Recognition Of Foreign Divorce

[Cites 141, Cited by 0]

Law Commission Report

Recognition Of Foreign Divorce

LAW COMMISSION OF INDIA

PLD-92.LXV
2,000

SIXTY- FIFTH REPORT
ON

RECOGNITION OF FOREIGN
DIVORCES

April, 1976

PRINTE BY THE MANAGER, GOVERNMENT OF INDIA PRESS, NASIK-422006
AND PU SHED BY THE CONTROLLER OF PUBLICATIONS DELHI-- 110006
1977

P. B. GAJENDRAGADKAR E10. No. F. .'1tS]t"i'5-I_..C.

'A' WINL}, 7TH FLOOR,
Sit.-xsrat Buiwabt,
New DELI-it-110 (101,
April 5, 1976.

MY DEAR MINISTER.

I have great pleasure in forwarding hez';:\-\-'it1'1 the 65th Report of the Law
Commission on "T he Recognition of Foreign Divorces".

You may recall that, in your letter addressed to me on the 13th March,
1975, you had invited the attention of the Cotnri-ii.~.s;on to certain observations
made by the Supreme Court in Star. .5'ur_t'a V'. Teja Ii.i'.-rah (A.].R. i975 SC. 105}.
and had suggested that the Comniission should examine the matter and "favour
the Gtwernment" with its Report.

In aceordattee with its usual practice. the C'omn1issit'.sn lirst made a pre-
liminary study of the subject and a draft report was prepared. This draft Report
was subsequently |'C\-'i!§£'Cl after disettssion in the Commission. and the revised
draft Report was again discttssed and has nov. been ﬁnalised.

This is the tiﬁth Report since the inception of the (Tommissiou. After the
recon.-;titution of the Contmission in September 197], it has forwarded to the
Government U-K-t:III'}'-tJl'1L' Reports (Nos. fort}-'--ﬁve to sixty--live) including the pre-
sent one "after tlte present Ct>mmi.~.sion was reconstituted in September, 1974. it
has forw;;rde:l live reports inclttding the present one.

It tnay not be inappropriate 'to point out that the nature of the subject
matter of the present Report is'. 'KL1l,')SlE1l1i.lI":ll}' ditlerettt lroni the subject-matter of
the Reports so far lorwarded by the Coittniissioit.

Conflict of lay-'s often raises sensitive and delicate '-.1Ut.'hliHt'..\i j. and the sub-
ject of recognition of foreign matrimonial «'.lt'i_lL!|2llCE1ll£]n happens to be particularly
sensitive and delicate.

Our rules of private International Law have not been codiﬁed and in this
branch, partiettlarly in regard to domestic relations, there are few statutory pro-
visions directly relevant. The law is essentially judge--made_. and even so in India
not many judicial decisions are available on the subject.

Having regard to the nature of the subject, on which not much assistance
from judicial decisions is available. it became necessary for the Commission to
study the t:om_parati~.~: materials in depth in order that the various aspects of the
problem could be properly' judged and formulation of recommendations made in
a satisfactory manner. Besides. in dealing with the problem. the Cornrnission
found that certain dillieult questions of interpretation of the relevant statutes had
to be faced and the Cotnntission has attempted the task as best as it could.

III drafting 1'15 R'='PUFL H16 Cc-tiimissioir has dealt with the historical deve-
lopment of the various rules of law and brought out their relevance on the points
under exarnination. The recomrnenclations whiclt the Report t=ltimatel_s,- makes
along with the theoretical examination of the problem will speak for themselves.

t
]--~5 LDtN'D);7ﬁ

I would like to mention that We have made a radical departure in suggest-
ing that, in considering the questions about the recognition of foreign decrees of
divorce, our courts should base their decisions not only on the question of domi-
cile, but also on the basis of habitual residence and nationality. The Report also
considers the problem about the ancilliary orders passed by the foreign courts
in dealing with matrimonial proceedings and on this matter, the conclusion of the
Commission is that these ancilliary orders should not be treated as binding by
our courts even though the foreign decrees of divorce are recognised. These
ancilliary orders concern the custody of children and other allied questions, and
we thought it would be juristically imprudent to treat them as binding.

While forwarding this Report, I would like to suggest that it would be
useful if, after the Report is printed, its copies are sent to the Law Faculties of
different Universities in India, to the Bar Councils in different States, the Bar
Council of India, as well as the Supreme Court and the High Courts. I am» mak-
ing this suggestion because the Report deals with a. matter of importance which
is not covered by any statute, and on which material had to be collected from
different sources. I venture to hope that the academic institutions in this country
would find the Report to be interesting, informative and instructive.

In fact, if you agree, my present suggestion would apply to all the Reports
that the Commission makes, because if, after our Reports are printed, they are
circulated to the relevant academic and professional institutions, it may encourage
a debate on the questions considered by the Coinrnission, and that may assist
the Government in coming to its own conclusions on the relevant recommenda-
tions made by the Commission in its respective Reports.

With warm personal regards.

Yours sincerely,
Sd..»'-
(P. B. GAJENDRAGADKAR)

THL .HtJN"BLE SHRI H. R. GOKHALE,
Minister of Law, Justice & Company A ﬂairs,
Government of India,

Shastri Bhavan,

New Delhi-I10 O01.

REPORT ON RECOGN1TION OF FOREIGN DIVORCES

---...-- --.---...----

CONTENTS

CHAPTER Sum-Ecr
1. Jmlroducmzj, . . . . . . .
2. Heads of E{en:ogn.itiun . . . . . . . . .
3. Law Clpplicd 't:3= cuurlsz
4. Indian l..:1w .15: to Recn_-gniticm of fareign iudgmenza . - .
S. Imfmt Lem as to iurisdicrian under unactm-ants other than the
Indian Divorce Act - . - - - - ' - .
5. Jurisdiation under Indian Divorce Act, 1569
'.'_ English Commvc-n Law as. :u Isle-:-:gr,itiu:1
3. Ext1':1--judiCia] Divorces
9 The I'I£t_L-gilt Convention
H1. Engiish Act of 19?! as La Recognition . - . . .
1|. English law as to jnnrlsdicliun and the Act of 1973
I2. Relciprucitgz ' . . . . . . . . .. .
13. Eiocoxnnasnialiuna as to tzi.-'ut§.1g -'='Inl.in(l;§ [r,n: Rec:_1-_;_-n'h'::-n
I4. Reu:omlncndat'Iu:1s as 10 new ground: uf Recognition . ,
15. D-clmicilc and Nalwjlality uf 1he wife . . .
16. Excepliuns to Recognition - .
17. Pubréc policy . . . . . . . .
IS'. Fraud
.3. 55:1-1'l.ary arccr-5 '
20. Orders for cus,ImI}'+--3faria.Ijon by the 1'l1atl'.imuni.1i court
2! 'h.'IndiﬁCaliDn of seclion :3, Code: of Civil Procedure -'ln"_l.l v.-c:i:m 41,
Evidtnce Act ' - - - . . - . . .
22, Recommendations
A+_«y£n'mX 1 - . . . . . . . . . . .
AP:-55:90: 2 . . . - . . . . + . . .

iii

39-45
:i6----4fi
-'IEJJ51
5§----57
5?~«5:<
|36---Gt!
68,1'?
'-"-431
's "S4
*::---5'.'7
3i----T)5
'J"---99
99 «:0:
ll):/--J}iJ
1J----~El5
i16----iL'€
J37 -134
;.'~. 1T5
I35

CHAPTER 1
INTRODUCTORY
1. SCOPE OF THE REPORT

1.1. This Report deals with the question of recognition by Indian courts of
divorces and judicial separations obtained in foreign countries. The subject has
been talsen up by the Law Commission on a reference made by the Union Gov-
ernment.' The scope of the Report will be explained later."

1.2. 0:1 re:-eipt oi the reference made by the Government. a draft Report on
the subject was prepared, and discussed at the meetings of the Commission.
Since the Commission was given to understand' that Government would like its
advice at an early date. it has not been possible to place the subject before the
public~as is the usual procedure of the Commi5sion~for inviting views or com-
ments of interested persons and bodies.

L3. At the outset, it should be made clear that this Report is not conﬁned to
divorces or judicial separations obtained by persons of a particular oommunity.
Although the judgment of the Supreme Court in Sar}=a'_v.~ case,' to which refer-
ence has been made in the letter received from the Government.' related to a
marriage between Hindus, the question of recognition in its basic juristic nature
requires that it should be considered in respect of persons of all communities.
This position will be clear from the following observations made by the Supreme
Court as to the nature and scope of the qnestion:----

'The High Court framed the question for consideration thus: "Whether a
Hindu Marriage solcrnnised 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 solernnised in this country can at all be dis-
solved by foreign courts. In any case, the High Court did not answer
the question and preferred to rest its decision on the Le Me.rrm'er doctrine
that domicile of the spouses atfords 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 i_s 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 ..... ............... ..'

The present reference" by the Government indicates cleariy that the Com-
mission has been requested to consider the problem in all aspects, in the light
of the suggestions made in S'u1ya's case.

1Letter of the Minister of Law. Justice: and Company Aﬁairs to the Cliairman of the
Law Commission, No. F. 'I(6]}1'5, dated 13th March, I975 {Sale Appendix}.

"Paras. 1.3 and 1.4, Eizjrcz.

5Requ-est made orally by the Ministry of Law.

'Sat;-'n v. Tetra .'§ir:r.»}i. .»'I:..l.R_ 19?5 S. C. 105, 10?, para. T (para. L4, infra.)
'Paragraph 1 . 1, sup.-'rr.. and Appendix.

'See Appendix to this Report.

introductory.

Procedure adopt-
Ed.

Report not con-
ﬁned to persons
of particular com-
munity.

Supreme Court's
judgtnent in Sa-
tyr: V. Teja .S'i'r:_i,=.I'1.

Report on Recognition of Foreign Di1«'orce'5-
(Chapter I.--h1troduc:tory.)

1.4. Before proceeding further, we would like to summarise the facts in Surya':
cn_re,* in order to -indicate the nature of the question to be considered. In that
case, the appellanL,»a Hindu married woman--ﬁ1ed a petition for maintenance
under section 48% of the Code of Criminal Procedure, 1898 (now section 125 in
the Code of 1973}, against her husband. The respondent, who was in America
for 5 years, pleaded that his marriage with the appellant had been dissolved by
a decree of divorce granted by the Court of the State of Nevada, lI.S.A. in 1964.
and the appellant had, therefore, ceased to be his wife.

The question to be considered was whether the divorce granted by the
Nevada Court on the basis of bona ﬁde residence should be recognised in India.
The Punjab High Court held,#

(if: that the Nevada Court had jurisdiction to pass a decree of divorce
on the basis of the domicile of the parties, and

(ii) that the domicile of the wife during marriage followed the domicile
of the husband.

For this conclusion, the High Court primarily relied on the decisions of
the Privy Council in--

(i_} Le Mesurier v. Le Mesiirierf
{ii} .sltrc3rney General of Alberta V. Cooke :3
and of the House of Lords in----

{iii} Lord Advocate V. Jaggery.'
"C.

1.5. Against this decision of the Punjab High Court, the petitioner took an
appeal to the Supreme Court The question for consideration in the appeal be-
fore the Supreme Court was whether the decree of divorce passed by the Nevada
Court (U.S.A.} was entitled to recognition in India, as had been held by the High

Court.

LSA. Reviewing the law on the subject, the Supreme Court noted' that, accord-
ing to pTl'-.-'Elle. international law, as interpreted in Le Mesurier,' the domicile for
the time being of the married couple afforded the only true test of jurisdiction to

dissolve their marriage.

This test, however, was subject to statutory modiﬁcations in England.
These modiﬁcations were also discussed by the Supreme Court. but the discus-
sion need not be reproduced here.

The Supreme Court then referred to the latest English Act, namely, "The
Recognition of Divorces and Legal Separations Act 1971", which brought about
certain radical changes in the law relating to the recognition of divorces. and in
that connection, it summarised its important provisions.'

Surya V. I'e}'rI Singfi, A.1.R. l9'.u'5 S. C. l05 [On appeal from A.l.R. I97] Punj. 80).
=[_r- M'erm"|'e.u- V. Le Merrrrit-r. [1895] AC. 517 [P.C.}.

G. of A Iberm V. Coo!-'re. (I926) A.C_ 444 (P.C.).

'Lord rldl-'0(.'ﬂlL' V. Jrtggcry, (1921) A.C. H6 (H.L.}.

5Page 107, Para. 6, in A.l.R. l9?5 S.C.

(Le ft-ﬁ'.S'££"itt'l' 1.'. Le i'lfe.rzr.I'icr, (1895) A.C. 517' {P.C.).

7P;1ge H3, pafa. 32, ll'! A-11R. 1975 C.

Report on Recognition of Foreign Divorces'
(Chapter I.--Im'roducrory.)

The Supreme Court also took care to add that the test of domicile was not
adopted in many countries, and observed that, "we cannot adopt mechanically
the rules of private international law evolved by other countries''.' American
law on the subject of recognition was also discussed.

1.6. Coming to tl1e facts of the case, the Supreme Court noted that tl1e judg-
ment of the High Court was based on the assumption that the parties were domi-
ciled in Nevada? But, on the facts, the parties' domicile was not in Nevada.
The husband had misled the Nevada Court. which had exercised jurisdiction on
the basis of his honor ﬁde residence," by stating that he wished to stay there.
Actually, he left immediately. The Supreme Court pointed out that if the foreign
decree was obtained by the fraud of the petitioner, it would not be recognised.
The plea of fraud was not seriously argued before the High Court. but was very
material on the facts.

In the present case, the record showed that the respondent left India for
U.S.A. in January, 1959, and spent a year in the New York University and four
years in the Utah State University, and later secured employment there. He
ﬁled a petition for divorce in the Nevada Court in November, 1964. He falsely
represented to the Nevada Court that he was a bona ﬁde resident of Nevada, and
left Nevada immediately after obtaining the decree. Thus, the Nevada Court
lacked jurisdiction. The Supreme Court observed' that residence for a particular
purpose being accomplished, the residence would cease ; and the residence must
answer a "qualitative as well as a quantitative test", i.e. the two elements of
factum and animus must concur. On these facts, the Le Mesurier doctrine lost its
relevance tojthe case.'

1.7. The Supreme Court also referred to section 13 of the Code of Civil Pro-
cedure, 1903, under which a foreign judgment is conclusive, subject to the excep-
tions mentioned in various clauses of the section. The Supreme Court, how-
ever, pointed out" that under clause (:1) of that section. a foreign judgment is not
conclusive where it has not been pronounced by a competent court. In this case,
the Nevada Court was not competent to dissolve the marriage, for the reasons

mentioned above.

Again, section 13(e) of the Code provides that a foreign judgment is not
conclusive "where it has been obtained by fraud." That clause was also applic-
able to the facts of this case.

For these reasons, the divorce granted by the Nevada Court could not be
recognised. The foundation on which the High Court had recognised the decree.
did not exist. Accordingly, the Supreme Court allowed the appeal.

1.3. The Supreme Court noted that the result of the decision would he that the
parties would be treated as divorced in Nevada, but their bond of matrimony
would remain unsnapped in India,---the country of their domicile.'

1Page 1139, para 9, in A.l.R. I975 S_C.

"Page 116, para 45, in A.I.R. 1975 S.C.
"Page I09, para. 15. in A.I.R. 1975 S.C.
'Page I16, para 45, in A.I.R. I975 S.C.
5Page I15, para 46, in A.I.R. 1975 SC.
'Page 11'.-', para 49, in A.l.R. 1975 S.C.
'-'P|_gt.s ll'!-l 13, para 52, in A.l_R. l975 SE.

Need for
lion.

legisla-

Cede of Com: n-
tion.

I-I-not convenient

mode of dealing
with subject--so
parole legisla-
lion.

Report on Rcr'o-g.rzr'rirm of Foreign .Dfv0rt'cs

(Chapter I.---[rttrodttctory.)

The Supreme Court further observed1 that our legislatu.r-e ought to find a
solution to such "schizoid situations". as the British Parliament had, to a large
extcntggdone by passing the Act of 1971. Perhaps, the Hague Convention of
1970. which contained a comprehensive scheme for relieving the confusion caused
by diﬁercnt systenis of conflict of laws. may serve as "a model. But, the Supreme
Court added, any such law shall also have to provide for the non-recognition of

"foreign decrees procured by fraud hearing 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."

It is in the light of these observations that the general problem of recog-
nition will be discussed in this Report.

1.9. We sir-ill later deal with the existing law as to recognition and connected
matters, and zinc position in England. Before proceeding further, we would like
to stress the rcisvance and importance of this inquiry. The increasing migration
"to and from India, of Indians as well as other persons underlines the need for
legislation. India is not a party to the Hague Convention,' but that fact is imma-
terial in a consideration of the broad question whether legislation is needed on the
subject. '

1.10. -We may. incidentally mention here that the possibility of limping mar-

riages would be reduced. if all countries became party to the Hague Convention
and adopted, as a basis for the recognition of foreign divorces,.such of the criteria
provided for in the Convention as are acceptable to each conntry'having regard
to its conditions.

I]. LEGISLATIVE DEVICE TO BE ADOPTED"

_l.l_l. 'In view: of the wide scopelof this Report as explained above} another

question may also be dealt with! before we proceed to deal with the subject~
rnatt<:r_ of this Report. The quc_:sti_on_is this----What speciﬁc legislative _cle_vioe
should be adopted to give legal effect to our recommendations'? T" This que'stion
arises because of the peculiar position that prevails in India on the subject of
matrimonial and connected legislation. First, there is no enactment in "India
dealing dir_ectly_v.'ith the recognitionoi foreign decrees of divorce and judicial
.$ep_rrr:z;Er;ii,-_--e.1:cept 1he=provisions'l in sectéon 13 of the Code of Civil Procedure,
1903,. and section 41 of the Indian Evidence Act, 1872, which are general in cl:ia~
racter and do not deal speciﬁcally with the problem of recognition of divorces.

Secondly, we may-also point out that the law relating to marriage and di-
vorce in India is not contained in one enactment. In so far as the law is codiﬁed,
it is contained in several eﬁaE't-mcI':t's'" applicable to members of several con1muni~
ties respectively. These -enactments do not contain speciﬁc provisions as to the
recognition of foreign judgments of divorce or legal separation, and that is logical.
because the question of recognition of jforoign judgrrrenls is outside their legitimate
scope- In this position, our recomrnendations could not be carried out by merely
amending one Act, as such a course would leave out communities governed by
other Acts.

'Page l1t:_ para 53, in A.I.R. I975 S.C.
"Page J18. para 53, in .'\.I.R. I975 S_C,
Wage ll3. para 53. in AIR. 1975 S.C.
'Information obtained from the External Affairs Ministry'.
-'Para l_3. .il'tpri:L

"Chapter -1, infra.

"-ﬂziapters 5-6, fr.-fro.

Report' on Recognition of Foreign Divorces

[Chapter i'.--Inrroducrory.)

One possible mode of implementing our recommendations would be to
amend each of those enactments. Obviously, this is not a very convenient course.
Also, it is open to certain theoretical and practical objections. Moreover; it
would leave out communities whose personal law is not codiﬁed. 'We shall deal
with those objections in detail later.'

The second alternative mode of implementing our recommendations would
be to amend the provisions in the Code of Civil Procedure and in the. Indian
Evidence Act, to which we have already adverted."----which are general provisions
as to foreign judgments and certain judgments concerning status. That also is
not a very appropriate course, because timse provisions are not conﬁned to de-
crees of divorce or legal separation. Besides, they are procedural. Nloreover,
as will be evident from the various points which will be made in this Report'
hereinafter, an elaborate set of provisions will be required to give eﬁect to. our
recommendations, and, as a matter of drafting convenience, it will not be feasible.
in our opinion, to incorporate them by a mere amendment of the provisionjn
the Code of Civil Procedure. or in the Indian Evidence Act. In our opinion,
therefore, the appropriate course will be separate and self-contained legislation.
which would deal with recognition. in India, of foreign divorces and legal sepa-
rations.

1.12-. We have referred above' to certain theoretical and practical objections
which could be raised to the device of merely amending the various enactments
dealing with the marriages of persons belonging tovarious communities. ,_,W,'e
may -"now elaborate those objections. What requires to be pointed out ir_1,,_this
context, is that while most, if not all, of theseienactrnents deal with,persons_l:-e-
longing to at particular religiotb----excepting the Special Marriage Act, 1954, where-

-trnder the religion of the parties marrying is immaterial,mthc decrees of divorce

or judicial separation to which our recommendations relate would be decrees

-passed in foreign countries. and would not beconlined to persons professing

those religions. The decrees could even relate to persons professing no religion.
Secondly, those decrees would, even in the case of persons married under Indian
legislation, have been passed, not necessarily on the grounds referred to in the
relevant Indian legislation, but on grounds which are regarded as adrnissible
under the law applied by the foreign Courts, whose. decrees 'later come up for

recognition.

rWe need not, in the present chapter, deal with the vexed question asyto
the law which should be applied by the courts of a particular country whe'nlpa'ss-
ing decrees of divorce. But we may state that the_foreign Court which 'exercises
jurisdiction would, at least in the Commonwealth, ordinarily apply not the Iiidian
enactment, but its own law as to the grounds _of divorccf ' I I" i'

1.13. Even where the parties were domiciled in India when they were marrie ,
it is not inconceivable that a foreign Courtmay dissolve a. marriage betwieen
Hindus or Muslims who were married in India, and who are. at the time' oftlre
proceedings in the foreign court residing in the" foreign 'country. In doing so,
foreign Court. if it is otherwise competent, may. "without committing" "any
breach of the relevant rules of its own private ipternational law, dissolve the mar-
riage ou grounds or in circumstances vaiid und'er the Hindu Marriage -Act-for
'See para. 1.12, infra.

"Sec supra.

3.S'ee particularly, Chapters 10-11, infra.

'Para 1. ll, supra.

5Sec Chapter 3,- irlf.-"a.

practical .. , jar
[ions to amending
existing enact--
menls.

Fupdarnental
action as to gene-

T-Ii approach.

Wide
choice.

range

au-

Report on Recognition of Foreign Divorces

(Chapter I.--Im'roducz'or;v.)

under Muslim Law as administered in India, or its statutory modiﬁcations. In
this position, addition of the proposed provisions for recognition to the Hindu
Marriage Act or other comparable law, would not be a very appropriate method
of dealing with the subject.'

Apart from this, there is the practical aspect, namely. the cumbersome
procedure that will obviously be necessary if Parliament is to amend numerous
enactments now in force. dealing with the marriages of members of various mm-
munities.

The parties who have obtained the divorce in the foreign country, might
be domiciled in India or not so domiciled. Their marriage might have taken
place in India, or it might have taken place outside India but under an Indian
enactment, or it might have been celebrated outside India but not under an
Indian enactment. Obviously, the problems arising out of all these various per-
mutations and combinations can be better dealt with by separate enactrnent.'

Ill. GENERAL APPROACH

1.14. Having dealt with the proper legislative device to be adopted to imple-
ment our recommendations, we proceed to advert to one fundamental question
which is to be considered, namely, what ought to be the general approach in such
matters '? It is easy to say that a limping marriage must be avoided. But we
venture to suggest that this proposition cannot be raised to the status of a dogma.
There must be cases where one of the parties to the marriage may, for legitimate
reasons, like the marriage to survive and the foreign divorce to be disregarded.
A familiar example is the case where the divorce was granted by 'the foreign
court without giving a hearing to the opposite party." It is obvious that in such
cases the consideration that a limping marriage should be avoided, is overridden

by other considerations of justice.

There could be other comparable situations also. To formulate the cri-
teria for the recognition of a foreign divorce in wide and unqualiﬁed terms
would, no doubt, tend to decrease the number of limping marriages, but it would
not always lead to justice. There are a number of cases where justice to the
opposite party [the party who was the respondent in the divorce proceedings in
the foreign court), requires that the matter adjudicated upon by the foreign court
should be considered again. The fundamental aspect to be considered. therefore.
is this--the rules to be laid down on the subject should be such as to do substan-
tial justice to both the parties and, subject to that consideration, as to avoid limp-

ing marriages as far as practicable.

1.15. The range of choice is a wide one. Between the extremes of no recogni-
tion of divorce on the one hand, and the recognition of every divorce on the other.
there is obviously a wide scope for possible variations. At a time when, as a
matter of internal law, divorce was severely restricted, it was natural that a simi-
larly guarded view should be taken with respect to jurisdiction for divorce and
the recognition of foreign divorces. This was reﬂected in the famous language

of Lord Penzeance in Witson v. Wilson}.

'See Chapter 3, infra.

=Para_ ] . l1. supra.

'Compare article 8 of the Hague Convention.
'Wilson V. Wilson, U872) LR. 2, P. & D. 435, 442.

Report on Re'c'ogm'tiou of Foreign Dr'vo.-'ces

(Chapter I.--Introductory.)

"it is both just and reasonable, therefore, that the differences of married
people should be adjusted in accordance with the laws of the community
to which they belong, and dealt with by the tribunals which alone can ad-
minister those laws. An honest adherence to this principle, moreover,
will preclude the scandal which arises when a man and a Woman are held
to be man and wife in one country, and strangers in another."

1.16. As Wolff observes,' it is impossible to recognise all judgments of all courts
in any country all over the world, despite its manifest advantages, as the disad-
vantages are equally manifest in so unrestricted a recognition:

"It is not advisable to trust every court in the world to administer justice
irreproachably. Bribery of Judges may have become so rare as to reduce
this risk to El minimum ; but in some countries unsatisfactory legal educa-
tion, appointment of Judges from political motives, and the inﬂuence
which the state or some powerful criminal organisation within the State
brings to bear on the Judges are considerable obstacles to a universal Ic-
cognition of judgments. Further, even where there is no danger of any
kind of corruption of courts, dilferences between two countries in their
fundamental attitude to questions of morality or public policy, must often
make the recognition of some individual judgments seem undesirable.
Finally, general recognition might result in grave injustice where the same
relationship was regarded differently by the courts of two countries as in
cases of marriage, divorce, inheritance. etc."

1.17. Cardozo, in his Paradoxes of Legal Science, dealt with the problems of
rest and motion, stability and change. particularly as they are reflected in the
law." His words have often been quoted~"The reconciliation of the irreconcil-
able, the mergef of antitheses. the synthesis of opposites, these are the great pro-
blems of the law."

1.18. Ultimately, the rules relating to- conflict of laws have to be examined from
the point of view of justice and the broader consideration of social policy which
conflicting laws may evoke.'

IV. NATURE OF RULES AS TO CONFLICT OF LAWS

1.19. At this stage, we would like to make certain observations as to the nature
of rules as to conﬂict of laws. These rules are often mistaken to he rules of inter-
national law, but, in reality, they do not belong to the domain of the "law of
nations". they do not purport to regulate the conduct of nations inter .93. Their
subject-matter is "international" only in the sense that they involve relations.
acts or events or other questions having a foreign element, or--to put it in diﬁer-
ent words--involving questions transcending the boundaries of one nation. But
they are not administered by international tribunals. They do not draw their
content from the traditional sources of international law.

1.2!}. Essentially, conflict rules originate in each individual legal system. The
expression "conﬂict" is, of course, merely a convenient simile, indicating two
aspects. namely,--(i) that the fact or legal relation in question is possibly govern-
ed by several legal systems or jurisdictions, and (ii) rules are needed to decide
which of these several legal systems or jurisdictions should be applied to the

1Wolﬁ', Private ilinternati-onal Law {I945}, cited in Abdul Wnzid v. Wishwcmnthan, A.l_R.
1953. Mad. 262-264.
9Cardozo, The Paradoxes of Legal Science H928], page 4.

'Cavers, in (I933) 4? Harvard Law Review 173.

Views of 'Wolff.

Cardozo'; view.

Justice---the ulti-
mate considera-
tion.

Nature of rules.

ltulcs as to con-
ﬂtct of laws--Na-
ture of.

ti
Courts enforcing
homologous
rights.

Problem of recog-
nition---es.sent1a1
nature.

History of recog-
nition of judg-
ments----civil law.

Report on Recognition of Foreign Divorces

(Chapter I .-----IntroducIory.)

actual case. Because several legal systems co-exist, it becomes necessary to deter-
mine their applicability.' The decision as to which rule should apply has ulti-
mateiy to be just and fair, as far as possible, to all concerned.

1.21. One of the great American judges, Learned Hand, has repeatedly. stated,
in differing phrases? that courts enforce only rights of their own, and never
'foreign' rights."

Thus. in Grtinness v. Miller, Judge Learned Hand .raid':é '

"When a court takes cognizance of a tort committed elsewhere, it is indeed
sometimes said that it enforces the obligation arising under the law where
the tort arises ....... .. However. no court can enforce any law but that
of its own sovereign, and, when a suitor comes to a jurisdictionforeign to
Ihe place of the tort, he can only invoke an obligation recognised by the
sovereign. A foreign sovereign under civilized law imposed an obligation
of its own as nearly homologous as possible to that arising in the place
where the tort occurs."

Lord Parker spoke to much the same effect in an English casei:

"Every legal decisionof our courts consists of the application of our own
law to the facts of the case as ascertained by appropriate evidence, One
of these facts may be the state of some foreign law, but it is not the foreign
law but our own law to 'which elfect is given, whether it _he byway of
judgment for damages, injunction, order declaring rights and liabilities. or
otherwise." - ; .

v. PROBLEM on RECOGNITION or FOREIGN Junozviewrs
1.22. In order that the problem of recognition may suitably- dealt with

in the light of the general observations made above. it is desirable to 'put"the-

problem in a proper perspective. The problem of recognition is, in its essence.
one of attributing validi,ty"to agforeign judicial act. We shal1'haveioccasi'o'11I
to deal also with extra-judicial divorces obtained in foreign coiintriesbut.
principally, the matter will be discussed with reference to judicial deterrniha-
tions of foreign courts,

The problem is not totally new, and the issues that arise for our discussion
are also not unknown. But it may be stated that because of the increase'-'in'
mobility of individuals. andi'|:'-ecause of the variety of legal systems whiclman
individual may encounter by reason of his crossing the boundaries of his state.-
the frequency of the issues" arising has increased in modern times. l

1.23 Even in the civil law system" with its many independent_terri|torial
units, the problem of recognition of _foreign,jndgments has_been_of comparat-

tively recent origin.

