient was examined in the out door by Dr. Charu Chawla, Senior Resident whose handwriting I identified as she has been working with me. After examining the patient and recording the history, she has diagnosed her to be a case of Bipolar Affective Disorder with which I agreed and advised her treatment in my own hand. There is another entry dated 16.01.2002 again in my own hand where I had advised her treatment. The second file No. 58803 is in the hand of Dr. Purnima Singh, who after examining presented the case to Dr. Manjit Singh who made a diagnosis of depressive episode and advised her medical treatment dated 21.02.2002. I identified the handwriting of Dr. Purnima Singh and Dr. Manjit Singh as I had been working with them. I have seen the original outdoor ticket of Respondent and the same are Ex. P11 and Ex. P12. As per the history recorded in file No. 58803, there is a mention of suicide ideas and threats and it is recorded that she had attempted suicide once. As per the record, hers is a history of abusive and irritable behaviour. On 16.01.2002 she was advised injection by me because she was irritable and restless. It is not a simple yes or no answer to the question whether the disease is curable or not. It is an episodic illness which patient getting episodes of mental illness and with treatment in between she can remain normal. The intensity and frequency of these episodes is highly unpredictable and varies from patient to patient. Generally, the frequency increases with every episode. The disease of the Respondent is treatable but cannot be definitely say curable. MRI has got nothing to do with this disease of Respondent.

(Emphasis supplied)

In cross-examination, he reaffirmed what he had stated in examination-in-chief.

10. Dr. Virendra Mohan (PW-3), M.D. Psychiatry, Dharampur, District Solan, H.P. stated as follows:

Patient Dimple, aged 23 years, female (single) d/o Shri Prem Kumar, village Shivaji Nagar, House No. 810/11 Ludhiana was admitted on 22.05.1998 and discharged on 06.06.1998. She was suffereing from mental disorder at that time. She was diagnosed as Chronic Paramoid Schizophrenia for the last four years. She got admitted by her father Shri Prem Kumar, and the history of the patient was described to me. I have recorded the history as told by her father. He told that she was having mental symptoms for the last 4 to 5 years. The sleep was less. She was having acute psychotic symptoms at the time of admission. I have mentioned the history of the patient in the register which I have brought today, and the attested true copy of the same is Ex.PW3/As she was admitted in-door because she showed acute mental symptoms. She had paranoid symptoms. She was suicidal and also she could harm herself and others. The patient was restless and she could harm and attack others as well, and could cause injury. It has been recorded in the history of the patient that her Nana had been suffering from the mental disease. There was no test for diagnosing this disease from which the Respondent was suffering. Only the history tells about the earlier condition of the patient. I cannot say if the disease for which the Respondent was suffering is definitely curable or not. This disease is known for relapses. There is no direct relationship in the stress or strain with the disease. This disease is not related to nose or throat. There can be no finding in MRI regarding this kind of disease. There may be suicidal tendency of such type of person suffering from this disease. The Respondent was admitted in the hospital due to abnormal behaviour. I had observed that she passed stool in her cloth, she has visual hallucination. During her admission, she also stated that she wanted to marry her cousin and she was also laughing herself. She was admitted twice in my mental Hospital at Dharampur. I got signatures of father of the Respondent in my register, whenever she got admitted by her father in my hospital and the register bears the signatures of her father. Second time, she was admitted by her father Prem Kumar on 28.09.1999 and was discharged on 05.10.1999. That time she was more excited and more elated and at that time the diagnosis was quarry mania. This time she did not have any paranoid symptoMs. Her address was recorded this time 810/11 Shivaji Nagar, Ludhiana. Usually, if patient remains symptoms free for two years they can get married, but other partner should know the problem so that the treatment should be continued.

(Emphasis supplied)

In cross-examination, PW-3 stated that during the treatment in his hospital, the Respondent-wife responded very well to the treatment. No suicidal action was taken by her during the treatment in his hospital for the second time. He also stated that if the patient remained symptoms free then she is manageable. According to him, as per the records, the Respondent-wife was manageable.

11. Dr. Gurpreet Inder Singh Miglani (PW-7), Associate Professor and Incharge, Department of Psychiatry, Guru Ram Dass Medical Hospital, Amritsar stated as under:

I remained posted in Guru Teg Bahadur Sahib Charitable Hospital at Ludhiana from 1995 to 1998. I was working there as Consultant for Psychiatry. I have seen the original file produced in the Court today relating to Dimple d/o Prem Kumar r/o Shastri Nagar, H. No. 257-A Ludhiana. Dimple was got admitted in our Hospital on 15.06.1996 at 06:50 a.m. by her father Prem Kumar in the Emergency Ward. She was suffering from a very violent behaviour and she has to be given Electric Convulsive Therapy (ECT) on the same day in the operation theater. Subsequently also five ECTs were given as her violence was not being controlled along with other anti psychotic drugs.A diagnosis of F 2004 was made according to ICD 10 at the time of discharge on 15.07.1996. She was labeled as suffering from Paranoid Schizophrenia with incomplete remission and discharged on stable condition. Due consent for ECTs in operation theater under general anesthesia were taken from the father of the patient.

(Emphasis supplied)

In cross-examination, he has stated that he cannot say exactly about the disease of the Respondent-wife whether it can be treatable or not at this stage. He further stated that the disease of the Respondent can be cured or it can aggravate after a lapse of time.

12. It is relevant to point out that the documents produced from the side of the Respondent-wife, particularly, medical report issued by Dr. Harjeet Singh, Consultant Psychiatrist, RW-4 shows as:

Impression: Bipolar Affective (Mood) Disorder, currently in remission.

Advice: marital therapy for the couple. Follow up as and when required.

The said Report has been marked as Annexure R10. A fair typed copy of relevant extract of Ex. P3 shows that “Mood according to patient is euthenics.” The Annexure along with the counter affidavit of the Respondent-wife filed in this Court, particularly, Certificate issued by the Doctor refers “suicide threats made by her on some occasions”.

13. The Appellant-husband was examined as PW-4. According to him, the marriage with Respondent-wife was solemnized on 02.10.2000 and it was an arranged marriage. After marriage, both of them went to Vaishno Devi, however, in the meanwhile he noticed some strange facial expressions and behaviour of his wife-Dimple. He subsequently came to know that she was suffering from some serious disease. She used to become annoyed and angry on petty issues, abuse and fight with him, flaunt her father’s status and influence, comb her hair throughout the day, cry like children, apply brakes of a moving vehicle, call strangers in the house and offer them tea. Even once she called a washerman in the house and gave him ` 200/- unnecessarily and when he said ‘thanks’ she immediately snatched the money from his hands and slapped him for no reason and, thereafter, she abused him and pushed him out of the house. According to him, such things had become her everyday chores. She used to wake up very late in the morning. Whenever his mother and sister called her to join them, she started abusing and insulting them. She used to call his mother stupid and his sister as wretched. One day, when his friend Sumit came to their house, she insulted him when he was sitting in the drawing room on the ground floor and when the Appellant-husband was coming down to join him, she pushed him from stairs and started laughing, as a result, he fell down and got fractured. She was in the habit of listening to phone calls of Madan Lal, the landlord (PW-5) and used to abuse his relatives over phone. One day, when the landlord (PW-5) told them that he is fed up with the Appellant and his family and asked to leave the house immediately thereupon, the Respondent-Dimple slapped him on his face for which he had to apologise him for her acts. Even, one day, she threw the infant child towards him.

14. In order to show that his marriage was an arranged one he explained that he knows the father of the Respondent-wife prior to the marriage as he was his Boss in Life Insurance Corporation office, Amritsar Division. He worked under him for a period of 6-8 months. He further explained that the behaviour of the Respondent-wife came to his notice after 11/2 months’ after their marriage and he immediately disclosed this fact to her father. The treatment was given to the Respondent-wife for the first time on 06.09.2001 for her abnormal behaviour.

15. Another important witness examined on the side of the Appellant-husband is Madan Lal (PW-5), the landlord, who rented his house to them. In his evidence, PW-5 deposed that he is resident of H. No. 62, Tilak Nagar, Amritsar and his wife is also residing with him. He rented out a portion of the building to the Appellant-husband and Respondent-wife which was on the first floor. He and his wife were residing on the ground floor. According to PW-5, the Respondent-wife usually remained sitting in the portion of his house during the day time where he is residing with his family unless and until the Appellant-husband return home. She used to sit with his daughter and daughter-in-law and remained talking with them. She also quarrels with his wife and daughter due to the use of telephone. He explained that his daughter-in-law told him that the Respondent-wife often threatens to commit suicide. The High Court, without looking into the evidence of Madan Lal (PW-5), erroneously concluded that his evidence was of no help. On the other hand, PW-5 has specifically narrated the behaviour of the Respondent with his wife, daughter-in-law and the agony he himself had undergone and highlighted all those details in the Court.

16. Apart from the above oral evidence, the Appellant husband has also pressed into service a copy of an affidavit of the Respondent-wife i.e. Annexure-R3. In the said affidavit, the Respondent-wife has stated that she threatened to commit suicide so many times to her in-laws and she even tried to commit suicide by way of jumping from the roof of the house on the intervening night of 19-20.09.2001 but could not succeed due to timely intervention of her husband. She also stated that she realized that her attempt to commit suicide was at the instance of her parents and now she is repentant for her actions for threatening to commit suicide and apologise for the same with the assurance not to repeat such type of actions in future.

