Narayan Chandra Sil ( 1 ) THIS revisional application under Article 227 of the Constitution of india is directed against the Order No. 28 dated 7. 8. 2004 passed by Shri K. K. Dey, the learned Additional District, 13th Court at Alipore in Matrimonial suit No. 49 of 2003. ( 2 ) ACTUALLY a Matrimonial Suit was filed by the o. p. /wife for divorce and in that suit an application under Section 24 of Hindu Marriage Act was filed for the alimony pendente lite. The petitioner/husband appeared before the trial Court and filed an application for dismissal of the suit on the grounds stated therein particularly in view of the fact that the petitioner had already obtained a decree for divorce against the o. p. from the Court of United kingdom and as such the marriage has already been dissolved. ( 3 ) AFTER hearing both the parties the learned Trial Judge was pleased to reject the application holding that the ex parte decree passed by the learned District Judge, Illford County Court is not binding upon the o. p. /wife. Against that order the present revisional application has been filed. ( 4 ) THE revisional application is contested by the wife by filing affidavit-in-opposition in which all the material allegations are denied. It is stated that the o. p. /wife was married with the petitioner according to Hindu rites on 17th January, 2000 at her matrimonial home at 158, Prince Golam hossain Shah Road, Calcutta-32. The said marriage was subsequently registered under the Hindu Marriage Act, 1955. After marriage the o. p. was taken to the ancestral house of the petitioner at Naihati, North 24-Parganas and thereafter to their flat at Regent Parm, Calcutta where they lived together as husband and wife. Subsequently the petitioner had left for California, usa to join his job at the University of Berkeley, California USA. After having obtained a visa from USA Embassy, Kolkata the O. P. had left for USA to join her husband. There she lived on temporary basis. It is claimed by the o. p. that though she stayed in USA and UK she was never domiciled there having retained her Indian citizenship. It is claimed by her that the trouble started when the parents of her husband went to California and stayed with the petitioner. There she lived on temporary basis. It is claimed by the o. p. that though she stayed in USA and UK she was never domiciled there having retained her Indian citizenship. It is claimed by her that the trouble started when the parents of her husband went to California and stayed with the petitioner. It is also stated that on 13th January, 2003 the o. p. was compelled to leave her job in USA and to go to U. K. to reside there with the parents of the petitioner. On 18th February, 2003 the o. p. /wife was forcefully driven out from the residence of the petitioner at Essex by the petitioner and his parents and compelled to live in her elder brother's residence. In such circumstances she was compelled to come back to India to her parents' house on 16th march, 2003. On 30th April, 2003 she filed a Matrimonial Suit being MAT no. 781 of 2003 which was subsequently renumbered as MAT Suit No. 49 of 2003 under Section 13 of the Hindu Marriage Act for dissolution of the marriage by [passing a decree for divorce. In that suit the o. p. had also filed one application under Section 24 for alimony and maintenance pendente lite. Simultaneously, a criminal case under Sections 498a/34 and 406 of the indian Penal Code was also filed by the father of the o. p. /wife. In the same matrimonial Suit the petitioner entered appearance through his Advocate on 17. 7. 2003 and thereafter from time to time prayed for adjournments for filing written statement. Thus, the petitioner had submitted to the jurisdiction of the Indian Court but surprisingly on 15th December, 2003 i. e. on the date of filing written statement, the petitioner appeared with an application praying for dismissal of the suit on the ground that the marriage between the parties had been annulled by a purported decree of divorce passed by the Court of illford County Court, U. K. suppressing deliberately the facts of the pendency of matrimonial suit before the learned District Judge, South 24-Parganas filed by the o. p. /wife. It is claimed by the o. p. /wife that no summons in respect of the matrimonial proceeding before the Illford County Court was served upon her and an ex parte decree was obtained by the petitioner. It is claimed by the o. p. /wife that no summons in respect of the matrimonial proceeding before the Illford County Court was served upon her and an ex parte decree was obtained by the petitioner. Subsequently, the o. p. /wife came to learn that in the petition for divorce filed by the petitioner/husband before the Illford County Court the o. p. /wife was described as a psychiatric patient. In the circumstances after hearing both the parties the learned Additional District Judge, 13th Court, Alipore had rejected the application filed by the petitioner/husband raising the question of maintainability of the suit. ( 5 ) AN affidavit-in-reply has been filed on behalf of the husband/petitioner wherein all the allegations raised by the o. p. /wife have been denied and except such denial there is no substantive statement made on behalf of the husband in the affidavit-in-reply. ( 6 ) MR. Jiban Ratan Chatterjee, the learned Counsel appearing for the petitioner/husband has argued that the decree passed by the U. K. Court is in favour of the petitioner. It is admitted by him that before that decree was passed Matrimonial Suit for divorce was filed by the o. p. /wife at Alipore court which was contested by the petitioner where the question of non-maintainability of the suit was raised. Mr. Chatterjee in his usual fairness submits that the only point for consideration is whether after the decree in his usual fairness submits that the only point for consideration is whether after the decree of divorce passed by the U. K. Court the suit at Alipore is maintainable. In this connection Mr. Chatterjee has referred to an unreported case law which I shall discuss a little later. ( 7 ) MR. Bikash Ranjan Bhattacharya the learned senior Counsel appearing for the o. p. /wife has drawn my attention to the fact that the wife filed the suit on 30. 