'See "Current Developments in Private. International Law" U954} VOL 5: Ameﬁaan
Ioumal of Comparative Law, page 542-

"tatGuinnessv.-Miner.-(1923)291F-769:7"? - - -'=? =

('[1]-The" Jamie's McGee. {I924} 300 F. 93, 96 ;
fc) Direction cier Disconto-Gesellschr-'ff Vv U- 5- 33331, CW7?-=
(C1)-'Scheer v. Rockne MQi0?.'-l-' C0"1;'-»E€)4g:_? F' OD) 942' 944'
, (e) Siegrrtan v. Meyer. (1933) 1'30 . '_ -
3See Earnest Lorenzen, Book Review in (1948) 64 I--QR. 129, 130. ' is -
'Guinness v. Miller, (1923) 291 F°d- 753» 77" '1"°'°" bi' °""'5h"° "975" page 2 '
and see Cavers {I950}. 53 H31"-K L-R- 32? _ ' '
Jbynamir Action-Ge-selischafr v. Rm Tinro Co.,

°Bhrenswieg Conflict of Laws H9621. Page 15-

rr924l '3b0' F. 7'41.'i7it4.- '

."l 71

(1918) A.C. 292. 302.

Report on Rer:ngna'rfon of Foreign Divorces

fCh:7;Jfcr I .--Irrtr0ductor_1-'.)

(a) The classical Roman practice of freely executing Roman judgments
«an;-'urherc witliin the provinces of the .realm,1 in apparently carried
over into the ideological entity of the Christian Empire of the 'Mid-
dlc Ages. "The fact that there existed; in the 'Middle Ages among
the Christian Peoples :1 his commune resting upon Roman Law,
made the enforcement of_ judgments appear as a very natural pfﬁcgpt
of justice and of niutual assistance?" This practice is fortiﬁed by
the natural and intcrllatioiial law "concepts of the Iﬁthnand Nth
centuries." Z ' ' '
lb} Even when the rise of the dogma' of sove-reignty' came to arouse
qmisgivings concerning -the recognition of foreign judgments. respect
for the susceptibilities of the foreign sovereign continued, to preclude
re-examination of his decrees based on his accepted "jnrisdiction".

"To "undertake to examine the justice" of £1' deﬁnitive sentence, is to attack
the jmr'.m'r'crim1 of him who has past it". This is what Vattel W-rote.'-'r

' "Only -with the later growth ofsnationalism was this attitude of intematjona]
couriers; {often rationalised by references to tacit agreeme_n_t or concert), turned
into 'a- "bars n:omit3."',- which -left to each state Complete freedom in sciﬁutinising
th'e"ﬁn-dings of foreign Courts. i - . M
L» 4 " .' .
l.24~, The last mentioned attitude (theory of con1it}*¥--i.e, disc1'eti0n}iis'reﬁect-
ed,in present-day__European law andlits derivafi'ves,"'wl_*iere nearly' all divergent
opinions -and attitudes have survived. ranigingtrorn a ﬂat denial or recognition
hyinsistence upon a trial ﬁe mzvo: through a lawlgranting recognition on con-
dition of r:_c'lproc;t}-'3 _to a nearly unconditional enforcement of foreign
judgnientsf _ " 1 " = ' ' '

French attitude to foreign judgements" has been traced back t_o Article 121
of the so-called Code Mi-chant, an Ordinance of 1629, which provided that any
foreign frirfgriryerzr recovered a,em'nsr_ French citizens may be litigated anew."
1.25. The problems of conﬁict of jurisdiction,' particularly in relationlnto
rnatrinnoilial in-stters, is essentially a human one. 'Whatever the lnt_=v.i whateiier the
theology, whatever the social order, the same kind; of prohlem arises betjreen
liuinan' beings of dppﬂsite sexes at all crimes and in aI1couutries.= f'Huni-in
hiiings make the problems law-makers adumbratecthe rules applicable to the
1§irohlern's':' 1'aw},'ers are merely the tecl3n'H$i3I1S;tr5{jng,.;_1nt always _suoees;-sfullyt;
tn'"a'ppI}' the rules to the solutions of their clients' _i1nmediate_difﬁcultie_£]_' so' it
"gas said so it "will ever be.'-"" '

. __.'?_-i---5-.--..--

-"' '1natg_ssr, De"r-e judicatn.-42, 1, is, 1 {ogpranuo

a = 2Moﬁi.Da5 Intern,-11101-sale Zixfilprozessecht auf "Ci-und; der. 'i"l1e'uriI:,' Casetagobungand
P;_axjx'[L9Do] 13, cited by Bhrenswleg, Conflrct of-LaWs~(rl'962}; page 1:15. _ . _

_ 359.: Nussbauni, A Concise History of the Law o;E_Nati_o_ns tA1_5'47'_}._pag-3,559-_

' _'Nussbaurrr', A Concise History of the _I_._.aw of ;'~Tati,t_2I1Jir»qlf:15"_l»'-1'}. ED323133 C d

' W it I 1.' - t'.'~I t' , P_r' c'p1es of the Law of ature. "Anni 'to e? on pet
and Atlaitris U?"N:tioh: zlgidsgcohrerelgnh {trans}, 1760} 'Vb1.'1,- I48,{Bonk.:IL Ch. VII, Semen
sen cited by Bhrcnswieg (1952), page-Ii ' = - s . . . , r

Watiel, cited by Bhrenswieg. Conﬁict of Laws (1962), page 1_6.

' 7(3) 1_m-¢n'sgn_- "The Enforcement of A_n_1e_ri_can Judgments, Abroad", [1919] 20 Yale L. I.
133;: I _ _' ' :_: -_; _"
tb) Kennedy, "Recognition of Judgments I1-1|P€l'S('|l1ﬂB;51Tl.'!€.;NICB1:1_3ng Of Rﬁﬁiprmlli-' 1
(1957) 35 Can. B.'RE\v": TE3.' I 1 A

"Cf. Hilrorl V. Grrynf, [1895] I59 3. ]''.'3_
9Bee 1 _
(al Johnson. "F0"E~ign Judgments in Quebec". (I957) 35 Can. Bar Rev..9ll;

- '-rb)-E-hretnswicg, "Conflict of Laws" H962'), page 17.' '

IDCJ'. Joseph Jackson, Review of William H_a'3.r's Lectures on Marriage. [I969] 85 L. _Q. R.
atp._29l. -- s. _.i

Eﬁect of the ap-
proach in the
nature of "co-
mrty".

Problem
one.

Problem of Con-
ﬂict inherent in
cu-existence of
various legal
orders.

Complexity of the
Problem.

Report on Recogriition of Foreign Divorces

(Chapter I.--Iim-odtrctory.)

1.26. The problem of confiict is inherent in the coexistence of more than
one-legal order. 80 long as the courts of two or more States may claim juris-
diction over the same case and t.he laws are different. the problem of conflict

is bound to arise,

In dealing with this problem. the court of the country concerned has to
determine which law is to be applied, i.e., its own law or the law of any other
country. Where the matter is res' intern, the inquiry is as to which .l'}'..'u'I€ﬂ'I of law
should be applied. Where, however, there is already a judgment of a foreign
court, this inquiry must be supplemented by an inquiry as to whether the
foreign jtttigntenr should be recognised; and, if so, to what extent and in What
respects and subject to what conditions-substantive or procedural.

1.27. In a Catcuita case'. Rankin (1.1. made the following observations which
lucidly bring out this aspect :

"It is manifest that, so long as the matrimonial law of different countries
vary widely, as they do, it is necessary that for every marriage there

should be ascertainable forum for the purpose of adjudicating upon the
question of divorce. All countries do not take the same view of inter-

national law. But the view of international law which obtains in England
in these Courts is that the power to grant divorce rests with the Court
of the country in which the parties are domiciled at the date of the
petition. Other countries may take different views of international law
in that respect. But it is well settled now that that is the view upon which
the English law proceeds and that view. for all purposes of this Court, is
the law without exception or qualiﬁcation by the command of the

legislator."

1.28. Besides being. inherent in the co--e:-tistence of legal orders, the problem
of conllict is a complex one. as is illustrated by Bream': ct',r.se_ The question before
Karminski, J., in Breen. v. Breen" was whether an Irish court would recognise an
English decree of divorce.' Under article 41. section 3(3), of the 1937 Constitu-
tion of Ireland: "No person whose marriage has been dissolved under the civil
law of any other state but is a subsisting valid. marriage under the law for the
time being in force within the jurisdiction of the Government and Parliament
established by this Constitution shall be capable of contracting a valid marriage
within the jurisdiction during the life-time of the other party to the marriage so
dissolved." This provision was invoked by the wife petitioner, who sought
annulment of her marriage with the respondent at a registrar's ofﬁce in Dublin
in 1953, on the ground that her husband's former wife. when he married in 1944,
was still alive. The husband stated that his previous marriage had been dissolved
by the High Court, he being domiciled in England at all material times. The
wife's reply to that was that English decree was not recognised by the law
in Eire, and consequently the marriage in 1953 was bigamous.

Karmingkj, J _, observed, in the course of his judgment. that there was 'no
question here of any difficulty in the form of the marriage ceremony under Irish
law, and it had not been suggested that either the wife or the registrar W110

'Linton v. Gucieriarz, A, I. R. 1929 Cal. 599, 601.

"Bream v. Breen, (l9ﬁ4) Probate 144. _
-'See note, "Conflict of Laws--REC0£niEi0ﬂ 05 English D1"01"C'-"- 1" (19613 232 Law

Times 15, 16.

Report on Recognfrioit of Foreign Divorces

(Chapter !.#!nIrodncIory.)

performed the ceremony was deceived in any way as to the status of the husband.
The wife was well aware of the husbapd's earlier marriage and of its dissolu-
tion in England. and the husband was describ-ed in the marriage certiﬁcate as
"di~.=orced". His Lordship recalled that a diﬁcrence of opinion on the point in
question had been expressed by Maguire, Cl. and Moore 1., in the Irish
Supreme Court in Mt!'y0~Pcrro1r v. Mayo-Ferron.' The former was of opinion that
sub-section (3) said as plainly as it could be said that a marriage dissolved. under
the law of another state remained in the eyes of the law of Eire a subsisting
valid marriage. The latter. while recognising that the Cireaehtas could pass a
law that no dissolution of marriage, wherever effected even where the parties
were donnciled in the country of the court pronouncing the decree. was to be
effective to dissoive the pre-existing marriage, was of opinion that it had not
done so, and the law existing when the constitution was passed was that a.
divorce etfected by a foreign court, of persons domiciled within its jurisdiction,
was valid in Eire. Karrninslti. J.. thought it was highly unlikely that the consti-
tution intended, without clear words, to reverse a practically universal rule of
private international law. He could ﬁnd nothing in article 41 to suggest that the
courts. in the absence of further legislation, were entitled to d-o. otherwise than
regard as valid and effectual a divorce granted by the courts of a foreign country
where the parties were domiciled. Accordingly, he found that the law of Eire
recognised the validity of the decree of dissolution pronounced by the English
court dissolving the marriage between the husband and his first wife. and also
recognised the validity of the marriage celebrated in Eire between him and the

petitioner, The wife'5 petition was dismissed accordingly.

1.29. To cite one more example of the complexity of the matter in Moyﬁetd, v.
Mayfietdi the husband. a domiciled Englishman, had brought proceedings for
divorce in Germany where his. wife, a "German national, was resident. After the
German court had granted him a divorce, he brought a petition in the English
courts for a declarrarion that the German decree was valid and should be recog-
nised in English law. We are not concerned with the actual decision in the case.
but the case is mentioned here to illustrate how occasion may arise for obtaining

a declaration.

VI. SOME A-SPEJCTS OF RECOGNITION

1.30. For understanding' the effect of recognition, it is desirable to refer to a
few theoretical aspects thereof. A foreign judgment may be recognised by being

enforced (imrncdiatcly or upon suit), or by being lfﬁﬁted as "W3 i'l|T"C3t-'1"-H

Regogniliﬂll of a judgment, by treating it as res judicnru, may consist of:
(a). refusal to re--try the original -cause of action at the instance of the plainliﬁ.
the foreign judgment for the pfoirrriﬂ: {he can pray

by -virtue of its merger in
only for execution); (bl refusal to re-try the original cause of action at the

instance oi the plaintiil', by virtue of a bar established by the foreign judgment;
re) refusal by virtue of a collateral cstoppel.' to re-try questions of fact' or law
litigated in the suit which has resulted in the foreign judgment; and (cl) accept-
ance of a status declared by the foreign judgment.

Jftjgyg-Pgrroft V. Ma3'o-Parrot: I. R.,
=sray_rn»ta v. hfayﬂeld (19-59) 2 W. L.'.N. 1002.
'See Scott, "Collateral Estoppel by ludgmenl", (1942) S6 Harv. L. Rev. 1.

'Note, (1948) 5'? 'fall: L. I. 339.

Recognition
enforcement.

117

and

Nature of
readings,

pro-

Theory of recou-
niuou.

Report on Recogrtftioai of Fﬂrefgpt Di'1_.!0ircg_5-

(Chapter I.----Introduc!ory.)

Refusal under {a} and (b) above is based on that aspect of res ;'ua';'._»am
which is often described as "merger". Refusal under (0) relates hot to the. ertrirel
cause of action. but to the re.1jﬁgau'gﬂ of pg,-ggcgga, §,ue._3.,,-O,,5_' While Catﬂgoﬂcé
La). lb} and {c} are operative only between the parties and their privies category:
{cl} applies in relation to strangers as well. i I i

VII. NATURE or PROCEEDINGS AND THEORIES or RECOGNITION

L31. We=ma.y mention here that the nature of =proceedings in which the .ques-'
lion of recognition may come up for consideration is not subject to any
particular restriction. The question may come up directly between the parties.
Or-. itmay arise between third.parties.-Ihen, the prayer may be for-_a declamrioﬁ
thatllie divorce is valid. Or, the prayer may be, that the divorce ma')-" be deelareel
U9' -i3fC-'V0iE1- The proceedings lthemselves. could be_o_f setgeral types. One of_ the
F'"""3~'?' ma?" W"m3fT)'-Vﬂﬂ the strength of the divorce granted i_n,the foreign country,
39¢>'ii?U1|a-ti1B=€1ppo-sitc- party .rriag,=_ initiate proceedings for declaring thﬁsﬂqnd
mamatlﬁ -VUi<L-- Or may take. appropriate ._steps_ for pr,osec_uti_ng the re~rnarryi1ig'
part;-' for the offence of bigamy. Or. the question of validity of a divorce rnajt
arm' 1T1Cld5ﬂ13"1"'r~i'or example. Where the partiesuto the marriage, alleged 'to
be divorced; by a~ foreign. divorce. are arrayed on opposite sides. in asuit "or
pictition for the gtantof maintenance, the contention being, that the previous
mﬁrﬁﬁss Sill:-Sists, and hasnot been validly _di.s_sol-.e-:I_ by the foreign <2'-971111', so
tha1.'the obligation to maintain: the petitioning spouse, createrfby the_marriage,'
subsists. . s »

1.32. There are -several theories oi recognition oi foreign judgements.

, _'_When Story wrote his te.rt'"o'n'Conﬂir:tof' Laws in 18-34. l1e.fnur:d Vattol's
respect for. the foreign soi'=ere=ig'ii's._ '"deﬁnitive sentence" more -uniformly. adhered
to..b5'_ eommori lav}? courts than in the jurisprudence of Continental Europe,
Nevertheless, he preferred to follow the approach of Chief Justice Marshall" who.
presumably following ciuil law reasoning, subjected the foreign judgment to an
examination of the renderingucourfs "lawfu'l"' jurisctiction "over the cause and
the parties." The scope of further permissible scrutiny would, according to
him, vary a-zcordiug to whether the judgment was one in mm or in perronrrm.
The former. he thought, "ought to have universal cnncl1l5ivenesS.'°' Judgments in
persortuirr, on the other hand," "itnder a distinction founded in "international
justice_"", {though being an absolute bar as res fridicaln to any new suit by a losing
plaintiﬁ], 5v'er,e subject totexeminetiou "into the merits" ilé sued upon by. a pre~
veiling p§_aintiﬂ." For, the forum, in iexeeuting a foreign jurlgrnent, acts "upon
the principles of emnity; an'tl'has,"'tlierefore, a right to prescribe the terms and
11mi15,._of that comity." However, the question how far aforeign judgment
co-],1I:f._ he "impca<:hed" w}1ile"being*regarded an prime .facie._e_1'i-deuce of the
-;:I;.1i1_r|s,'*'r::ni_a_ined uns:ettledL' ' - ..

'1sn$;9;_éonsiei of Laws, 3934."

Liili}-t.'i3J'é':-\l_£"i!'71t?J'J'. {ISDHJ =TCrancl;Li{13-U. S.) 2441. :59.
'Story, 493. ' '
"'*snsry 'at 'est.
Diary, 2 Dan. r2 U. S. 231) (119.7).
U. SJ 399 "$53).

Story, 49?.
"Story, 497. See 3150 Smith v. Lewis 3 iobnn. 157. ins r._N- 'I'. 1503}. per Kent. Ch- 1-;

relying on the opinions of "most approved jurists on the law of nations".
7Stor}.r', 497, '
'Story, 50$.

5 men, . 4 ~rl'..{-1.Sl3-) 7. ti inch [11 U. 3.1423: =.sin.~on.o V.
W M T i=Dgi*?}a ii-ater 'ease, Isa:-.e C'n'm'.s V.' Bcritfui 14 How.

Report on Recogr-tirierr of Foreigri. Divorces

[Chcrpwr I.-i'rrtmt1'ttcfor_t=.)

Lord Bollingham once held' "that it was rig.st'En5'f the L.-'tt= N3' nr.wr.-'ram: not
to give credit to the judgment and sentences of foreign countries, For. what right
had one kingdom to reverse the judgment of another ? What confusion would
follow in Christiandom if they should serve as so abroad, and give no credit
to our sentences."

Apart from these theories of enmity and international l:=.w. niany other
theories have been put forth-----the theory of vested rights [a foreign judgment
creates a legal obligation l1'3t'.Jt'tten the parties), the theory of harmony. and so
on.

"v'lll-- -- HISTORY

1.33. The theoreticai bases for recognition have, thus. remained controversial.
Let us now look at a few historical aspects. Though certain particular judicial
proceedings may have been recognised earlier.' it appears that English courts
began C-'?_fOt'C'f.'Z_£.' foreign judgrnnets somewhere in the 17th een*.ury."';" In the
seventeenth century. English courts decided that it was "against the law of
nations not to give credit to the judgments and sentences of foreign t.'ount1'ics."5'

As to wltat was the law of nations. Joni-Lins, a judge of the Prize Court in
the mid--1iSOUs, though it was not the Civil Imperial Law. but "the generally
received cnstotns among the European governments which are most renowned for
their justice. i.-ulour and civility."" However, 41. requisite which was laid down
was that the foreign court must have possessed "proper jurisdiction".' It has
been suggested that there were orginaliy no speciﬁc jurisdictional rettuiremonts.
The foreign court was merely required to have observed the elernentary precepts
of natural justice. However. with the acceptance "of ihe obligation -or "vested
rights" theory' in the nineteenth -century, the jurisdiction requirements crystal-

lised.

1.34. There cannot be any doubt that as early as 1845. a foreign judgment in
favour of the defendant, if ﬁnal and conclusive, wasa good defence to an action
in England for the same matter.'

Later developments were---«{5} statutory, particularly in regard to monetary
judgments. and (ii) judicial. particularly in regard to divorce.

1In :1 note from his manuscript quoted in Kennedy v. Ear! of Cassaiier. 2 Swans. 313. as
quoted by Wjscount Baldarte in Bait-rse's ease tl927} A. C. 64!. 659.

sgack, "Conﬂirzt of laws in the History of English Law", in the book Law; Century-' of
progress 1835- I935. V-oi_ 3. pages 342-382.

Wen-land V. Hem-an_ (U531). 23 English Reports 2'35 [Annotation and see Hos-worth.
History of English Law, Vol. ll. pages. 269. 270.
Caseiiits. tl8'FS] 2 Swans. 313. 326; 36 E. R. 635,
1 Ves See, 157, 159; 2? S. R, 954, 955._ This View
Rose V. Hirrzeiy, S U. S. {4 Cranchj 140; 2 L.

iconti;-1gton'5 Case in Kettiredy V.
540'. see also Rear-it 1-'_ GrI."}=rI?E. L1'i'4Sl'§
also found favour in the United States; see

Ed. 603 (1303).
5HeIdsworth H. E. L. 'v'ol_ 3, P. 554
Eta) Ex v. Ycwi.s_ {I749} 1 Van. 298'. 2'! S. R. 1043;
my Ex 19. Oiéifera, (1795) 2 Vi.-ii. Jun. 587; 30 E. R. 790.
felﬂuchanan v. Rue-ircr, [1903] 9 East I92: 1'33 M. K 5'46-
iPara. 1. I63. siipr-a.
'Hicardc V. Grrrcias, (1345) _12 Cl. F_ 363, 496
2--5 LD(.'\'l3-3 :6

_l3

Historv oi recog-
nition in England.

Recognition of
foreign decree
and jurisdiction of
foreign courts.

Aspect of reci-

procity.

Relevance of dis-
cussion of princi-

ples on which
Indian cou|_'ts_ ex-
ercise jurisdic-
tron.

Expression "legal
separation" why
used.
Introductory.
Connecting fac-
tors.

Report on Recognition of Foreign. Divorces
(Chapter }.~~i'nrr<:vdnctory. Chapter .?.--~Heads of Recognition.)
IX. CONNECTED MATTERS

1.35. It may, in this context, be of importance to point out that the problem
of recognition of foreign judgments is. to some extent, connected with the
problem of the jurisdiction of foreign courts. In order that the forum in India
may recognise the foreign judgment. it is relevant to consider the question
whether the foreign judgment was pronounced by a court having jurisdiction in
the international scnse,----to borrow the words of Wright, .T.,'----"in such a sense
that in conformity with general jurisprudence and ordinary international law
and usage the courts of other States will regard its judgments as binding."

l.3SA. There is another aspect of the matter. If our courts insist that the foreign
judgment should be in conformity with general jurisprudence and ordinary
international law and usage in order that we may regard the foreign judgment as
leading: our own courts should, broadly speaking. also exercise jurisdiction on
a ground in conformity with general jurisprudence and ordinary international
law.

We shall revert to this aspect later.'

1.36. These comments are made at this stage. in order to show how it is not
irrelevant to discuss the principles on which, under Indian legislation, Indian
courts are regarded as oompetent to exercise jurisdiction in respect of the grant
of divorce or judicial separation. Though the rules belonging to the domain of
conﬁict of laws originate in municipal law, their function is international.

1.37. We may, before closing this Chapter, make it clear that though the
expression used in Indian legislation dealing with matrimonial relief is "judicial
separation", we are using the expression "legal separation" in this Report. ﬁrst.
because that expression is frequently used outside India, and secondly, because
"legal separation" is a term which will cover separation by mutual agreement
also.

CHAPTER 2

HEADS OF RECOGNITION
DOMICILE--NATIONALITY--RESID.EDlCE

I. INTRODUCTORY

2.1. It will be convenient, at this stage, to make certain general observation
as to the possible heads of recognition of divorce and legal separation.

3.2 Recognition of a judgment essentially means recognition of a connecting
factor. The possible connecting factors may he classiﬁed. in conflict of laws. with
reference to a variety of considerations, such as"~«

(a) domicile:
(bl residence, which again may mean-

til permanent residence. (ii) habitual residence, (iii) ordinary resi-
dence. or (iv) residence sinipiiciior at a given moment:

1T,,,.,,j,'a;f V, w..i};§,"r1912m'ii.;.... Lauilieportsu, 567 (origin, 1.).
9-See Chapter 12. infra {Reciprocity}-
3The list is illustrative only.

Reporter-1 R€f.'()A2i'?iIi(Ji'T of F()!'E.r:[.{i'I D:'vorce.s'

(Chapter 2.----Head5' of R€cr)gm'tion.)
(C) the situation of the legal relation:
((1) origin of the legal conduct:

tjc) nationality.

We shall discuss a few of them which are of practical importance in the
present context.

2.3. According to generally accepted principles of private international law. tl1e
courts of most states will decide issues of personal status and allied matters
(marriage, divorce. devolution of property upon death, etc.). by applying the
"personal" law of parites} In states with a legal system based upon the
common law. this "personal" law will be the law of the domicile (the place
where the individual concerned has, or had at the appropriate time. his perma-
nent home)? but, in civil law systems, the personal law is often that of the
state of nationality.'

2.4. The sovereign power of a State ﬁnds expression in two respects:

ta) in its pr-rror-mi power, by which it controls the name of its nationals;
and

(b) in its territorial sovereignty, by exercising power on its territory.

The theory of domicile.' as a test of jurisdiction in matrimonial cases.
attaches greater import.ance to the second aspect. while the theory of nationality'
attaches greater importance to the ﬁrst aspect.

However, it may be noted that the possible effect of. applying the test of
nationality. is, in continental countries. such sub-dued, by reason of the applica-
tion of various special doctrines, chief amongst which is the doctrine of public
policy (order public). We shall. in due course. examine the doctrine of public
policy,' and its relevance to the recognition of decrees of divorce.

II. DOMIClLE--TI-lE GENERAL CONCEPT

2.5 Coming to the speciﬁc heads of recognition, we may begin with domicile.
According to traditional English law. recognition of a divorce granted by a
foreign court was limited to cases where both the parties were domiciled in the
Ioreign country. Certain modiﬁcations or qualiﬁcations of this rigid doctrine
found their place later. But. we shall discuss these at the proper place?

2.53;. The word in Latin is domiciiiium, which is derived from the WOYII
donms--meaning home. The exact legal deﬁnition of this word has caused
jurists a considerable difﬁculty, and there is no one deﬁnition which has been

unanimously accepted.

'Enrenswsigh. Conflict of Laws (1962). p. 3'.-'2.

"Goodrich. Conﬁicl of Laws 4th ed_, pages 32-3-8.
'Grieg. International Law [I973], page 303.
'Para. 2: 3,
-"Para. 2: 3, .su.!?"ﬂ.
'See Chapter 17, infra
Tﬁee Chapter 7, iri_i"r-;r..

srrprrr.

Personal law.

Two aspects of
sovereignty.

Domicile.

Derivation of the
word.

Rules as to domi-
cite.

Variation in
rules.
Importance of
domicile in rela-
tion to jurisdic-
tion.

Report on Recognition of Foreign Divorces

{Chapter 2.----Heaa's of Recognition.)

Broadly speaking, domicile connotes the place where a person intends to
make his permanent home. Domicile. is "an idea of law". as Lord Westbury
said'. It connotes different ideas in different legal systems. Domicile cannot
be a precise concept. Excessive emphasis on animus (intention) as a constituent
of "'dornicile", has led to certain problems, as will be seen later.

In India, there are detailed provisions on the subject of domicile in the
Indian Succession Act." but their scope and applicability is limited." The con-
cept of domicile is mentioned in article 5 of the Constitution of India. but not
deﬁned.

2.6. Every individual has a domicile of origin, which can be lost by the acqui-
sition of a domicile of choice. A domicile of choice is more easy to shed than
the domicile of origin. In general, according to English law. the domicile of
origin is revived when a domicile of choice is terminated and another domicile
of choice is not yet acquired. Again. according to the traditional rules of
English common law, the domicile of a wife generally follows that of the bus-
bandpa rule which has now been abrogated in England by statute.'

2.7. 0ne's domicile is ﬁxed by the law. If one be a legally competent adult.
one may establish a home which the law will say is one's domicile. This is
called a domicile of choice' but it is a matter of free "choice" on the individuals
part only because he has complied with the law's requirements for acquisition
of a new domicile. If he has two homes. the law determines which of them is
his domicile. If he has no home. the law designates a particular place as his
domicile regardless of his choice in the matter. At the moment he is born, the
law assigns him a domicile. called his domicile of origin. Minors. married
women and persons deemed legally incompetent are, by law, each assigned a

domicile which may. in turn, be changed by facts outside the individual's
control.
2.3. The concept of domicile is. thus. one of a legal reiatiorz between a per-

sorz and (I place. created by the law and not by the persons. In other words,
the factors of a person's life constitute domicile because the law so says. The
law prescribes the constituents of domicile. If this is true. it must be expected
that the exact requisites of domicile, i.e.. its deﬁnition, may vary slightly accord-
ing to the purposes for which the term is used. This variation may appear not
only from state to state. but even in the same state. Since domicile is a "too "

concept. it will be ﬁtted to the job for which a tool is needed." It is conceivable
that courts which purport to adhere to the idea of singleness of domicile might

nevertheless ﬁnd a persons domicile to be at one place for one purpose and at
another place for another purpose. And, of course. ditierent courts may ﬁnd
one's domicile to be at different places.

III. DOMICILE AND MATRIMONIAL JURISDICTION

2.9. The importance of domicile in the context of matrimonial jurisdiction
was established beyond doubt by the Privy Council in Le Mesurier," holding
that the Courts of Ceylon had no jurisdiction to dissolve a marriage unless the

1BcIlv. Kenneriv. {I363} Law Reports 1 Se. & Div. 307,. 320.
3Sections 5 to 20, Indwian Succession Act, 1925.