17. Though the trial Court accepted the claim of cruelty, the High Court reversed the said conclusion and completely rejected the claim of divorce even under unsound mind. In the impugned judgment, though the High Court has adverted to the evidence of four doctors, without proper appreciation, arrived at an erroneous conclusion that mere evidence of mental illness is not sufficient to seek decree for divorce. In spite of abundant materials, unfortunately, the High Court has erroneously concluded that only wordings of Section 13(1)(iii) of the Act were merely reproduced without adverting to the facts of the case. According to the High Court, necessary materials were not pleaded. We are unable to accept the said conclusion. Without proper discussion and adequate reasons, the High Court rejected the evidence of the Appellant-husband as PW-4. A perusal of his evidence clearly show the agony and treatment meted out immediately after the marriage due to mental disorder/unsound mind of the Respondent-wife.

18. From the materials placed on record, we are satisfied that the Appellant-husband has brought cogent materials on record to show that the Respondent-wife is suffering from mental disorder, i.e., Schizophrenia. From the side of the Appellant-husband, various doctors and other witnesses were examined to prove that the Respondent-wife was suffering from mental disorder. We have already extensively quoted the statements of Dr. Paramjit Singh (PW-1), Dr. Ravinder Mohan Sharma (PW-2), Dr. Virendra Mohan (PW-3) and Dr. Gurpreet Inder Singh Miglani (PW-7) – all the four doctors/Psychiatrists who treated the Respondent-wife, prescribed medicines and also expressed the view that it is “incurable”. Even the Respondent-wife and her father themselves admitted in their cross-examination that the Respondent had taken treatment from the said Doctors for mental illness. Thus, it is proved beyond doubt that the Respondent-wife is suffering from mental disorder/Schizophrenia and it is not reasonably expected to live with her and the Appellant-husband has made out a case for a decree of divorce and the decree should have been granted in favour of the Appellant-husband and against the Respondent-wife.

19. The High Court, by impugned order, negatived the plea of the Appellant-husband under Section 13(1)(iii) of the Act on the ground that the Appellant-husband has merely reproduced the wordings of the Section without applying the same to the facts of the case and that it was not pleaded that it was a case of continuous or intermittent disorder. The aforesaid reasoning of the High Court is completely erroneous and contrary to the material on record which we have already demonstrated.

20. Coming to the pleadings before the High Court, the Appellant-husband had specifically pleaded that the Respondent-wife was suffering from Schizophrenia, which is a kind of mental disorder and he had pointed out specific incidents to show that the Respondent-wife was not of sound mind. The relevant portion of the petition for divorce filed by the Appellant is reproduced hereunder:

4. That the Petitioner shortly after his marriage found the Respondent to be acting in a very abnormal manner. She would abruptly get very aggressive, hostile and suspicious in nature, ought to hit any body available in her company and her suspicion would go to such an extent that she should not like to take food without some other member of the family consuming the same. The Respondent would also in a fit of anger declare that she will bring an end to her life by committing suicide and would have the Petitioner and all the family members involved in a false criminal case unless she was provided with separate place of residence….Enquiries made in the meantime revealed that the Respondent has been suffering from acute mental depression coupled with Schizophrenia, a mental disorder and illness at intervals with Psychopathic disorder since developed into mania, which prompted her to become more and more violent and aggressive and on one such occasion she repeated threat of suicide and attempted jumping from the house of her in-laws on 19/20.09.2001 but could not succeed in her attempt due to timely intervention of her husband, who is the Petitioner….

…All the same hoping that treatment may cure the Respondent she was got treated by the Petitioner and her parents from various places in connection with her mental illness but such treatment provided to her including administering her electric shocks, did not improve the state of affairs. She was so treated as indoor and outdoor patient in Shri Guru Teg Bahadur Hospital, Amritsar in Psychiatric Department in Dr. Vidya Sagar Mental Health Institute and in Bhatti Neuro Psychiatric Hospital till the end of the year 2001 but all the intensive and costly treatment did not yield fruit and she could not be cured of her mental sickness. The Respondent is, therefore, suffering from major mental disorder in which she has suicidal tendency and becomes aggressive and violent in her behaviour for which she was getting treatment, as referred above, before as well as after the marriage. She has been given anti-psychic treatment and even electric therapy at four occasions at least to the knowledge of the Petitioner but the things did not improve therewith. The Respondent has, therefore, been suffering incurably from unsoundness of mind and has been so suffering continuously or intermittently from mental disorder of such a kind and such an extent that the Petitioner cannot reasonably be expected to live with the Respondent.

5. That on one such occasion under the fit of insanity the Respondent pushed the Petitioner from the staircase leading to their residential portion causing the Petitioner fracture of right hand for which he got treatment from, Dr. Hardas Singh Sandhu in the last week of November, 2001. Such aggressiveness was not first of its kind and in the past also the Respondent under the fit of insanity ventured to slap the Petitioner in his face in the presence of his parents….

The above averments make it clear that the Appellant-husband, after narrating specific incidents of abnormal behaviour of the Respondent-wife had duly pleaded that she was suffering continuously/intermittently from ‘incurable’ mental disorder of such a nature that he cannot be reasonably expected to live with her. It was also stated therein that due to her unsoundness, the Respondent-wife was not able to lead a married life and thus the Appellant-husband was entitled to a decree of divorce. Apart from this, the Appellant-husband had brought cogent evidence on record to show that the Respondent-wife was not in a fit state of mind whereas the Respondent-wife could not lead any acceptable evidence to rebut the same. We have already pointed out that the Respondent and her father admitted her mental illness and periodic treatment from the doctors mentioned above. No doubt, it was pointed out that after the marriage, the couple was blessed with a female child and at present she is studying in a school and there is no dispute about the same. It is clear from the Respondent’s evidence that from the date of delivery of child, the child was periodically taken care of by her grand-parents. It is also relevant to note that whenever the child was with Respondent-wife, she (the mother) was not taking appropriate care which is clear from the evidence of the Appellant-husband (PW-4) and their landlord, Madan Lal (PW-5). One incident which was referred to was that many a times the Respondent-wife casually threw the child facing opposite to her. Under these circumstances, the High Court ought to have accepted the case of the Appellant-husband.

21. The High Court rejected the plea of the Appellant-husband regarding cruelty on the ground that apart from his statement, there is no evidence to prove the same and Madan Lal (PW-5), being hearsay, his evidence was not reliable. As rightly pointed out by Mr. Nidhesh Gupta, learned senior counsel for the Appellant-husband that as far as Madan Lal (PW-5) is concerned, the High Court has only referred to his cross-examination without even adverting to the examinationin-chief wherein he had categorically stated about cruelty meted out by Respondent-wife to the Appellant-husband. The relevant portion of the evidence of PW-5 is as follows:

Thereafter Pankaj Mahajan, his wife Dimple alias Kajal and their infant child aged about 4-5 months started living on the upper portion of my house. They lived in my house on rent upto 30.11.2002. After some days of taking of the house on rent by them, I felt that the girl Dimple was not taking any interest in household affairs and she used to avoid doing household works….

…She used to sit idle after Pankaj’s going to office and was not breast-feeding the child even after child’s uncontrollable crying. Not only this, she used to come down and sit in our bedroom for long hours unnecessarily and talking rubbish and repeating on the same thing again and again. Many times when I asked Dimple why she behaves like this and whether she is alright or not, then she did not reply back and kept mum and whenever she answered to my queries, she used to say that I want to die and my heart says that I should commit suicide. When I heard this from the mouth of Dimple, I become doubly sure that she is mentally unsound and due to her unsound behaviour even my family too become disturbed and started living in constant fear because it appeared from her behaviour that she will do something extreme one day and if she does so, then apart from her in-laws, all of us too will be unnecessarily implicated in the criminal case. Dimple used to come to our house during lunch time and demand food for herself and used to sit in our house for long hours and whenever Pankaj used to come back from his office, she used to tell him that we will go to our portion after taking meals from us. She used to repeat one thing many times. One day, she even went to the extent of saying that you are cooking food every day-then why don’t you keep us as your paying guest because I cannot prepare food myself and I also cannot look after my child. Mostly Dimple used to leave her child with my daughter-in-law and request my daughter-in-law that she should change clothes, bath the child and give her canned milk. My daughter-in-law did all this for 5-6 times, but one day my daughter-in-law clearly told Dimple that this is your duty and she herself should look after the child. On hearing all this, Dimple immediately turned red in anger and slapped my daughter-in-law and called her idiot.

It is clear from the above that the Respondent-wife was not of sound mind and she did not look after the household work rather she used to give threats to commit suicide. She did not even make food for the Appellant-husband and he had to arrange the same from outside. Apart from this, she used to embarrass the Appellant-husband before his landlord’s family and because of her weird behaviour and threats to commit suicide, the Appellant-husband was forced to leave the rented accommodation. Madan Lal, the landlord, PW-5 has also highlighted several instances when the Respondent-wife used to quarrel with her husband and he had to face humiliation in front of others because of her behaviour. Inasmuch as PW-5 was living in the same house on the ground floor and the Appellant-husband and the Respondent-wife were living on the first floor, the said witness being the eye-witness to the cruelty meted out by the Respondent-wife to the Appellant-husband, as he had himself seen the behaviour and the activities of the Respondent-wife including humiliation and threats of committing suicide, cannot be thrown out. Under those circumstances, the observation of the High Court that the statement of PW-5 is only hearsay is liable to be rejected.

