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2002 DIGILAW 656 (CAL)

Partha Sarathi Ray v. Sanchita Bhattacharyya

2002-10-04

ALOK KUMAR BASU

body2002
JUDGMENT The judgment of the Court was as follows :–– This application under Section 115 of the Code of Civil Procedure is at the instance of husband opposite party of Matrimonial Suit No. 126 of 2001 pending in the file of Learned Additional District Judge, Barasat challenging Order No. 17 dated 28th May, 2002 passed in connection with that Matrimonial Suit. 2. Wife opposite party of the present application filed Matrimonial Suit No. 126 of 2001 on 21st September, 2000 with a prayer for restitution of conjugal right under Section 9 of the Hindu Marriage Act against the present petitioner. The present petitioner since his appearance in the said Matrimonial Suit filed an application before the Trial Court contending inter alia that he has already obtained a decree of divorce from the Worcester County Court, England against the wife and hence, in view of a decree of divorce granted by a competent Court, the Matrimonial Suit in the District Court of Barasat cannot proceed and the same should be dismissed. 3. The wife opposite party of the present petition resisted the said application of the husband by filing written objection contending inter alia that the County Court lacked jurisdiction in passing the decree of divorce, the decree of divorce was not passed on merit and finally, the grounds on which the decree of divorce was passed is opposed, to the provisions of Hindu Marriage Act and hence, the wife prayed for dismissal of the petition. 4. The Learned Additional District Judge, Barasat after hearing both the sides and after considering all the documents produced before him by the rival parties came to the conclusion that the decree of divorce passed by the Worcester County Court and as relied on by the husband cannot be accepted as the said decree was passed in. violation of the principle of natural justice as the wife was not given sufficient opportunity to contest the case and further, the decree was also not passed on merit, but, it was an ex parte decree without considering evidence of the husband. The Learned Additional District Judge, thus, dismissed the petition of the husband and hence, the present application challenging the order of the Learned Additional District Judge. 5. Appearing for the husband petitioner, the Learned Advocate Mr. The Learned Additional District Judge, thus, dismissed the petition of the husband and hence, the present application challenging the order of the Learned Additional District Judge. 5. Appearing for the husband petitioner, the Learned Advocate Mr. Dasgupta submits with reference to different documents annexed to the petition that both the petitioner as well as wife opposite party satisfied the necessary ingredients of 'habitual resident' as necessary for filing an application for decree of divorce under Section 5(2) of the Domicile and Matrimonial Proceedings Act, 1973 and the husband petitioner was entitled to file an application for divorce before the Worcester County Court having residing in England for a considerable period of time even if his purpose of visit and stay in England might be 'higher studies'. The Learned Advocate submits that it will appear from the documents annexed to the petition that the wife opposite party on receipt of notice about the application claiming divorce raised a question of jurisdiction and the Judge of the County Court after considering all the points raised by the wife opposite party on the question of jurisdiction was satisfied that under Section 5(2) of the Domicile and Matrimonial Proceedings Act, 1973, the Worcester 'County Court' was competent and had the jurisdiction to entertain the application. 6. The Learned Advocate for the petitioner submits that as the wife opposite party inspite of prior intimation and notice did not prefer to contest the application for divorce on merit and as the Worcester County Court after considering evidence of the husband and considering the grounds taken by the husband for a decree of divorce on the basis of his assertion that there is irretrievable break down of the matrimonial tie on the ground that the wife has behaved in such a way that the husband cannot reasonably be expected to live with her, the decree in question was passed which was subsequently made absolute after giving reasonable opportunity to the wife opposite party to resist the decree by taking legal points as available to her. The Learned Advocate submits that when the wife opposite party did not file any show cause within six weeks from passing of the decree nisi, the County Court following the legal procedure confirmed the said decree and hence, from the materials placed before the Court, it would be quite clear that the decree of divorce has been passed by a competent Court exercising jurisdiction in accordance with law and the decree was passed purely on merit after considering evidence of the husband and the grounds on which the decree was passed is not unknown to the provisions of Hindu Marriage Act though the same terminology as used in Hindu Marriage Act has not used in the Matrimonial Causes Act, 1973 of England. 