"Cf. Retanshan- v, Bananjf, A. I. R. 1933 Bent. 238.
'-Section 1, Domicile and Matrimonial Proceedings Act, 19?} {E1/15.).

ikestatement (second) of Conﬁict of Laws [proposed Official Draft. I967}, section 15,.
"See Robe: v. Kennedy. 219 F. Supp. 892 (D. D. C. 1963).

'Le Marrrreier v, .i_',e Memrier. (1895) A_ C. Si'? (P. C.}.

Report' on Recognition of Foreign Divorces

(Chapter 2.--Heads of Recognition.)

parties were domiciled in Ceylon. This decision was construed as also implying
that English Courts would have no jurisdiction to dissolve a marriage unless the
parties were domiciled in England,--in the absence of special statutory provi-
sions. The recent English Act of 1973.1 dealing with jurisdiction in matri-
monial causes, now speciﬁcally provides as follows:----

"[2,: The court shall have jurisdiction to entertain proceedings for divorce
or judicial separation if (and only if) either of the parties to the
marriage--

no is domiciled in England and Wales on the date when the pro-
ceedings are begun; or

(b) was habitually resident in England and Wales
period of one year ending with that date."

throughout the

This provision, in a way, gives legislative effect to the concept of domi-
cile as a basis for jurisdiction, though, as will appear from the section itself,
it is no longer the exclusive basis.

2.10. Domicile in relation to recognition of divorce may now be dealt with.

2.11. The question of recognition had been involved in earlier English cases."
and their reliance on the rule of the domicile was undoubtedly a factor in the
case of Le Mesurier.'

2.12. When, in 1334, Story formulated the domicile rule in the U.S.A., the state
of domicile was the state "to which the parties belongged," the permanent domi-

cile,' or the "actual domicile" bona ﬁde.' The same conception appeared as
late as 1883 in the eighth edition of his work.'

2.13. In this connection, it is interesting to recall how the rule of domicile came
into early English cases." It can be traced back to Story," and Story got it from
some early Massachusetts decisions." These cases arose under a Massachusetts
Statute (Mass. Acts 1785) c. 69} which provided that divorce suits might be

'Section 5(2), Domicile and Matrimonial Proceedings Act, I973.

'fal Rex v. Lolley Russ. & Cr. Cas. (1812) 237, 163 Eng. Rep. 7'79;

(b) Worrender v. Worrcnder, (1835) 2 Cl. Fin. 438, I5 Eng. Rep. 1239 (H. L.);
[ejl Dolphin v. Robins, (I359) 7 H. L. Cas. 390, 11 Eng. 156 (H. L.};

{(1) Show v. Could, (1868) L. R. 3 I-I. L. 55;

(2) Harvey v. Farnio. (1882) 3 App. Cas. 43;

(D Mannirrg V. Manning (1871) L. R 2 P. & D. 223.

'Le Mcsnrier, para. 2.6, supra.

'{3} Hopkins V. Hopkins', (1807) 3 Mass. l5ES',

0)) Carter v. Carter, [I8lDJ 6 Mass. 263 cited by Story 1199.

illnhobiranrs of Honovcr V. Turner, 14 Mass. 227, 231 [I817], cited by Story, (1334), 190,
"Barber v. Root. U813) 10 l'v[ass., 260 cited by Story (1834), 190.

'Story_ Conﬂict of Laws (8th ed. 1383), para. 230.

'Is "Haddock v. Haa'r.i'or:k" overruled? (1943) 18 1nd_ L. J. 165. See also Cock, Logical
And Legal Bases of The Conﬁict of Laws {I942}, 467, 4-63.

'Story, Commentaries On the Conﬁict of Laws (1834), 228 et seq.
1"See--

(3,) Richardson 1''. Richardson, (1306) 2 Mass. 182;

ill} Hopkins v. Hopkirzs (1801?! 3 Mass. 158.

{cl Hanover V, Turner, (1817) 14 Mass. 22?'.

Domicile.

1'?

Recognition on
the basis of do-

micile.

Stary's view.
'Early Englilh
cases.

Domicile ﬁrmlv

established;

Nationality.

France and other
countries.

Savignv's view.

Report on Recagm'rr'on of Foreign Divorces'
(Chapter 2.---Heads of Recognition.)

brought in the country "where the parties live". The purpose was to remove
divorce from the purview of the governor and council and place it within the
purview of courts, because, in the words of the statute, "it is a great expense
to the people of this state to be obliged to attend at Boston upon all questions
oi divorce, when the same might be done within the counties where the parties
live."

The rule was appropriately based on considerations of convenience and
it is not surprising that the English courts adopted it when they came to con-
sider questions of divorce.

2.14. For some time. the test of residence prevailed as to recognition, but it
ceased to be the law after the decision in Le Mesur1'er_ In Suivescuz v. Adminis-
trator of /4tr.~.ii'ian Pimierty,' the majority view of Nt'boyet".y case was formally
overruled. "I1 is established that the law of England recognises the competence
and the exclusive competence of the Court of domicile to decree dissolution of
a marriage." The general rule is relaxed by certain statutory provisions. But,
subject to the statutory exceptions, the main rule still prevails," and has not been
abrogatezi by the English Act" of 197].

IV. NATIONALITY

2.l5_ In some of the countries on the Continent, the Courts exercise matrimo-
nial jurisdiction on the basis of nationality, and it may be presumed that these
countries adopt the same approach, as regards recognition also,--i.e., recogni-
tion of decrees of countries which are foreign countries for the purposes of those
countries. They, therefore, recognise foreign decrees granted on the basis of
nationality.

2.16. In this connection, France is an outstanding example. Since the French
Revolution and the introduction of Civil Code of France, its connecting factor
of personal law changed. Domicile was superseded by Iex Batriae--i.e.. nationa-
lity' replacing domicile in regard to personal relations.

The French rule is followed in other civil law countries also. The most
representative legislations of the civil law take into consideration the position
of the law of the state whose nationals the parties are, with regard to one or
botb of the following points:

(i) Jurisdiction in the case of foreign nationals is not assumed. unless
the national law of the parties is willing to recognize this jurisdic-

tron.

{ii} Divorce is not granted, unless it is agreeable to the internal law of
the national state of the parties.

2.17. However, it should be mentioned that the test of nationality has not al-
ways been favoured, even on the continent. Adverting to the variety of opi-
nions among both writers and courts respecting conflicts of laws, Savigny never-
theless conceived that, from the exceptional and active common concern in the
problems of this field of law, there would develop a universal community of

1.'i'ctivr:.su:art V. Admirristrator of Au.rtrt'an Property, H927) A. C. 64", 635.
"Drown 'V. Sarbn U955) Probate 178.

3See Chapter relating to 19?] Act, Chapter 10 infra.

*See also para. 2:19, infra.

Report on Recognition of Foreign Divorces

(Chapter 2.----Heud.r of Recognition.)

legal understanding and legal life. The further suggestion that the principle of
nationality, then coming into prominence, would not make itself felt in a sub-
ject, the nature of which involves the resolution of conflicts of national laws
within a recognised coininunity of the various nations, equally reflects Savigny's

international point of view.'

But these anticipations of Savigny were soon to be disappointed. Two
years after Savigny wrote, the doctrine of nationality, which in its exaggeration
has so much contributed to international disorder during the past century, was
proclaimed by Mancini as the fundamental principle of the law of nations, and
shortly become the distinctive basis of legislation in continental Europe."

2.18. Apart from continental countries, nationality is a valid criterion in a few
others. For example, according to article 35 of the Brazilian Code", the per-
sonal consequences of the marriage are determined by law of the common "habi-
tual residence" of the husband and wife; but the Brazilian law applies if he is
a Brazilian citizen or domiciliary.

V. NAT'IONALIT'Y--HISTORY

2.19. At this stage, a brief history of nationality in the context of conﬂict of
laws would be of interest. Nationality as the basis of personal law is not older
than the Code Ncpoleon.' and has acquired its predominance in many countries
of the civil law orbit only since the ti-me of Mancini. Since then. in these coun-
tries the analysis of the concept of nationality has become one of the most im-
portant topics of conflicts lava."

On the other hand, the Commonwealth and the United States, like many
civil law countries, have adhered to the ancient rule of domicile as distinguished
from the comparatively new concept of nationality.

Even between countries of the English--spealrjng world, important differ-
ences have been created by the continued English emphasis on the domicile of
origin,' in contrast to the dorniciles of choice and domiciles by operation of law
which are solely relevant in the U.S.A_

2.2tl. A remarkable advance has been conceded to the principle of "domicile"
in recent international treaties. The Codige Bustarnante' proclaimed inter-
national jurisdiction for divorce to be at the matrimonial domicile. in contrast
with the general policy of the Convention not to specify the personal law and
despite the protest of Brazil, which then followed the nationality principles."
The Franco-Italian Treaty of June 3, 1900, on the enforcement of Judgments
(art. 11, part. 1} secured recognition for the decisions of the court of the

'Professor Ynterna, in Rabel, Comparative Conflict of Laws, (1958), Vol. 1, Foreword
p. xvi.
"Professor Yntema in Rabel, Comparative Conilict of Laws (1958), Vol. I, Foreword

1!. xxvi.
Utrlicle 35, Brazilian Code on Private international Law: De Nova, "Development of
private International Law" U964] 13 American Journal of Comparative Law 452, 561.

'Cf. para. 2.16, supra.

5Rabel, Comparative Conflict of Laws, 'fol. 1, page 161-172 discusses the 'various ratio-
nalie (tradition, polit1cs_ econmtcs. practicability}. and at UL the short-comings of the

nationality principle.
"Rat:-cl, Comparative Conflict of Laws, [I953], Vol. 1, page 118.
"'Articlc 52, Bustamante Code.
'Rebel, Comparative Conflict of Laws (1958), Vol. 1, page 532.

Provisions in Bra-
zilian Code.

Ilistory_

Recent trend,

Scandinavian.
law.

Venezuelan draft.

international Com
ventions--Hal:i-
trial residence an
emerging lest.

Residence.

Report on Rcrogrrirfon of Foreign Divowe:

[Chapter .?.-----Heods of Recognioon.)

domicile or, in their absence. decisions at the residence of the defendant, without
excepting matters of status, and the same devices have been hd-opted in other
European 1re:.tics.1 despite the fact that all the countries involved are 1raditional-
followers of the nationality principle.

2.21. In the "Scandinavian Union" as to family law." signed by Sweden, Nor-
way", Denmark. Finland and Iceland, the principle of nationality has been re-
placed by a reference to the law of an individual's doInicile.----w|1ich recognises
that the life oi a person centres largely around the country of his domicile.'

2.22. It may be noted" that the most striking feature of the Venezulcan draft
on Conflict of law is that nationality: is replaced by domiciie as a connecting
factor in matters of personal law. "This shift emphasises the steady loss of
favour that the idea of the hex rmtrias has suffered since the war. both in legis-
lative worltshops and in scholarly circ]es."'

2.23. It has been stated' that an even more porlentous sign of this crisis of na-
tionality as a criterion for jurisdiction and choice of law is the challenge and
I-.e-en COl1'lpI:'_iliU§1 that it faces, from "habitual residence" at the latest Hague

-Conference.

"Residence hahituelie", it is stated, is domicile in modern garb, for inter-
national consumption.

2.24. In 1960, during the debates that took place at the ninth session of the
Conference on the subject of guardianship? and in 1963, when a group of ex-
ports worker! out a preliminary draft on adoption." and again in 196-4. at the
tenth session of the Conference, when a text on international adoption was
agreed upon, some sort of balance was struck between the competence of the
courts and the law of the country of nationality, and the competence of the
courts and the law of the country of habitual residence. But the scales were

often 'tipped in favour oi the latter.

VI. RESIDENCE

2.25. The next criterion to he considered is that of residence. In India, this
criterion is not in force as a basis of jurisdiction in divorce, but it should be
noted that the Indian Divorce Act, 1869. section 2, was, for some time, con-
strued as empowering the Courts to grant a divorce if the parties were resident
in Jndia. This is not the law now" under that Act, in regard to dissolution of
rnarriage,~~thoug'h it continues as to nullity under that Act.

'-tl9Ii4j1 153 League of Nations Treaty Series page 135. I-ll.

?Convention on Marriagt. Adoption, and Guar-rliansh_ip. of Feb_ 6, l931_. 5 Hudson. 11:-
ternaiional Legislation 37'} (1936), Convention on Inheritance and Succession of Nov. 19.

L934, 6 Hudson 94? H937).

'See J. P. Nibovet, Professor of Private International Law, Paris, "Territorialitv in the
Conflict of Laws" (I952) 65 Harvard Law Review. 582-583.

'Rabel, Comparative Conﬁiet of Laws U953}. Vol. 1, P-33¢ 33. N036 35»

ED-e Nova, "Developments of Private International Law" (1964) 13 A. I. C. L. 542, 562.

"De Nova, "Develop-meats oi Private International Law", (1964) 13 A» 1- '3 L- 542- 552-

71}: Nova, "Developments etc." llS*6=l] 13 A. }_ C- L. 542, 5-60. R. H. Groveeon. "Com-
[J1lF£l'li'v'C Aspects of the General Principles of Private International Law", Academic de Droit
international, !-l}9_ Ileeueil des Coors (1963, 2} T, at 63 ti".

'Para. 1. 30 et. seq. infra.

5A. See R_ De Nova, "Le 1X Conference dell 'Aia," 14 Diritto Internationals (1960) 305,

at 309 it".
"See R. De Nova. "II progelle preliminare dell' Aja aull' ad-nzione internationals,"

[]'Jt'-3) 13' Diritto International: 199.
"See Chapter 5, infra.

Report on Recognition of l='areign Diiwrces
(Chapter 2.--~I-.-'earls of Recognition.)

In section .'2D(c) of the Code of Civil Procedure, 1903, and in section 19.
Hindu Marriage Act, 1955, the test of residence does occue, as a basis for the
exercise of jurisdiction in respect of matters dealt with by those provisions. The
applicability of section 19, Hindu Marriage Act to cases involving a foreign ele-
ment is a matter which we shall reserve for later discussion}

2.36. Residence does not require an intention to settle down. It has been
pointed out" that it is not even necessary to have a roof over oncis head, and a
nomad can be a "resident" in a country within which he wandered.

2.27. "Residence" has always been regarded as essentially :1 physical fact."
The combined effect of two decisions of the House of Lords.'-5 rendered in taxa-
tion law. is that "ordinary residence" is the reverse of "ext1'aordinar3="~son1e
residence which is "according to the was in which a man's life is usually order-
ed" {Lord Warrington}- "part. of the ...................... .. order of a man's lift:
adopted voluntarily' and for certain purposes [Lord Summer)---not casually but
in the ordinary" course of his life." This is also clear from the analysis of the

subject by a scholar.'-*

2.28. In India, the expression "reside" has been construed by the Supreme
Court in Msr. Jagir Kusmr V. Jaswtmr Sirzgit." The question that came up for
decision was as to what the word "resides" and the words "where he last resided
with his wife" rnean, in section 48518} of the Code of Criminal Procedure,"
which gave a right, inter cilia, to the wife to ﬁle a petition for maintenance be-
fore the competent Magistrate. While dealing with this case. the Supreme Court

observed as below :

"A makes only a ﬂying visit and he has no intention to live either per-
manently or temporarily in the place he visits. It cannot, therefore, be
said that he 'resides in the places he visits."

Earlier in the judgment, it was also observed that:

"Whichever meaning is given to it, one thing is obvious and it is that it
does not include a casual stay' in, or a ﬂying visit to, a particular place.
In short, the meaning of the word would, in the ultimate analysis. de-
pend upon the context and the purpose of a particular statute. In this
case the context and purpose of the present statute certainly do not com-
pel the importation of the concept of dorniciie in its technical sense. The
purpose of the statute would be better served it the word 'resides' was
understood to include temporary residence."

These observations are of interest, as pointing to the distinction between
residence and domicile.

'See Chapter 5. intro.
3I.r.-ternai R{'1--'EﬂML' Commissioner V. L}'5n_g=hI, H928} A. C. 234, 244 -[Vincent Summer].

mommy v. Litre:-pool Royal .i'?tﬁrJ'I'r:$l-I")-'. {I930} '/L. C. 588, 597 [Lord Macmillan}.
'Levenvire v. Internal Revenue Contmfssiorzer, (£928) A. C_ at page 225.

5lnrema.' Rc't'err.-ac Commissioner 'V. Lysaghl, (1928) A. C. '2.34_ 242, 243, 243.

'See further para 2. 29, infra.

'-'Farnwort!1, in 67. I._ Q. R. 32, 34.

29 'Fa-rnwortl1_, "Residence in the Anglo-.-'tmerican Law", 38 Crotius Society Transactions

"Mat. Jngir Kaur V. Jasn-ant Singh, A. I. R. 1963 S. C. l52i.

"New, section 125, Ct. P_ C. 1933.

Intention not re-
quires}.

Ptesidenee a phat-
sical fact.

Meaning or resi-
dence.

'22

Ordinary resid-

C HOB.

Habitual resid-

CD03.

I-Iistory.

English
sion.

provi-

Reeent case.

Report on Recognition of Foreign Divo.rL'cs

(Chapter 2.--Head.s of Recognition.)
VII. ORDINARY RESIDENCE

2.29. The next expression relevant to the question under discussion is "ordi-
nary residenc-e",--an expression which one meets with in taxation law.' Ordi-
nary residence should be residence in the ordinary course of the man's life. not
exceptional or accidental. Here again. intention as such is not material. except
in-so-far as it may indicate whether the residence is exceptional or accidental.

VIII. HABITUAL RESIDENCE
2.30. "Habitual residence" is a more precise ground than residence, and re-
quires to be considered at some length.

2.31. The expression "habitual residence" was first employed internationally'
as long ago as l9{}2." The concept has also been employed in Convention
sponsored by the League of Nations, the United Nations and the Council of
Europe.

in the .v"v'orrebohm case,' the International Court of Justice stressed the
importance of habitual residence, where the question was whether the State of
Liechtenstein could confer nationality on a person habitually resident in
Guatemala.

2.32. "Habitual residence" has been employed in English statutes relating to
succession," adoption,' contrast-' and divorce and legal separation.'-''-''".

The limits of the concept have been explored academically."

2.33. With reference to this expression (habitual residence) as used in the
Recognition of Divorces etc. Act, 19?l, section 3(1){a). the judgment of Lane I.
in Cmsr V. Cm'm:m". is of interest. We shall discuss it later."

1See para. 2.27, supra.

'3H:1gue Convention on Guardianship Hunt: 12. I902}. Article 2.

3See K. Lipstein, "The Tenth Session of the Hague Conference on private International
Law" (1965) Camb. L. J. 224, 225, n, 3.

*No:zeboF1m case, (Second Phase) (1955) I. C. 1. Rep. 4:22.

-'Section 1, Wills Act, 1963, s_ 1.

ﬁsectjon 11(1) Adoption Act, 1968, [following Hague Convention
Arts. 1, 2(b}]. ,

.-Seem," 7,-1;, supply of Goods [Implied Terms) Act, 1973.

9(a) Section 3(1) ta}, Recognition of Divorces and Legal Separation Act, 1971 (follow-
lng Hague Convention on Recognition 1969. Art. 2};
{b} Domicile and Matrimonial proceedings Act. 1971 s. 5(2).

on Adoption 1964,

"Para. 2:33. infra.
"See also Administration of Justice Act, 1955. 566110115 3(3) and 4f1lfa)-

"[a) R. H. Graveson, The Conﬂict of Laws {tith ed., 1909), pp. 195, 512;
{I3} I(_ Lipstcin in (1965) Camb, L. L 224, 225-227;
{cl 1. Jlom. "The Adoption Act, 1968 and the Conﬂict of laws", (1973) 22 I. C. L. Q.

I09, 134-136'.
[(1) J. D. Ivlcclean and K. W. Patchett_ "English Jurisdiction in Adoption" (1910) 19

I. C. I.. Q. 1,. 1445-
1=KJ'u.se' V. Chimim, U974} 2 A" E- R- 940,- 942: 943'-

'-"Para. 2 : 34, irtffﬂ.

Reporr on Recognition of Foreign Di-voices

{Chapter 2.--Heads of Reco_grnir:'on.}

The judgement in indvkn v. iiiaﬁrka' may also be seen as establishing a
possible test of habitual residence. There, "Each of their Lordships expresses

much the same broad VlBW of what should be the new recognition rule. although
stating it in quite different terms." as was observed by Ormrod J. in Angelo V.
Angefof'

2.34. In Kruss v. Chirrrmii Lane I. accepted the formulation by counsel of

certain features of habitual residence with reference to the Act of 1971. They
were as follows:
(i) Habitual residence indicates "a quality of residence rather than

period of residence".

(ii) "Habitual residence" is similar to the residence normally required as
part of "domicile", although in habitual residence there is no need

for the element of animus which is necessary in domicile.

The phrase in the Mississippi decree in the case, (which was in issue}
that residence was "actual and bona fide," really deﬁnes habitual in
this contest, and denotes "a regular physical presence which must
endure for some time."

(iii)

Some characteristics of residence negate the possibility of its being
habitual,»--for example, if it is of "a temporary or a secondary
nature".

UV)

"'I-labitual residence requires an element of intention, an intention to

reside."

l'-'i

{vi} Ordinary residence is different from habitual residence, "in that the
latter is something more than the former".

T With respect, it may he stated that some of these propositions may re-
quire further consideration--particularly, the last one.

2.35. The criterion of habitual residence may sometimes coincide with other
criteria. An example, though not from the ﬁeld of matrimonial law, may be

cited. In Arz'auii'nfi'.r case', in the context of the position of inhabitants of coded
territories, it was observed by the Calcutta High C'ourt:--

"In some cases, therefore, an option is stipulated in favour of the inhabi-
tants ol the ceded territory and thus avert, the charge that inhabitants
are handed over to a now sovereign against their will.

"The terms of option may vary' from case to case, but the general prin-
ciple applied has been that a person habitually residentﬁ in a ceded terri-
tory acquires 'ipsn fa-eta' the nationality of the State to 'which the terri-
tory has been transferred, and loses the nationality of the ceding State"

(page 506-Clppenheim).

"From the principle referred to above. it will be signiﬁcant that a person
hahiraaiiy resident" within a particular ceded territory acquires 'ipso farm'
as a result of the cession, the nationality of the State to which the terri-
tory is transferred."

'Ind;ukr1 V. hidyka, (I969) 1, A. C.

'.4rrgJar.'o V. Amgaio, [1968] l W.L.R. 401, 403.

3K'r'n.i'c V. Cizirtun-2, (1974) 2 All. E. R. 9'40, 942, 943.

'.-irinzefiah v. .-irrarttinii. A, l. R. 1953 Cal 530, 533 {per R. P, Mookerj-cc, 1.).
iﬁmphasis Suppiied.

"Emphasis suPP1i'=d-

Habitual

resid-

ence may coincide

with
non-

other crite-

13.4

Scope of the
Chapter.

Questions that

usually arise.

General statement
of the position in
India, England
and USA.

Transactions in-
volving contracts
with more than
one State.

Report on Recogiiition of Foreign IElit=orces
CHAPTER 3
LAW APPLIED BY COURTS
1. INTRODUCTORY

3.1. In this Chapter, we shall briefly deal with the law which is applied when
a Court dissolves a marriage. A consideration of this aspect is relevant to the
question of recognition of divorce."

3.2. 'Three questions are usually discussed in dealing with the problems aris-
ing in the ﬁeld of conflict of laws»

(1) Bases of jurisdiction.
{2} Choice of law.
{3} Recognition.

We have dealt, in a general way, with the first.' We propose now to dis-
cuss the second -, the speciﬁc question to he considered in this context is how far.
for the purpose of recognition, it should be a pre-requisite that the law of the
recognising forum was applied by the foreign court.

In other words. besides the criterion of existence of the requisite basis of
jurisdiction (habitual residence, nationality or domicile"). should it also he neces-
sary that the foreign court must have applied the law in force in the country
where recognition is sought ?

3.3. At the outset, we may, by way of introduction. state that in India, as
well as in E.ng,land' and in the United States", the "jurisdictional approach", and
the ensuing identity of forum and lex. have been long accepted as a matter of
course, as regards divorce. Therefore, if an Indian or English Court exercises
jurisdiction to dissolve a marriage. it applies the Indian or English law. as the
case may be. in the absence of special statutory provisions to the contrary. The
position is not different in other countries in the Commonwealth.

However, as a theoretical examination of the position on the subject
might be helpful, we shall, deal with a few important aspects, before reverting

to the English law.

11. CHOICE OF LAW--GENERAL ASPECTS

3.4. Where a transaction involves contacts with more than one State, the deter-
mination of the law applicable to the transaction may present problems. "T11:
extra-forum" element is sometimes taken into account, and sometimes not.
General observations by textbook writers on the conﬂict of laws draw atten-
tion to this aspect', but, those observations do not imply that in every care in-

the foreign law must be applied. The answer
law should be applied, and, if so. which foreign
the nature of the cause of action. the

volving an extra-forum element,
to the question whether foreign
'law should be applied, may depend on
relief sought and many other factors.

'Para. 2:19 to 1:35 sea???"-

epe N91'a, "Developments of Private
of Comparative Law.

"De ."\-'om, "DcvelopmI:nts of Private International Law,
.31; Comparative Law.

lntcfnational Law, (19-Es) 33 American Journal

[1964} 13 American Journal

Report on Recognition of Foreign Divorces
(Chapter 3.--~Lmr applied by Courts.)

Moreover, where the relief sought 'is governed by statutory provisions.
those provisions cannot be ignored. It is suggested that the correct approach
is ﬁrst to peruse the relevant enactment. If there is an enactment on the subject,
its territorial scope must then be ascertained. No doubt, there is a judicial tradi-
tion to "read down" wide statutes. so as to avoid extra-territorial application
where necessary. However, what requires to be emphasised, is that the textof
the applicable enactment cannot be totally disregarded.

If this process fails to _vield a conclusion based on convincing reasons.
then, no doubt. it is legitimate to inquire whether any other system of law
should. having: regard to the nature of the cause of action and the relief, and
other relevant considerations, be taken into account.

It is not in every case that foreign law becomes the governing law merely
by reason of some foreign element. A court of a country would be bound to
apply the law of its own legislature. unless it is found that by the rules of private
international law or of the rules relating to the construction of statutes. that law
is not applicable.

3.5. Where there is no domestic statute on the point which possesses an ex-
press or implied territorial scope embracing the particular case. and the court
is faced with a case involving an extra-forum element, the court generally ap-
plies the principles of private international law to determine the governing law.
A foreign statute will be relevant, if it is a part of the legal system whose law
is applicable by virtue of the choice of law rule of the forum. 'But--to repeat
what has already been stated above'--it is not in every case that the law of the
forum will be displaced by the foreign law."

3.6. The possible systems of law applicabh-:,------to mention the important ones.
--are:

{a} law of nationality; or
(b) law of domicile in modern times habitual residence;

fd} law of place where the matrimonial misconduct was committed;

(e) law of the forum

The Court of the forum has to decide whether it should apply its own
law system (c) ab0ve=-thus disregarding all foreign laws--or whether it should
regard any other system of law as applicable out of systems (a) to (d) above.
The answer to this question depends on a variety of factors.'

3.7. It should. first be stated that on some topics--other than divorce,--a--~the
foreign 13w may be appropriately considered by a court. For example, the posi--
tion as to the choice-of-law rule in regard to the validity of marriage, has been

deﬁned as followsi : --~

'Para. 3.4 .rup.-'rt.

:5, d d_ C r_ "The Formalities of Marriage", page 257, referred to in "Temporal
riimengierrnselin ihe Ebbhﬂiet of laws" (1953) 13- Y. 3- I. L 123-

Possible
of law.

system:

Marriage----vali-
ditv Of.

Torts.

Law in America.

Report on Recognition of Foreign Divrirces

(Chapter 3.--~Law applied' by Courts.)

"The formal validity of a marriage is referred to the [ex loci celebrations
as is deemed to have existed at the date of the marriage or by the hex
loci celebra.tiom'.v as it stands when the validity of the marriage is called
into question. either because a second ceremony of marriage is entered
into. or because the issue is raised by a court of competent jurisdiction."

3.8. Then, as regards torts. sometimes the foreign law has to be considered.
Many laws of the United States and of other systems, save the British. refer to
the lex loci delicti co.rnmi.rsi as the primary measure and standard of liability
in tort cases.--subject, of course, to the limits set up by the forum as to ques-
tions of procedure and public policy.'

English law, following W ."lie.s J. in P}u'llt'ps V. Eyre'. took the position that
to be actionable in English forum, the foreign tort must both be an act--{a)
which, if done in Britain. would be a tort. and (b) which is not justifiable accord-
ing to the law of the foreign countrjﬁ where it was committed. Recently', the
requirement has been modiﬁed, and it should read -"which is acnonaible accord-
ing to the foreign law."

This rule has frequently been criticised, and it seems to be generally

regarded as a 'rigid rule of secure, though very unhappy standing'? Professor
Yentema' even maintains that this English doctrine involves a 'gratuitous mis-
construction' of the opinion of Mr. Justice Willes"-, thus constituting an 'isolated
and irrational' position in law.
3.9. The American view, in regard to torts, is that the {ex loci' conmzissi
governs, In the American Banana Co. v. United Fruit Co..' the U.S. Supreme
Court said, "the character of an act as lawful or unlawful must be determined
wholly by the law of the country where the act is done".