22. In addition to the evidence, the Appellant-husband had categorically pleaded in his petition for divorce about the cruelty meted out to him. He narrated the incidents when she used to give threats to commit suicide and had even tried to commit suicide by jumping from the terrace and also pushed him from the staircase resulting in fracture in his right forearm. Due to her mental disorder, on various occasions, she even slapped him. She was also most disrespectful to his parents and she even forced him to live separately from them. His evidence in the form of an affidavit filed before the trial Court is available in the paper book wherein he narrated all the sufferings meted out by her. It is useful to refer the relevant portion from the same:

My wife Dimple used to become annoyed and angry on petty issues. She used to abuse and fight with me. She used to flaunt her father’s status and influence. She used to comb her hair throughout the day. She used to cry like children. She used to apply brakes of a moving vehicle. She used to call strangers in the house and offer them tea. Once she even called a washerman in the house and gave him ` 200/- unnecessarily and when he said thanks she immediately snatched ` 200/- from his hands and slapped him for no rhyme or reason and thereafter she abused him and pushed him out of the house. In fact, such things had become her everyday chores. She used to tell me everything about sex lives and relationship of her maternal uncle and aunt. She was in the habit of not sleeping throughout night and also used to keep me awake throughout night and whenever I tried to sleep, she used to insist me to talk to her and whenever I told her to allow me to sleep, she used to press my neck. She used to wakeup the child from deep slumber and start slapping her for no reason. She was in the habit of wrapping the child in wrapper throughout continuously and due to which child used to weep continuously. She used to say that she is obsessed and hears outer world’s voices and barking of dogs. She used to tell me that she is regularly seeing evil spirits. She used to go out for roaming at 2-3 a.m. in the night. Whenever I refused to listen or agree to her demands, she used to throw dirty clothes upon me. She was in the bad habit or keeping the door of toilet opened throughout the day even while she was bathing or refreshing herself. She used to doubt everything whenever she started eating her food. She also used to doubt her mother and sister and used to say that both of them have immoral character. She was in the habit of opening and closing the central locking system of the car. She was in the habit of increasing the volume of TV to the maximum unnecessarily. Whenever I used to go to office, she used to stop me from going and when I told her that I have to go to office, she used to say that she will commit suicide. In fact she was in the habit of pressing and coaxing me for all her needs and desires. She used to say that I want to live with Happy and also used to say that she has no interest in living with me. She stressed that she will leave me and starts living with Happy. (Happy is the son of my wife’s elder paternal uncle.)

She was in the habit of unnecessarily arguing with my parents and used to abuse them and whenever I stopped her from doing so, she used to threaten me that she will commit suicide. However, I used to request my parents to look after her in my absence. But she used to misbehave and insult them. She used to say that she will buy her own house and will start living in that house because this house is very small for her needs and she feels suffocated in this house. Although my house is in a very posh colony and it is a very spacious, airy, open and large house. I noticed that condition of Dimple is becoming worse every day. I became sure that she is actually mad and she is concealing her madness from me. I noticed that she used to keep some medicine in her purse and used to take that medicine often. She was actually sex-hungry and was not interested in doing any household works. She never showed any interest in keeping her bedroom and drawing clean and tidy. She was in the habit of wearing the clothes of 3-4 days regularly. She used to wake up very late in the morning. Whenever my mother and sister called her to join them, she was abusing and insulting them. She used to call my mother stupid and my sister as wretched. However, I controlled myself and kept on tolerating her conduct, because all of us were in the fervent hope that one day God will cure her….

…One day, my friend Sumit came to my house. Earlier also he used to come to my house as he is also working with me in the LIC. He wished Dimple and enquired about her and instead of welcoming him, Dimple insulted him by saying why are you coming to our house uncalled every day. He felt very insulted and sat in the drawing room on the ground floor and when I was also coming down to join him, Dimple pushed me from stairs and started laughing unnecessarily. As a result of aforesaid pushing, I fell down and bones of my right arm and wrist got fractured. Perchance, Ashok Kumar too had come to my house on that day and he was repeatedly asking for meals. But when he saw my condition, he immediately took me to the Hospital of Dr. Hardas where plaster was applied on my arm and wrist. When we came back, to my utter shock and surprise, Dimple did not even notice any change in me and did not remotely felt that I have received fractures in my arm and wrist and plaster has been applied on my arm. One day when we were sitting in the drawing room, I called Dimple and asked her to bring tea for me. At that time she was wearing very dirty clothes. So, I asked her to immediately go and change her dirty clothes and wear some good clothes. But instead of changing her clothes, she started abusing me and even slapped me on my face. Thereupon my mother asked her why she is behaving like this, upon which she rose her hands to slap my mother too, but my sister stopped her from doing so. We narrated all the above incidents of Dimple to her father. He expressed his shock and apologized on her behalf and advised us to start living separately and said that she will start behaving properly and nicely.

All the above details in the form of assertion in the affidavit clearly show that the Appellant-husband faced cruelty at the hands of the Respondent on several occasions.

23. It is well settled that giving repeated threats to commit suicide amounts to cruelty. When such a thing is repeated in the form of sign or gesture, no spouse can live peacefully. In the case on hand, the Appellant-husband has placed adequate materials to show that the Respondent-wife used to give repeated threats to commit suicide and once even tried to commit suicide by jumping from the terrace. Cruelty postulates a treatment of a spouse with such cruelty as to create reasonable apprehension in his mind that it would be harmful or injurious for him to live with the other party. The acts of the Respondent-wife are of such quality or magnitude and consequence as to cause pain, agony and suffering to the Appellant-husband which amounted to cruelty in matrimonial law. From the pleadings and evidence, the following instances of cruelty are specifically pleaded and stated. They are:

i. Giving repeated threats to commit suicide and even trying to commit suicide on one occasion by jumping from the terrace.

ii. Pushing the Appellant from the staircase resulting into fracture of his right forearm.

iii. Slapping the Appellant and assaulting him.

iv. Misbehaving with the colleagues and relatives of the Appellant causing humiliation and embarrassment to him.

v. Not attending to household chores and not even making food for the Appellant, leaving him to fend for himself.

vi. Not taking care of the baby.

vii. Insulting the parents of the Appellant and misbehaving with them.

viii. Forcing the Appellant to live separately from his parents.

ix. Causing nuisance to the landlord’s family of the Appellant, causing the said landlord to force the Appellant to vacate the premises.

x. Repeated fits of insanity, abnormal behaviour causing great mental tension to the Appellant.

xi. Always quarreling with the Appellant and abusing him.

xii. Always behaving in an abnormal manner and doing weird acts causing great mental cruelty to the Appellant.

24. All these factual details culled out from the pleadings and evidence of both the parties clearly show the conduct of the Respondent-wife towards the Appellant-husband. With these acceptable facts and details, it cannot be concluded that the Appellant-husband has not made out a case of cruelty at the hands of the Respondent-wife. We are satisfied that the Appellant-husband had placed ample evidence on record that the Respondent-wife is suffering from “mental disorder” and due to her acts and conduct, she caused grave mental cruelty to him and it is not possible for the parties to live with each other, therefore, a decree of divorce deserves to be granted in favour of the Appellant-husband. In addition to the same, it was also brought to our notice that because of the abovementioned reasons, both Appellant-husband and the Respondent-wife are living separately for the last more than nine years. There is no possibility to unite the chain of marital life between the Appellant-husband and the Respondent-wife.

25. In the light of the facts and circumstances as discussed above, in our view, the impugned order of the High Court resulted in grave miscarriage of justice to the Appellant-husband, more particularly, the High Court failed to consider the relevant material aspects from the pleadings and the evidence, the ultimate conclusion cannot be sustained. The Appellant-husband established and proved both grounds in terms of Section 13 of the Act. In the result, the appeal stands allowed. The divorce petition filed by the Appellant-husband stands accepted and a decree of divorce is hereby passed dissolving the marriage of the Appellant with the Respondent from today, i.e. 30.09.2011. The impugned order of the High Court dated 06.08.2009 in FAO No. M-123 of 2006 is set aside. The Appellant-husband is directed to pay an amount of ` 2 (Two) lakhs as alimony to the Respondent-wife in two equal instalments within a period of three months from today and to deposit ` 3 (Three) lakhs in the name of his daughter in the shape of three FDRs in a nearest nationalised bank in three equal instalments commencing from January, 2012 ending with June, 2012. On attaining majority, the daughter is permitted to withdraw the amount. Till such period, the Respondent-wife is permitted to withdraw accrued interest once in three months directly from the bank from the said deposit for the benefit and welfare of their daughter.

Ranjit Kaur Vs Major Harmohinder Singh and Others[ALL SC 2011 NOVEMBER]

KEYWORDS:-EVICTION OF WIFE AFTER DECREE OF DIVORCE

c

Date: 02-11-2011-

“Even though, after passing of the decree of the divorce she may not have a legal right to continue to remain in possession of the suit property, Respondent No. 1 cannot be given liberty to forcibly evict her”.

Wife has no legal right to continue to remain in possession of the husband`s property

JT 2011 (13) SC 212

(SUPREME COURT OF INDIA)

Ranjit Kaur Appellant
Versus
Major Harmohinder Singh and Others Respondent

(Before : G.S. Singhvi and Sudhansu Jyoti Mukhopadhaya, JJ.)

Civil Appeal Nos. 9748-9749 of 2011 (Arising out of SLP (C) No. 19714-15 of 2009) : Decided On: 02-11-2011

Hindu Adoptions and Maintenance Act, 1956—Section 18—Right to residence in matrimonial home—Withdrawal of restraint order passed by trial Court against alienation of suit property—Decree of divorce has become final—Petition filed by appellant under Section 125 of Cr.P.C for grant of maintenance was dismissed by concerned Court—In decree of divorce, no provision was made for maintenance of appellant including right of residence in suit property—No fault in order passed by lower appellate Court, whereby injunction granted by trial Court against alienation of suit property was vacated—However, appellant can be evicted only by following procedure established by law—Appeals dismissed.

ORDER

1. Leave granted.

2. The Appellant is aggrieved by the order of the learned Single Judge of the Punjab and Haryana High Court whereby he allowed the revision filed by Respondent No. 1 and vacated the order of injunction passed by the trial Court, which had been partly confirmed by the lower appellate Court insofar as it related to her forcible eviction from suit property, i.e. Kothi No. 84, Phase-IX, SAS Nagar (Mohali).