4. 2003 and thereafter on 1. 8. 2003 the husband filed the suit. It is also pointed out that on 17. 7. 2003 the husband entered in the suit filed by the wife. Mr. Bhattacharya argues that the ex parte decree was obtained by the husband from the foreign Court suppressing the fact of the suit was filed by the wife where the husband made appearance. It is also pointed out that the foreign Curt had passed the ex parte in a hot haste. Mr. Bhattacharya argues that the ex parte decree was obtained by the husband from the foreign Court suppressing the fact of the suit was filed by the wife where the husband made appearance. It is also pointed out that the foreign Curt had passed the ex parte in a hot haste. Mr. Bhattacharya has alleged fraud to have been perpetrated by the husband in obtaining the ex parte decree and that was also what was smoked by the learned Trial Judge. Mr. Bhatacharya has also drawn my attention to the copy of the order passed by the foreign Court where the reasonable expectation of the Judge was only described. As regards the allegation of the husband before the foreign Court that his wife was a psychiatric patient, mr. Bhattacharya has pointed out the remarkable academic attainment of the wife. He has also referred to a decision of the Apex Court on the question of domicile. ( 8 ) MR. Bhattacharya has referred to the ratio decided in the case of madhuri Patil and Anr. v. Addl. Commissioner, Tribal Development and Ors. , AIR 1995 SC 94 on the question of domicile. That case was in connection with article 342 of the Constitution of India and in connection with the status of scheduled Caste and Scheduled Tribe. ( 9 ) IN the instant case it was very much within the knowledge of the husband that a suit for divorce was filed by his wife at Alipore Court in which the husband made his appearance. The husband/petitioner took time to file written statement in the said divorce suit but in the meanwhile he had filed a divorce suit before Illford County Court. ( 10 ) CONSIDERING that situation the learned Trial Judge has observed, "i must say that the respondent/husband obtained the decree by practising fraud and misrepresentation upon the Court of County of Illford. " ( 11 ). The judgment of the Illford County Court a copy of which is annexed may be quoted here in the following lines : no : IG03d00335 "in THE llford County Court between Mr. Sovan Sarkar Petitioner and Mrs. Pampa Sarkar Respondent referring to the decree made in this cause on the 10th November, 2003, whereby it was decreed that the marriage solemnised on the 17th January, 2000 at 158, Prince Gulam Hossain Shah Road-Cal 32 between Mr. Sovan Sarkar the Petitioner and Mrs. Sovan Sarkar Petitioner and Mrs. Pampa Sarkar Respondent referring to the decree made in this cause on the 10th November, 2003, whereby it was decreed that the marriage solemnised on the 17th January, 2000 at 158, Prince Gulam Hossain Shah Road-Cal 32 between Mr. Sovan Sarkar the Petitioner and Mrs. Pampa Sarkar the respondent be dissolved unless sufficient cause be shown to the court within six weeks from the making thereof why the said decree should not be made absolute, and no such cause having been shown, it is hereby certified that the said decree was on the 22nd December, 2003, made final and absolute and that the said marriage was thereby dissolved. Dated : 22nd December, 2003 notes : 1. Divorce affects inheritance under a will where a will has already been made by either party to the marriage then, by virtue of section 18a of the Wills Act 1837: (a) any provisions of the will appointing the former spouse executor or trustee or conferring a power of appointment on the former spouse shall take effect as if the former spouse had died on the date on which the marriage is dissolved unless a contrary intention appears in the will ; (b) any property which, or an interest in which is devised or bequeathed to the former spouse shall pass as if the former spouse had died on the date on which the marriage is dissolved unless a contrary intention appears in the will. 2. Divorce affects the appointment of a guardian unless a contrary intention is shown in the instrument of appointment, any appointment under Section 5 (3) or 5 (4) of the Children Act, 1989 by one spouse of his or her former spouse as guardian is, by virtue of section 6 of that Act, deemed to have been revoked at the date of the dissolution of the marriage. " in fact, the copy of the decree dated 10th November, 2003 has not been produced before this Court. However, on requisition, the solicitors have sent the confirmation of the Illoford County Court dated 17. 6. 2004 which was affirmed by the learned District Judge of Illford County Court on 1. 4. 2004. " in fact, the copy of the decree dated 10th November, 2003 has not been produced before this Court. However, on requisition, the solicitors have sent the confirmation of the Illoford County Court dated 17. 6. 2004 which was affirmed by the learned District Judge of Illford County Court on 1. 