In this connection, the following famous passage in Justice Holrnes's opi-
may be

3.10.
nion in the case of the Americtm Banana Co. v. United Fruit Co..."

cited--

"In the first place. the acts causing the damage were done, so far as ap-
pears, outside the jurisdiction of the United States, and within that of
other States. It is surprising to hear it argued that they were governed
by the act of Congress.

1S£e--

ta) Ynterna. 'Dicey: An American Commentary', 4 International Law Quarterly;
(13) Rebel, Conﬂict of Laws (2nd cd._. 1960], ''-.-'ol. 2, pages 235-236;

(c) Justice Holmes, in Cuba R. Co. v. Crosby H922) 222 U. S. 473, 477 (1914); and
(d) Justice Holmes. in Western Union Telegraph Co. V. Browrr, 0914} 1'34 U. S.
542, 547.

3Pltt'.llips V. Eyre (1370) L. R. 5 Q- 3- 1! 23: 29-

3[l963] British Year Book of International Law page 1l7.

'Clmpiirr V_ Barr (1971) A. C. 356 (H. L).

Na} Rabel. Conﬂict of Laws. page 239;

{b} Inglis, Conflict of Laws ([959), page 476 ('notion not justifiable. far from satis-

factory'):
'Yntema in (1949) 27 Canadian Bar Review, pp. 116-22 and in (195!) 4 International
Law Quarterly, pp. 3-9.
7A.rneri-can Ha.-zanu Co, v. United Fruit Co. (1909) 2l3 U. S. 347. 355. 355,- 357 iHO1m€_.5
1.}.

FA pngyifaff Bgmmza Cr), Y. United Fruit C11 l'Slrtp."d:l.

Report on Recogriirion of Foreign Divorces

(Chapter 3.--Law applied by Courts.)

"The general and almost universal. rule is that the character of an act
as lawful or unlawful must be determined wholly by the law of the country
where the act is done .......... .. For another jurisdiction, if it should hap-
pen to lay hold of the actor, to treat him according to its own notions
rather than those of the place where he did the acts, not only would be
unjust, but would be an interference with the authority of another sove-
reign "contrary to the coinity of nations, which the other state concerned
justly might resent. ............. ..

" ................ .. The foregoing considerations would lead in case of doubt,
to a construction of any statute as intended to be conﬁned in its opera-
tion and etfect to the territorial limits over which the law-maker has
general and legitimate power. 'All legislation is prima facie territorial'.
(Citing cases). Words having universal scope, such as 'every contract
in restraint of trade', 'every person who shall monopolize', etc. will be
taken as a matter of course to mean only every one subject to such legis-
lation. not all that the legislator subsequently may be able to catch. In
the case of the present statute (the Sherman Act), the improbability of
the United States attempting to make acts done in Panama or Costa Rica
criminal is obvious, yet the law begins by making criminal the acts for
which it gives a right to sue ............. ..

"For again, not only were the acts of the defendant in Panama or Costa
Rica not within the Sherman Act, but they were not torts by the law of
the place and therefore were not torts at all. however contrary to the
ethical and economic postulates of that statute."

It may he noted that even as regards tort, recent trends are in the direc-
tion of not adhering very rigidly to the rule in Philip v. Eyre.' It is sufficient
to refer to two decisions,----one of the House of Lords', and the other of the
High Court of Australia'.--which show the emphasis placed on the law of the
forum in regard to certain aspects (for example, the quantum of damages in the
House of Lords case}.

3.11. As regards contracts, the general principle is that the proper law of a
contract is that legal s_vstem which is to govern the obligations of the parties
by virtue of the particular contract. In England', and in some other common
law jurisdictionsi also, it is the law which the parties have either expressly or
by implication chosen to govern their contractual relations. Thus, intention is
the connecting factor.

There are other cases also where -foreign statutes have been applied to
regulate contracts, where they formed part of the governing state's law'.

'-Philips V. Eyre, il.87D] Law Reports 6 Q. B. l. 23. 2.9, para. 3.8. .m_i7ro.

tffhapfiri v. Boys, (197!) A. C. 356:. [I969] 2 All E. R. 1085 (H. L).

3Ande.'son v. Eric ..4na1'er3on. (1966) 114 C. L. R. 20 (Australia).

'See Mount Aiberr Borough Council V. Aiesmilosioo Tempe-rmrce Society. (I938) A. C.
224, 240 {per Lord Wright): Re. Claim by Helbrn' Wrigvge 8; Co. Ltd.. {I956} l Ch.
323. 340.

-'-See (1963) B. 'r'. B. l. L. page 134.

"See for example, in re. Claim by Hol'h:-rt Wo_.eg & Co. Lrd.._(19Sﬁ) ! Ch. 323 {German
Moratorium Law applicable to a contract the proper law of which was German); Kohier
V. Middtmid Bank Lrd.. H950] A. C. 24 [Czechoslovak legislation applicable to a contract
governed bv Czechoslovak Ian-*1: R. v. international Trustee for the prurccrion of Bon-
a'ho!der.r.- Akerie-ire:-.a-ellrrhafr. H937] A. C. 500 (U. S. Congressional Resolution having the
force of law applicable to a contract governed by American law].

Contracts.

28
Present inquiry
not concerned

with tort or con-
tract.

Decisions under
the Indian Law.

Report on Recognition of Foreign Di'1.'orce.s'
(Chapter .i-'.-Law uppiicd by Courts.)

3.12. But we are not concerned with the question of proper law of tort or con-
tract. The precise question to be considered is,.--~what law is applied by the
courts when granting dissolution of marriage ?

We proceed to consider this question, ﬁrst with reference to the Indian
law'; and then with reference to English: and American law.' Thereafter. we
shall consider the question whether any change is needed.

III. INDIAN LAW'

3.13. As regards Indian law. we shall ﬁrst refer to the Act applicable to Chris-
tians. Thcre are numerous decisions under the Indian Divorce Act. 1369. where
the courts in India have granted divorce on the basis of a ground speciﬁed in
that Act. frrespecm-'e of the qztesﬂon whether that ground was, or was not, re-
trogxtised as a grotrnd of divorce in some other cotmtry having a connection with
the marriage, such as. the country where the marriage was solemnised', or where
the matrimonial misconduct took place? or the country of the nationality of the

parties'.

3.14. A study of the following illustrative cases under the Indian Divorce Act
relating to divorce or judicial separation, shows that the grounds of relief were
taken as entirely governed by the Indian law, even though a. foreign element: was
involved. Existence of the requisite head of jurisdiction was considered

enough:

SELECTED CASES ON THE INDIAN DIVORCE ACT

1. Hartenria v. John Sebrrrrion, AIR. l935 Eom. 12l (Beaumont, C..l.).
(Parties lived in Bombay together--Then went to Nairobi--'Wife returned
to Bombaynwludicial separation granted----Foreign law not considered).

Rose Hit'! v. Lrrck C, Hill, AIR. 1923 Boat. 284. 285 (Adultery of wife
on ship at Marseilles was enough to justify grant of divorce).

3. W.o. v. r-:.o., A.I.R. 1933 Sind 27.
{It was observed that the parties must. have been married under the 1372
Act, but this was oi:-irer).

Ex)

4. Mrs. Nan Greenwood v. L. V. Greertwood, A.I.R. 1928 Cludh 218(1),

{Pullan. J.).
(Parties not domiciled in India--Married in Ireland--Divorce granted].

5. Gi'ordono's case, (1912) I.L.R. 40 Cal. 215 {Italian couple)?
SA. Shireert M'at'l:'. AIR. 1953 Pun}. 27?.
6. Bright v. Bright, I.L.R. 36 Cal. 964.

7. Grant v. Grrmt. AIR. 1937 Pat. 32.
(Adultery outside I11dia--Parties domiciled in India).

1Para. 3i13. et seq. infra.
?Para. 3.20, ct' seq. infra-

1'_Para. 3.333;. et seq. infra.

'Rose Hirrs case. (para. 3-14. :'nfra-L

5M:-.-r. Non Greet:-«uood's case, (para. 3.14! infra-I
5Gt'0ra'r1rto'S Case, (para. 3.15, infra.)-

'-'See para. 3.15. infra.

5See para. 3.16. intro.

' 3.15.

i pressly stated to be-----"Subject to the provisions contained in this Act. .......... ..

Report on Recognition of Foreign Dﬁaorces'
(Chapter 3.--Low applied by Courts.)

In Giordano': ease, the husband was an -Italian subject, with an Italian
domicile, and instituted proceedings in India for divorce on the ground of his
1g.ife's adultery. The marriage had been solemniscd in India, and the parties
were residing in British India. (As the Indian Divorce Act then stood, resid-
ence was enough to confer jurisdiction for dissolution}.

It was held that under the provisions of the Indian Divorce Act, the Court
was bound to grant a divorce on proof of adultery. although the divorce would
have no effect outside India. It may be noted that Italy had no provision for
divorce at that time. I

2.16. In Shireerz Matfs case", the respondent husband was a British soldier.
though temporarily he lived in British India. The High Court observed that
only the Indian law was applicable. Section 7 of the Indian Divorce Act, 1869
(Court to follow the English practice) made no 'difference,_,bccause it was ex-

The High Court added!

"Hence, if the provisions which are given in section 10 of this Act give
only certain ground on which a marriage can be dissolved, I am of the
view that the grounds of dissolution of marriage ca.-mot' be extended by
virtue of section 7 to grounds which might be prevailing for the time be-
ing in England. I, therefore, must hold that the provisions of the amend-
ed section l76 of the Act prevailing in England [Supreme Court etc. Act,
1925), which allow dissolution of marriage on the ground of dcsertion of
the wife by the husband without cause for a period of three years or up-
wards would not apply to this country. In this country, "desertion by a
husband of his wife without cause would be a ground for dissolution
of marriage if the desertion is for a period of two years and upwards and
is coupled with adultery."

No doubt, in this case, the rriarriagewas found to be void, but the above
dicta show the trend.

7. Thus, it is clear that in various decisions under the Indian Divorce Act.
1 69', Indian courts have, while exercising their jurisdiction under that Act,
cdnﬁrled themselves to a consideration of the grottnds of divorce as given in that
Act. Of course, the proceedings must be within their competence, and, in this

regard, the test laid down in section 2 of the Act must be satisﬁed. But, once '

_ corut in India-is competent to exercise jurisdiction under section 2 of the
Act, then the grounds for relief are to be sought only in that Act.

It may stated that the Indian and Col Divorce Jurisdiction Act,

1926'. empowered courts in India or elsewhereiin His Majesty's dominions, as
'down by order in council, to grant divorce to persons domiciled in the
United Kingdom as if they were domiciled in the territory' in question. While
domicile was. thus, nominally or notionally, retained as the basis, jurisdiction
$s'ea'.¢I'CiSable on the ground of residence! of the :petitioner at the time of pre-
emting his petition and of the last residence together by the parties. The sub-
nhntive law to be applied was the English law. This very provision, which is
exceptional. in character, helps to bring out clearly the general rule.

at
..T,

-i 'Giordano V. Giordano. [1912] I. I... R. 40 031. 215.
'iitfreen Mali v. Taylor, A. I. R. 1952. Punj. 271', 279 (Soni, L]. {British soldier).

'Chapter 6, infra.
' *3 Halsbury-'s Statutes (2nd Edn.) 1158.

L13. (N. nape

Indian decisions.

Act of 1926.

Hindu Marriage
Act.

Dissolution of
Muslim Marriages
Act. 1939

General rule as to
divorce.

A case of divorce.

Polition as to
Nudity.

Report on Recognition of Foreign Divorces
(Chapter 3.---Law applied by Cams.)

3.19. It may. next, be noted that under the Hindu Marriage Act', the fact that
the marriage was performed outside those territories or the matrimonial fois-
conduct took place outside those territories. is immaterial. In other words.
it is established that the parties are Hindus and are domiciled in India, the.
visions of the Act relating to matrimonial relief come into play. The Actidoes
not contain any express provisions as to choice of law : but it appears that relief
has to be given "according to, and only according to, the provisions oi' A_ct_._.
if the proceedings are ﬁled in India and if the Court in India is otherwise corny;
petent. Had the legislation intention been diﬁerent. the legislature would
said so.

We do not pause to discuss in detail the provisions of the Special Mar-'
riage Act and other laws; but it would be enough for our purpose to state
that Act and other laws relating to marriage and divorce. do not provide for
applying a foreign law. = "

..,-r_

3.20. It may be noted that the Dissolution of Muslim Marriages Act. 1939.
does not impose any restriction that the marriage to be dissolved at the instance
of the wife under that Act should have been solemnised in India. or that the
matrimonial misconduct which constitutes the basis of the relief song]: by the
wife should have occurred in India. In substance, it is enough if the parties
are governed by Muslim law. It may be presumed that by "Muslim law" is
meant that portion of the Islamic law which is applied in India to Muslims as
a personal law.

IV. ENGLISH LAW

3.21. So much as regards Indian law. The general rule in England is that in
proceedings for divorce properly brought in England, English law. as in force at
the time of the proceedings. exclusively governs the grounds of divorce. 'Other
factors, such as----

[a] the law under which the parties were married.

(b) the national law of the parties, or

{c} the law of the place where the matrimonial olience was
are completely irrelevant, according to English practice. TE¢I_'e» IE1"?-
be a statutory modiﬁcation of this position, but. apart from sthmtg
this is the general rule. . I

3.22. Thus. in the arse of Zaneliiv. Eaneilf, an Italian national married,' in

1943, an English woman in England, where he was then domiciled. - Héown.'

later deported from England, and thereupon reverted to the Italian dam' ' ._
The Englishwoman was granted a divorce in England by an appliccitiogi _o_f,;r X"
English law despite the rule of Italian law (the law of her domicile at
which disallowed divorce: ._

3.23. The position regarding proceedings for nullity of marriage may be'sdif--
fercnt. An action or proceeding for the annulment of a marriage dilfers team-in-=
divorce proceeding. in that t.l'Ie'latter is instituted to sever a marriage:
admitted to exist, whereas an annulment proceeding is for the purpose d
ing judicially that, because of some disability or defect which exrlned ar.tlIe'-§'lIe-
of the marriage ceremony. no valid marriage ever took place between the puties.
or that no valid marriage relation ever existed between the parties. ik1-I1I1ul-

-._J v

lsections 1(2). 2 and 10 to 13, Hindu Marriage Act. 1955.

22553;}; ,,_ g,mgu,'_ (1943) 92 Soljcitofs Journal 646 {Court of Appeal).
Private International law (1970), page 354. '

Report an Reeognhron of Foret'g'n Dinar:-er
(Chapter 3.--Law applied by -Courts.)

inent is also to be distinguished from a divorce in that. as a general rule. an
annulment proceeding is based on factors justifying the avoidance of the mar-
riage exining at the time of the mm-ridge, whereas I divorce is ordinarily for the
causes arising after the marriage.--aIthough some statutes, in deﬁning grounds
for annulment or divorce. do not adhere to these distinctions.'

_We are not concerned with the law applicable to nullity proceedings.
-_But, as regards divorce, the general rule is as stated above. The rationale" of the
English rule seems to be that the question whether the court will dissolve a mar-
riage -is one that must be decided by "English conceptions of morality, religion
pod public policy" and is "one that is governed exclusively by rules and condi-

tions imposed by the English legislature".
It is immaterial that the facts oonstituﬁng the ground took place outside

ﬁngland.'

Wollfstates the position clearly. in this regard--

"The English court, when entertaining divorce or separation proceedings.
applies nothing but English law. because the question of the conditions
under which the nuptial tie may be loosened or chstroyed touches funda-
mental English conceptions of morality, religion. and public policy. 'There

I can, therefore, be no doubt that where in exceptional cases, the English
court is not the court of the domicile. it is nevertheless English law that
applies and not the law of the foreign doniicile." *

Conversely. if a foreign divorce is jurisdlctionally valid, it will be recog-
Tlllsﬂd in England, notwithstanding that the foreign divorce was obtained on a
'ground not recognised by English law."

_- Successive editions of Cheshire have consistently taken the view that in
ilhwsuit for divorce brought in England. the substantive law oi' the forum must be
"applied without exception.' In the overwhelming majority of cases, jurisdiction
being based on domicile. the courts have never been asked to decide speciﬁcally
__y.rhe.ther they apply English law as the tea: domicflif or as the lcx fan'. Never-

tlieless, such case law as is available establishes this position beyond doubt.

-2-

" jurisdiction and divorce law will be available even if the matrimonial

misconduct on which the petition is based took place in a foreign country where
the parties were then domiciled. C-onse-quentlyi it is regarded as equally imma-
gurial that the misconduct constituted no ground for divorce at the time of its
commission if. in fact. it is a ground for divorce in the subsequently acquired

I English domicile at the time of the suit.

F':

'American Jurisprudence, 2nd Ed. Vol. 24, pages 177, 118.

4': -1 5:355 ,_a-150 para. 3.-ill infra.

pi» iwolff, Private International Law (1950). page 334, quoted also by Cheshire in his 1975

'audition at page 353, 369.

U. . 'Czepoic V. Cupnic, H962) 3 All England Reports, 990, 992 (Desertion outside England].
. . 'hvollf, Private International Law {' 1950}, pages 313-374.
E= *3 r '(a] Mayra v. l'.-idyktz (1959) 1 2.. c. 33. as. 13-74; approving Borer v. Hater. uses;
_,, Probate 109;
(h) --TI';iar:t'c 1'. Tijaﬂic. U953) Probate 18], 184;
(c) Brown v. Brown, (1968) Probate 518; (1968) 2 All E. R. 11.
rr )V'Clr'eshire. Private Int-ernstionll Law on at, 1516!. . as-1 'ted ' 195 '-
a Year Book or International Law at p. 127-128; D P CI In I 3} Enush

(la) §I6lgs;l'l?irc,'iPriVate International Law (l97D}, pages 353 to 368, and (1.975) paggs

Rationale.

Foreign divome
mcognised even if
ground not valid
In England.

I_'ihon'u case.

Report on Recognition of Foreign Divorces
(Chapter 3.----Law applied by -Courts.)

3.26. In .Wilson v. Wilson,' the question was whether an English Court had
jurisdiction to grant Wilson's suit ﬁled in 1871 for the dissolution of his-mania;
on the ground of his wife's adultery. Wilson was a Scotsman rried in Soot-'
land to a Scottish wife. and was a partner in a business carried on at
After their marriage, Wilson and "his wife resided near Glassgow. 'Wilson ﬂ
also a lease of some land near Loch Lomond. where he had built a shooting
lodge. On discovering his wife's adultery in 1866, Wilson broke up his Jolt-
blishmerit and went to London, where he lived thereafter with his mother. He
continued to draw an income from his business in Glassgow and when thrashe-
cription of his club fell due, Wilson begged his partner to pay the amount-and
wrote to his partner that he did not wish to dissocite himself entirely ill;-use
Glassgow. He renewed the lease of the land on which he had his shooting lldge
and spoke of it as the land of his father. The only property which Wiison pus-
sessed, it was shown. was in Scotland. and in London he was mainly
by his mother. A Court in Scotland had held that Wilson had never i i

an English domicile. Wilson himself asserted, when giving evidence. that when
he went to live in London in 1866, he did so with the intention of making Eng-v
land his home for the future. Lord Penzancc stated that if Wﬂson had been
dead and nothing we known of his intention, "except what could be gathered
from the more circumstances attending his residence in England. the evidence

would not have been suiﬁcient toienable the Court to arrive at the'conclI.tsion-

that he had adopted an English domicile. But he said:

3.26-A. "Still. when the man is here. and when he swears that his intention was
to adopt an English domicile, why should he not be believed in the absence of
any circumstances in the case tending to show that what he says is not true"or
likely to be true ? In this case. then, the".-question is not s'_o'much whether' the
circumstances of his English residence tend to prove English domicile, as whe-
ther, notwi.thstanding the man's; oath to his intention to create an English domi-
cile, there are suﬂicient circumstances on the other side to warrant
in throwing over hisvoath and disbelieving him. I am not aware there -are
such circumstances." " '

"Well, I do believe him. and if I believe he came to England Willi the
intention of permanently givingnp. his connection with Scotland, and ﬁxing llplju
England as his future home, is there any question but_that_ a new doﬂﬁcﬂeivlas
thereby constituted'? I apprehend riot." ' ' ; '

This question was. thus, considered at length. But the jurisdiction
been established, the substantive 'law applied was the English law.

3.27. It was observed by the High Court" in Mezger with reference to a foreign
decree of divorce as fo1lows:------ ' - ' - E -- . -

"It is quite true that this 'decree was pronounced on grounds which are
not recognised in this country. As I have said, the record_is_fulland clear and
It appears that it was pronounced on the ground that by insulting behaviour
and incompatibility of temper, andother matters of that sort. the had
failed to fulﬁl her marriage obligations--'-quitcrplain1y'a- ground that is not re'-
cognised in this countzry-----which the court below' was assured has not. been elm]-
lenged here. That was the foundation for _a divorce in the country when the
divorce was pronounced and to the courts of.which_country these" parties were

'Wilson v. Wilson (1372) 2 Pi. &. D._.-435; 271... T. 351; 41 ,L..-J. H..& 74: 25
W. R. 39L ' . , = -' '

3Mg;ger v_ Mezger (1935) 3 All E. R. 130.. 134 I[R&fl.lS-I1 by Magilnte In ,l'ﬂ"I0-KG Wk
for rnainte:na.nee.). _ .

Report' on Recognition of Foreign Divorces

(Chapter 3.----La'w applied by Cour-tr.)

amenable. In those circumstances, in my opinion, the justices have got noth-
ing whatever to do with the question whether the grounds for divorce are recog-
nised in this country or whether they approve of them or do not' approve of them.
The matter was put with characteristic terseness and accuracy by Hill, I., in
the case of Pastre v. Pastre.' The case was somewhat similar though not exactly
the same as this case. The question was, this court having pronounced a decree
of judicial separation with the consequential allowances, whether that should be
allowed to survive a decree of divorce pronounced by a French court. HILL, J..

ﬁid this at p. 82.

The decree of the French court was made upon a ground which would not be a good ground here--name1y, the existence for three years of a decree of judicial separation. But it is the decree of a court of competent jurisdiction in a proceeding in which the wife was an active party.

I stress those words. "It follows that the petitioner and the respondent are no longer husband and wife."

"There the matter begins and ends; that is all with which any court in this country is concerned, and it is no business of the justices, in my opinion, to inquire whether there is lacking the element of adultery, which is a necessary ingredient of divorce in this country. For that reason their decision. in my diainion, is invalid."

3.28. In a case" decided in 1957. Hodson, L. J. said:--

"If it be said that since the parties are not British subjects, the common- law of Englanddoes not apply to him, my answer is that such is the law prima facie to be administered in the courts of this country."

3.29. In Tijanlc's case." a decree granted to both husband and wife in Yugosla-

via was recognised. For the recognition ofthe decree by English courts, it was immaterial that the ground of divorce was not one on which divorce was ob- tainable in England. This position was speciﬁcally laid down.

The parties in that case were married in Yugoslavia in 1934, both being Yugoslav nationals, and lived together in Yugoslavia until the outbreak of war in 1939. The husband fought in the Yugoslav army, was taken a prisoner of war in Italy, and. after three years in custody, joined the British Army. serving for some two years. In 1949. he came to England and acquired a domicile of choice in that country. In 1954, he applied for and obtained British nationality. On a number of occasions in subsequent years. particularly in 1956, he wrote to his wife inviting her to join him in England. This the wife was unwilling to do. In 1-960, she sent him a document ostensibly giving him permission to re- ntnrry. Thereafter the husband initiated proceedings in Yugoslavia for the dis- solution of his marriage under a provision of Yugoslav law whereby a marriage could be dissolved .ifg__the parties had been living apart for a long period and they both consented to the divorce. In October, 1961, a competent court in Yugoslavia pronounced a decree of divorce to both parties. Although the decree recited that it was pronounced in the presence of the litigants, the only persons referred to explicitly as being present were the hushand's proxy and his solicitor. On a- petition by the husband for,'r'nIer alia, a declaration that the Yugoslav decree of divorce validly dissolved the marriage, it was held that the reality of ,1Pas1re v. Pastrc. {I930} Probate EU. ' 3TI'kzanako V. Tikzanaki {I957} Probate .301. 396.

- 'Tiianie v. Tija.-tic. [1967] 3 All E. R. 976.

Report on Recognition of Foreign Diva;-my [Chapter 3.----Law applied by Courts.) the proceedings in Yugoslavia were that the wife joined with the husband in seeking relief and, in so far as she joined in the application and the decrcewu granted to her. it was granted to a woman who had been for the Whole oi_'_ her life within the jurisdiction of the court concerned and. as the British court would assume jurisdiction in such circumstances, recognition would be to the Yugoslav court's decree; it being immaterial that the ground of divorce was not one on which divorce would be granted in Engltmd.

3-30. in fnd)=kr1'.s' case' itself. the foreign divorce granted in Czcchoslovnkﬁ (which was ultimately recognised), had been g:ra.ntcd on the ground of disrup- tion of marital relations, a fact which was, as such. not -a ground of diiiorce in England in 1949 when the District; Court of Ostrava (Czechoslovakia). had giant- cd the divorce. in fact, in that very case.' Lord Morris observed: ' "In this ﬁeld, there have been some statutory provisions _and many judi- cial decisions. It is too late. in my view, to urge that recognition should be limited to cases where by statute provision is made for it. So also it is, at my' opinion. too late to urge that recognition of a foreign decree should in any event and, apart from other considerations, be limited to cases where such dc;-N crecs have been based -on grounds which are grounds for a decree of dissolul lion in this country. Recognition should. however, always be subject to the proviso that the foreign decree is not vitiated by fraud nor contrary to justice (compare Lepre v. Lepre).' In his speech in Sa!ve:s=en'.s case.' 'c-rd Haldane said-5 4 "Our courts. ............. .. never inquire whether a competent foreign court has exercised its jurisdiction improperly, provided that as sub- stantial injustice according to our notions has been committed.

"It has followed from the acceptance of domicile as the basis for assupt-_ irrg jurisdiction in England that. if a husband and wife are domi'cilcd'in_ another country and if there is a decree of divorce in that country. ir_wi_ll here be recognised. There has been no insistence that the grounds for a decree in the other country should conform or correspond to those laid"

down in England." (See Enter 1'. Bate:-).' 3.3!. Mather v. Mahaney' is an interesting decision----inte-resting for the of territorial contacts exhibited by tht ﬁacts. It shows that English courts. when considering the question of recognition, do not pause to inquire into the qucs-1 tion how far the foreign decree took into account the laws of other countries having a territorial contact M In that case. the husband had been born in Scotland. He acquire_d a domicile of choice in England. This he married in Rome a Woman who had lived The pa .

rather more than three years. In 1954. the wife left her husband and retained to the United States.

most of her life in Penna:-=ivanIa.i 'Indy-ice v. radii; (1951) 2 an E. R. -689,. 592 (H. L). _ s;_,,d3,ym v_ ;,.a'yk.;_ [[967] 2. -639, 100 (H. L.) (Lord Morris}- 'Igor: 1r. L:-pre E1969) 2 A1lE- R» 49'. H9553 P1'0i53"° 52- i.'i'a|'.ve.sen'.s case. [I927] Ali E. R. RE-Fl 73? H9273 A C- 64!'

-"S:Iivesen'.s €4.52. (1.927) Au E" F" '-311 T3-' 35: "g:'.D"' C' 6"' 651' iﬂaror v. Bat-er (19053 Pmbiti 339- ' 7Ma1hg} V. MdhOﬂEj', 1 I... R. be retained at all relevanttimes. In 1961.5 rties thereafter lived together (where. it does not clearly emerge). _ for' Report on Recognition of Foreign Divorces (Chapter 3.--Law applied by Courts.) The following _vear,~--i.e. in l965--thc wife obtained a decree of dissolu-

tion of the marriage in Nevada, on the ground oﬁ mental cruelty. She had gone to the State of Nevada for the express purpose of obtaining this decree. In sub- sequent English proceedings, the husband petitioned for a. declaration that the Nevada decree had validlv dissolved the marriage, or alternatively, for a decree nisi of divorce on the ground of the wife's desertion Payne J. held that the Nevada decree must be recognised as elfective in England: the question of his pronouncing a decree nisi did not. therefore, arise.

_It may be noted that Payne I. did not consider it relevant to discuss the ques-

--tion whether the foreign court had taken into account the English concept of "crueltv". In fact. no reliance was placed on the fact that cruelty was also a ground for divorce in England. That was merely a co-incidence.

3.32. According to the English rule, thus, the reasons upon which a foreign court bases its decree are immaterial in regard to recognition of its decree. The

-'.ﬁ'0tlnd5 of the foreign decree need not be in accord with the grounds for divorce established in English matrimonial law,'--»provided, of course, the decree does not violate good morals.

3.33. Thus, English courts." when entertaining divorce or separation proceed- ings, apply nothing but English law, because the question of the conditions under which the nuptial tie may be loosened or destroyed touches' fundamental English conceptions of morality, religion and public policy. There can, therefore be no

-doubt that where, in exceptional cases, the English eourt is not the court of the domicile, it is, nevertheless, English law that it applies, and not the law of the foreign domicile.

In Robinson's case.' Wilmot J. observed:-

"But if a man originally appeals to the law in England for redress, he must take his redress according to that law to which he appealed for such redress."

Some such reasoning seems to constitute the basis of the principle on which the English Courts act. namely, that it is the English law which is ordinarily to be applied. if relief is sought from an English court in regard to dissolution of a marriage.