3. The Appellant and Respondent No. 1 were married in 1978. After 15 years of the marriage, Respondent No. 1 filed a suit for permanent injunction for restraining the Appellant from interfering with the suit property. On being noticed, the Appellant filed counter claim and pleaded that in terms of Section 18 of the Hindu Adoptions and Maintenance Act, 1956, she is entitled to reside in the suit property. The trial Court dismissed the suit of Respondent No. 1 and decreed the counter claim filed by the Appellant. The first and the second appeals filed by Respondent No. 1 were dismissed by the lower appellate Court and the High Court. Special Leave Petition (Civil) No. 4193/2000 filed by him was summarily dismissed by this Court vide order dated 16.3.2000.

4. In the meanwhile, Respondent No. 1 filed a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage on the ground of cruelty. The same was decreed by Additional District Judge, Ropar vide judgment dated 4.10.2001. The appeal preferred by the Appellant was dismissed by the High Court and the decree of divorce was confirmed.

5. After dissolution of the marriage, the Appellant filed suit for permanent injunction and prayed that Respondent No. 1 be restrained from alienating the suit property and interfering with her peaceful possession over the suit property. She also prayed for restraining Punjab Urban Development Authority (PUDA) (Respondent No. 5 herein) from issuing ‘No Objection Certificate’ to Respondent No. 1 to enable him to alienate or transfer the suit property.

6. Along with the suit, the Appellant filed an application under Order XXXIX Rules 1 and 2 Code of Civil Procedure for grant of temporary injunction against alienation of the property and her dispossession. By an order dated 23.2.2005, the trial Court allowed the application and directed Respondent No. 1 not to dispossess the Appellant. The trial Court also restrained PUDA from issuing ‘No Objection Certificate’ in favour of Respondent No. 1.

7. On an appeal filed by Respondent No. 1, the aforesaid order of injunction was partly set aside by the lower appellate Court and the restraint imposed by the trial Court against alienation of the suit property was withdrawn. However, a direction was given that in the event of alienation of the suit property, Respondent No. 1 shall incorporate the factum of pendency of suit in the transfer deed/sale deed and also make alternative arrangement for the Appellant.

8. Both, the Appellant and Respondent No. 1 challenged the appellate order by filing separate revisions. The learned Single Judge adverted to the history of litigation between the parties and held that in the absence of any stipulation in the decree of divorce, the Appellant was not entitled to an order of injunction against alienation of the suit property or a restraint order against her dispossession. In the opinion of the learned Single Judge, once the decree of divorce was passed, matrimonial relation between the parties ceased and, therefore, the Appellant cannot continue to occupy the house owned by Respondent No. 1 as of right. The learned Single Judge also opined that there was no justification to impose any restriction against alienation of the suit property by Respondent No. 1.

9. We have heard Shri S. K. Dholakia, learned senior counsel appearing for the Appellant and Shri Rohit Sharma, Learned Counsel appearing for Respondent No. 1 and perused the record.

10. It is not in dispute that the decree of divorce passed by Additional District Judge, Ropar has become final. It is also not in dispute that the petition filed by the Appellant under Section 125 of the Code of Criminal Procedure for grant of maintenance was dismissed by the concerned Court and in the decree of divorce, no provision was made for maintenance of the Appellant including the right of residence in the suit property. Therefore, it is not possible to find any fault with the order passed by the lower appellate Court, whereby injunction granted by the trial Court against alienation of the suit property was vacated and there is no warrant for this Court’s interference with the impugned order in so far as it confirms this part of the order passed by the lower appellate Court.

11. However, we find merit in the arguments of learned senior counsel for the Appellant that the High Court was not justified in vacating the restraint order passed by the trial Court against the dispossession of his client. Learned counsel is right in his submission that even though in the decree of divorce, the Appellant has not been given a right of residence and her occupation of the suit property can be treated as unauthorized, Respondent No. 1 cannot evict her except after following the procedure established by law. The material placed on record shows that the Appellant had entered into the property as the wife of Respondent No. 1. Therefore, even though, after passing of the decree of the divorce she may not have a legal right to continue to remain in possession of the suit property, Respondent No. 1 cannot be given liberty to forcibly evict her.

12. In the result, the appeals are partly allowed, the impugned order is set aside insofar as it enables Respondent No. 1 to forcibly evict the Appellant from the suit property. This would necessarily mean that Respondent No. 1 shall be free to evict the Appellant from the suit property in accordance with law. The Appellant’s prayer for restraining Respondent No. 1 from alienating the suit property is, however, rejected and, to that extent, the appeals are dismissed. The parties are left to bear their own costs.

Anu Bhandari Vs. Pradip Bhandari [ALL SC 2018 MARCH]

KEYWORDS:- decree of divorce-SETTLEMENT-

c

DATE: MARCH 5, 2018

Under Section 9 of the Family Courts Act, 1984, the Court has a duty to make an endeavour to assist and persuade the parties in arriving at a settlement.The jurisdiction is not just to decide a dispute, on the contrary, the court also has to involve itself in the process of conciliation/mediation between the parties for assisting them not only to settle the disputes but also to secure speedy settlement of disputes. Such timely intervention of the court will not only resolve the disputes and settle the parties peacefully but also prevent sporadic litigations between the parties.

ACT:- Section 13B of the Hindu Marriage Act, 1955

SUPREME COURT OF INDIA

Anu Bhandari Vs. Pradip Bhandari

[Civil Appeal No. 2494 of 2018 arising out of S.L.P. (Civil) No. 15537 of 2016]

[Civil Appeal No. 2495 of 2018 @ SLP (Civil) No. 2343 of 2017]

KURIAN, J.:

1. Leave granted.

2. “god always has something for you

A Key for every problem

A Light for every shadow

A Relief for every sorrow and

A Plan for every tomorrow

Very

Obedient

Vibhu”

This is the rich encomium paid to the Court by Master Vibhu, the ten year old son of the appellant and respondent. The little one present in Court today is exuberantly happy and sought liberty to present a handmade card expressing his joy on the settlement of all the disputes and litigations between his mother and father. Their marriage was solemnized as per Hindu rites on 18.05.1997. They have two children – Bhuvi, the elder daughter born on 19.04.1998 and Vibhu, son born on 31.01.2008. On account of marital discord and temperamental differences, they have been living separately since March, 2011. They are involved in various litigations, civil as well as criminal. As of now, twenty three cases are pending before various courts – Trial Courts, High Court, this Court and one before the Consumer Forum.

3. There have been several efforts for settlement. Notable among them were the intervention of Hon’ble Mrs. Justice Lisa Gill, Judge of the High Court of Punjab and Haryana and Ms. Meenakshi Arora, learned Senior Counsel, appointed by this Court as Mediator. Having noticed that all the efforts hitherto have not been fully fruitful, we directed the parties to be present before this Court. The parties have cooperated with the tireless efforts taken by this Court. It is heartening to note that finally the parties have reached an amicable settlement. The terms of settlement have been stated in detail in Interlocutory Application No. 19210 of 2018, based on which the parties have sought for divorce by mutual consent. The Interlocutory Application No. 19210 of 2018 shall form part of this Judgment.

4. Since the parties have finally resolved their entire disputes, they have prayed for giving a quietus to the entire civil and criminal litigations. Having regard to the nature of the cases and having due regard to the settlement, we are of the view that it is in the interest of justice that the entire litigations between the parties are also put an end to, in terms of the settlement.

5. Accordingly, the following cases are quashed:-

Sl. No.

Case No.

Court/Authority

1.

Crl. Complaint No.162/14

Judicial Magistrate First Class, Chandigarh

2.

Crl. Complaint No.1359/16

Judicial Magistrate First Class, Chandigarh

3.

PHC 1430/14

Judicial Magistrate First Class, Chandigarh

4.

Untraceable Case 156/2016

Judicial Magistrate First Class, Chandigarh

5.

Case No.301/13 dated 14.6.13

Judicial Magistrate First Class, Chandigarh

6.

Case No.464/13

Judicial Magistrate First Class, Chandigarh

7.

FIR No.0167 dated 25.8.2017 P.S. City Phagwara

P.S. City Phagwara

6. The following cases are dismissed:-

Sl. No.

Case No.

Court/Authority

1.

Civil Suit No.12905/13

Judicial Magistrate First Class, Chandigarh

2.

Crl. Misc. Case No.570 of 2016

Judicial Magistrate First Class, Chandigarh

3.

Crl. Misc. Case No.305 of 2015

Judicial Magistrate First Class, Chandigarh

4.

Execution App. No.543/14

ADJ, Chandigarh

5.

Civil Suit No.CS CJ/1072/2016

JMIC, Chandigarh

6.

Contested Mutation No.8303 of Village Maloya, Chandigarh

Sub. Divisional Magistrate (South) U.T. Chandigarh

7. The following cases are disposed of in terms of the Settlement:-

Sl. No.

Case No.

Court/Authority

1.

CRM No.M-1087 of 2017

High Court of Punjab and Haryana at Chandigarh

2.

CRM No.M-10620 of 2017

High Court of Punjab and Haryana at Chandigarh

3.

CRM No.M-14499 of 2017

High Court of Punjab and Haryana at Chandigarh

4.

CRM No.M-7865 of 2017

High Court of Punjab and Haryana at Chandigarh

5.

CRM No.M-7622 of 2017

High Court of Punjab and Haryana at Chandigarh

6.

CRM No.M-31885 of 2017

High Court of Punjab and Haryana at Chandigarh

7.

CRM No.M-22474 of 2014

High Court of Punjab and Haryana at Chandigarh

The Consumer Case No.580 of 2014 filed by Ms. Anu Bhandari pending before the Chandigarh District Consumer Disputes Redressal Forum-I, UT Chandigarh is dismissed.