4. 2004. It appears from that confirmation that there was no document to show that the suit was heard ex parte, but at the same time it was confirmed that the respondent was not present at the time of pronouncement of Decree of nisi, where she would have had the opportunity to make representations. It is also added as below : "it is the Court's standard practice to notify both parties to divorce proceedings of hearings at various stages of the divorce. Thus the court will, as a matter of course, send both to the Petitioner and the respondent the District Judge's Certificate of Entitlement to a Decree, the Decree Nisi and finally the Decree Absolute. " it may be reiterated that the said opinion was given by the solicitors on the suggestion of the learned District Judge Illford County Court and thereafter it was affirmed on 1. 4. 2004 under the seal and signature of the District judge of Illford County Court. ( 12 ). Thus from all the above there appears absolutely nothing that the fact of pendency of the suit instituted by the wife against the husband was ever brought to the notice of the Illford County Court where the husband had filed the suit subsequent to the filing of the suit by the wife. I am in total agreement with the learned Trial Judge that there are intentional, purposeful and motivated suppression of the fact of the pendency of the suit filed by the wife against the husband and this amounts nothing short of fraud exercised on the Court to obtain decree from the Illford County Court. ( 13 ). Mr. Chatterjee has referred to the unreported case and the decision of Mr. A. K. Basu, J. in C. O. No. 1876 of 2002. On perusal of that judgment I find that the facts of this case differ pari materia with the facts of the instant case. ( 13 ). Mr. Chatterjee has referred to the unreported case and the decision of Mr. A. K. Basu, J. in C. O. No. 1876 of 2002. On perusal of that judgment I find that the facts of this case differ pari materia with the facts of the instant case. In the said case the wife submitted to the jurisdiction of the foreign Court and the learned Judge Merston of Worester 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. But what happens in the instant case ? There appears no proof from the opinion of the learned solicitors subsequently affirmed by the learned District Judge Illford County court that the suit was heard on contest, but it appear there was no document to show that the suit was heard ex parte but at the same time it was confirmed that the respondent was not present at the time of the pronouncement of the decree Nisi. Besides, it is not disputed that the said decree of the Illford county Court was an ex parte decree. Now if we look back at the judgment and decree itself it can safely be said that there appears no materials that it was heard on merits. ( 14 ). It again appears from the order impugned passed by the learned, trial Judge that in the application for divorce made by the husband before the Illford County Court it was stated that the respondent was a psychiatric patient and her behaviour was violent and irrational and as such he cannot reasonably be expected to live with respondent. There is no materials placed before me as to how the Illford County Court had found justification in such claim of the husband, although such a serious allegation was labelled against the wife by the husband. Nothing cogent like medical papers have been produced before this Court also by the petitioner to establish that the respondent/wife is a psychiatric patient. Moreover from the annexures to the affidavit-in-opposition filed by the wife at page 56 it appears that she attained the academic excellence. She received the national awards scholarship both in Madhyamik and Higher Secondary Examination. Nothing cogent like medical papers have been produced before this Court also by the petitioner to establish that the respondent/wife is a psychiatric patient. Moreover from the annexures to the affidavit-in-opposition filed by the wife at page 56 it appears that she attained the academic excellence. She received the national awards scholarship both in Madhyamik and Higher Secondary Examination. She got First Class in M. Sc. She also got First Class in the Semester 1 of M. Tech and she has been continuing her studies in Jadavpur University, kolkata. ( 15 ). As regards the admissibility of a foreign decree in our country the decision made by me in the case of Atri Guha v. Mahua Guha, (2003)2 cal LJ 463 may be referred. In the said judgment the ratio decided in the case of Y. Narasimha Rao and Ors. v. Y. Venkata Lakshim and Anr. , (1991)3 SCC 451 was relied upon. In that case the appellant/husband married respondent no. 1 in India at Tirupati in 1975 according to Hindu Law but they were separated in 1978 for which the appellant filed an application for dissolution of the marriage in the Sub-Court of Tirupati averring that he was a resident of New Orleans, Louisiena, USA and that he was a citizen of India. Meanwhile in 1980 he filed another application for dissolution of marriage in the Circuit court of St. Louis Country, Missouri, USA. In the petition he besides alleging that he had been resident of the State of Missouri for 90 days been resident of the State of Missouri for 90 days or more immediately preceding the filing of the petition, alleged that respondent No. 1 had deserted him for one year or more next preceding the filing of the petition by refusal to continue to live with him in the United State. It was clear from the averments that both the respondent No. 1 and the