V. POSITION IN U.S.A. 3.333.. This seems. by and large, to be also the state of the law in the United States.' Occasionally, however, United States courts require that the misconduct should be recognised as a cause for divorce by the law of the State where it occurred.' 1(3) Harvey Ir. Parrrfe; (I830) 5 P. D. 153;

(b) Pembcrtrm v. Hughes, (1899) l Ch. T81:

tc} Bater v. Borer. {I960} Probate 209:

(cl) Mezger, 'V. Mezger. H937). Probate I9, {I963} 3 All E. R. 130.

"Wolff, Private International Law (1950). P339 373474- 3Cf. para. 3.24, supra. _ 'Robinson v. stand, (1760) 97 English Reports 111, 121 {King's Bench}-

s5.:¢¢_ c_g., Torlonia v. Tariania. I06 Conn.. 292. 142A. 343 @928): and 'Cl-mstharn. Goodrich. Criswold and Reese. Conflict of Laws; Cases and Materials {4th ed, 1957). page 790, cited in (1953; B. Y. B. I. L. page 127-123. ﬂgcc PaI'zt'i v. Parzei. ll89l) 91 Kv. 634, 15 S. W. I553 cited in (1963) B Y. B. I. L-

page I2?-I23.

35. Reasons for for-

eign judgment not relevant.

English Reason of.

rlIle-

American Law.

Application of its own law by courts of the forum in the Position in some other legal sys-

team.

National law ap-

' in some countries.

Report on Recognition of Foreign Divorces [Chapter 3.----Lnw applied by Courts.) 3.34. In the USA in regard to interstate conflicts. Le-ﬂar' has stated the posj. lion thus: ' ' "Todav, the standard choice-of-law rule calls for a forum state to apply its own substantive divorce Icrw, as to what are grounds for divorce. even when the alleged grounds across in other states in connection with spouses at the time domiciled in other states."

L333-I' has addﬁd that? a state may also. if it chooses to grant divorces for other causes, set up, as grounds for divorce in exercising its own jurisdic. tion. grounds recognised by the law of the place where the particular facts occurred, or where the parties were domiciled when the facts occurred. Con- versely. if a State so chooses, it may deny divorces unless the grounds relied upon were grounds for divorce by the law of such other states. This is wholly a matter for each state to decide for itself when it enacts its statute.

For example. in the U.S.A., the Arkansas Statutes originally 1-aqui:-cg] that, if the grounds for divorce occurred. outside of Arkansas, to parties not the residﬂﬂt in Arkansas. those grounds should be grounds for divorce both by the law of Arkansas and by the law of the place where they occurred.' The last part of the requirement was eliminated when Arkansas enacted its "quiclrer'-"

divorce laws.

3.35. Similarly, a state might limit grounds for divorce to acts occurring at the forum? But, in general, where a court assumes jurisdiction in relation to the grant of divorce, it usuaﬂy approaches the matter with reference to its own law. i.e.. the substantive law of the forum.

VI. OTHER SYSTEMS 3.36. Some other legal systems apply, as regards the grounds on which divorce can be granted by their courts, the Iex fan', or the 13.1: domicﬂi which as a rule coincides with the law of the forum.' This is the case in Soviet Russia. Estonia, Latavia. Austria, Greccc. Denmark, Norway, and in some Latin-American states.

such as Chile, Scuador and Urguavf 3.37. Most of the European and Latin-American laws decide, in principle. in favour of the national law of the spouses or the husband; but they modify this by ordaining the application of the £314: fort' where. public policy--"ordre public"----- is in issue." We shall consider the scope-of "ordre public" later."

VII. HAGUE CONVENTION 3.38. Articles 6 , 7 and 19 of the Hague Convention may be seen in this con-

nection_ 1Leﬂar. dennic: of Laws (1953), page 547.

3Leflar, Conflict of Laws (1968), D356 547- 'The Ark. Stat. Ann 3505 (C. 8:. M. 1921), Cited bl' Lﬁﬂar, Conﬂict of Laws U953}.

page 547. g . _, _ p "M::tlanband v. Muuanband. £1919} Ark. 505, 203 S. W. 801.

-sN.'c];.9ia,_v,- V. Madden! (1900) 52. Le. Jilnn. 1_493. 2'? Sc. 966. 'Wold'. Private International 'Law {I950}. Page 373- Twolﬂ', Private Internaticlial Law (1950), passe 373- 'WoltT, Private International Law {I950}: .1326 373;

"Chapter 14, infra.

Report on Recognition of Foreign Divorces (Chapter 3L--Low c;rppiz'ed by Courts. Chapter 4.--~indion Law as to Recognition of Foreign Judgments.) VIII RATIONALE 3.39. The question may be raised as to the rationale of the English and American practice. In the U.S.A., application of the Iex fort' seems to have been sought to be justiﬁed by the merely statutory nature of divorce.' The argument is "that the etfect of statutes is necessarily territorial,----a theory going clearly back "to such fathers of territorialism as D'Argentre and Ultricue Huber.

3,40. The view has also been adavanced that divorce remedies are special or

-equitable, and therefore cannot be exercised except by the courts of the state establishing the remedy. Sometimes, there is invoked the general motivation for 'tcrritorialism that, the "res" being located within the state, the state's interest prevails. However, most of these theories have had their critics. It is not neces- sary for our purposes to consider the-merits and demerits of these various theories. If parties acquire domicile or nationality in any country, they join the stream of that country. Whatever the proper theoretical basis, there is immense practical convenience in applying the law of the forum; it eliminates the need for research into. and interpretation of, the substantive foreign law."

IX. CONCLUSION In the light of _the above discussion, we may now consider the question which we have formulated at the beginning of this Chapter." We should point out that in answering that question. several aspects should be considered.

falluristically, it may be stated that the general rule is that ordinarily .~ in court applies its own law'. So, if the foreign court has followed its own law, it has followed the ordinary practice. If we are to require it to depart from the practice, some weighty reasons would appear to be needed.

(b) Sociologically, the parties habitually resident or dotnicﬂed in a a Court applies its 011 13W'- 50. if the foreign court followed its the community where they have taken up their abode. as reﬁected in the law of divorce of the country concerned. If so, it would be in- appropriate to require that the courts of that country should apply the substantive law of some other country as to the grounds of matrimonial relief.

to] From the practical aspect. a court usually ﬁnds it easier to ascertain and apply the law of the forum. We are therefore of the view that the present position needs no change.

Cameras 4 INDIAN LAW AS TO RECOGNITION OF FOREIGN JUDGMENTS 7 a A I. INTRODUCTORY 4.1. In this Chapter, we shall brieﬂy discuss the Indian law on the subject of rge_cognition_ of foreign divorces. We have already pointed out' that there is 1Rabel, Comparative Conﬂict of Laws (1958), Vol. 1, page 154.

ms to England, see para. 3.23, supra.

'See para. 3.2, supra. , 'Cf. Robinson's case, (1760) 97 English Reports 717 (Para. 3.33, supra). 'Chapter 1, supra. I Reasons for all-

plytng lax fart.

Aspects to ' be considered.

Introduction.

Section 13.

of Civil durc. 1908.

Section Code.

Code Proce-

14. 01¢ 4-3' Report' on Recognition of'Fore:'gn Divorces (Chapter 4.--Indu'on Low as to Recognition of Foreign Judgments.) no speciﬁc provision as to recognition of foreign divorces in Indian Statute Law. There are certain general provisions as to the effect of foreign judgments, which we now proceed to consider.

The need for such provisions is obvious. As betweeddiﬁerent provinces under one sovereignty (e.g. under the Roman Empire), the legislation cf the sovereign may distribute and regulate jurisdiction;' but no territorial legishttiucris can give jurisdiction which any Foreign Court ought to recognise against Eoregners who owe no allegiance or obedience to the power which so Iegislates.

In a personal action, to which none of these causes of jurisdiction apply. a decree pronounced in absentem by a Foreign Court, to the jurisdiction of the defendant has not in any way submitted himself, is by international law an absolute nullity. He is under no obligation of amt kind lﬂ 05¢)? it. and it must be regarded as a mere nullity by the Courts "of every nation, except (when antho- rised by special local legislation) in the country of the forum by which it, was pronounced."

II. SECTION 13. CODE OF CIVIL PROCEDURE, 1908 4.2. We may ﬁrst refer to section 13 of the Code of Civil Procedure. 1908. That is a general provision as to the conclusive effect of foreiml judgments. This sgc. tion is operative only when a number of conditions are fulﬁlled. of which the most important is the condition that the foreign court must be a court of competent jurisdict§i'on. While. therefore, this section does empower Indian courts to recognise foreign judgments and enforce them in certain cases. it postulates that the fore@ court must be a competent one. and the question _ in what circumstances the foreign court is to be regarded as competent, is not answered by the section. The section reads:

"13. When foreign judgment not concIu.sr've.--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 juris- diction :

where it has not been given on the merits of the case;

where it appears on the fact of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

{bi to'! where the proceedings in which the judgment was obtained are opposed to natural justice:

where it has been obtained by fraud;

where it sustains a claim founded on a breach of any law in force in India."

id') (61

(f) It may be noted that in the Code of Civil Procedure of 1382. the section relating to foreign judgments'--section 14----began as fo1lows:--

7 lawaayaz v. Rajo of Poridicor, 1. 1.. R. 22 Cal. 222 (P. c.) (Lord Seiborne).

'Section 14. Code of Civil Procedure. 1882.

Report on Recognition of-Foreign Divorces

-(Chapter 4.---Indian Low as to Recognition of Foreign Judgments.) _. "I4. No foreign judgment shall operate as a bar to a suit in British India......".

A The negative form of this section in the Code of 1882 made it clear that it was an exception to the general provisions of the section dealing with res indicate.' But for the provisions of this section relating to foreign judgments, the general bar of res judicotn might have applied.' 4.313. As one looks at section 13 of the Code of Civil Procedure, 1903. one can- not but be struck by its comprehensive nature and, at the same time, its pre- cision and concisencss. Each of these six exceptions forms an effective tool in the hands of an Indian Court. whereby these courts can legitimately refuse to recognise any foreign judgment A It may be pointed out that common law principles of res judicaru are also applicable to foreign judgments, as to judgment of our own courts. Section 13' of the Code of Civil Procedure, 1903, became necessary in order to qualify the

-vaizler provisions of section 11 of the same Code, which~--but for a speciﬁc pro.

visioi1.--might have applied to foreign judgments also.

9- _ We may now mention a few aspects of section 13. It is well-settled that when present section 13(c)' speaks of "int.err;atiorial law", and when present section 12-(a) speaks of a court of competent jurisdiction. not merely intra-territorial com- petence. but also the extra-territorial competence' '" of the foreign court, is pre- dicated.

All 3.5. The provision in section 13 of the Code that a foreign judgment is con- clusive. is of interest. In Fuller v. Fuller.' Brougham LC. stated---"whatever irre- _ arities or mistakes might have been committed in the course of the foreign slit", not amounting to fraud, "the Court of Chancery in England had no j'un's- iclion. as or court of appeal, to review the decrees of the Court of Chancery in Jamaica, merely because they had proceeded on ignorance of facts or error of kw. S 9 ' These observations show the signiﬁcance of the word "conclusive". That word also indicates that the judgment is unimpeacbable,---un1ess, of course, one qlthe speciﬁed vitiating circumstances exists. -

il;.6._ In a Madras case.' Holloway J., and in a Calcutta case.' Sir Barnes Peacock CJ. elaborately reviewed the law regarding judgments in divorce cases and how far they were admissible in evidence. Sir Barnes Peacock C.I. observed:

" .......... ..the effect of a decree in a suit for a divorce a vinoulo matrimoni is to cause the relationship of "husband and wife to cease. It is conclusive __upon all persons that the parties are no longer husband and wife: but it is not conclusive or even prima facie evidence against strangers that the cause for which the decree was pronounced existed. For instance. if a 'Section 11 of the present Code: section 13 of the Code ef'ISS2.

'Para. 4.4, infra. " ""

3Section 13, Code of Civil Procedure, 1908.

'Para. 4.2, supra. ' _ 5-5Molzcn Lal V. Prem Suck. A. I. R. 1956 Nagpur 213.

'-'Abdul Wazid v. Vishwuuarhan. A. I. R. 1953 Madras 16'].

"'Fulie:' V. Fuller: (1331) l Myl. Kc K. 297, 39 E. R. 593.

Workalammn Nag-ammo v. A. Naremmn, (l_8t54-65) 2 H. C. R. 276.

'Knnh_vc..r Let V. Radha Churn. (1867) 7 WR, 333. 344; Meng. L. 1. Sup. Vol. 662 {P.B.}.

Section l3--A comprche-naive Pfovtllou. ' Competent Court.

When conclu-

live.

Eﬁect on i parties.

Bar to suit.

Natural -justice.

Effect of the word "except."

Indian law as to recognition of hulnnents con-

trary to interna-

tional law.

Other provisions H In: Code.

Report on Recognition of:Fareign Divorces ichﬂpfff 4----Jndfwt Law as to Recognition of Foreign Iadgntents.) decree between A and B were granted upon the ground of adultery of B with C, it would be conclusive as to the divorce. but it would not he even prima ﬁacie evidence against C that he was guilty of adultery with B, unless he were a party to the suit."

4.7. A foreign judgment. when conclusive under section 13 of the Code of Civil Procedure. 1903, may he pleaded as a defence as a bar to a suit in India,':pro- vided it is given on the merits" as prescribed by section 13.

4.8. It may be noted that section I3(d) of the Code of Civil Procedure.' 1908-. also provides that a foreign judgment is not conclusive when the proceedings in which the judgment was obtained are opposed to natural justice, In that sec- tion. the expression "natural justice" refers to the form of procedure. andinot to the merits? Failure to appoint a guardian for a minor may render the foreign judgment unenforceable under thisusection.' 4.9. It is not very clear what is the effect of a foreign judgment where the judgment is vitiated by one or more of the factors mentioned in clauses (a) to"

(f) of section 13. The judgment" is certainly not 'conc1usive,----as section 13 itself enacts. But does it retailany relevance _at all ? This much is clear--that section 13 will not apply where the vitiating circumstances exist. and the judgment would not be conclusive. But what would be the position regarding relevance where a vitiating factor exists '-3 It would seem, on principle, that the judgment should be disregarded totally.

_ _ The word "except" in the section is important in this context. As regards the meaning of the word "unless",-------an' analogous" word--Lord Esher. M.R.. pointed out in the Carl XV': "

«when you have, the word 'unless' in the English language. it carries with it that, if something happens, then what has been said before will "not apply."

4.10. A foreign judgment contrary to the principles of international law may be impeached in India.' This general provision is also recognised by section 13(0) of the Code of Civil Procedure. 1908. ' 4.11. It mav be noted that while section 13 of the Code is relevant for the purpose of recognition of ﬂoreign judgments in general, it does not deal with enforceabilitv. One has to ﬁle a suit.on.a foreign judgment in order to obtain a decree which can be executed.

The Code of Civil =Procedure also-contains certain. P1'0Vi5i0l-157 0-5' 10 the direct rnforcentent of ceuain fcrei$1.l"dEm'5'1t5- Bet _«*-1_1r'-=-'r. PF°V15}'9P5 3" mt material as regards divorces. for the reason that at illdgmﬁnt 0f d1"°T'7_°e °" 5 jmggmem granting legal separation. does not, ingeneral need "enforcement".

lchgckniingam v. Durairwanzi. A;I.R'.'192s- Maid. 327, 33-5.

z30,,m 55,13}. V. 3.111;; sinya; (1319) Record No. 14, page 30. 3Rama Shenoi V. Haiidgﬂﬂm U913) U--Rh 4' Mad' 205' Jcfgvindan v. Laxmf Bharathi, A.I.R. 1954 Ker. 244. 2.4%, para. 22. 5The Car! XV (1392) Probate 324; as Law Times Reports 149- °L'al Naliatambi V. Ponnnsw-rzmi. 11--R,t.,2. Mad'-'Kin' [b) Hinds v. Pormah, I.L.R. 14 Mad. 352. ..

rs) Bikrame v. Bir. (1333) P. R- 1'51» . . .

(cl) Christian v. Delanney. (190.0) -'!_C- R 514- _ _ 7Sections 44 and 44A. cage of Civi1'1?'r9°fd""» "'93" _ Report on Recognition of Foreign Divorces 4'CIra-pier 4.----Indz'on: Low as l'o--.Recog'm'f1'011 of Foreign .h£u'gmer1rs.) 4.11. Even a decree which is pronounced in abrenrem by a foreign court is valid and executable in the country of the forum by which it was pronounced, when authorised by special local legislation-' A decree passed by a foreign court, to whose jurisdiction 3 judgmenbclebmr had not submitted, is an absolute nullity, only if the local legislature had not comferred -jurisdiction on the domestic courts over the foreigners either generally or under speciﬁed circumstances. Section 20(c) of the Code of Civil Procedure, 1908, confers jurisdiction on a court in India over foreigners, if the cause of action arises within the jurisdiction of that court. Hence a decree passed against a foreigner in such circumstances is not an ttbﬁolute nullity." It may be more appropriate to say that the decree in question is not executable in courts outside this country. -

III. EVIDENCE ACT #13. So much as regards the proyisions in the Code of Civil Procedure. We may next refer to section 41 of the Indian Evidence Act. 1872. which reads-

"-rtl. Relevancy of certain -fudgnicnis in probate, eta, jr4rz'.sd:'cr:'on.--A ﬁnal judgment, order or decree of a competent court, in the exercise of probate. matrimonial, admiralty or insolvency jurisdiction, which con- fers upon or takes away from any person any legal character, or which declares any person to be entitled% to any such character, or to be entitled to any speciﬁc thing, not as against any speciﬁed per- son but absolutely. is relevant when the existence of any such legal character. orthe titleof any such person to any such thing. is rele- 'want.

i "Such judgment, order or decree is conclusive proof--

that any legalicharacter which it confers accrued at the time when such judgment, order or decree came into operation;

that any legal'charac'ter, to which it declares any such person to be entitled, accrued to that person at the timewhen such judgment order or decree declares it to have accrued to that person;

that any legal character"-svhich it takes away from any such person ceased. at the time from which such iudgment. order or decree declared that it had ceased or should cease:

and that anything to which it declares any pezsonto be so entitled was the property of that person at the time isrcnn which such judgment. order or decree declares that it had been-or should be his property."

114. It may be noted that, like section 13 ofrthe Code of Ciyil Procedure. 41 of the Evidence Act' also postulates that the court which pronounces the judgment must be :1 competent one. Its applicability; therefore. depends on the determination of the question of competence of the Court. where the court concerned is a foreign court. the determination of the question necessarily takes us to a consideration at the law relating to recognilitm. because the foreign court must be competent in the extra-territorial sense aiso. This has been well esta- by a series ol' judicial decisions.' In; other words. the f0fE*i:EI1 Calm must exercised jurisdiction on the basis of a criterion recognised by 1?'?-'-up 1Laj]';' Rafa V. dlansraj Varhuram. A'.I.R._-I971 974, 977.

awn nan v. Hensrai Vnrhuram. A.I.R. 1971 SC' 974. M7.

'Pars. II-.13. supra. -7 'Pace. 4.15. infra.

Es ,-Jpurle ,-- ind;

mﬂrtl. \ Section 4!, Evid-

ence Act.

Court under tee-

tinn 4]. Evidence Act, must he a competent one.

4'? Report on Recognition of Foreign Divorces (Chapter 4.---Jndian Law as to [Recognition of Foreign Judgments.) gggﬁgn _ 4]--]n- 4.15. A few propositions emerging from judicial decisions on section r iii, EH- '''-'P''°'''"°" '*5 deuce Act, may be set out at this stage for convenience--- ' - ' j . . -='J?a'

(a) It is well settled that, in section 41, the expression "competent cofur_t;' means the court ct} any country, it the court is otherwise contjnctgg to pass such judgment as is referred to in the section. 1 -. . .

1. A number of cases have held' that judgments of foreign not excluded from the scope of section 41. In a Bombajtﬂeh tliil proposition was accepted as correct by Beaumont CJ. and BJ. Waﬁi J., although the particular judgment in issue in that-case was held to be outside section 41.' - " ' ' {b} It is also not disputed that a judgment of a. matrimonial court, decree- ing divorce. is. by virtue of section 41. binding as to the status of the parties concerned. on the whole world, provided theother coiaditidi mentioned in section 41 are satisﬁed'. " =-=-'1

(cl) If a judgment is regarded as falling within section 41, then. that sec- tion dispenses with the proof of the legal character conferred or de- clared by the judgment'. -

IV. MATRIMONIAL LEGISLATION Enactments r_elat- 4.16. So far, we have -dealt with the general provisions of Indian statute xi itsﬁsmiﬂl-t;':'°' applicable to foreign judgments. What. then. are the rules of recognition speciﬁ- cally applicable to judgments of "divorce ? We first search (for such rules in the enactments relating to matrimonial causes. In India, matrimonial jurisdic- tion is exercised by the courts under a number oi enactments, and the enact- ment applicable depends, in most cases, on the religion of the parties. The prin- cipal enactments in chronological order. are the following:-- I

(a) The Converts' Marriage Dissolution-Act,' 1866 (21 of 1366}. under which dissolution of a marriage can be obtained by a convert to Christianity. if his or her spouse refuses to be converted to that religion».

{b} The Parsi Marriage and Divorce Act, 1936 (3 of 1936). relating to divorce iiruoig the Parsis.

(c} The Dissolution of-Muslim Marriages Act. 193_9. which is rig divorce at the instance of the petitioning Muslim w1fe,.on cqgtam SD9- ciﬁed grounds: ~ 1. ; j, -3,;

. ..,_ .

Its} A.1.I-L T1950 Mysore 51. Pam 4- . , ,, (bl A.I.R. 19:f9'1tai_ 149. 152. , -,1 in

smm .._ Mam, (1933) =40 samba; Law _Reporter s71, A.I.R._ 193_s Born. 39;. (Beaumont C. 1. and B. J. Wadua, J.) approving Chandavarkar 1.: new in Cha J ' E1911) I.L.R. 35 Born. 139, ' ' ' '* ' 'Ma Pa Khin v. Ma son, (1933) ILK 11 Rangoon 19. j _ 'D. G. Sohasrabudire v.'Kr'ncha'nd Devchand & Co. !.L.R. (1947) Nagpur 35._ II/Eghwanafh v, Abdul Walid. AIR. 1963 S. C. 1.

Report on Recognition of Foreign Divorces (Chapter 4.----Indim Law as to IRecogm't£0n of Foreign Judgments.)

(d) The Special Marriage Act. 1954. which. on a proper view, is appli- cable only to persons marrying under that Act.

(e) The Hindu Marriage Act. 1955139 of 1955). which is applicable to Hindus:

(I) The Foreign Marriage Act, 1969'.

4.17. We need not reproduce here the provisions of these Acts. We shall, however, brieﬂy discuss the Foreign Marriage Act. 1969. which is of special interest. The Act makes provisions in respect of marriages of citizens of India While they are abroad. The term "foreign marriage" is not expressly deﬁned, l:Iut'section 4 of the Act would imply that term refers to a marriage between parties. one of whom at least is a citizen of India, by or before a marriage oﬂicer in"a foreign country. ' By the Act, the Central Government is authorised to appoint any of its diplomatic or consular oﬁicers to be a marriage oiﬁcer for any foreign country. According to section 5 notice of intention to marry has to be given to the marriage oﬂicer, and there are certain requirements as to residence before the marriage can be solerunised.

_ j The Act provides that matrimonial reliefs in respect of foreign marriages would be governed by the provisions of the special Marriage Act. l954.--with certain modiﬁcations. not material for our purpose.

The Central Government is also empowered. by section 23. to declare that Mm-iages solemnised "under the law in force in any foreign country" shall be iaeicogntsed by courts in India as valid if the Central Government is satisﬁed that 'Iii: foreign law contains provisions similar to the foreign Marriage Act. There provision as to the recognition of foreign , This Act. in while necessarily deali with marriages having 'a icueign element, does not tell us anything about ' of foreign divorces.

The various enactments relating to the marriages of persons belonging to Various communities are" also silent on the subject of recognition of foreign divorces as such, and do not contain a direct provision for the recognition of ixeign judgments of divorce or judicial separation'. " I' fist - , 'Therefore, it becomes 'necessary to consider the judicial decisions on the Qubject. in order to ascertain thedegal position.

V. RULES APPLIED BY COURTS 4.119. Indian case-law on the speciﬁc question of recognition of foreign divorces is;-not so abundant as in England. but a perusal thereof shows that English rules are generally followed in this ﬁeld. An examination of the case law indi- wes that it would be correct to say that. in general, Indian courts will.- in matters pertaining to the ﬁeld of conﬂict of laws, follow the View taken by Eglish courts at common law. It may also be noted that the judgment of the Supreme {Court in Surya v. Teja Singh', to which we have already referredi, con- tains an extensive discussion of the English law, besides various other materials.

15:: para. 4.l?. infra.

'Para. 4.16, supra.

'Also see Chapters 5-6, infra.

'Surya 'V. Teia Singh. AIR. 1975 S. C. 105.

npter 1, supra.

Foreign Marriage Act, 1969.

Other marriage laws.

English law fol-

lowed.

A can: of -diam:-c.

III] grist-state and in other

-cculﬂict law in lathe.

_rg:1'ancc of Report on Recognition of Foreign Divorce:

(Chapter 4.---Imii'rm Law as to Recognition of F0i"€l'gi! J.t¢rIgr_ncrr1'5.] Most of the judicial decisions give primary importanceto domicile in matters of status. --

-'1-..".li. In Noorjeiicrn Begima 'J. Eugene TL--'oe.='.c1e", a Russian wr:-u1an.':hEter7lr:n'i:1g her Russian hos':-and £1 ]E.'.tro_oc, arrived in In-iza, embraced lsism, and, on the ';iush£md's refusal tc get cc-rivcrled to Islam, sought, under section .13' of the Speciﬁc Relief Act (I of 1337} {the Act then in force), a declaration from the High Court to the effect that her. marriage had been dissolved in accorcfanrp with her personal law. She rciied, for this purpose. on a rule of Mohammedén Law under which a convert to Islam is entitled to a dissolution of his cfﬂher marriage. if on an olifer by him or her, theicther spouse reflqses to Muslim. The Court held that it had no jurisdiction to declare .11 Iuarriege. parties not do-nziciled in India to be dissolved. and further characterised the rule"

of Muslim law as being neithef the general law of India nor in accnrdaucehvitfi the rules of private international law. This decision shows' that jurisdiction to divorce is not. in general. assumed by Indian Coons in the absence of domicile.

4.21. Even in proceedings other than for divorce. domicile may be material.

In regard to adoption, rrefercnce may he madeto the edecisiorribf the Bombay High Court in Vafan! 1:. Drmoba', and that of the Privy Cc-iitm'il"i;'n Nozomia v. Szrﬁriircrrajere'. In both these cases, the judgments of that foreign oouris relating to the declaration that the claimant in each -case l1a.d_been validly adop- ted' according to the law new of domiciie of the widow making the adoption. l In the Privy Council case. it was hcirl that the judgment of lhe*Court at Pondicherrj.-', recognising the validity -of the -adoption as having beeuduly in accordance with the law oi? douiiacile of the widow, "to be weightiy the matters with which i dea'.lt."'.in= the suit at Madras. Asjthe appcligqtardﬁf not parties to the suit at_P'audit:hunr. there wastno quaatio:trof.F'$'.i¥vii'iI1iE!1ﬂ'i.;II| the circumstances of the casedtheir Lordships were of the opinion that "then French"j1'1dg;ruent haﬁ to 'he 'as-» arid -ung'lmtradic$d="'tMdk ".

Apparentlg,-*.i this conclusion viasivrréched £3 mg Evidence Act. under which ,al._','£r§z11s:tction;0r instance': 133' which 3' 5.3 exercised or asserted etc. is relevant.

£22. The question of dnmidld is iraiseél in fI£!_.t1'i'vﬁ:'*"54'-i"'i'$'-'3' um' state couﬂict of laws also. 'l'l1h1.i.!hf'i'.iZ4':ir'.'r5'I'tirﬁ'a:'r£ 11'. -Fli!!J'I"Ed!FtaiIIer'.' ﬂu: qua!-ﬁes arose whether a 3:-cl5cu--beloIIgil1g to_ the Qudh 1"?°'fif_?;¢*3- W310 "1-1-9-_"..}_ii urtliﬁe-xi from contra-c:ir.g by being d=|9F'3l"°|3 3- _ '¢_l_PT_'__'-l"{'3'-';T'ﬂ sions of the Oudh Land Revenue Act (17 9f'13'J'-7} 731157? 355553"

in the North Western Province, within the of the Maha ' Court.

Appiying the principles oi p1_mae%iniemaLuon2ar'taw and after" discurssig views of Dicey Story arid other Wr1'tet's,'th'e High Court at? riﬂhhabad held 1&3! the incapacity under' the _'£e_r a'es:'c.:'iI:" extended to contracts éiItcre.=1'iIrfo 33'; -13?

if-.159.-jghau Begtrm 1'. Eugene: Tircence. LLR. (19433 3 031- 135: _ I ' _ 'As to iurisdictiun under. Indian nlatfiiﬂﬁﬂiil l°3i51°ﬁ°'" 5°" chapters 5'6' 3-"ff"

Wansant 1;, Dsltrilacr. AJ.R. I956 Born. 49- .,.,»,,,,;.,,,,- v_ Suki-otj-H. 3.1.2. 1950 P. c. 34. 35 Para. 11 693] {Section 13, Evidence Act). ' .

Eackminarain V. Farsi': Bohadur, (19023 [-13- 25 511- 195' (app-ea] r:_am*.ecI.n r9:s_cr;t.rad.