8. Civil Appeal No. 2494 of 2018 arises out of Special Leave Petition (Civil) No. 15537 of 2016 filed by Ms. Anu Bhandari being aggrieved by Order dated 11.04.2016 passed by the High Court of Punjab and Haryana in Civil Revision No. 3430 of 2014. Civil Appeal No. 2495 of 2018 arises out of Special Leave Petition (Civil) No. 2343 of 2017 is filed by Pradip Bhandari 5 being aggrieved by Order dated 11.04.2016 passed by the High Court of Punjab and Haryana in Civil Revision No. 3430 of 2014.

9. What survives is only the Application filed by the parties under Section 13B of the Hindu Marriage Act, 1955. As we have settled all disputes, we do not think it necessary to relegate them for another litigation before the Family Court. The parties are present before us. Having regard to the background of the litigation and having regard to the long separation between the parties, we are convinced that the parties have taken a conscious decision, uninfluenced by any extraneous factors. Therefore, it is not necessary for them to wait for a further period of six months. Accordingly, the marriage between Anu Bhandari and Pradip Bhandari is dissolved by a decree of divorce by mutual consent.

10. The appellant and respondent are directed to strictly abide by the terms of settlement. They are also restrained from instituting any fresh litigation in respect of the subject matter without leave of this Court.

11. In our Order dated 15.02.2018, the following direction in terms of the statement had been issued:

“2. Mr. Pradip Bhandari is directed to transfer his share in agricultural land situated in Khewat No.159, Khatauni No.176, Khasra 46/2 (20-0) in Village Golpura, Tehsil and District Panchkula as per Jamabandi for the year 2007-2008 left over land owned as on date by Mr. Pradip Bhandari in favour of Ms. Anu Bhandari/wife, Bhuvi Bhandari and master Vibhu Bhandari.”

12. The Tehsildar concerned is directed to effect the required transfer and change the mutation in respect of the property referred to in the order in favour of Anu Bhandari, Bhuvi Bhandari and Master Vibhu Bhandari. It is made clear that the share of Mr. Pradip Bhandari will be equally divided among the three. This shall be done immediately.

13. We are informed that an amount of Rs.50,000/- (Rupees Fifty Thousand) is lying in the form of Demand Draft in the name of Ms. Anu Bhandari with Judicial Magistrate First Class, Chandigarh in Case No. 301 of 2013 dated 14.06.2013. We direct the Court concerned to return the Demand Draft to Mr. Pradip Bhandari forthwith. Mr. Pradip Bhandari is directed to pay an amount of Rs.50,000/- to Ms. Anu Bhandari within a week thereafter.

14. Before parting with the Judgment, we may hasten to observe that what has been closed is not simply twenty three cases; in the background of both the parties, they would have easily gone for many more litigations in the coming years. Under Section 9 of the Family Courts Act, 1984, the Court has a duty to make an endeavour to assist and persuade the parties in arriving at a settlement.

Unlike many other legislations, the Legislature has cast a duty on the Court in that regard. The jurisdiction is not just to decide a dispute, on the contrary, the court also has to involve itself in the process of conciliation/mediation between the parties for assisting them not only to settle the disputes but also to secure speedy settlement of disputes. Such timely intervention of the court will not only resolve the disputes and settle the parties peacefully but also prevent sporadic litigations between the parties.

15. We record our deep appreciation for the strenuous efforts taken by Hon’ble Mrs. Justice Lisa Gill, Judge of the High Court of Punjab and Haryana, Ms. Meenakshi Arora, learned Senior Counsel appointed as Mediator by this Court and for the cooperation extended by the learned Counsel on both sides and the parties themselves.

16. The Civil Appeals are accordingly disposed of.

17. There shall be no order as to costs.

J. (KURIAN JOSEPH)

J. (MOHAN M. SHANTANAGOUDAR)

NEW DELHI;

MARCH 5, 2018.

Smt. Satya Vs Teja Singh [ ALL SC 1974 October]

Whether Indian Courts bound to give recognition to divorce decrees granted by foreign Courts?

c

DATE:-Decided on : 01-10-1974-

Whether a Hindu marriage solemnised within this country can be validly annulled by a decree of divorce granted by a foreign Court ?

AIR 1975 SC 105 : (1975) 2 SCR 97 : (1975) 1 SCC 120 : (1975) CriLJ SC 52

(SUPREME Court OF INDIA)

Smt. Satya Appellant
Versus
Teja Singh Respondent

(Before : H. R. Khanna And Y. V. Chandrachud, JJ.)

Criminal Appeal No. 187 of 1970, Decided on : 01-10-1974.

Criminal Procedure Code, 1898—Section 488—Petition for maintenance for wife and children—Contention by husband of non-liability on account of his having obtained a decree of divorce from the Nevada Court, under-section A—Decree obtained exparte— Decree is open to collateral attack as lacking jurisdiction— Private International Law—Decree held not binding or valid—For valid domicile, residence must answer qualitative and quantitative tests.

English Law—Divorce—Principles governing recognition of foreign, decrees of divorce—Criteria of American Courts adopted by English Courts—Wife’s choice of a domicile may be fettered by the real, and not feigned domicile of husband—Fraud as to merits of petition was ignored bat fraud as to jurisdiction of foreign Court treated as ground for refusal to recognise foreign decree—Development of English Law of Divorce—Traced.

Foreign Law—American Law—Divorce—Validity of divorce decree granted by a foreign Court recognised on the ground that the decree is entitled to full faith and credit under Article IV of the U.S. Constitution or on the ground of comity.

Private International Law—Need for legislative reform in India—Stressed.

Private International Law—No system of Private International Law can claim universal recognition—Every case coming before an Indian Court must be decided according to Indian law—Recognition to a law of a foreign country to be given on considerations of justice and if it does not offend our public policy—The rules of private International law evolved by other countries cannot be mechanically adopted in India.

Private International Law—Principles of American and English conflict of laws not to be blindly adopted by Indian Courts—Criteria which should determine the rules of our Private International Law—Laid down.

American Law—Divorce law—Foreign decree of divorce is subject to collateral attack for fraud or want of jurisdiction—Fraudulent simulation of domicile is impermissible.

American Law—Divorce jurisdiction—To confer jurisdiction and entitle decree to extra-territorial recognition residence must be actual and genuine and accompanied by an intent to make the State his home.

American Law—Recognition of divorce decree granted by a foreign Court as a matter of comity—Principles governing—Court granting the decree should have jurisdiction over the proceedings—Foreign decree is subject to collateral attack for lack of jurisdiction even where it contains findings of jurisdictional facts.

American Law—Recognition by U. S Courts of Foreign decree—Principles governing—Enunciated.

Civil Procedure Code, 1908—Section 13(a)—Scope and applicability of—Decree of divorce obtained by husband by lying to the foreign Court on jurisdictional facts—Not conclusive or binding—A judgment of a foreign Court to be conclusive between the parties must be a judgment pronounced by a Court of competent jurisdiction—Competency contemplated by section 13 in an International sense—Even a judgment in rem is liable to attack on ground of lack of jurisdiction—Fraud bearing on jurisdictional facts vitiates all judicial acts—Private International law.

Civil Procedure Code, 1908—Section 13—Foreign judgment—Decree of divorce—Decree if binding on Indian Courts—Determination of jurisdiction of foreign Court.

The concept of domicil is not uniform throughout the world and just as long residence does not by itself establish domicil, brief residence may not negative it. But residence for a particular purpose fails to answer the qualitative test for, the purpose being accomplished the residence would cease. The residence must answer “a qualitative as well as a quantitative test”, that is, the two elements of factum at animus must concur. The respondent went to Nevada forumhunting, found a convenient jurisdiction which would easily purvey a divorce to him and left it even before the ink on his domiciliary assertion was dry. Thus, the decree of the Nevada Court lacks jurisdiction. It can receive no recognition in our Courts.

Section 13(a) of the Code of Civil Procedure, 1908 makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon except “where it has not been pronounced by a Court of competent jurisdiction.” Learned counsel for 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 there is no possibility of a reconciliation” may be assumed to be true. But fraud as to the jurisdiction of the Nevada Court is a vital consideration in the recognition of the decree passed by that Court. It is therefore, relevant that the respondent successfully invoked the jurisdiction of the Nevada Court by lying to it on jurisdictional facts.

Evidence Act, 1872—Sections 41 and 44—Foreign Judgment—Effect of—Admissibility where the Judgment was obtained by fraud or accusation or was delivered by the Court which has no jurisdiction—Admissibility of Judgment cannot render its binding.

Evidence Act, 1872—Sections 41 and 42—Competent Court—Judgment in rem—Binding affect—The judgment must be delivered by the Court of competent jurisdiction and must not be vitiated by fraud or collusion.

Section 41 of the Indian Evidence Act provides, to the extent material, that a final judgment of competent Court in the exercise of matrimonial jurisdiction is conclusive proof that the legal character which it confers or takes away accrued or ceased at the time declared in the judgment for that purpose. But the judgment has to be of a “competent Court”, that is, a Court having jurisdiction over the parties and the subject matter. Even a judgment in rem is therefore open to attack on the ground that the Court which gave it had no jurisdiction to do so.

In fact Section 44 of the Evidence Act gives to any party to a suit or proceeding the right to show that the judgment which is relevant under Section 41 “was delivered by a Court not competent to 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.

Judgment—Judgment in rem—Binding affect—The judgment must be delivered by the Court of competent jurisdiction and must not be vitiated by fraud or collusion.

Judgment

Chandrachud. J—This appeal by special leave arises out of an application made by the appellant under Sec. 488, Code of Criminal Procedure, 1898. It raises issues far beyond the normal compass of a summary maintenance proceeding designed primarily to give quick relief to a neglected wife and children. Are Indian Courts bound to give recognition to divorce decrees granted by foreign Courts ? That, broadly, is the question for decision.

2. Satya, the appellant herein, married the respondent Teja Singh on July 1, 1955 according to Hindu rites. Both were Indian citizens and were domiciled in India at the time of their marriage. The marriage was performed at Jullundur in the State of Punjab. Two children were born of the marriage, a boy in 1956 and a girl in 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.