7. The Learned Advocate for the husband petitioner, therefore, submits that having regard to the provision of Sections 13 and 14 of the Code of Civil Procedure it has been proved satisfactorily by the husband that the foreign judgment obtained by him dissolving the matrimonial tie between the party must be treated to be conclusive and the wife opposite party has not succeeded to prove the contrary by proving any of the grounds mentioned in Section 13 of the Code of Civil Procedure. The Learned Advocate, thus, contends that the Court below was totally under misconception of law and fact in discarding the judgment of the Worcester County Court and the Court below should have held that the decree of divorce passed by the said Court of England is binding upon the wife and the Matrimonial Suit filed by the wife cannot proceed further in the eye of law. 8. The Learned Advocate Mr. Bhattacharyya, appearing for the wife opposite party has strongly opposed the present application contending inter alia that it is undisputed legal position that a foreign judgment in order to get the attribute of conclusiveness must satisfy all the clauses of Section 13 and it is always open for a party to challenge such foreign judgment on the ground of jurisdiction and if such challenge is accepted, the Court is bound to draw presumption that there is no conclusiveness in the foreign judgment and that foreign judgment cannot prevent a party from pursuing an independent legal action in Indian Court. 9. 9. The Learned Advocate for the opposite party submits that it is available from the statement of the husband petitioner himself that purpose of his visit was for 'higher studies' and when both the parties are governed by the provisions of Hindu Marriage Act, the application filed by the husband petitioner in the County Court of England was certainly hit by the provision of Section 19 read with Section 3(b) of the Hindu Marriage Act. The Learned Advocate contends that the stay of the husband in England cannot be equated with 'habitual resident' and hence, the husband was not entitled to get the benefit of Section 5(2) of the Domicile and Matrimonial Proceedings Act, 1973 and the judgment of the County Court holding the jurisdiction in favour of the husband is not legally correct and on this ground alone, the judgment of the County Court relied on by the husband petitioner is not enforceable being hit under clause (a) of Section 13 read with Section 14 of the Code of Civil Procedure. 10. The Learned Advocate for the opposite party finally submits that it has been clearly provided in Clause (c) and Clause (f) of Section 13 that if it appears on the face of record that there was a refusal to recognise the law of India in cases in which such law is applicable and if a claim founded on a breach of any law inforce in India is noticed on the face of record in the foreign judgment, such foreign judgment cannot be treated to be a conclusive one and cannot be accepted as binding between the parties. 11. To substantiate the above point, the Learned Advocate for the opposite party submits that it will appear from the judgment of the County Court that the decree of divorce was granted on the ground that the marriage between the party has irretrievably broken down and such ground of divorce is not available to the parties who are Hindus by religion and who are governed by the provisions of Hindu Marriage Act. The Learned Advocate contends that it has been held by the Hon'ble Supreme Court in the case of (1) Savitri Pandey v. Prem Chandra Pandey reported in 2002 vol. The Learned Advocate contends that it has been held by the Hon'ble Supreme Court in the case of (1) Savitri Pandey v. Prem Chandra Pandey reported in 2002 vol. 2, Supreme Court Cases, page 73 that the marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive'. The Learned Advocate submits that in the case of (2) V. Bhagat v. D. Bhagat reported in 1994 Vol. 1, Supreme Court Cases, page 337, the Court held that irretrievable break down of marriage is not a ground by itself to dissolve it. The Learned Advocate in this regard has also referred to a Division Bench decision of this Court as reported in (3) 2002 CHN, page 321 and also a Single Bench decision of this Court as reported in (4) 2000 CWN, page 15 on the self-same point. 12. The Learned Advocate for the opposite party has also relied on a decision of the Hon'ble Supreme Court in the case of (5) Smt. Satya v. Shri Teja Singh reported in 1975 Vol.1 Supreme Court Case, page 120 to substantiate the point that foreign judgment passed in violation of Clauses (c) and (f) of Section 13 of the Code of Civil Procedure cannot be accepted to be a conclusive one between the parties and in fact such foreign judgment should be ignored when reference is made about such judgment in course of a subsequent legal proceedings taken by any of the party before a competent Court in India. The Learned Advocate for the opposite party, therefore, concludes that in the present case the decree of divorce passed by the Worcester County Court is hit under provision of Clauses (a), (c) and (f) of Section 13 and when in view of Section 14 of the Code of Civil Procedure, the wife has succeeded in proving want of jurisdiction, the Court below rightly declined to take into consideration the judgment of County Court in dismissing the matrimonial Suit of the wife now pending in the District Court of Barasat and hence, there is no merit in the present revision application which in liable to be dismissed with costs. 13. 