Report' on Recognition of Foreign ﬁivoréés (Chapzer 4.--InnTr'on Law m to Recognition of Foreign Judgments.) person concerned. even though the contract there relating to property outside the province of -Dudh. Again, in the Bombay case of Shorakor Vishnu v. Moneklol Huridos', a debt incurred in Bombay was held not to be discharged under pro- ceedings which took place in accordance with the Central Provinces Debt Con- ciliation Act, 1933, as the Bombay law was the proper law of the contract, and hence a discharge was not possible by a method not recognised by the proper law.

To quote the observations of Beaumont. CI. in Shnnkar Vishnuis case.

"No doubt, the Provinces of Bombay and the Central Provinces are both parts of British India, but in my opinion, where the law of one province of British India is distinct from the law of another province. the two provinces must be regarded for the purposes of this rule (of proper law) as foreign countries inter re".

4.23. There may be, on the other hand, situations where domicile is not material. Reference may. in this connection. be made to the judgment of Venkatasubba Rao 1. in Ratansi Moroji v. Administrator General' of Madras'. A European lady' became converted to the Hindu faith, married the petitioner. a Hindu. accord- ing to Vedic rites. and. when she died. was cremated according to Hindu custom. She had left an unattested will. and the question arose in the probate proceed- ings. whether the testatrix was a 'Hindu', in which case alone, the unattested will would have been valid. (Before 1927. the will of a Hindu executed in a mofussil place was valid. even if it was unattested}. The Court, answering the question in the aﬁirmative, held that a European who becomes a Hindu, becomes illo f subject to the Hindu law. the test in such a case being not of domicile. but of religion.

In Raronshow v. Bomonji'. the plaintiﬁ claimed land on the basis of a . [ﬁt-deed from the second of a Parsi. who had died domiciled in Baroda. The hrs: marriage of the Parsi was dissolved by '£argal:' or 'mutual release', in accordance with a lawful custom prevalent among Pm-sis domiciled in Borodn. Such a divorce was not. however, recognised by the personal law of Parsis in ﬁytirish India. The court held. that for the purposes of succession to land in India, the validity of the divorce should be tested by Indian law. 011 course, this decision is not directly concerned with the recognition of divorces. Indian law was applied because the land in issue was situated in India. The principle applied' was that the "Iex loci rei sirai governs exclusively the tenure. title and descent of immovable property."

4114. The much discussed case of Komioboi. v. Devaram" was at Bombay one. The Bombay Hindu Divorce Act. 194? (Bombay Act 22 of 1947). allowed divorce anfoilg Hindus on certain grounds. but there was no similar Act in the State of Madhya Pradesh. A husband. resident of Madhya Pradesh. had deserted his wife. who thereupon settled in Bombay with her father. The wife sued for divorce tmder the Bombay Act. It was not applicable to her case, as her husband and hence she herself was 'domiciled' in Madhya Pradesh. We are not concerned with the knotty problem whether there can be domicile in a State as much. But this case shows that the concept of domicile is material.

lshonkor Vishnu v. Manekial Haridos. A.I.R. 19-I-0 Bonn. 362.

1.). , ' 'For a discussion of the cases, see T. 5. Ram: Rate in (1955) -I Ind. Year Book of In- ternational Aﬁairs, 219, 232.

'Rwanshow V. Bomonji, A.I.R. 1938 Born. 233, 2.40, 241 (N. J. Wadi: 3.).

'Fenian v. Wingsron, (1859) 115 R. R. 1062.

'Kaml'obar' V. Devonrm, A.1.R. 1955 Ben. 300.

l.'-'TDN75 'Raronsi Mororji v. Adm. Gen. of Madras. (1938) 55 M. L. J. 473 (Venkatasubba Rae maxi it Cases when Do-

micile ia not material.

Domicile in one State.

Relevance English law.

of Introductory.

hrsi Act.

Marriage ' rtainty as to 01! section Report on Recognition of Foreign Divorces (Chapter 4.--Indir:m Law as to Recognition of Foreign Judgments. Chapter 5.---- Indian Law as to Jurisdiction under enactment other than the Indian Divorce Act.) 4.25. The above resume of selected Indian judicial decisions in the ﬁeld of divorce and in other ﬁelds of family law shows that English rules in these ﬁelds have been generally followed in India, so far as conflict of laws is con- cerned. It therefore, «becomes material to examine the English common law the subject, and it is premissible to proceed on the assumption that in general, though not necessarily in every detail. the English common law Would, in the absence of speciﬁc statutory provisions enacted in India on the subject, be fol. lowed by Indian courts.

CHAPTER 5 INDIAN LAW AS TO JURISDICTION UNDER ENACTMENT OTHER THAN INDIAN DIVORCE ACT I. INTRODUCTORY 5.1. We shall now refer brieﬂy to the provisions as to jurisdiction to dissolve marriages. as contained in some of the enactmentsl relating to matriinonial jurisdiction in India.

lI. PARSI MARRIAGE ACT 5.2. Of these enactments, the Convert's Marriage_Dissolution Act, 1366 is no-t of much practical importance. The Indian Divorce Act, 1869, requires fuller discussion and we shall deal with it lateri.

The Parsi Marriage Act, 1936, which is chronologically the first of the remaining enactments, provides as follows' on the question of; jurisdiction of courts. in section 29-

"29i[l) All suits instituted under this Act shall he brought in -the court within the limits of whose jurisdiction the defendant resides at the time of the institution of the suit.

(2) When the defendant shall at such time have left India such suit shall be brought in the Court at the place where the plaintiﬁ and defendant last resided together.

(3) In any case. whether the defendant resides in the territories to which the Act extends or not, such suit may he brought in the Court at the place where the plaintilf and the defendant last resided together.

if such court, after recording its reasons in writing, grants leave so to do."

5.3. Section 29 of the Farsi Marriage Act, quoted above', brings in the foreigt element only in subsections (2) and (3); and. even in those _sub~sectious, it is not clear whether the sub-sections are intended to regulate, as a matter of prime international law. the iurisdicion of Indian courts. In this respect, the provision in the Special Marriage Act is more speciﬁc'.

1See para. 4.10, supra, for a list of the enactments. 'See Chapter 6, infra.

3Section 29. Parsi Marriage Act, 1936 'Para. 5.2, supra.

'Section 31, Special Marriage A611 593 P3-T'=L 5-4: infra-

lieport on Recognition Foreign fiivorces (Chapter 5.----.'ndian Law as to Jttrisdiction under enactment other than the Indian Divorce Aer.) III. SPECIAL MARRIAGE ACT 5.4. Under the Special Marriage Act,'--

"S1. (1) Every petition under Chapter V 01' Chapter VI shall be pre- sented to the district court within the local limits of whose jurisdic- tion the marriage was solemnized or husband and wife reside or last resided together.

(2) Without prejudice to any jurisdiction exercisable 113' the court under sub-section (1), the district court may, by virtue of this sub-section, entertain gt petition by a wife domiciied in the territories to which this Act extends' for nullity of marriage or for divorce if she is resi-

dent in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband' is not resident in the said territories."

5.5. It may be noted that the section 31 of the Special Marriage Act, quoted above.' is speciﬁc in one respect, inasmuch as sub-section (2) of that section seems to contemplate a case involving a foreign element. It emphasises the as-

-pect not of internal venue, but of jurisdiction with reference to private inter- national law. This is apparent from the reference to a. wife domiciled in the territories to which the Ace extends, and from the requirement that she should be resident "in the said territories"- These words do not insert any require- ment that the wife should be resident in the district or local limits of the dis-

-trict court. Rather, they focus attention on the territories as a whole. In this they seem to contemplate a case having a foreign element.

5.6. With reference to this Act, the question of private international law was considered in NeeIaJcam'an's case". The question which emerged for determina- tion, was thus formulated in the judg.mdt1t--

"Whether an application for divorce by a husband domiciled in India' and living within the jurisdiction of the District Judge. Jodhpur. can be made in the Jodhpur Court under the principles of Private International Law, although admittedly the marriage between the parties was not solem- nized within the jurisdiction of the said court, nor did the husband and wife reside at the time of the marriage or thereafter within the jurisdic- tion of that court as required by section 31 of the Special Marriage Act ?"

It was held that the Jodhpur Court had jurisdiction. on principles of pri- vute international law, though section 31 of the Act did not, on the facts, apply. In doing so. the Court pointed out that the husband was domiciled in India.

It is not necessary, for the present purpose, to examine the validity of the conclusion reached in this case to the eﬁect that a marrt'a~ge not soiemnized under the Speciai Marriage Act can be dissolved thereunder. Nor is it necessary for us to express any view on the observations as to private international law. We are referring to this case merely to show the emphasis placed in the judg- ment on the hushand's domicile in the judgment.

lsecuim 31. Special Marriage Act, 1954.

'Para. 5.4. Supra.

'Neelakaatan v. Neeiakantan, A.l.R. 1959 Raj. 133-. 'Emphasis added.

Special Matritlc Scope of sataﬂdl

31. _ --

l'~leelakantan's C380, MI-lindu Marries! Act-aﬁection 1 fl} and Section I9.

Case law on Hindu Marriage Act.

Provision ambi-

ﬂlolll.

Report on Recognition of foreign Binoreeli' (Chapter 5.----Indi'a71 Law as to Jurisdiction under enactment other that: the India:

Divorce Act.) IV. HINDU MARRIAGE ACT 5.7. In the Hindu Marriage Act, 1955, there are two provisions which should be noted.' Section 1(2) of the Act provides as follows:---

"{2} It extends to the whole of India except the State of Jammu and i Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories".

Next, we may refer to the provision relating to jurisdiction in the Hindu Marriage Act, which reads as follows:--

"I9. Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil juris- diction the marriage was solemnized or the husband and wife reside or last resided together".

5.8. Decided cases on section 19 of the Hindu Marriage Act illustrate the application of the section. Thus, it has been pointed out' that a plain readirg of section 19 shows that it gives a choice either to the husband or to the wilt to institute proceedings at three places.--namcly, where the marriage was solem- nized, or where the husband and the wife both reside at the time of presentation of the petition, or where both of them last resided together. Hence. where the marriage was solemnized at Delhi and the parties last resided for a short period at Chandigarh, the Court at Chandigarh would have jurisdiction. The phrase "last resided together" is not to be interpreted in a pedantic manner, and must be construed liberally and the Chandigarh Court will have jurisdiction apart from the Delhi Court. Of course, casual residence would not suﬂice.

It has also been held" by the Madras High Court that reading sections 19 and 21 of the Hindu Marriage Actﬁl-'1955, and section 3 and 20 of the Code of Civil Procedure, 1908. together. the Court will be justiﬁed in holding that the provisions of the Code of Civil Procedure are also applicable to applications under the Hindu Marriage Act, and the Court within whose jurisdiction the defendant is residing will, by virtue of section 20 of the Code, have jurisdiction. where the tests laid down in section 19 of the Act are not satisﬁed on the facts.

5.9. Section 19 of the Hindu Marriage Act' does not, however. very clearly indicate whether it is intended to apply also to cases involving a foreign element. In other words, it is not beyond doubt whether the section deals with jurisdic- tion amongst Indian Courts inter Se, or whether it is also intended to incor- porate a rule of oonﬂict of laws in regard to jurisdiction.

There is. no doubt, the general provision' as to application of the Act to Hindus" domiciled in India who are outside India--secti0n 1(2). It could be argued that section 1(2) impiiedly brings in the criterion of domicile, in regard to the exercise of jurisdiction by Indian Courts in general. Btu the matter is not entirely beyond doubt. For our present purpose. it is not neces- sary to express an opinion on the point.

1Section 1(2). and section 19. Hindu Marriage Act, 1955.

J.}.

"M. Gomnthi v. S. Natarajart, A.I.R. 1913 Mad. 247.

'Section 1(2), Hindu Marriage Act, 1955.

"Section 1(2), Hindu Marriage Act. 1955.

'Para. 5.7. supra.

isushma v. A. K. Dewan, A.I.R. I9'i3 P. 8: H. 256, 257, Para. 6 (M. R: Shams,"

Reparr on itemgnfrion of Foreign Divorces CHAPTER 6 JURISDICTION UNDER INDIAN DIVORCE ACT, 1869 I. INTRODUCTORY 6.1.. We shall brieﬂy deal, in this Chapter. with the provisions of the Indian Divorce Act. 1369. relating to the jurisdiction of courts thereunder in regard to divorce. The Act applies only to Christians: but the provisions are not con- ﬁned to marriages solemnized in India, and are wide enough 1o empower Indian Courts to dissolve a marriage soiemnized outside India, if certain conditions exist. ' II. POSITION BEFORE 1926

-5.1. The principal provision of the Act. relating to the conditions to be satis- ﬁed for the exercise of i-urisdictiotl. is in section 2. Before the amendment of the section in 1926. there was no restriction under the Act that the parties should be domiciled in [British] India. in order that the court may grant a divorce. Residence in British India was enough. After its amendment. the section docs insert such a requirement. We shall deal with section 2 in detail, later.' .63. Section 20 of the Code of Civil Procedure, 1908, which is the general provision as to venue in personal actions, brings in the test of either residence on the part of the defendant or the accrual of the cause of action or part of it within the jurisdiction of the Court, in order to enable the Court to entertain the suit. However, section 45 of the Indian Divorce Act, which makes the Code of Civil Procedure applicable, expressly makes it 'subject to the provi- sions herein contained'. We need not, therefore, discuss the provisions of the Code of Civil Procedure as to jurisdiction.

Thus, in determining questions as to the jurisdiction of the Court to en- l:ea'tai11 a matrimonial suit. no reference can be made 10 Sﬁciiﬂn 20 Of the CD116 ol Civil Procedure, 1908., even if that section can be construed as dealing with proceedings having a foreign element. Jurisdiction to entertain a matrimonial suit between Christians. is to he decided solely by a reference to sections 2 to 4 of the Indian Divorce Act. This position seems to have been accepted for a long time.

. 64. Section 2 of the Indian Divorce Act {before its amendment in 1926), so for as is material, was in these terms:

_ "2. Nothing hereinafter contained shall authorise any Court to grant any relief except in cases where the petitioner professes the Chris- tian religion. and resides in India at the time of Pi''E'-i'¢'"T1'"3 "13 peti.!'ion...............

or to make decree for dissoiuriori of marriage except in the following cases:

[a) where the marriage shall have been suitmnized in Iﬂdia. 01'

(b) the adultery complained oi shall have been committed in India."

6.5. Some of the cases on this section decided before 1926 laid down that residence was enough under the Act to confer jurisdiction on the court to try suits for dissolution of marriage F lsce paras. 6.4 and 6.11, infra.

'[1] Giordano v. Giordano. {I912} I.L.R. 40 Ca]. 215; raj Warwick -.2. Warwick, 64 P. R. 1900;

Introductory.

or Section 2. Divorce Act Section 45, Divorce Act.

Provision in Indian Divorce Act, [869 befcre amendment of 1926.

Previous cues.

Test of domicile.

Keys; v._ _I_Ceyes, and its CI'lt1€lS11|'l.

Report on Recognition of Foreign Divorces (Divorce Act. Chapter 6.--JuriSdictt'on. under Indian. Divorce Act, i869.) 6.6. Before the amendment' of 1926, thus, the view taken by Courts in India was that they could dissolve the marriage of spouses who were not domiciled in India. The result was, that the dissolution of a marriage by Indian Courts.

of parties not domiciled in India. was valid so far as Indian statutory work was concerned, but it had no eifect on the status of the parties in the com":-' try of their domicile.

3 n This gave rise to a deplorable state of affairs. and to "scandals" of the nature mentioned by their Lordships of the Privy Council in the concluding san- tence of their judgment in Le Mesurier v. Le Mesurier": "the scandal which arises when a man and woman are held to be man and wife in one country and strangers in another ................... .." 6.7. The question of recognising such a divorce, granted in India, arose in England. Sir Henry Duke, president of the Probate Division, decided in Keyes V. Keyesf that the Courts administering the divorce law in India had no juris- diction to decree dissolution of a marriage where the parties were not domiciled in India. He also decided that the Indian Councils Act, 1861, did not warrant the making of a law by the Indian Legislature to empower Courts in India to decree dissolution of the marriage of persons not domiciled within their juris- diction.

That decision was discussed in several reported cases in India". It was pointed out that it would have been enough for the Court in Keyes v. Keyes to say that since Le Mesuriefs case' or. at any rate, since Eater v. Borer,' the jurisdiction to decree dissolution of marriage depends, according to English law. upon the domicile of the parties. and that as the domicile of the parties in Kaye:

v. Kaye: was English, English Courts would not recognise. as valid in Engiand. a decree pronounced by a Court in India whose jurisdiction was based on a p1'i11clp]c--th8t of the residence of the parties at the time--which according to English law was not accepted as conferring jurisdiction.

In fact, in an early part of the judgment, the President said: "The peti- tioner has brought this suit to determine the validity or any rate in England. oi the decree made at his instance in India." It was. therefore. the extra-territorial validity of the Indian decree that was primarily in question in the suit. It was not necessary to go further to the extent of enquiring whether the power con- ferred by the Indian Councils Act, 1861, had been exceeded in enacting the Indian Divorce Act, 1869.

However, the decision in Keyes v. Keyes had the eliect of rendering vul- nerable, in England, the validity of many divorces granted by Indian Courts between parties who were resident, though not domiciled, in (British) India. This position was dealt with later by legislation, to which we shall refer in due course'. That legislation changed the basis of jurisdiction by substituting domi- cile for residence. As to the past. validating legislation was also enacted".

Wide amending Act 25 of 1926.

"Le Mesnrier v. Le Mesnrier. {I895} A. C. 517 (P. C.). "Kaye: v. Keyes, (1921) Probate 2104.

'Wilkinson v. Wilkinson, AIR. 192.3 Born. 321.

'Lee v. Lee, A.I.R. 1924 L311. 513.

'Better v. Baler. (1905) Probate 209.

'-'Para. 6.9, infra.

5Pa1-a, 6.12, infra.

Report on Recosnirioni of Foreign Divorces (Chapter 6.--Ja:rEsdic-i'r'on ifﬁdff Indian Divorce Act, 136 9.) 6.1!. After the decision in Hayes V. Kayes:-2 there were three courses open to the High Courts in India-

(a} to follow the decision in Ke_)=e.<: V. K-eyes that the Indian Legislature had no power to give the Courts llzrisdiction to grant decrees for dis- solution of marriage to nomdomiciled parties; or (in) to hold that the Indian Legislature had the power. but had not exer-

cised it; or

(c) to hold that the Indian Legislature had the power, and had exercis-

ed it.

For some time, uncertainty and conﬁict prevailed as towhich of these courses should he adopted. The position was clariﬁed by the Indian Legisla- ture, by amending section 2 of the Act.' III. POSITION AFTER 1926 6.9. Section 2 of the Indian Divorce Act, 1869' was amended bv Act 25 of ' 1926 and Act 30 of 1927. The elfect of the amending Act of 1926, broadly stated, has been to limit the power of the Indian Courts. in respect of granting decrees for dissolution of marriage under the Act, to persons who are d0m:'c:'ie'd in India.

6.1!). Now, the jurisdiction of the Indian Courts (under the Indian Divorce Act}. in the matter of dissolving marriages. is expressly limited by section 2 to persons domiciled in India at the time of presentation of the petition. There- fore, if the domicile of the parties is not Indian, there can he no dissolution by the Courts' in India.

6.1!. Present section 2 of the Divorce Act reads-----

"2. This Act extends to the whole of India except the State of Jammo and Kashmir.

Nothing hereinafter contained shall authorise any Court to grant any relief under this Act, except where the peririoner or respondent professes the Christian religion.

or to make decrees of dissolution of marriage except where the parties to the mm-ridge are domiciied in Imﬁ:'n' at the time when If:-e petition is presenlazf.

or to make decrees of nullity of matriage except where the marriage has been solemnised in India. and the petitioner is resident in India at the time of presenting the petition, or to grant any relief under this Act. other than a. decree of dissolution of marriage or of nullity of marriage, except where the petitioner resides in India at the time of presenting the petition." ' 1Keg:e.s ll. Xe)-es. (1921) Probate Iii!-=1.

'Para. 6.?, supra.

"Para. 6.9. infra.

'Para. 6.4, supra.

5i'a'J Wilson 1!. Wilson, A.I.R. 193] Lah. 245; (Nulli13'];

(bl P)-an V. Pyatf. ALE. I929 Lab' 555(Il'.

fol Hair v. Hnii. A.I.R. 193.1 Sind 70;

{d') Waflcr 'W. Walter, I.L.H.. 10 Lab. 64; PLLR. I923 Lab, 557; [33 Gram' V. Grant, 5.1.11. 1.937 Pat. 32.

Courses rm. In High Coifrls' am:

Kaye: V. Kern'.

Amendnnurta 1926 and 1921 Domicile I153! .

solo Presentsectinul.

U. K. Acts from 1915 to 1947.

Domicile as on date of petition.

J Ilisdicticn in nullity.

English Statute of I936.

Report on Reotrgnfriah sf Foreign Divorce:

(Chapter 6.----Jurisah'crion under Indian Divorce Act', 1869.) 6.12. Certain statutes of the UK. Parliament relevant to the above discussion irnay also be noted. The divorces granted in the past were validated in 1921 by an Act of Parliament} Under the Indian and Colonial Divorce Jurisdiction Act, 1926.' as amended by the Government of India (Adaptation of Acts of Par-

liament) Order, 1937. and the Indian and Colonial Divorce Jurisdiction Act. 1940.3 a High Court in British India, was given jurisdiction to make a decree for a dissolution of a marriage. and other incidental reliefs in certain cases not covered by amended section 2 of the Indian Divorce Act of 1869. The law to be applied by the High Court was the English law.

Section 17 of the Indian Independence Act. 1947,' provided that no Court in the newly created Dominion of India should have jurisdiction under the Indian and Colonial Divorce Jurisdiction Acts. 1926 and 1940, in or in relation to any proceedings for a decree for dissolution of a marriage (except for pend-

ing proceedings. but all Courts in India should have the same jurisdiction under .

the said Acts. as they would have bad if the Act had not been passed. subject to any further amendment of the law. either by an Act of British Parliament or by India.

The UK. Statutes are. therefore. of no practical importance now. But they have been referred to here as illustrating the proposition that in the absence of special statutory provisions, domicile came to be accepted as the only crite- rion for exercising jurisdiction under the Indian Divorce Act. 1869..

IV. MEANING OF 'DOMICILE' UNDER THE DIVORCE ACT 6.13. Thus, domicile is the exclusive head of jurisdiction under the Indian Divorce Act. 1869 for dissolving a marriage. It has been held' that for the pur- poses of the Act. the domicile must be decided as on the date of the petition for dissolution.

6.ld. Jurisdiction in regard to nullity is wider under the Act. In the case of Wilson v. Wilson', jurisdiction was exercised in regard to a petition for nullity even though the petitioner was not domiciled in India. because the marriage was solemnized in India. and the petitioner was resident in India at the time of the petition. This is permitted by section 2 of the Divorce Act.

On the other hand. it was held in Pyatr v. Pyatt,' that after the amend- ment of 1926. Indian courts had no jurisdiction under the Indian Divorce Act to dissolve the marriage of persons who are not domiciled in India.

6.15. Certain problems arose in regard to the Act of 1926------the Indian and Colonial Divorce Jurisdiction Act--16 & 17 Geo. 5. Ch. 14.' for example, the question which High Courts are competent thereunder arose. But we are not concerned with those problems.

'Act of l92l.

'Indian &. Colonial Divorce Iurisdiction Act. [926 (16 & 17 Gen. 5 C. 40). 'Indian 8: Colonial Divorce Jurisdiction Act, 1926 (3 & 4 Geo. 6 C. 35}. 'Indian Independence Act, 1947 (10 a: 11 Geo. 6 C. 30}.

Mttauitnh v. Artazdlah, AIR. 1953 Cal. 550 (3. B3.-

5W:'!son v. Wilson. A.I.R. 1931 Lab. 34-5.

'Pym: v. Pyatr. A.I.R. 1929 Lab. 565(1).

"Waller 1:. Walter. A.I.R. 1923 Lab. 557.

Report on Recognition of Foreign Divorces A (Chapter 6.---Jurisdiction under Indian Divorce Act', 1869. Chapter 7.--Engh'.rh common Law as to Recognition.) In a Sind case'. the effect of the Indian and Colonial Divorce Jurisdiction Act of 1926. was noted and it was pointed out that while High Courts estab- lished by Letters Patent could "exercise certain additional jurisdiction there- under. other courts' jurisdiction was based exclusively upon domicile. and it was expressly held that the fact that the marriage was solemnized in India. or the adultery was committed in India, was of no consequence.

6.16. In determining the domicile of the parties in 'a proceeding for d:isso1u- Indian 13* l|n¢_1°f tion of marriage, it is the domicile of the husband alone which is to be con- ml" ta sidered. inasmuch as a wife takes the domicile of her husband upon her dﬂﬂﬁcilﬁ 01' Vi'!-

marriage."

6.1621. If the husband has deserted his wife, the original domicile of the wife l_b'oman'I domi- is not automatically revived, and the domicile acquired by her upon her rnar- "'9' riage does not come to an end. This is well established by a series of decisions' in India.

6.17. We have referred to the UK. Acts supplementing the Divorce Act.' The 5°' 0' 1943- only other statutory exception to the requirement of Indian domicile by a party seeking a decree for divorce from an Indian Court under the Divorce Act is pro-

vided in the Matrimonial Causes (War Marriages) Act', which has been adopted on the lines of the similar English Act of 1944. The Act enables a wife married to a person domiciled outside India, to have the marriage dissolved or annulled on the grounds mentioned in the Indian Divorce Act". provided (a) the marriage was solemnised during the war period {Second World War), (1)) the wife was immediately before the marriage domiciled in India, and (c) the parties have not, since the so-lemnisation of the marriage, resided together in the country of the husband's domicile. In addition, the parties must be Christians.

If these conditions (and certain other minor requirements not material for our purpose) are satisﬁed, the High Court shall have jurisdiction in, and in relation to. proceeding for nullity or divorce, 'as if both parties were at all ma- terial times' domiciled in India. The proceedings will be governed by the Indian Divorce Act. The Act also provides that the validity of any decree or order made in the UK. under the U.K. Act of 1944-----which is the corresponding U.K. Act--shall, by virtue of this Act, be recognised in all courts in India.

CHAPTER 7 ENGLISH COMMON LAW AS TO RECOGNITION 7.1. The subject matter of this Chapter is the English common law on the E1013: 0! the subject of recognition of foreign divorces and decrees of judicial separation. 3pm' We have already indicated its relevance to the present discussion.' 'Half V. Hail, A.I.R.' 1933 Silld 72, 73. _ EA rrottiiah V. Amzuiiah, A.l.R. 1953 Cal. 530, 534, 535. '(a) Prom Pmrap V. Iago: Poieg. A.l.R. I94-4 All. 97, W0', (la) Rooks 'IF. Rooké, A.l.R. 1934 Bom. 230',

(d) Snrmarhi Amt:-mi v. D. Pant, A.I.R. 1936 Mad. 324. para. 9-10 (Moeket, J. in order of reference];

fr.) Neelaktmtan V. Neeiakanian, A.l.R. 1959 Raj. I33, 134.

'Para. 6.12, supra.

5The Matrimonial Causes {War Marriages Act, 1948] (40 of 1948).

"The Indian Divorce Act, 1369.

'Chapter 6. supra.

Chronological devel-opments--

Domicile.

Lolley's case and subsequent deci-

sions npto Show '5'. Gould.

Niboyct v. Niba-

vet {test of actual residence).

Le Mesurier V. L? Metsurier.

Factors not affectg ins validity of decree.

Report on Recognition of Foreign Divorces (Chapter 7.»---Er:giish common Law as to Recognition.) 7.2. It would be convenient to deal with the subject chronologically, and to discuss the various developments in order of time.

The orthodox doctrine of English common law was that, in general. a foreign court is competent to grant divorce only if the parties are domiciled within its jurisdiction at the commencement of the proceedings of divorce. Such a divorce. but no other, would be recognised by English courts. The "domi- cile", for this purpose, is taken in the English sense. Mere temporary residence does not fall within the purview of "domicile", 7.3. This position, however, did not come to be established without consider- able fluctuation in opinion. In R. v. Loileyi, the opinion had been expressed that as to the dissolubility of marriage, regard was to be had to the tent Ioci contractus, and the "English marriage" could be dissolved only in England. This approach was, however, refuted by Lord Westbury in Show v. Goutf.

7.4. The majority decision of the Court of Appeal in Niboyet v. Niboyet' had laid down the principle of actual residence for the exercise of English domestic jurisdiction; but this decision retained only a temporary sway. The majority in that case would seem to emphasise the fact that the spouses actually reﬁded in England, and were not merely present there casually or as travellers. On this basis, the English courts were (according to the majority view] competent to dissolve their marriage even though the panties were not actually domiciled in ' England. Of course. the issue in Niboyet was not one of recognition of a foreign judgment, but of the jurisdiction of English courts. However, its indirect im- pact on recognition could have been tremendous, if it had held its sway.

7.5. But Niboya-ti did not retain its sway for long, and in Le Masunier v. Le Mesurier". domicile was regarded as the only test for the exercise of jurisdic- tion. It was not a case relating to the jurisdiction of English courts, but had an indirect impact thereon. Since it was decision of the Privy Council, it did not formally overrule the decision in Niboyet v. Niboyat: but the rule laid down was unquestionably regarded as a rule valid for the exercise of jurisdiction by' English Courts also.

Thus. in Im1'vka'.s case'. Lord Wilberforce observed--"Le Mesurier was not a case concerned with recognition at all, but it would not be right merely to dispose of what was then said as obiter dicta. For, not only have later cases on recognition made it a ground of their decision, but also the reasoning itself rests on the hypothesis that a common legal structure can be found to contain both the domestic jurisdiction of English courts and recognition by' them of foreign decrees."