3. 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 Rupees 1000/- per month for their maintenance.

4. 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 ceased to be his wife by virtue of that decree and, therefore, he was not liable to maintain her any longer. He expressed his willingness to take charge of the children and maintain them.

5. The Judicial Magistrate, First Class, Jullundur held by her judgment dated December 17, 1966 that the decree of divorce was not binding on the appellant as the respondent had not “permanently settled” in the State of Nevada and that the marriage between the appellant and the respondent could be dissolved only under the Hindu Marriage Act, 1955. The learned Magistrate directed the respondent to pay a sum of ` 300/per month for the maintenance of the appellant and ` 100/per month for each child. This order was confirmed in revision by the Additional Sessions Judge, Jullundur, on the ground that the marriage could be dissolved only under the Hindu Marriage Act.

6. In the third round of litigation, the husband succeeded in a Revision Application filed by him in the High Court of Punjab and Haryana. A learned single Judge of that Court found that “at the crucial time of the commencement of the proceedings for divorce before the Court in Nevada, the petitioner was domiciled within that State in United States of America”. This finding is the corner-stone of the judgment of the High Court. Applying the old English rule that during marriage the domicil of the wife, without exception, follows the domicil of the husband, the learned Judge held that since the respondent was domiciled in Nevada so was the appellant in the eye of law. The Nevada Court had therefore, jurisdiction to pass the decree of divorce. In coming to this conclusion the learned Judge relied principally on the decisions of the Privy Council in (i) Le Mesurier v. Le Mesurier. 1895 AC 517 and (ii) Attorney General for Alberta v. Cook 1926 AC 444 and of the House of Lords in (i) Lord Advocate v. Jaffrey, 1921 AC 146 and (ii) Salvesen or von Lorang v. Administrator of Austrian Property. 1927 AC 641. In Le Mesurier’s case (supra) which is often referred to, though not rightly, as the “starting point”, it was held that “according to International law, the domicil for the time being of the married pair affords the only true test of jurisdiction to dissolve their marriage”.

7. The High Court framed the question for consideration thus:”Whether a Hindu marriage solemnised within this country can be validly 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 solemnized 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 the 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 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.

8. 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”.[1]There is no system of private International law which can claim universal recognition and that explains why Cheshire, for example, says that his book is concerned solely with that system which obtains in England, that is to say, with the rules that guide an English Court whenever it is seized of a case that contains some foreign element. The same emphasis can be seen in the works of other celebrated writers like Graveson. Dicey and Marris, and Martin Wolff. Speaking of the “English conflict of laws” Graveson says “Almost every country in the modem world has not only its own system of municipal law differing materially from those of its neighbours but also its own system of conflict of laws, …..”[2]. According to Dicey and Morris, “The conflict of laws exists because there are different systems of domestic law. But systems of the conflict of laws also differ”[3] Martin Wolff advocates the same point of view thus:”Today undoubtedly Private International Law is national law. There exists an English private International law as distinct from a French, a German, an Italian private International law. The rules on the conflict of laws in the various countries differ nearly as much from each other as do those on internal (municipal) law”[4]. It is thus a truism to say that whether it is a problem of municipal law or of Conflict of Laws, every case which comes before an Indian Court must be decided in accordance with Indian law. It is another matter that the Indian conflict of laws may require that the law of a foreign country ought to be applied in a given situation for deciding a case which contains a foreign element. Such a recognition is accorded not as an act of Courtesy but on considerations of justice.[5]It is implicit in that process that the foreign law must not offend against our public policy.

9. We cannot therefore adopt mechanically the rules of Private International Law evolved by other countries. These principles vary greatly and are molded by the distinctive social, political and economic conditions obtaining in these countries. Questions relating to the personal status of a party depend in England and North America upon the law of his domicil, but in France, Italy, Spain and most of the other European countries upon the law of his nationality. Principles governing matters within the divorce jurisdiction are so conflicting in the different countries 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.

10. The respondent petitioned for divorce in the Nevada Court on November 9, 1964. Paragraph I 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 as yet completed his education; that by defendant’s choice she and the minor children the issue of the marriage reside with her parents and are supported by her parents; that at the place in India where defendant and the minor children reside, seven and 50/100 (7.50) Dollars per month per child is more than adequate to support, maintain and educate a child in the best style; and that plaintiff should be ordered to pay to defendant the sum of 7. 50 per month per child for the support, maintenance and education of the aforesaid two minor children …………”

The cause of action is stated in Para VI of the petition in these words:

“That Plaintiff alleges for his cause of action against defendant that he and defendant have lived separate and apart for more than three (3) consecutive years without cohabitation, and that there is no possibility of a reconciliation.”

The relief asked for by the respondent is:

“ That the bonds of matrimony now and heretofore existing between plaintiff and defendant be forever and completely dissolved, and that each party hereto be freed and released from all of the responsibilities and obligations thereof and restored to the status of an unmarried person.”

11. The judgment of the Nevada Court consists of four parts:(i) The preliminary recitals; (ii) “Findings Of Fact”; (iii) “Conclusions Of Law”; and (iv) The operative portion, the ‘“Decree Of Divorce”.

12. The preliminary recitals show that the respondent appeared personally and through his attorney, that the appellant “failed to appear or to file her answer or other responsive pleadings within the time required by law after having been duly and regularly served with process by publication and mailing as required by law”, that the case came on for trial on December 30, 1964 and that evidence was submitted to the Court for its decision.

13. The next part of the judgment, “Findings Of Fact”, consists of five paragraphs which, with minor modifications, are a verbatim reproduction of the averments contained in the respondent’s petition for divorce. The relevant portion of that petition is extracted above. The first paragraph of this part may usefully be reproduced:

“That for more than six weeks preceding the commencement of this action, the plaintiff was, 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.”

The second paragraph of this 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 cohabitation; and that there is no possibility of a reconciliation between them.”

14. 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 action.”

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 and he hereby is, given and granted a final and absolute divorce from defendant. Satya Singh on the ground of their having lived separate and apart for more than three (3) consecutive years without cohabitation, there being no possibility of reconciliation between them …………….”

The second paragraph contains the provision for the payment of maintenance to the minor children.

15. It is clear from the key recitals of the petition and the judgment that the Nevada Court derived jurisdiction to entertain and hear the divorce petition because it was alleged and held that the respondent was “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”.

16. Since we are concerned with recognition of a divorce decree granted by an American Court, a look at the American law in a similar jurisdiction would be useful. It will serve a two-fold purpose:a perception of principles on which foreign decrees of divorce are accorded recognition in America and a brief acquaintance with the divorce jurisdiction in Nevada.

17. The United States of America has its own peculiar problems of the conflict of laws arising from the co-existence of 50 States each with its own autonomous legal system. The domestic relations of husband and wife constitute a subject reserved to the individual States and does not belong to the United States under the American Constitution. Article IV, Sec. 1, of that Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts. Records, and judicial Proceedings of every other State”. The validity of a divorce decree passed by a State Court is in other States tested as if it were a decree granted by a foreign Court. In general, a foreign decree of divorce is recognised in any other jurisdiction either on the ground, in the case of a decree of a sister State, that the decree is entitled to full faith and credit under Article IV, Section 1, or in the case of a decree of a foreign Court and in some instances a decree of a State Court, on the ground of ‘comity.’[6] The phrase ‘‘comity of nations” which owes its origin to the theory of a Dutch jurist. John Voet, has, however, been widely criticised as “grating to the ear, when it proceeds from a Court of justice.”[7] Comity, as said by Livermore is a matter for sovereigns, not for Judges required to decide a case according to the rights of parties.

18. 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 domicil, the decree was held to have no extraterritorial effect in New Jersey. State v. Najjar 2 NJ 208. American Courts generally abhor the collusive Mexican mail-order divorces and refuse to recognise them, Langner v. Langner, 39 NYS 2d 918. Mail-order divorces are obtained by correspondence by a spouse not domiciled in Mexico. Latey. 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 those in Reno, Nevada”.[8] Recognition is denied to such decrees as a matter of public policy.

19. Foreign decrees of divorce including decrees of sister States have been either accorded recognition or have been treated as invalid, depending on the circumstances of each particular case. But if a decree of divorce is to be accorded full faith and credit in the Courts of another jurisdiction it is necessary that the Court granting the decree has jurisdiction over the proceedings. A decree of divorce is thus treated as a conclusive adjudication of all matters in controversy except the jurisdictional facts on which it is founded. Domicil is such a jurisdictional fact. A foreign divorce decree is therefore subject to collateral attack for lack of jurisdiction even where the decree contains the findings or recitals of jurisdictional facts.[9]

20. To confer jurisdiction on the ground of plaintiff’s residence and entitle the decree to extraterritorial recognition, the residence must be actual and genuine, and accompanied by an intent to make the State his home. A mere sojourn or temporary residence as distinguished from legal domicile is not sufficient, Harrison v. Harrison, (1954) 99 Law ed 704. In Unterrman v. Untermann 19 NJ 507 a divorce decree obtained by a husband in Mexico after one day’s residence therein was held invalid.

21. A foreign decree of divorce is subject to collateral attack for fraud or for want of jurisdiction either of the subject-matter or of the parties provided that the attacking party is not estopped from doing so:Cohen v. Randall, (1943) 86 Law ed 480. A foreign decree of divorce obtained by fraud is void. Fraudulent simulation of domicile is impermissible. A spouse who goes to a State or country other than that of the matrimonial domicile for the sole purpose of obtaining a divorce perpetrates a fraud, and the judgment is not binding on the Courts of other States.[10]

22. In regard to the divorce law in force in Nevada it is only necessary to state that though the plaintiff in a divorce action is required to “reside” in the State for more than six weeks immediately preceding the petition, the requirement of residence is construed in the sense of domicil Cohen v. Cohen, 319 Mass. 31; Corpus Juris Secundum Vol. 27B p. 799-Footnote 29:’Residence’, ‘domicil’. In Lane v. Lane 68 NYS 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 establish 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, Edelman v. Edelman, 161 NYS 2d 717.