appellant had last resided together at New Orleans louisiena and never within the jurisdiction of the Circuit Court of St. Louis country in the State of Missouri. The respondent No. 1 filed her reply without prejudice to the contention that she was not submitted to the jurisdiction of the foreign Court. Louis country in the State of Missouri. The respondent No. 1 filed her reply without prejudice to the contention that she was not submitted to the jurisdiction of the foreign Court. However, the Circuit Court passed a decree for dissolution of marriage on February 19, 1980 in the absence of respondent No. 1 on the only ground that the marriage was "irretrievably broken". The petition before the Sub-Court of Tirupati was thereupon dismissed as not pressed on the application of appellant No. 1. In deciding the case the Hon'ble Apex court noted certain facts relating to the decree of dissolution of marriage passed by the Circuit Court. It was noticed by the Apex Court in the first instance that the foreign Court assumed jurisdiction over the matter on the ground that the appellant No. 1 had been a resident of the State of Missouri for 90 days next preceding the commencement of the action and that petition in that Court. Secondly, the decree had been passed on the only ground that there remains no reasonable likelihood that the marriage between the parties can be preserved, and that the marriage is therefore, "irretrievably broken", Thirdly, respondent No. 1 had not submitted to the jurisdiction of the Court. The further findings of the Hon'ble Apex Court in this connection are as below :-"from the record it appears that to the petition she had filed two replies of the same date. Both are identical in nature except that one of the replies begins with an additional averment as follows : "without prejudice to the contention that this respondent is not submitting to the jurisdiction of this Hon'ble Court, this respondent submits as follows. Both are identical in nature except that one of the replies begins with an additional averment as follows : "without prejudice to the contention that this respondent is not submitting to the jurisdiction of this Hon'ble Court, this respondent submits as follows. " She had also stated in the replies, among other things, that (i) the petition was not maintainable, (ii) she was not aware if appellant had been living in the State of Missouri for more than 90 days and that he was entitled to file the petition before the Court, (iii)the parties were Hindus and governed by Hindu Law and they were married at Tirupati in India according to Hindu Law, (iv) she was an indian citizen and was not governed by laws in force in the State of missouri and, therefore, the Court had no jurisdiction to entertain the petition, (v) dissolution of the marriage between the parties was governed by the Hindu Marriage Act and that it would not be dissolved in any other way except as provided under the said Act, (vi) the Court had no jurisdiction to enforce the foreign laws and none of the grounds pleaded in the petition was sufficient to grant any divorce under the hindu Marriage Act. " ( 16 ). In the said case the respondent No. 1 was neither present nor represented in the Court and the Court passed the decree in her absence. The Hon'ble Apex Court in course of discussing the provisions of Hindu marriage Act, 1955 and the scope of Section 13 of the Code of Civil procedure observed as under :-"under the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the "act") only the District Court within the local limits of whose original civil jurisdiction (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition resides, or (iii) the parties to the marriage last resided together, or (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at the time, residing outside the territories to which the Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive, has jurisdiction to entertain the petition. The Circuit Court of St. The Circuit Court of St. Louis Country, Missouri had, therefore, no jurisdiction to entertain the petition according to the Act under which admittedly the parties were married. Secondly, irretrievable breakdown of marriage if not one of the grounds recognised by the Act for dissolution of marriage. Hence, the decree of divorce passed by the foreign Court was on a ground unavailable under the Act. Under Section 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "code", a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if (a) it has not been pronounced by a Court of competent jurisdiction; (b) it has not been given on the merits of the case, (c) it is founded on an incorrect view of international law of a refusal to recognize the law of India in case in which such law is applicable, (d) the proceedings are opposed to natural justice, (e) it is obtained by fraud, (f) it sustains a claim founded on a breach of any law in force in India. " ( 17 ). In the instant case the condition is more in favour of the respondent/wife since there appears absolutely nothing that she had received the show-cause or replied to the same. On the other hand, it is the recorded truth that the respondent/wife was not present at the time of hearing. Thus, from all this there is no reason to hold that the respondent/wife submitted to the jurisdiction of the foreign Court. Accordingly, I do not find any merits in the present revisional application. ( 18 ). The revisional application is thus dismissed with costs 500 G. Ms. to be paid to the respondent/wife by the petitioner. The order impugned passed by the learned Trial Judge is hereby affirmed.