7.6. After the decision in Le Mesurier', then. the principal criterion for recog- nition of a foreign divorce was that of domicile. If the foreign court has oom- petence on the basis of the test of domicile, the decree passed by that court is unatfected---

1Shau.' ~.~. Gould, (1865) L. R. 3 1-1. L. 55.

'R. V. Loiicy, (1812) Russ 3:. R3'. 237.

'Show v. Gould, uses) Law Reports 3 House of Lords 55. *Niboye.r V. Niboyet, (1392) 4 P. D. ].

5.'~.?ihoyet v. Nibc-yet, Para. 7.4, supra.

5Le Mesurier v. Le Me.s'un'er, ([895] A. C. 517 (P. C-3- Tlndyku v. Indyku, H957) 2 All E. R. 639. 720.

"Para. 7.4 and 7.5, supra.

Report on Recognition of Foreign Divorces {Chapter 7.--EngIish Common Law as to Recognition.)

(i) by the domicile or nationality of the parties at the time of the marriage';

(ii) by the law of the place where the marriage was celebrated; or

(iii) by the fact that the act constituting the ground of divorce was com-

mitted outside the jurisdiction of that court.

'With reference to proposition (i) above, it may be stated that in Harvey v. Fornie", for example, the English court recognised the decision of a compe- tent foreign tribunal which dissolved the marriage of a couple domiciled within 'its jurisdiction at the time of institution of the proceedings. The Court ignored the point that the woman was domiciled in England at the time of the marriage.

1.7. The test of domicile was elaborated and subjected to certain reﬁnements in course of time. One reﬁnement may be noted in this connection, If the husband is domiciled in State X. and obtains a divorce in the courts of State Y. English courts will recognise3 the validity of this decree, if it would be recog- nised by the courts of X. Secondly, it was held' that it is irrelevant for this test whether the parti- cular ground upon which the divorce is granted. by the foreign court would or would not be recognised by English municipal law.

It was also laid down that the decree will be recognised by the English court if the foreign court of competent jurisdiction applies local or any other law to grant the decree. even though that law differs from English law as to the ground of divorce. This rule is. however, subject to the doctrine of public policy. - ' 7.8. Judicial decisions also made it clear', in 1953, that recognition would be granted where facts existed which would have given English Courts jurisdic- tion. even though the foreign court had assumed jurisdiction and granted a decree on a ground not recognised in English Courts as a ground for divorce. Thus, when applying this rule, the English Court is not concerned with the ground on which the foreign decree was granted. but with the facts in the 0011- text whereof it was granted.

The law in England on this subject is now to be found in statute'. which we shall discuss later.

\ 7.9. The result of these judicial decisions was that domicile of both parties was the principal test for the---(a) exercise of jurisdiction in divorce---by domes- tic English courts, and (b) recognition of a divorce,--g1-anted by foreign courts.

To the general rule of domicile, additions were made in course of time. The first such addition' took place in 1953. when the principle was laid down that if a wife obtains a divorce in a foreign country where she is not domiciled. and the facts are such that the English courts would exercise jurisdiction to 15431: Harvey V. Forrrie. (1882) 8 App. Cat. 43. 3Hay1:g}P v. Famie, (1882) 3 App. Cas. 43-.

3A.vmitage v. A. G.. [1906] Probate 135, approved by Lord Reid, Lord Pearce and Lord Wilberforce in Indyko v. Indyka. (1967) 2 All E. R. 639 (1969) 1 A. C. 33 (H. 1...].

'Enter v. Borer. (1906) Probate 2.09.

'Robinson Thod 1:'. Robinson Thod. £1958] Probate 1. 'English Act of I971.

'Travers v. Holley. (1953) Probate 246.

Decree able by domicile.

Ground diction teriaJ.

Result 53 recognis-

court of of juris-

immate-

IIIIIIIIIIIT.

Real and subs-

tamill connection.

Grounds of re-

cognition summed up according to position at com-

mon law.

Report on Recognition of Foreign Divorces . (Chapter 7.----Engir'sh Common Law as to Recognition.) entertain her petition for divorce (on the ground on which the foreign court exer- cised jurisdiction), then the divorce could be recognised in England. This rule owes its origin to the fact that in certain circumstances, an English court could itself exercise jurisdiction to hear the petition of a Wife for divorce by virtue of a speciﬁc statutory provision even though the parties were not domiciled in England.

The Court of Appeal made another break into traditional principles. in the case of Travers v. Holley'. The question in that case was whether the English court could recognise as valid, a decree of divorce granted by the Sup- reme Court of New South Wales under legislation analogous to section 18 of the English Matrimonial Causes Act. 1950 (jurisdiction to grant divorce to the wife in certain cases). The Court of Appeal allowed recognition of a foreign decree based on a residential jurisdiction common to the English and the foreign law. "On principle it seems to me plain", said Somervell L..l., "that our courts in this matter should recognise a jurisdiction which they themselves claim."

Hodson L.J. added: "The principle laid down and followed since the Le Me- surier case must be interpreted in the light of the legislation which has extend- ed the power of the courts of this country in the case of persons not domiciled here."

7.1!}. In 1969. the House of Lords, in the case of indykcr'. added a further ground, whereunder recognition is afforded to any foreign decree of divorce "wherever a real and substantial connection is shown between the petitioner and the country or territory which granted the decree." Of course. the facts of the case were rather complicated and, moreover, since several judgments were given by the various law lords, it has not been found easy to make any deﬁnite statement as to the proposition laid down by the House." But, in general. the above is believed to be a fairly accurate statement of the gist of the decision. so far as is relevant to the question of recognition.

7.11. On 'the basis of what we have stated above, the rules of English common law on the subject of recognition of a foreign decree of divorce or legal sepa- ration (apart from statute) could be summed up, by stating that such recogni- tion would be granted by an English Court if---

(a) the parties were domiciled in the foreign country concerned'; or

(b) the decree is obtained by the wife, and the facts are such that the English Court would have jurisdiction" to grant divorce: '

(c) the decree is such that though not granted by a court of domicile, it would be recognised by a court of domicile': or (cl) a real and substantial connection is shown between the petitioner and the country which granted the decree'.

'Travers v. Holley, Probate 246, 251, 257.

Elndyka v. Irzdyka, (1969) A. C. 33 (H. L.].

3A5 to nullity, see Law v. Gusrin. (1976) 1 All E. R. 113. 'Paragraph 7.2, supra.

5Paragraph 7.3, supra.

'Paragraph 7.6, supra.

'Paragraph 7.10, supra.

fieport on ﬁecognition of Iioreign Divorces (Chapter 7.----E'ngIish Common Law as to Recognition. Chapter 8.----Exrra- Judicial Divorce.) As to the last mentioned ground, however, it should be repeated that this ground. based on the case in the House of Lords in Indyko v. Indyka', is only a statement of the law as probably was laid down, and not as a very deﬁ- nite Statement. In any Case. the law on the subject is now to be found in the recent Act of 1971, which contains a statutory" provision which, in elfect. bars the extension of the grounds of recognition.

7.12. So much as regards the grounds on which recognition would be granted at common law. It is an over-riding requirement of recognising any foreign decree that it was not obtained fraudulently'. or in circumstances which, accord- ing to fundamental principles of the English law. amounted to a denial of na- tural justice, or (according to one view) even substantial justice.

7.13. This brief discussion of the English law does not have mere academic interest. because. as we have already stated'. in the absence of speciﬁc statutory provisions to the contrary, in general, English rules as to the conflict of law, that is, the rules existing on the subject in the common law, as unmodiﬁed by statute, would be of assistance.

CHAPTER 8 Extra-Judicial Divorces I. INTRODUCTORY 8.1. In discussing the English law of recognition, we have so far conﬁned ourselves to the recognition or nonrecognition of foreign judicial divorces.--i.e., the competence of a foreign court to grant a divorce or judicial separation. We have not touched the more diﬁicult question of recognition of foreign cxmtz-judicial methods of divorce granted under the personal religious law of the parties. We shall now deal with it.

8.2 _ By "extra-judicial" divorces we mean divorces where there is no decree of the court.

The varieties of extra-judicial divorces are numerous'. There may be some unilateral act.------as, for example, the unilateral act of the husband, known as 'Ialaq' in Muslim law" or the consensual act 'Chctt' of Jewish laW'--or there could be some other form."

Sometimes, there may be a minor judicial formality also. At the trial in in Russ v. Russ". for' example, evidence as to Egyptian law was given by Dr. Jamal Nasir. an advocate in Mohammedan law who had practised in Moham- medan courts in Egypt. The eliect of his evidence was conveniently summarised by the judge in the course of his judgment. as follows:--

llmiyka v. indyka, para. 110, supra.

Chapter 3, infra. ' 'Middleton v. Middleton, (1967) Probate 62. 'Chapter 4, supra.

5See para. 3.3 and 8.4, supra.

'Para. 8.6, infra.

Tara. 8.5, infra.

' :5" part 3,4, mfra (enumeration of various forms).

93;.-ss v. Ross (1962) 1 All E. R. 649, 651, quoted by the Court of APNBI 3150 in {1954} Probate 3-15.

Restrictions on recognition.

Indian law.

Recognition of extra-judicial foreign divorces.

Scope and varie-

ties.

Classes.

Iieporr on ﬁecoyrﬁion of Foreign Divorce'? [Chapter 8.---Exrra-Judicial Divorces.) "(:0 Egyptian law recognises and gives eifect to Mohammedan religious law as the personal law of a Mohammedan domiciled in Egypt.

(h) Under Mohammedan law a man may have four wives. in other words, marriage is potentially polygamous.

(c} Under Mohammedan law a man may divorce his wife irrevocably by pronouncing 'Talak' three times in the presence of witnesses. No judicial proceeding or investigation is required before a man exer- cised this right. The divorce is constituted by the unilateral declara- tion oi the husband in the presence of at least two witnesses. The wife need not be present, not be given notice of the intention to divorce.

(d) Egyptian law recognises, and gives eﬁect to. a Talalr divorce pro- nounced by a Mohammedan domiciled in EgypL The marriage is recognised by Egyptian law as dissolved with effect from the date of the declaration; and this is so wherever the marriage was solemnised. It gives elfect to the dissolution in a number of ways; for instance. Talalr may be and almost always is pronounced before an authorised oiiicer of the Egyptian court concerned with questions of personal status, whose duty it is to record the divorce in the records of the court. The record then constitutes, as Dr. Nasir was at pains to point out. the solemn recognition by the courts of Egypt of the fact of divorce. And the parties to the dissolved marriage may have recourse to the appropriate Egyptian court in matters of the maintenance and support of the divorced wife."

II. CLASSES OF EXTRA-JUDICIAL DIVORPES 8.3. Extra-judicial divorces could be broadly classiﬁed into those dependent entirely on the parties' volition and those requiring the approval of some autho- rity. The authority, again, may be administrative, religious. quasi-judicial or judicial. Often, the administrative or other authority does not make an indepen-

dent inquiry. but merely sets its imprimamr. by way of record. upon the forma- -

lities undergone by the parties. Again. reverting to the ﬁrst class of extra- judicial divoi-ces--i.e., divorces purely by action of the parties. the divorce may be effected by act of one party, or it may require the concurrence of both. To some extent, this endless variety and numerous classes e'.ttra'-judicial divorces have contributed to the obscurity of the position regarding their recog-

nition that prevails in England'.

13.4. Writing in 1952. Gravesen' classiﬁed extra judicial divorces as---

{i) unilateral:

{ii} consensual;

(iii) pronounced by some non-judicial authority of the Store, whether legislative or executive: 01' - ' {iv} religious.

_ lsee para. 6.8, ct scan infra-

'Graveson, "Recognition of Foreign Di'-'°1'¢5 D"

sections 149, 160.

recs" (1952) 37 Grotius Socict? Tran-

Report on Recognition of Foreign Kiivorws [Chapter 8.--Ex:ra-Judicial Divorces.) But he added that of these, the fourth case--religious divorces--would seem to fall either into the category of unilateral divorces, in which some religious oﬂicial takes a minor part; or into the broad class of judicial divorces, as in the Rabbinical law'.

For our purposes, it is suﬂicient to bear in mind that divorces entirely dependent on the act of parties present greater problems than divorces re- quiring some kind of formal 'proceeding'. This will be evident from the dis- cussion of the words "judicial proceeding" in the later paragraph of this Chapter".

8.5. A few examples of extra-judicial divorces may now be referred to. A "':;';"_'j',';*"1'i1":i:l°fdiv':_','.:

Jewish divorce is effected by the husband delivering a Ghat (bill of divorcement), ces. i.e., a written document, to his wife. The consent of the wife is essential to the divorce. The ceremony takes place before "a Rabbi and two witnesses". The divorce, however, takes effect by the act of the husband; the requirement of the rabbi and witnesses is more to authenticate the delivery and to ensure that moral grounds exist for the divorce _and that the parties both consent and understand the nature of the act?"

8.6. A Muslim divorce in the Talalc form is traditionally eltected by the husband pronouncing three time the word "Tala1c" (I divorce you). The wife need not be present, and she need not be given prior notice of the intention to divorce her.

According to ancient Islamic law, these procedures can be undergone without any reference to any court or other authority. In modern times, how- ever, the civil authorities in many Muslim countries do require further forma- lities which make the act of divorce more public, or [as in Pakistan and Egypt) give greater protection to the wife'. ' Ill. ENGLISH LAW BEFORE 1971 8.7. As to extra-judicial divorces, the English rules of recognition before 1971 E_xtra-judicial developed mainly in relation to polygamous marriages and underwent many d"'°r°°5' I changes. Initially, there was reluctance to recognise them, but later, there was greater readiness to do so.

The leading English case on extra-judicial divorces is Har s.FIefi'--to which we refer here because the rule laid down therein was valid at least when the Act of 1971 was passed. In that case, a domiciled English woman married a domiciled Israeli in Israel. For a time they lived together in England, though at all material times the husband retained his domicile in Israel. The husband delivered to the wife in England a Jewish "bill of divorcement", purporting to dissolve the marriage, and returned to Israel. The wife remained in England. She sought a declaration in the English courts that her marriage had been lta) Sasson v. Sassorz, (1924) A, C. 1007 (P. (3.).

(la) Priger v. Priger. (1925) 42 T. L. R. 23].

{c) Spivnck v. Spivack, (I930) 46 T. L. R. 243.

9Para. 8.13 et seq., Infra.

"See 37 Modern Law Review at page 611.

'See 37 Modern Law Review at page 612.

5(3) Hgy shaft v. Her Shaﬁ No. 1 (1953) 1 All E. R. 983. For comments, see (1953) 30 S. Y. B. I. L. Pages 524-527- {b) Har Shafi No. 2 (1953) 2 All E. R. 373.

mu.

[Judicial law.

Report on fiecognirion of Foreign Divorces (Chapter 8.----Extro-Judicial Divorces.) validly dissolved and no longer subsisted, or. alternatively, that she was no' longer married to the respondent.

It was argued on behalf of the wife that, following the divorce. the wife had resumed her English domicile of origin and that was sufficient to give the court jurisdiction to declare her status. Denning L.J. said: "Now that involves a nice question. whether she has resumed her English domicile, and that depends on whether the divorce was valid or not. If the divorce was valid, she was free to resume her English domicile and she has in fact resumed it: but if the divorce was invalid, she is still married to her husband and she retains his domicile. So the jurisdiction of the court depends on the validity of the divorce; and that depends in turn on the law of Israel. I do not think that we should send the wife to Israel to determine that question. The English courts can hear evidence of Israel law and can decide whether the divorce was valid by that law or not. If it was valid by that law. then the English courts have jurisdiction to declare it to be so."

The divorce was ultimately recognised, because it was valid by the law of domicile.

8.8. Thus, in Hair Shotei V. Har Skater". where the question of recognition arose in relation to a Jewish divorce by delivery of a bill of divorcement. it was implicit in the decision of the court of appeal that the question depended. not on the existence of any decree; but on whether such a divorce would" be recognised by the court of the domicile. viz.. the Republic of Israel. In Sasson v. Sasson, 1-" the decision of the Privy Council was founded on the fact of recog- nition by the court of domicile of the validity of a similar Jewish divorce. Armistage v. A. G.," shows that a divorce will be recognised. notwithstanding that there is no decree of the eourt of the domicile,-provided it is proved that it would be recognised by the court of the domicile.

In Raturnachai v. Ratanachai', recognition was accorded to divorces valid by the law of the domicile, even though not pronounced by any court.

3.9 The view that English law will not recognise a foreign divorce unless "decreed by a court of law" or "r'nvolvr'r¢5' 30-'Tie. lﬂfﬁciﬂl P-"00I'3~93" 1133 110*: thus- found favour.' The Court of Appeal in Ru-is (Om Geﬁefsl "- Rm' did; h_°'_"' ever, expressly rely on the fact that the foreign divorce involved some Il.{dI£'Ia.l process as a feature distinguishing it from the Hammers-m:'.r}: Mmiase CREE'-

In the case of Lee v. Lou' an agreement of divorce entered into by a husband and wife in Hongkong, which had been unaccompanied by any judicial act, was held to have validly dissolved the marriage between them. In this case. the husband and wife were born in Hongkong, and lived there during their childhood.

'Ha: Shafei (1953) 1 All E11 783.

1-"Sauon V. Suntan, {I924} A. G. 1007- BA,-mfmgg v. A. G. (1906) if:-olmte 135. I u ' _ iﬂamnchai, v. Ratanchai, [June 3, I960), "The Times , June 4, 1960, cited in Run 1'.

Russ. (1964) Probate 315.

Iuxgnngdy in (1957) 35 Can. Bar R. 642, 645; Cowen (I952) 63 L. Q. R. 83, 92.

5Ru.rs v. Russ. (1964) Probate 315.

'Hnmmersmith Marriage 01359: (19171 , 7;" 1r_ Lam, (1964) 2 All E. R. 248; Comment by Webb 1n [1965] 28 Modern Law Rev.

109. Report on Recagﬂitiﬂn of Foreign Divorces (Chapter E.~ExIra-Judicial Divorce.) In Manning v. fvfctmringl a Norwegian divorce was recognised by the English court. It had been granted not by a court of law. but by an adminis- tratlve authority.~the County Governor of Bcggen 3.10. On the basis of the above case law. the position before 1971 can be summed up as follows:

(a) If, by the law of domicile. the married status has been extinguished.

parties.

(b) If. by the law of domicile, the married status as been extinguished, that fact should be recognised in England'.

The question thus turned solely on the don1icile of the parties at the time of the dissolution.

(1') If the parties were, at that date. domiciled in England, the divorce had no effect on their marriage, according to English law'. ' But. if. at that date, the parties were domiciled abroad in a countrv. the law of which recognised that the parties (or one of them} had a power effectively to put an end to the marriage without the need for recourse to the courts. then the exercise of such a power validly dissolved the marriage in English law'.

tiil {c} For this purpose, it is not relevant for the court to ask either where the mariage was celebrated, or even where the dissolution was effect- ed. Consequently, the English courts have recognised a talaq divorce even though the marriage had been celebrated in England in accord- ance with the requirements of English law and the non-judicial pro- cedure had taken place in England'.

IV. ACT OF 19?] 8.11. We may now discuss the position under the English Act of l97l-----the Recognition of Foreign Divorces and Separations Act, 1971 regarding extra- judicial proceedings. In the Act" of 19?l, under section 2, divorce by "judicial or other proceedings" is recognised, subject to the other conditions laid down in the Act. It is not, however, clear if these words cover "Talaq". If these words cover 'talaq' then, as is often pointed out, the only protection of the wife is that she must be given notice of the proceedings" and recognition may be withheld if the proceedings are rnaiufestly oontrarv to public policy".

8.12. But is should be pointed out that "public policy" has rarely' been invoked in this area of the law. 50, one has to face the question whether "proceedings" in this Act includes a 'talaq'. This is not an easy question to answer.

'Manning V. Manning, {I953} 1 All E. R. 291, Comment by Linger in (1953) 21 Modern Law Review 415.

"See, for example. Qureshi v. Qureshi, (1972) I All E. R. 315.

3P1-gggr_ 1.-'_ Preger. T. L. 28}, 283.

'Hg; Sﬁgfgf v. Har Shafei ('_No_ 2] (1953) Probate 220, 224.

5Q.ure.rin' 'I»'. Qrirerhi, (1971) 1 All E. R. 325.

"Section 2, Act of 1911.

'Section 2, Act of 1911.

'Section $2) {bl Act of 1971- '5--.5 r.D{ND;,r75 t_5I Position summed up.

Position regard-

ing extra-judicial divorces under Act of E971.

Expression "Judicial or other proceedings".

Position under Act of 19TI.

Act of I973 'in relation to English divorces.

I.iteratLI1'c.

Report on Recognition of Foreign Divorces (Chapter 8.--Extra-Judicial Divorce.) 8.13. The Act of 1971. section 8. sub--section [2}{b). applies its provisions to divorce which has been obtained by means of "judicial or other proceedings", in any country outside the British Isles, if they are "effective under the law of that country". The question whether "proceedings" includes extra jndiciail divorces was inconclusively discussed in the House of Lordsla in the debates on the Bill.

In the case of Rondwan', decided after the Act of 1971, it was assumed, but not decided. that section 2 of the Acti' of 19?] was applicable to an extra- judicial divorce. it being "other proceedings" within the meaning of section 2.

8.14. In view of the ambiguity of the words "other proceedings" in the English Act' of I9".-'l---an ambiguity which is found', also in the relevant paragraph of the Hague Convention"-7 it appears that it is possible to take the view that extra-judicial divoroes----{i) are not governed by the Act of l9'r'l. and (ii) are governed by the Common law.

8.15. It cannot be said that the problem is new. It may be noted that the Royal Commission on Marriage and Divorce' had recommended the recognition of a foreign divorce "obtained by judicial process or otherwise" which has been granted in accordance with the law of the country in which one spouse was. or both spouses were, domiciled at the time of the proceedings.

'V. I973 AC1"

8.16. At this stage, we may also state that the position as regards ext.ra--judicial divorces pronounced by a party or by a non--judicia1 authority in the United Kingdom has now been changed by section 16(1) of the Domicile and Matrirnonial Proceedings Act, 1973, which provides that "No proceeding in the United King~ dorn. the Channel Islands or the Isle of Man shall be regarded as validly dissolv- ing a marriage unless instituted in the courts of law of one of these counties".

However, under section 16(3), this provision does not affect the validity oﬂany divorce obtained before 1974 which would be recognised as valid under "the previous recognition rules, i.e., under the common law rules.' Thus, section 16 appears to deny recognition to any extra-irrdicirrl divorce obtained in England after 1973. and reverses the decision in a case like Qnreshi v. Qureshi."

But ambiguity survives as to overseas divorces. obtained extra judicially.

8.16:1. In a recent issue of the Law Quarterly Review", the question of extra- judicial divorces has been considered, and the earlier article" on the subject has been referred to. The discussion shows that the position is not certain.

('For House of Lords Debates, see voI.ilsi--si,i volume 433 to 497, Vol. 315, Col. 1043 to 1051. and Vol. 322. Col. S51 and 854.

"For Debates in the House of Commons, see para. 8: 18 infra. Eﬂarrdwan v. Rondwarr, (1972) 3 W. L. R. 735, 739.

-"Para. 3.4, supra.

4Para. 3.5, supra.

53-ee, further, para. 8: 19 et. seq., infra.

'Article 1 of the Hague Convention.

7Para. 8.17, infra.

'Royal Commission Report, Omd. EJETS (1956). draft 5. 8. 9Section 16, The Domicile etc. Act, 1973.

"'Qures.'u' v. Qnreshi (I971) 3 All E. R. 315.

"Jafrev, "Recognition of Extra Judicial Divorces" (Note); (1915 July} 91 Law Quarterly Review 320. ' "North, "Recognition of Extra-Iudicial Divorces". (1975) 91 Law Quarterlylkeview 36. g Report an Recognition of Foreign Divorces (Chapter 3.-Extra-Judiciai Divorce.) VI. UNCERTAINTY UNDER 1971 ACT 8.17. Thus. the position regarding overseas extra-judicial divorces is uncertain, so far as their recognition in England is concerned.

Article 1 of the Hague Convention refers to the recognition of divorces and legal separations "which follow judicial or other proceedings_ oﬁiccially re- cognised in the State where the divorce was obtained." The use of the phrase "other proceedings" appears in the first original draft convention. and it is stated in the commentary thereon that'-

"the term proceedings shows that only those forms of the severing of marital bonds fall within the Convention. where it is an official authority, independent of the parties, that has acted. The oﬂicers, eg. of a notary public, who would act at the request of' the husband only and would merely take official notice of the repudiation of the wife, would be re- moved from the Conve-nticn."* However. a number of States were uneasy as to the scope of the require- ment of "proceedings". and specially whether that requirement would permit recognition of Jewish and Muslim divorces'. The United Kingdom proposed an amendment to clarify the situation so that the Convention would apply "whatever he the forms or methods of divorce which the State provides or per-

1nits."' The United Kingdom amendment was. however. rejected although doubt was expressed as to whether some forms of divorce. for example, 'talak' divorce would fall within the original draft.

8.18. During the debates on the Recognition of Divorces and Legal Separations Bill. 1971. implementing the Hague Convention, concern was expressed in the House of Commons, both in Committee'' and on the Report stage'. over the meaning of the words "other proceedings" in section 2 of the Act of 1971. Amendments were' introduced to make more speciﬁc provisions for talak and other informal divorces. The main cause for concern was whether the use of "proceedings" in other sections of the Act" did not pre-suppose:

"Some sort of quasi-iudicial nature and involve some kind of decision by some person or tribunal in regard to contending parties, or parties that may be able to contend. rather than simply the pronouncement of a divorce by one party to the marriage.''"

"Some of the material as to Article 1 of the Convention is taken from P. M. North. "Extra-jdicial divorces" {l9T5) Ianuary, 91 L. Q. R. 36. 43 to 50.

apmgggdings of llth Session, Hague Conference 1970 at page 19, and see at page 58. apmcggdings of 11th Session, Hague Conference (19'!0}, at pages 76. 81, 33.

'Proceedings of 11th Session, Hague Conference (1970). at page 94.

5Standing Committee B, June 22, I971, Cols. 3-ll}. "H. C. Debates, Vol. SZI. Cols. I65-I71 (12th July, 1974].

7E. G. Mr. Silkin, "act or proceeding".

"Sections 3. 4. 5. 3- 'Standing Committee 3. June 22, 197], Col. 4.

Debates in Hague Conference.

Debates in House of Commons.

"Single act or event" whether .::ov-cred by "other proceedings".

Report on REC-'-'nr1it:'0n of Foreign Divorces {Chapter 8.--E'xrra-Jua'i'cr'nl Dim-rce.l 8.19. A further problem that was discussed during the debates on the Bill. was whether "other proceedings" was an apt phrase to cover a divorce by a _-:54-zgle ac: or «E|«'£'i1'!I.. as in some cases of talalt. rather than the more usual case of a sequence of event'. However, these objections were not aoee-pied by the then Solicitor-General" who pointed out that the Act is not intended to afford recognition to all informal divorces. but only to those which have the nature or quality of an oﬁiciai act'.

Mr. Silkin' proposed the insertion of words to make it read "judicial or other act or proceedings." But the Solicitor-General said'. "I suggest that the inclusion of the words 'or other proceedings' at least makes it plain, ﬁrst of all. that the other proceedings need not thetnselxfes be judicial, as I think the hon. and learned Gentleman accepts.

"It follows that the other proceedings can include administrative pro- ceedings, including possible registration in a Government oﬁee or' divorce by legislation. It can also include proceedings which do not involve the interven- tion of an oiﬁcial; a formal series of steps following a strict legal pattern such as those taken in a talak divorce, where the official plays no part and where no olﬁcial step is necessary to register til-BtI]."'3 "The hon. and learned gentleman's point is so far so good, but "pro- ceedings" implies a sequence of measures. a degree of formality and bureau- cracy and judiciality which could result in excluding from the Bill some single acl taken by the parties resulting in divorce by the country' in which that act is being taken. The diﬂiculty is thatif one takes a single step like that. an act as opposed to proceedings'. or even a 1:-rooeeding--whicl1 was one of" the alter- natives ] thought of at one time--one.might arrive at a proceeding an informal as to make it diﬂicult to bring it within the frame-worlt of this kind of recogni- tion. "

The Bill. and any Bill of this kind. must depend on the possibility of identifying a particular moment of time jurisdictionally at which the act or pro- ceeding can be identified between the act and the jurisdiction under whose law the matter would tie valid."

8.20. [ntervening at this stage. Mr. Silkin said:

"Would the 'informality matter so long as the country -concerned accept- ed the validity of the divorce or legal separation resulting from it'? Is not that the key to the intent of the Convention '3"

To this. the Solicitor-General replied----

"I hesitate to go back to analysing the intent of the Convention. but in terms of ﬁnding the key to what is workable and acceptahle in this country the point must be that if we are providing for a quick. 31110-' 'H. C. Debates, 'Vol. 321, Cols. 16?-168 filth July, 1974]. ' "Sir Geoﬁrey Howe.

3]-I. C. Deb-ates, Vol. 811. Cols. 169-I70 (l2th July, 1974). 'Mr. Silkir: K. C. now Attorney General.

51-i. C. Debates, Vol. 821. Cols. 169-ITO.

'Etnphasis added.

Report on Recognition. Foreign ljivorcei' [Chapter 3.~Exrra-Judicial Divorce.) matic machinery for the recognition, which is really what the Clauses do, it should be possible to identify quickly and automatically the nature of the act or proceedings which qualiﬁed for recognition and be satisﬁed that at the time the act or proceeding was taken or was taking place the necessary jurisdictional link of nationality or whatever it may could be fulﬁlled."