23. 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, (1944) 89 Law Ed 1577 the second Williams case. Mr. Williams and Mrs. Hendrix who were long-time residents of North Carolina went to Nevada, stayed in an auto Court for transients filed suits for divorce against their respective spouses immediately after a six weeks’ stay, married one another as soon as the divorces were obtained and promptly returned to North Carolina. They were prosecuted for bigamous cohabitation under Section 14-183 of the General Statutes of North Carolina (1943). Their defence to the charge of bigamy was that at the time of their marriage they were each lawfully divorced from the bond of their respective first marriages. The question which arose on this defence was whether they were “lawfully divorced’, that is, whether the decrees of divorce passed by the Nevada Court were lawful. Those decrees would not be lawful unless the Nevada Court had jurisdiction to pass them. The jurisdiction of the Nevada Court depended on whether Mr. Williams and Mrs. Hendrix were domiciled in Nevada at the time of the divorce proceedings. The existence of domicil in Nevada thus became the decisive issue.

24. While upholding the conviction recorded in North Carolina, Frankfurter J., speaking for the majority, said:(i) a judgment in one State is conclusive upon the merits in every other State, only if the Court of the first State had jurisdiction to render the judgment; (ii) a decree of divorce passed in one State can be impeached collaterally in another State on proof that the Court had no jurisdiction even when the record purports to show that it had jurisdiction:(iii) under the American system of law, judicial power or jurisdiction to grant a divorce is founded on domicil; and (iv) domicil implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The learned Judge observed:

“We conclude that North Carolina was not required to yield her State policy because a Nevada Court found that Petitioners were domiciled in Nevada when it granted them decrees of divorce. North Carolina was entitled to find as she did, that they did not acquire domicile in Nevada and that the Nevada Court was therefore without power to liberate the petitioners from amenability to the laws of North Carolina governing domestic relations.” Murphy J. in his concurring judgment said:

“No Justifiable purpose is served by imparting constitutional sanctity to the efforts of petitioners to establish a false and fictitious domicil 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 domicile in Nevada solely for divorce purposes.”

25. These then are the principles on which American Courts grant or refuse to grant recognition to divorce decrees passed by foreign Courts which include 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 neither party had, a domicil or bona fide residence in the State or country where the decree was rendered. In order to render a foreign decree subject to a collateral attack on the ground of fraud, the fraud in procurement of the judgment must go to the jurisdiction of the Court. It is necessary and sufficient that there was a fraudulent representation designed and intended to mislead and resulting in damaging deception. In America, in most of the States, the wife can have a separate domicil for divorce and it is easy enough for anyone, man or woman, to acquire a domicil of choice in another State.

26. The English law on the subject has grown out of a maze of domiciliary wilderness but English Courts have. by and large, come to adopt the same criteria as the American Courts for denying validity to foreign decrees of divorce. Recent legislative changes have weakened the authority of some of the archaic rules of English law like the one by which the wife’s domicil follows that of the husband, a rule described by Lord Denning M. R. in Formosa v. Formosa, (1962) 3 All ER 419 as “the last barbarous relic of a wife’s servitude”. The High Court has leaned on that rule heavily but in the view which we are disposed to take, the rule will have no relevance. The wife’s choice of a domicil may be fettered by the husband’s domicil but that means by a real, not a feigned domicil.

27. From Lolley’s case, (supra) which is the true starting point of the controversy, to Indyka v. Indyka, (1967) 2 All ER 689 which is treated as the cause celebre, the law has gone through many phases. The period of over a century and half is marked by a variety of views showing how true it is that there is scarcely a doctrine of law which as regards a formal and exact statement is in a more uncertain condition than that which relates to the question as to what effect should be given by Courts of one nation to the judgments rendered by the Courts of another nation.

28. Lolley case was for long considered as having decided that a foreign decree of divorce could not ever dissolve a marriage celebrated in England. “Its ghost stalked the pages of the law reports for much of the remainder of the nineteenth century before it was finally laid.”[11] In Dolphin v. Robins, (1859)) 7 HLC 390 and Shaw v. Gould, (1868) 3 HL 55 the House of Lords declined to grant validity to Scots divorces as in the former case parties were not bona file domiciled in Scotland and in the latter, residence in Scotland did not involve the acquisition of a Scots domicil. These were cases of “migratory” divorce and the Court applied the universalist doctrine that questions of personal status depended, as a matter of ‘‘universal jurisprudence”, on the law of domicil.

29. In this climate, the decision of the Court of Appeal in Niboyet v. Niboyet, (1878) 4 PD 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 (supra) to stick to the domiciliary test but he perceived how a strict application of the test would result in hardship to the deserted wife.

30. Le Mesurier v. Le Mesurier, 1895 AC 517, on which the judgment of the High Court rests, is a decision of the Privy Council in an appeal from Ceylon but it was always treated as laying down the law for England. Observing that there was an “obvious fallacy” in the reasoning in Niboyet’ case, the Privy Council held that although the matrimonial home of the petitioning husband was in Ceylon the Courts of that country were disentitled from entertaining his divorce petition because he was not, in the strict sense, domiciled there. Lord Watson, who delivered the opinion of the Board said:

‘‘Their Lordships have …. come to the conclusion that, according to inter national law, the domicil for the time being of the married pair affords the only true test of jurisdiction to dissolve their marriage.” Later cases like the decision of the House of Lords in 1921 AC 146 and of the Privy Council in 1926 AC 444 show faith in the dominance of the domicil principle. Under the former decision the wife was incapable of acquiring a domicil separate from her husband even if he had afforded her grounds for divorce, while under the latter even a judicially-separated wife could not acquire a separate domicil.

31. These decisions caused great hardship to deserted wives for they had to seek the husband in his domicil to obtain against him a decree of divorce recognizable in England. During something like a game of chess between the judiciary and the legislature, the rigor of the rule regarding the dominance of domicil was reduced by frequent legislative interventions.

32. By Section 1 of the Law Reform (Miscellaneous Provisions) Act, 1949, English Courts were given jurisdiction to entertain proceeding for divorce by a wife even if the husband was not domiciled in England, provided that the wife had resided in England for a period of three years immediately preceding the commencement of the proceedings. In Travers v. Holley, (1953) 2 All ER 794, the Court of Appeal, drawing on this provision, accepted as valid a decree of divorce granted to the wife by an Australian Court though the husband after acquiring a domicil in New South Wales had reverted to his English domicil at the time of the wife’s petition. This was put on the ground that “what entitles an English Court to assume jurisdiction must be equally effective in the case of a foreign Court”. Section 40 (I) (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 at the time of the proceedings.

33. The decision in (1953) 2 All ER 794 was accepted as correct by the House of Lords in (1967) 2 All ER 689. The husband, a Czech national, married his first wife, also a Czech national, in Czechoslovakia. He acquired an English domicil in 1948 but his wife who was continuously residing in Czechoslovakia obtained in 1949 a decree of divorce in that country. In 1946 the husband married his second wife in England who petitioned for divorce on the grounds 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 and though a new look at the Le Mesurier doctrine was imperative in a changed world, it is not easy on a reading of the five judgments in the Indyka case to lay down a definitive set of rules as to when an English Court will or will not recognise a foreign decree of divorce. Cheshire says:

“One cannot turn from (1967) 2 All ER 689 without expressing grave concern at decisions of the House of Lords which, though unanimous, epitomize the adage ‘tot homines, quotsententiae”[12]. Graveson observes:”Although each of the five judgments in this case[13] differs from the other four, none is dessenting ………….”** The English Law Commission opined that “in any case a complete overhaul of the relevant law is urgently needed since recent decisions have left it in a state of considerable uncertainty”.[14]

34. Very recently, the extended rule in Indyka was applied in Nessina v. Smith, (1971) 2 All ER 1046 where a Nevada decree of divorce obtained by the wife was granted recognition in England. The wife was resident in the United States for a period of six years but the domicil of the spouses, in the strict sense, was in England. The Nevada decree was accepted as valid on the ground that the wife had a sufficient connection with the Court granting the decree and that if the Nevada decree could be recognised as valid by the other States in America under Article IV, Section 1 of the American Constitution, there was no justification for the English Courts to deny recognition to that decree. English Courts have thus been attempting to free the law of divorce from the strangle-hold of the domicil rule.

35. The Recognition of Divorces and Legal Separations Act, 1971 which came into force on January 1, 1972 has brought about important changes in the law of England and Scotland relating to the recognition of divorces and legal separations in the British Isles and abroad. The Act results from the Hague Convention agreed to by most countries in 1970, and ratifies that Convention in accordance with the terms set out in the Act.

36. Section 2 provides for the recognition in Great Britain of overseas divorces and legal separations obtained by judicial or other proceedings in any country outside the British Isles which are effective 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 applies, this is to have effect as if the reference to habitual residence included a reference to domicil. 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 country of the spouses’ domicil or obtained elsewhere but recognised as valid in that country or by virtue of any act will be recognized; ‘‘but save as aforesaid no such divorce or legal separation shall be recognized as valid in Great Britain except as provided in this Act., * According to the English Law Commission, the effect of this provision would seem to preclude any further development of judge-made rules of recognition of divorces and legal separations and further the principles laid down in (1953) 2 All ER 794 and (1967) 2 All ER 689 would be excluded. By Section 8 (2). recognition of an overseas divorce or legal separation may be refused if a spouse obtained it without notice of the proceedings to the other spouse or if the “recognition would manifestly be contrary to public policy”.[15]

We have treated the development of the English Law of divorce prior to the passing of the Act of 1971 as we have in India no corresponding enactment. Besides the judgment of the High Court is wholly founded on English decisions and the respondent’s counsel also based his argument on these decisions.