13. Before assessing the merits of the submissions made by the rival parties, it will be quite useful and relevant to extract the entire provisions of Section 13 and Section 14 of the Code of Civil Procedure as arguments of both the sides have been confined to these Sections :–– Section 13 : When foreign judgment not conclusive–– A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except– a) where it has not been pronounced by a Court of competent jurisdiction; b) where it has not been given on the merits of the case; c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of (India) in cases in which such law is applicable; d) where the proceedings in which the judgment was obtained are opposed to natural justice; e) where it has been obtained by fraud; f) where it sustains a claim founded on a breach of any law in force in (India). Section 14 : Presumption as to foreign judgments :–– The Court shall presume, upon the production of any document purporting to be it certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction." 14. From the impugned order, it is found that the Learned Additional District Judge rejected the petition of the husband mainly on two grounds, first, on the ground that the wife was not afforded reasonable opportunity to contest the proceeding in England as she came back to India and in this regard the Court below relied on a decision in the case of (6) Butler v. Butler reported in 1997 vol.2 All England Reporter and finally the Court was of the view that the judgment of the County Court of England cannot be legally accepted as a conclusive judgment as the said judgment was passed in the absence of the wife and without considering any evidence of the husband. 15. 15. It is worth-mentioning that it has never been submitted on behalf of the wife opposite party before this Court that wife opposite party had no reasonable-opportunity to defend the suit in England and further on examination of the decisions given in the case of Butler v. Butler (supra), I am of the clear view that the ratio decided in that case has got no application so far the fact of the present case in concerned and the observation of the Learned Court below in this regard does not appear to be legally sound or convincing. 16. As regards the question whether the judgment of the County Court was passed on merit or not, the Learned Advocate for the wife opposite party has not made any submission and looking at the decision of the Apex Court given in the case of (7) International Woolen Mills v. Standard Wool (U.K.) Ltd. reported in 2001 vol. 5, Supreme Court Cases, page 265 with special reference to paragraph 27 to paragraph 29, I am of the view that the judgment of the County Court in England was certainly passed on merit and after considering evidence of the husband petitioner along with the grounds taken by the husband petitioner for his prayer for a decree of divorce. 17. As regards the question raised by the wife opposite party on the point of jurisdiction, it is found from the annexure to the petition that Judge Merston of the Worcester County Court took into account the objections raised by the wife regarding jurisdiction of the County Court to entertain the petition of the husband though such objections of the wife were raised in informal manner and those were raised by making address to the officer of the Court. The Judge Merston in his judgment regarding the jurisdiction after examining the petition supported by affidavit of the husband opined that under Section 5(2) of the Domicile and Matrimonial Proceedings Act, 1973, the husband can be accepted to be a 'habitual resident' and accordingly, the County Court had the jurisdiction to entertain the application for divorce. The self-same question regarding jurisdiction in an almost identical case came for consideration before a Learned Single Judge of Delhi High Court in the case of (8) Mrs. Anoop Beniwal v. Dr. The self-same question regarding jurisdiction in an almost identical case came for consideration before a Learned Single Judge of Delhi High Court in the case of (8) Mrs. Anoop Beniwal v. Dr. Jagbir Singh Beniwal reported in AIR 1990 Delhi, page 205 and it was observed at para 35 of the said judgment with reference to several English decisions that a person who is for 'voluntary residence' for a settled purpose may even be considered to be 'habitual resident' and in the said reported case it was held that the husband who was in England for pursuing 'higher studies' for a considerable period of time and having residing in England for one year continuously before filing the application was competent to pursue the matter in the County Court of England. Thus, from the material placed before me and with reference to the provision of Section 5(2) of the Domicile and Matrimonial Proceedings Act, 1973, I am of the clear view that there is nothing wrong in the verdict of Judge Merston whereby he held that the County Court had the jurisdiction to entertain the petition for divorce filed by the present petitioner. 18. Nothing has been argued on behalf of the wife opposite party regarding Clauses 'e' and 'd' of Section 13 and regarding clause 'b' of Section 13 it has been already recorded with reference to the decision of the Hon'ble Supreme Court that the judgment of the County Court was passed on merit and now remains for consideration of Clauses 'e' and 'f' as urged by the Learned Advocate for the wife opposite party. 