37. Turning to proof of fraud as a vitiating factor, if the foreign decree was obtained by the fraud of the petitioner. then fraud as to the merits of the petition was ignored in England, but fraud as to the jurisdiction of the foreign Court, i.e. where the petitioner had successfully invoked the jurisdiction by misleading the foreign Court as to the jurisdictional facts, used to provide grounds for not recognizing the decree. In Middleton v. Middleton, (1966) 1 All ER 168 the husband, domiciled and resident in Indiana, petitioned for divorce in Illinois. He alleged that he had been resident in Illinois for over a year before taking the proceedings and he alleged further that his wife had deserted him. Both of these allegations, unknown to the Illinois Court, were false. The decree was granted and when the wife petitioned in England for a declaration as to the validity of the Illinois divorce, evidence was given that. notwithstanding the fraud. that decree was a lawful decree and would be recognized by the lex domicil, Indiana Cairns, J., held that the husband’s false and fraudulent evidence as to the matrimonial offence was not a ground for refusal to recognize the Illinois decree, but that his fraud as to the jurisdiction of the Illinois Court did justify a refusal to recognize 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.’[16]

38. 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 within our territory but “it is no derogation of sovereignty to take account 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.[17]

39. The decree of divorce obtained by the respondent from the Nevada Court is, prima facie, a complete answer to the appellant’s claim for maintenance under Section 488, Code of Criminal Procedure. If that decree is valid the appellant’s claim for maintenance, though not her children’s must fail, as Sec. 488 enables a “wife” and children to apply for maintenance. But was the decree of divorce procured by fraud and if so, is it entitled to recognition here? That is the essence of the matter.

40. The Nevada Court assumed and exercised jurisdiction to pass the divorce decree on the basis that the respondent was a bona fide resident of and was domiciled in Nevada. Domicil being a jurisdictional fact, the decree is open to the collateral attack that the respondent was not a bona fide resident of Nevada, much less was he domiciled in Nevada. The recital in the judgment of the Nevada Court that the respondent was a bona fide resident of and was domiciled in Nevada is not conclusive and can be contradicted by satisfactory proof. The appellant did not appear in the Nevada Court, was un-represented and did not submit to the jurisdiction of that Court.

41. The record of the present proceeding establishes certain important facts:The respondent left India for the United States of America on January 23 1959. He spent a year in a New York University. He then joined the Utah State University where he studied for his doctrine for 4 years. In 1964, on the conclusion of his studies he secured a Job in Utah. On August 17. 1964 he wrote a letter (Ex. RW 7/1) to his father Gian Singh from “791 North, 6 East Logan, Utah”, U.S.A.

42. The respondent filed his petition for divorce in the Nevada Court on November 9, 1964 and obtained a decree on December 30, 1964.

43. Prior to the institution of the divorce proceedings the respondent might have stayed, but never lived in Nevada. He made a false representation to the Nevada Court that he was a bona fide resident of Nevada. Having secured the divorce decree, he left Nevada almost immediately thereafter rendering it false again that he had “the intent to make the State of Nevada his home for an indefinite period of time”.

44. The appellant filed the maintenance petition on January 21, 1965. On November 4, 1965 the respondent applied for exemption from personal appearance in those proceedings mentioning his address as “791 North, 6 East Logan, Utah. 228. 4th, U.S.A.”. The letter dated 13-12-1965 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 and Haryana and gave the same Canada address.

45. 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-passage, 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 establish domicil, brief residence may not negative it. But residence for a particular purpose fails to answer the qualitative test for, the purpose being accomplished the residence would cease. The residence must answer “a qualitative as well as a quantitative test”, that is, the two elements of factum at animus must concur. The respondent went to Nevada forum-hunting found a convenient jurisdiction which would easily purvey a divorce to him and left it even before the ink on his domiciliary assertion was dry. Thus, the decree of the Nevada Court lacks jurisdiction. It can receive no recognition in our Courts.

46. In this view, the Le Mesurier doctrine on which the High Court drew loses its relevance. The Privy Council held in that case that “the domicil for the time being of the married pair affords the only true test of jurisdiction to dissolve their marriage”. The High Court assumed that the respondent was domiciled in Nevada. It then applied the old English rule that the wife’s domicil, in all events, follows the domicil of the husband.

47. Deducing that the appellant must also be deemed to have been domiciled in Nevada, the High Court concluded that the Nevada Court had jurisdiction to pass the decree of divorce.

48. To an extent, the appellant is to blame for her failure to put the plea of fraud in the forefront. If the facts referred to by us were pointed out to the High Court, it would probably have seen the futility of relying on the rule in Le Mesurier and then in applying the principle that the wife takes the domicil of the husband. But facts on which we have relied to show a lack of jurisdiction in the Nevada Court are mostly facts to be found in the pleadings and documents of the respondent himself. Those incontrovertible facts establish that Nevada was not and could not be the home, the permanent home, of the respondent. If the High Court were invited to consider the conduct and projects of the respondent it would have perceived that the respondent had merely simulated a domicil in Nevada. In that event, even applying the Le Mesurier doctrine the Nevada Court would have had no jurisdiction to pass the decree of divorce.

49. Section 13 (a) of the Code of Civil Procedure, 1908 makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon except “where it has not been pronounced by a Court of competent jurisdiction.” Learned counsel for 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 Sec. 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.

50. 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 (supra) 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 there is no possibility of a reconciliation” maybe assumed to be true. But fraud as to the jurisdiction of the Nevada Court is a vital consideration in the recognition of the decree passed by that Court. It is therefore relevant that the respondent successfully invoked the jurisdiction of the Nevada Court by lying to it on jurisdictional facts. In the Duchess of Kingston’s Case (supra),[18] De Grey C. J. explained the nature of fraud in this context in reference to the judgment of a spiritual Court. That judgment, said the learned Chief Justice, though res judicata and not impeachable from within, might be impeachable from without. In other words, though it was not permissible to allege that the Court was ‘mistaken,” it was permissible to allege that the Court was “misled.” The essential distinction thus was between mistake and trickery. The appellant’s contention is not directed to showing that the Nevada Court was mistaken but to showing that it was imposed upon.

51. Learned counsel for the respondent argued that judgments on status are judgments in rem, that such is the character of Nevada judgment and therefore that judgment is binding on the whole world. Section 41 of the Indian Evidence Act provides, to the extent material, that a final judgment of a competent Court in the exercise of matrimonial jurisdiction is conclusive proof that the legal character which it confers or takes away accrued or ceased at the time declared in the judgment for that purpose. But the judgment has to be of a “competent Court” that is, a Court having jurisdiction over the parties and the subject-matter. Even a judgment in rem is therefore open to attack on the ground that the Court which gave it had no jurisdiction to do so. In R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Majid (1963) 3 SCR 22 at page No. 42, this Court held that “a judgment of a foreign Court to be conclusive between the parties must be a judgment pronounced by a Court of competent-’ jurisdiction and competence contemplated by Section 13 of the Code of. Civil Procedure is in an International sense and not merely by the law of foreign State in which the Court delivering judgment functions”. In fact S. 44 of the Evidence Act gives to any party to a suit or proceeding the right to show that the judgment which is relevant under S. 41 “ was delivered by a Court not competent to 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.

52. 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 achieved” (Per Denovan L. J.:Formosa v. Formosa (1962) 3 All ER 419 at page No. 424.)

53. 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 decrees procured by fraud bearing on jurisdictional facts as also for the non-recognition of decrees, the recognition of which would be contrary to our public policy. Until then the Courts shall have to exercise a residual discretion to avoid flagrant injustice for, no rule of private International law could compel a wife to submit to a decree procured by the husband by trickery. Such decrees offend against our notions of substantial justice.

54. In the result we allow the appeal with costs, set aside the judgment of the High Court and restore that of the trial Court.


[1]. Cheshire’s Private International Law. Eighth Ed., (1970) p. 10.

[2]. The Conflict of Laws,” R.H. Graveson. Sixth Ed.. (1969) pp. 3,5,6

[3]. The Conflict of Laws”, Dicey and Morris, Eighth Ed., (1967) p. 10.

[4]. Private International Law”, Martin Wolff, Second Ed., (1950) p. 11.

[5]. See G. Melville Bigelow’s Note to Story’s “ Commentaries on the Conflict of Laws” Eighth Ed. (1883) p. 38.

[6]. Corpus Juris Secundum. Vol. 27B, Paragraph 326, pp. 786-787.

[7]. De Nova (1964), 8 American Journal of Legal History pp. 136. 141, citing the early American author, Livermore.

[8]. The Law and Practice in Divorce and Matrimonial Causes”, 15th Ed. (1973) p. 461.

[9]. Corpus Juris Secundum Vol. 27B, paragraph 335. pp 796, 797.

[10] . Corpus Juris Secundum, Vol. 27B. Paragraph 361, p. 847,

[11]. The Old Order Changeth – Travers v. Holley Reinterpreted” by P. R. H. Webb, International and Comparative Law Quarterly, 1967 (Vol. 16), pp. 997, 1000.

[12]. Cheshire’s Private International Law, 8th Ed., p. 368.

[13]. The Conflict of Laws” by Graveson 6th Ed., p. 324.

[14]. Third Annual Report l967-68 (Law Com. No. 15), para 57.

[15]. The Law and Practice in Divorce and Matrimonial Causes” by William Latey; 15th Ed. (1973) p. 44

[16]. Cheshire (supra) p. 652.

[17]. Loucks v. Standard Oil Co. of New York (1918) 224 N. Y. 99. at page No. 111.

[18]. Smith’s leading cases, (13th Edn.) ii, 644 at page No. 651.

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