19. From the decisions referred to by the wife opposite party, the settled legal position emerges that no decree of divorce can be passed under the Hindu Marriage Act simply on the ground that the marriage between the parties has irretrievable broken down, but, it will appear from all the reported decisions as relied on by the Learned Advocate for the wife opposite party that in appropriate situation the Court while considering the prayer for decree of divorce may also take into account whether the marriage between the party has reached the stage of irretrievable break down. 20. 20. Now, coming to the judgment of County Court it will appear that the decree for divorce was passed certainly on the assumption that the marriage between the party has irretrievable broken down, but, such assumption was based on the ground that the husband was successful in establishing his case that the wife has behaved in such a manner that it was not reasonably possible for him to reside with the wife any more. It has been argued. on behalf of the wife opposite party that the ground on which the decree was passed is not known to Hindu Marriage Act and hence, such decree cannot be accepted or binding in view of Clauses 'c' and 'f' of Section 13. 21. Under the provisions of Section 13(1)(i)(a) of the Hindu Marriage Act 'cruelty' is one of the ground for decree of divorce and if the provision of Section 1(i)(2)(b) of the Matrimonial Clauses Act, 1973 under which the decree in question was passed is considered it will appear that the said Matrimonial Clauses Act have taken away the accusatory nature of the assertion which is required to be made under provisions of the Hindu Marriage Act and hence, though the word 'cruelty' not used in the Matrimonial Clauses Act, 1973 it would not be possible to show that the Court in England has refused to recognise the law of India or the judgment in question was founded on a breach of any law in force in India. 22. After going through the judgment of the Hon'ble Supreme Court given in the case of Smt. Satya (supra) it is found that in that case the Hon'ble Court discarded the foreign judgment mainly on the ground of fraud and also on the ground that the decree of divorce was obtained on the basis of six weeks based domicile and the fact of the reported case is certainly at variance from the case in our hand. 23. Thus, from the documents placed by the husband petitioner it is clearly proved that the husband petitioner satisfied the necessary ingredients to file the petition for divorce in the Worcester County Court and the said Court had the jurisdiction to entertain the petition and to pass decree on that petition. 23. Thus, from the documents placed by the husband petitioner it is clearly proved that the husband petitioner satisfied the necessary ingredients to file the petition for divorce in the Worcester County Court and the said Court had the jurisdiction to entertain the petition and to pass decree on that petition. It is also available from document produced by the husband petitioner that the wife opposite party resisted the petition of divorce by raising the question of jurisdiction which was disposed of by a reasoned judgment. The County Court passed the decree nisi when the wife opposite party did not come forward to contest the ground of divorce and the decree nisi was passed after considering the evidence of the petitioner and that decree was certainly passed on merit. The wife opposite party was given sufficient opportunity to resist the confirmation of the decree, but, the wife opposite party did not choose to oppose the decree by filing application as required under rule of proceeding followed by the English Court and naturally, without having any objection, the decree was made absolute. Further, it appears on close examination that the decree of divorce was passed on the ground that the husband petitioner has been successful to prove that from the behaviour of the wife opposite party it was not reasonably possible for him to reside with her any more and it was almost akin to the ground of cruelty of the Hindu Marriage Act. 24. Thus, having regard to the submissions made on behalf of the rival parties and after considering all relevant documents and decisions cited by the parties, I am of the view that the judgment passed by the Worcester County Court granting a decree of divorce in favour of the husband petitioner has satisfied all the ingredients of Section 13 and when the wife opposite party failed miserably to establish her points regarding jurisdiction as contemplated in Section 14 of the Code of Civil Procedure, the judgment of the Worcester County Court must be accepted to be a conclusive one and binding between the parties and in view of that matter, the Learned Trial Court was totally under wrong legal conception in dismissing the petition of the husband. 25. Accordingly, there is merit in the present revision application. 26. The revision application, therefore, succeeds without any order as to costs. 25. Accordingly, there is merit in the present revision application. 26. The revision application, therefore, succeeds without any order as to costs. The order of the Learned Additional District Judge, Barasat dated 28th May, 2002 is hereby set aside. Urgent xerox certified copy of this judgment, if applied for, may be supplied within seven days after complying with all necessary formalities.