The Solicitor General elaborated the point in these words-

"If one looks at that in the context of the word 'act'_ for example. rather than 'proceedings' and then at a judicial act, one immediately runs into possible ditﬁculties in deciding whether the judicial act in question is the service of the petition or the granting of the decree nisi or of the decree absolute. One is not then able to identify it with any clarity because under clause 3 as it stands we have" .... ..at the date of institution of the proceedings .... .."

"If we insert " .... ..at the date of the act or of the institution of the proceed-

as ings .... .. .

we become a little uncertain on that ground."

The Solicitor-General wound up his cominentsby-saying--

"I suggest to the hon. andleamed Member and to the House that the answer to his problem is to say that when we reach a proceeding or act as informal as that which he has in mind, the parties would have to rely on the provisions of Claue 6 which enables a divorce and legal separation which is valid by virtue of a rule of law arising from the dornicile of the parties still to be recognised in this country, but it re- quires it to go through an admittedly rather more complex means of proof and esrobiishrnent of recognition. But that is the long stop and the safety net, which is sufficient to deal with this problem."

N The matter rests there, so far as interpretation of the Act of 1971 is concerned.

8.12. The above discussion would show that words "or other proceedings"

'are not clear enough to cover extra--ji.1dicial divorces,----at least those divorces t which do not take place before an authority.

VI. RECOh[MENDATION 8.23. For these reasons. it is desirable to provide that the proposed Bill should apply to non-judicial divorces also. This could be achieved by deﬁning "pm-

ceeding" as including any act which mighthe legally sutﬁcicnt to eifectuate a

-dissolution of marriage, however informal that act might be. and whether or not any formalities or legal process is-frequilredp _It may-alsoibe provided that the word "institution" shall, where the are not before any authority but are constituted by any other act, mean the comrnencemeutlof that act.

Ambiguity words "or $5 of other proceedings"-

egttra-iudicial divorces.

Concltision.

mestdence 6% Introductory.

Scope _ of Convention.

the Obligation to re-

cog,n.ise--habitual and nationality.

Domicile.

r Report on Recogniﬁon of Foreign Divorces I CHAYTBIR 9 THE HAGUE CONVENTION 9.1. We shall, in this Chapter, summarise the important provisions of the Hague Convention'.

9.1. The scope of the Convention is dealt with in Article 1. The Convention shall apply to the recognition, in one contracting State, of divorces and legal separations obtained in another contracting States which follow judicial or other proceedings oﬁicially recognised in that State and which are legally eifective there.

The same Article {Article 1] provides that the Convention does not apply to ﬁndings of fault or to ancillary orders pronounced on the making of a decree of divorce or legal separation; in particular, it does not apply to orders relating to pecuniary obligations or to the custody of children.

9.3. Article 2 provides that divorces and legal separations to which the Con- vention appliesi shall be recognised in all other Contracting States, subject to the remaining terms of this Conv'e_ntion, if. at the date of the institution of the proceedings in the State of the divorce or legal separation (referred to as "the State of origin"),- --

(1) The respondent had his habitual residence there; or (2) the petitioner had hislhahitual residence there and one of the follow- ing further conditions was fulﬁlled-

(a) such habitual residence had continued for not less than one year immediately prior to "the institution of proceedings;

(b) the spouses last habitually resided there together; or (3) (4) both spouses were nationals of that State; or the petitioner was a national of that State and one of the following further conditions was fulﬁlled-

(a) the petitioner had his habitual residence there; or

(b) he had habitually resided there for a continuous period of one year falling, at least in part, within the two years preceding the institution of the proceedings; or (5) the petitioner for divorce was a national of that State and both following further conditions were fulﬁlled--

(3) the petitioner was present in that State at the date of institution of the proceedings and

(b) the spouses last habitually resided together in a State whose law. at the date of institutionlof the proceedings, did not providle for divorce.

9.4. Under article 3, where the State-of origin (State of divorce etc.) uses the concept of domicileas a test of jurisdiction in matters of divorce or legal sepa- ration. the expression "habiiual residence" in Article 2 shall be deemed to in- clude domicile as the term is used in that State. _, -

'For text of the Convention, See (1969) 18 1._ C. L. Q. 65?.

"Articles 1, para. 9:1', supra.

Report on Recognition of Foreign Divorces (Chapter 9.--The Hague Convention.) Nevertheless, this proposition shall not apply to the domicile of depen- dence of a wife.

9.5. Article 4 makes it clear that where there has been a cross-petition. a divorce or legal separation following upon; the petition or cross-petition shall be recognised if either falls within the terms of Articles 2 or 3.

9.6. Under Article 5, where a legal separation complying with the terms of this Convention has been converted into a divorce in the State of origin, the recognition of the divorce shall not be refused for the reason that the conditions stated in Articles 2 or 3 were no longer fulﬁlled at the time of the institution of the divorce proceedings.

9.7. The ﬁrst paragraph of article 6 provides that where the respondent has appeared in the proceedings. the authorities of the State in which recognition of a divorce or legal separation is sought shall be bound by the ﬁndings of fact on which jurisdiction was assumed.

9.8. Under the second paragraph of article 6, -the recognition of a divorce or legal separation shall not be refused--

(a) because the internal law of the State in which such recognition is sought would not allow divorce or, as the case may be, legal separation upon the same facts. or.

(b) because a law was applied other than that applicable under the rules of private international law of that State.

9.9. Under the third paragraph of article 6. "without prejudice to such review as may be necessary for the application of other provisions of this Convention, the authorities of the State in -which recognition of a divorce or legal separation is sought shall not examine the merits of the decision."

9.10. Article 7 states that contracting States may refuse to recognise a divorce when, at the time it was obtained, both the parties were nationals of States which did not provide for divorce and of no other State.

9.11. Under article 8, if in the light of all the circumstances, adequate steps were not taken to give notice of the proceedings for a divorce or legal separa- tion -to the respondent, or if he was not alforded a sufficient opportunity to present his case, the divorce or legal separation may be refueied recognition.

9.12. Contracting States may, under article 9, refuse to recognise a divorce or legal separation if it is incompatible with a previous decision determining the matrimonial status of the spouses and that decision either was rendered in the State in which recognition is sought, or is recognised. or fulﬁlls the conditions required for recognition, in that State.

9-13» Under article 10. contracting States may refuse to recognise a divorce or legal separation if such recognition is manifestly incompatible with their public policy ("order public").

9.14. Article 11 provides that a State which is obliged to recognised a divorce under this Convention may not preclude either spouse from rernarrying on the ground that the law of another States does not recognise that divorce.

Cross-petitions.

"Lesa! separation converted into 3, divorce.

Findings of fact.

Law.

Merits, Refusal to recog-

nice.

Notice.

Incompatibility with previous de-

cision.

Public policy.

Remarriage.

Suspension of proceedings.

Other provisions.

introductory.

p1'ovi-

the English Act as to recognition.

Section 3[l)---- The until. "for ' re-

Egognilion rnainlli dealt with in sec-

tion 3.

'recent English Act on the subject of recognition.' court, whose decree is now the subject-matter of recognition.

Report on Recognition of Foreign bivorces (Chapter 9.--1'he Hague Convention. Chapter lD.--E'n,g-ifs}: Act of 1971 as to Rerogniriorts.) 9.15. Under article 12. proceedings for divorce or legal separation in any Contracting State may be suspended when proceedings relating to the matri- monial status of either party to the marriage are pending in another Contrac- ting state.

9.16. Articles 13 to 16 deal with certain matters relevant for ascertaining the legal system applicable.

Article 17 saves more favourable rules of recognition.

Articles 18 to 3! deal with certain miscellaneous matters, including reser- vations. accession to the Convention. interpretation and so on.

Cl-MPTER 10 ENGLISH ACT OF 1971 AS TO RECOGNITION I. INTRODUCTORY 10.1. We shall, in this Chapter. summarise the important provisions of the. We may make it clear at the outset that we shall concentrate on the important provisions relevant to grounds or recognition. and shall not go into various matters of detail. We may also make it clear that the English Act. besides dealing with the recognition of overseas decrees. also contains provisions as to the necognition of decrees in the British Isles,' but we shall not refer to provisions relating to such decrees. as they are not of any importance for our purpose.

JI. MAIN PROVISIONS

10.2. As respects recognition in Great Britain of the validity of overseas divor- ces and legal separations, the ﬁrs: provision is oontained in section 2 of the Act, which provides that sections 3 to 5 of the Act shall have effect, subject to section 3. in regard to divorces and legal separations which----

[a} have been obtained by means of judicial or other proceedings i.n any country outside British Isles; and

(b) are effective under the law of that country. 18.3. Under section 3(1), the-validity of the overseas divorce or legal separa-

tion shali be recognised if, at the date of the institution of the proceedings in the country in which it was obtained-----

"(_a) either spouse was habitually resident in that country; or

-[h] either spouse was a national of that country."

It may he noticed that this sub-section does not speak of domicile. That is dealt with separately? It may also be pointed out. that the habitual residence or nationality of ei'rF1er spouse is suiﬁcient to confer competence on the foreign This represents 'The Recognition of Foreign Divorces and Legal Separations Act, 1971 (Chapter 53]. :59, cgamplej section I of the English Act of 19?]. spam. 10:4 and 10:10. infra--Soction 3(2).

jurisdiction in granting divorces for Iiepori on Recognition of iioreign Divorces (Chapter 10.--Engl:'s}r Act of I97! as to Recognition.) the most important departure from the conventional English rule under which. subject to certain additions or qualiﬁcations, the test of domicile of both the parfies is the test for the recognition of foreign decrees.' 1lI.4. It should be pointed out in this connection, that section 3(2) of the Act of 1971 provides that in relation to a country, the law of which uses the concept of domicile as a ground of (domestic) jurisdiction in matters of divorce or legal separation, sub-section [l){a) of section 3--that is to say, the test that either spouse must be habitually resident in the foreign countr}d--shall have eifect as if the reference to habitual residence included a reference to "domicile within the rneallitlg of that law". Broadly stated, the effect of this provision is that if the foreign country itself adopts the test of domicile as the test of its own internal purposes, a decree of court of that foreign country,--being a foreign country in which either spouse was domiciled at the date of the institution of the proceedings,--wou1d be re- cognised in England. It is obvious that in part. this sub-section preserves the English 'common law' rule of recognition on the ground of domicile, but, in part, it modiﬁes that rule, since it is enough that either spouse is domiciled in the foreign country. It is not necessary that both" must be so domiciled.

10.5. It would be noticed that the provisions in the English Act relating to grounds for recognition, which have been so far summarised, speak of "the country" in which the decree was obtained and of "the law" of the country. Now. as is well-known, -there are countries where, by reason of the federal structure, the various territories forming part of the country are governed by different systems of law in matters of divorce or legal separation.

Provision had to be made for such countries, and section 3(3) of the Act of 1971 provides -that "in relation to a country comprising territories in which dilfcrent systems of law are in force in matters of divorce or legal separation, the foregoing provisions of this section (except those relating to nationality) shall have elfect as if such territory were a separate country."

10.6. Section 4 or the Act of 1971 contains two provisions. Sub-section "{1} provides that Where then: have been cross-proceedings, it is sufficient if the jurisdictional tests mentioned in section 3(1), (a) and (b), are satisﬁed either as regards the original proceeding or as regards the cross proceeding, and it is immaterial which of the two led to the decree of divorce or legal separation. This is not the precise language of the sub-section, but it is its gist is stated in simple terms.

To take a hypothetical case, if--~(i} the wife applies for divorce in a jurisdiction where she was habitually resident, and (ii) later, the husband, who is neither a resident of that country nor a n.ational'of that country nor domiciled in that country, brings cross proceedings for divorce, and (iii) the wife ceases to be habitually resident in that country, the decree in the husband's favour, if ultimately passed. will nevertheless be recognised in England, by virtue of sec- tion 4(I)_. The fact that the wife was habitually resident at the time of her petition, serves to validate the decree on the hu.s'bana".s' pmceeding. even though, for the husband's proceeding, the jurisdictional test is not satisﬁed in this case, 'Chapter 7, sziprn.

'"Para. 10:3, supra.

i'Para. 10:3, supra.

Section 3(2) of the Act of 1971.

Section 3(3) of the Act of 197i, country comprising vari-

ous territories.

Section 4 of the Act of 1971---_(i] Cross proceeding and (ii) Legal separation con-

verted into a divorce.

Section 5 of the Act of 1971- Proof of facts re-

levant to recogni-

tion.

[Report on Recognition of Foreign Divorces (Chapter I0.--Engh'sh Act of I97! as to Recognition.) Section 4(2) enacts that where a legal separation, the validity pf which is entitled to recognition by virtue of section 3 or section 4(1), is converted, in the country in which it was obtained, into a divorce, the validity of the divorce will be recognised whether or not it (the divorce) would itself be entitled to recognition by virtue of those provisions.

Stated in simple language. this sub-section provides that in such cases the jurisdictional criteria laid down in section 3 need be satisﬁed only at the date of the institution of the proceedings for legal separation in the foreign country, and it is immaterial that. at the time when the subsequent proceedings for convening the decree of separation into divorce are instituted, the parties do not satisfy any of the tests laid down in section 3. This provision is inten- ded to apply to decrees of those countries under whose legal systems a separa- tion can be automatically converted into a divorce at the end of 'a prescribed period. An example usually given of such a country is Denmark and it may be useful in relation to Belgium and France also.

i 10.7. The question can arise whether the ﬁnding of fact on the basis of which the foreign court assumed jurisdiction is binding on this court in which the question of recognition of the decree of divorce or legal separation passed by the foreign court arises. Such a problem. in fact, arose in tile United States in the case of Wiiiioms v. North Carolina.' In that case, the question arose whether a decree of divorce granted by a court in Nevada, was entitled to full faith and credit in North Carolins. Under the law. as applied by the courts of North Carolina, the decree would be entitled to recognition if it was based on domicile in the State of Nevada. But the question that fell to be considered was whether the ﬁnding of the Nevada court. of facts amounting to domicile. was itself binding on the North Carolina court. It was held that it was not conclusive.

Previously, there was some confusion in -the U.S.A. on the subjectin relation to sister state judgments. The confusion had stamrned from the famous case of Haddock v. Haddock.' which delimited earlier cases on jurisdiction and full faith and credit. In the Haddock case. a husband had secured a divorce at his new domicile in Connecticut. after wrongfully deserting his wife at their last common domicile. New York, where the wife's domicile remained. The United States Supreme Court held, that New York need not give any faith and credit to the Connecticut decree, though the Supreme Court did not declare that the decree was void. This created some confusion." The confusion persisted until 1942 when, in the ﬁrst Wittr'am's case' the United States Supreme Court expressly overruled the Haddock decision and declared that an ex parte divorce decree granted by a state which was the domicile of the suing plaintiff was not only valid under the due process clause, but was also entitled to full faith and credit in sister states.

1Witliams v. North Carolina. Ho. 2 (1945) 325 U. S. 226. affaddock v. Haddock, (1906) 201 U. S. 562.

-"Battle, "Haddock Revisited" (1926) 39 Harv. L. Rev. 417.

'Williams v. North Carofino (1941) 317 U. S. 237. This was a prosecution for tillepl cohabitation in North Carolina with a purported second spouse, after Nevada divorce from a. ﬁrst spouse.

' 1110. Since the Act of 1971 was not passed on a clean slate but after Report on Recognition of Foreign Divorces (Chapter 10.--Engii.s'!: Act of 1971 as :0 Recognition.) The second Williams case' held that collateral enquiry was perrnissible to determine whether the plaintilf securing the ex parre decree was actually domiciled in the state granting it. There were, however, some dissenting judgments. This case has not been followed in Australia in cases relating to sister state decrees.

10.8. In England, such problems are dealt with by section 5(1) of the Act of 1971. Section 5(2) of the Act makes it clear that "ﬁnding of fact" includes, in this context, this ﬁnding about habitual residence or domicile or nationality.

Section 5 reads--

Proof oi facts relevant to recognition

5. {ll For the purpose of deciding whether an overseas divorce or legal separation is entitled to recognition by virtue of the foregoing provisions of this Act, any funding of fact made (whether expressly or -by implication} in the proceedings by means of which the divorce or legal separation was obtained and on the basis of which jurisdiction was assumed in those proceedings shall-

{a) if both spouses took part in the proceedings, by conclusive evidence of the fact found; and

(b) in_any other case. be sufﬁcient proof of that fact unless the contrary is shown. ' (2) In this section "ﬁnding of fact" includes a ﬁnding that either spouse was habitually resident or domiciled in, or a national of, the country in which the divorce or legal separation was obtained; end for the purposes of sub-section {l)[a) of this section, a spouse who has appeared in judicial proceedings shall be treated as having taken part in them."

I 10.9. It is well-known that. the ﬁndings of a court often involve mixed ques-

tions of fact and law. The precise ﬁnding .that a spouse is habitually resident or domiciled in. or a national of. the country, could be a mixed ﬁnding of fact and iaw, inasmuch as the attribution to a person of domicile. nationality, or halitual residence, may involve not only an inference from the facts. but also a number of legal conclusions. Section 5(2) of the English Act of 1971 has the eﬁect of making the whole finding of the foreign court conclusive evidence or suiﬁcient proof, as the case may be. It avoids any objection being raised that the precise ﬁnding as to domicile was not one of pu.r,e fact.

lll. EXISTING GROUNDS--DOl\-IICILE the evolution of a number of rules of the common law' relating to recognition, and after the enactment of a few statutory provisions pertinent to the question of matrimonial jurisdiction, it became necessary for the U. K. Parliament to decide how far the new Act was to be regarded as exhaustive of the law. The matter was dealt with in section 6, which. as originally enacted," was as follows:--

1W1'NI'am-t 'I. North Carolina. {I945} 325 U. S. 226. In the same prosecution. North Carolina found that the plaintiff had no Nevada domicile and conviction was sustained. See Rice v. Rice. (194-9} 336 U. S. 674.

'For 1973 amendment, see para I0-13, infra.

'31 English Act.

Mixed ﬁnding-

Section 5(2) of English ACL Section -6 of the Act of l9?l--Cer-

rain exiting rules of rpcoanition to continue in force.

'i2 Effect of Section 6(a) on comm on law.

Section 6{fJ other enactments.

lleport on liecognitiart of Foreign I-Divorces (Chapter l'tJ.--English Act of £971 or to Recognition.)

"6. This Act is without prejudice to the recognition of the" validity of divorces and legal separations obtained outside the British Isles--

(a) by virtue of any rule of law relating to divorces or legal separation:

obtained in the country of the spouses' domicile or obtained else'- where and recognised as valid in that country;

(b) by virtue of any enactment other than this Act:

but save as aforesaid. no such divorce or legal separation shall be recognised as valid in Great Britain except as provided in this Act."

10.11. The ellect of clause (a) of the section is to retain those common law rules or recognition which relates to divorces or legal separations--

(1) obtained in the country' (if the spouses' domicile; or

(ii) obtained elsewhlere but recognised as valid in -the country of the spouses' domicile. , The ﬁrst situation covers the proposition laid down in the ease of Le Mesurier.1 under which a divorce or legal separation is recognised by English Courts if it is granted by a Court of the country where the parties are domiciled.

The second situation dealt with in clause (a) covers what is known as the rule in Armt'-rage v. Attorney-General," under which a divorce or legal sepa- ration will be recognised in England if it is recognised as valid in a country where the parties are domiciled at the commencement of the proceedings. even though they were not domiciled in the country whose Court granted the decree.

10.12. Besides preserving these -two common law grounds of recognition. sec- tion 6 preserves grounds of recognition provided for by any other enactment. It is unnecessary to enumerate the enactments of the U. K. Parliament on the subject, but it will be of interest to mention that one of them"--the Indian Divorces (Validity) Act--dealt with divorces granted by Indian Courts. This enactment came to be passed, because Courts in India had been exercising diction in divorce under the Indian Divorce Act, 1869 over Britons resident in British India, though not domiciled therein. Since, under the rules of private international law, those decrees were not valid, decrees so passed had to be validated by an Act of the U. K. Parliament. It may also he stated that in times of war. special legislation is passed regarding war marriages.' Having provided for the preservation of some of the common law gromnds and of the statutory grounds. section 6, in the last sentence, takes care to abolish all other grounds of recognition. In particular. the grounds of recogni- tion laid down in Travers v. Holley,' and in Indyka v. Indyka,' are no longer valid in England. because the last sentence of section 6 speciﬁcally provides that "no such divorce" orlegal separation [that is to say). a divorce or legal separation obtained outside British Isles "shall be recognised as valid in Great Britain except as provided in this Act."

1Le Mesurier v. Le Mesurier. (1895) A. C. SI7 (P. (3.). 'Armi.rr.rge v. Attorney-General. (1906) Probate 135. 'Indian Divorce (Validity) Act. 1921 t'Eng.).

'Matrimonial Causes (WHY M31Tl3S€5l ACE 1944 (E1'|E'i5l3)- 'Travers v. Holley, (1953) Probate 246.

'lndyka v. hzdyka, (1969) 1 A. C. 33 (H. L.).

Report' on Recognition of Foreign Divorces (Chapter i0.+--Engli'sh Act of £9.71 at 1'0 Recognition. ) 10.13 In 1973, the UK. Parliament' passed legislation dealing with various aspects relevant to domicile and matrimonial proceedings. For the purposes of the present discussion, it is enough to mention that [i) section 1 of the Act of 1973 empowered the wife Ito acquire a domicile of her own, thereby amending m general rule, and (ii) in view of this amendment of the general rule as to domicile, it became necessary to revise section 6 of the Act of 19?1, relating to recognition of foreign divorces. The amendments are consequential, and need not be gone into in this rapid survey.

_l[l.l-I-. Various systems of law impose prohibitions against re-marriage after divorce. These prohibitions may nliect both parties equally. or may affect only one party. They may last for a limited time. or indeﬁnitely. We are not, at the moment, concerned with prohibitions of a limited character. But we are concerned with the general prohibition against re--u1a1'riage which arises from the fact that there is no valid divorce according to the law of the country of nationality. This question usually arises where the parties are divorced by the com'! of country X, and now wish to re-marry in country 'I', but the law of the country of nationality--oountry 2 'does not recognise divorce at all. They are no longer husband and wife, so far as country X is concerned, but they still cannot re--n1arry, and their previous marriage is regarded as subsisting in country 2 under the law of their nationality because, according to the rules of that law, the decree does not dissolve the bond between the two spouses. Such a situation, in fact. arose in an English case." Usually, it arises where the law of the country of nationality does not recognise divorce at all and that law is pleaded as a bar.

To deal with such a situation, section 'I' of the English Act of 1971 (as amended in 1973]. prcvides--

"7. Where the validity of a. divorce obtained in any country is entitled to recognition by virtue of sections 2 to 5 of this Act or by virtue of any rule or enactment preserved by section 6 {5} of this Act, neither spouse shalt be precluded from re-marrying in Great Britain on the ground that the validity of the divorce would not be recognised in any other country."

The section follows the Convention. which has an article sin1ila1'.* substantially Though the section is a bit abstract in its tcnns, what is intended thereby is that the non-recognition of divorce by a third country is no bar to re-marriage.

19.15. In certain circumstances, recognition of a decree of divorce or legal sepa- ration would not be desirable. The need for making an exception in respect of Tccogltition may, for example, arise where, according to the law of the forum *h1--vrhicI1 the recognition is sought. there was no subsisting marriage between the parties. It is obvious that if there was nc--~--p1'e-existing marriage according to dine legal system of the country where recognition of the divorce is sought, the courts of that country cannot recognise a divorce in respect of such marriage, because, to recognise the divorce or legal separation in such cases would amount to-an implicit recognition of the marriage. rule forbidding recognition in 'Domicile and htatrimcnjal Proceedings Act, 1973 {Eng}.

53. v. Hrenrwood Supferinrendanr Regismzr -of Marriages l 1963) 3- All E. 5!. 279 comment- ed upon by Ch-esterrnan In 32 Modern Law 'Review 34.

'Arh'cIe 11,. para. 914, supra.

Amendment nE 1973 relating to domicile.

Section 7 of the Act of l9'l'1--RJe-

marriage.

Section 3 of English Act--Ex-

captions from re-

cognition---No subsisting mar-

riage.

'34 Natural justice.

Public policy.

Three _ situations dealt with Report on Recognition of Foreign Divorces (Chapter Iﬂr-English Act of £9?!' at to Recognition.) such cases may. in a sense. he treated as stating the obvious. But. it is equally obvious that when the law on the subject of recognition is being given statutory form. a provision should be inserted to ensure that the courts of the - country would not recognise a divorce or legal separation if. under the law of the country--which will include such rules of private international law as are applied in that count.ry--thcre was no marriage in existence.

10.16. While the above situation is a technical one. there may be other reasons for refusing recognition. An important category is constituted by circumstances showing that the foreign court granted the divorce or legal separation in viola- tion of the rules of natural justice.

10.17. Finally. apart from the two situations referred to above. the courts of a country should have jurisdiction to refuse recognition where the divorce or legal separation is inconsistent with its public policy. , 10.18. These three situations' have been dealt with in section 8 of the English Act. It reads-

"Exceplziﬂ-ns from recﬂgiition

8. (I) The validity of----

(a_} a. decree of divorce or judicial separation granted under the law of any part of the British Isles; or

(b) a divorce or legal separation obtained outside the British Isles, shall not be recognised in any part of Great Britain if it was granted or obtain-

ed at a time when, according to the law of that part of Great Britain [including its rules of private international law and the provisions of this Act). there was no subsisting marriage between the parties.

(2) Subject to sub-section (1) of this section, recognition by virtue of this Act or of any rule preserved by section 6 thereof of the validity of a divorce or legal separation obtained outside the British Isles may be refused if. and only if-- ' {at it was obtained by one spouse-

til without such steps having been taken for giving notice of the proceedings to the other spouse as, having regard to the nature of the proceedings and all the circumstances. should reasonably have been taken; or

(ii) without the other spouse having been given {for any reason other than lack of notice) such opportunity to take part in 111% proceedings, as, having regard to the matters aforesaid. should reasonably have been given; 01' [13] its recognition would manifestly be contrary to public policy.

(3) Nothing in this Act shall be construed as requiring the recognition of any ﬁnding of fault made in any proceedings for divorce or separation or of any maintenance. custody or other ancillary order made in any such proceed- ings."

'Para. lllli". supra.

Report on Recognition of Foreign Divorces (Chapter 1tJ.----Engh'sh A ct of 197! as to Recognition.) 10.19. Section 8 of the English Act, thus, states three exceptions to recognition, viz:~-- '

(i) Where there was no subsisting marriage to be dissolved, etc.;

(ii) infringement of natural justice;

(iii) manifest clash with public policy.

These are stated to be the only grounds for withholding recognition. 10.10. The ﬁrst exception is self-explanatory,' and has been already dealt with.

10.21. As to the second exception, it is recognised that circumstances may jus- tify a foreign court in dispensing with service or in substituting service". Prima facie, if the respondent can prove that he has had no notice. then the decree is not entitled to recognition.

But it will be recognised if--

(1) the foreign court has held that its rules of service have been duly complied with?

(ii) those rules themselves are not contrary to natural justice;' and {iii} the lack of notice is not consequent upon the petitioner's fraud.' 5"

However, recent dicta. conﬁrmed in Homer! v. Hometr', suggest that the respondent may be held to have waived his right to attack the validity of a decree,--in this case by "himself petitioning for the recognition of the decree".- but presumably also by marrying again.

10.22. In considering the materiality or otherwise of notices, all the circumstan- ces have to be considered. In the case of a repudiation. or other unilateral divorce, notice is irrelevant, since notice would not enable the respondent to contest the divorce.' 1I.23. The last eicceptionﬁthe head of "public policy"«--is justiﬁed by article 10 of the Hague Convention. The word 'manifestly' in the English section has_ been criticised as adding nothing." In fact, there was a move to delete the word 'mallifestly' at the committee stage of the House of Commons, but it was negatived. Since ordre public bulks larger in continental law than "public policy" does in English law, Article 10 of the Convention was. trying to restrict it too liberal application of order public. The Solicitor General stated" in the House of Lords: "The expression (manifestly) makes the horse (public policy} a triﬂe less unruly ................ .. The word 'manifest' is intended to imply a degree of inherent strength in the horse."

'Para. 10.15, supra.

"See Macalpine V. i'l-facerlpine, (1953) Probate 35, 45.

'See, e.g., lgra V. Igra. (1951) Probate 404; Home?! V. Harriett, {I971} I All E. R. 93. *Maca!pine V. Macalpine. {I958} Probate 35, 45.

'Middleton v. Middleton, (I967) Probate 62.

'Homer! V. Harriett. (1971) I All E. R. 98.

'As to fraud. see Chapter I7, infra.

'Hornet: 'V. Harriett, (1971) 1 All E. R. 98, I02.

'Mather v. Maker. (1951) Probate 342, 344-345.

"See H. L. Vol. 316, Cols. 1552-1555, 155?.

"H. L. Debates, Vol. 816. col. I553 (Solicitor-General).

is No _ subsisting marriage.

Natural justice.

All the circum-

stances to be con-

sidered.

Manifestly be epntrary to pub-

].IC policy.

T15 Section 5(2) lb)-

Public Policy.

Ifrauzd.

Incidental order.

Section 5-1] of the Engliih A-ct.

Report on Recognition of Foreign Divorce:

{Chapter !i9.--.E'ngii:sh Act of i'9'J'.i as to Recognition.) 1ti.I.-4. As to the circuirrxtancea where reoogriitinn would be contrary to distinc- tive English public policy, no deﬁnitive list can be compiled. M'C:CtIlpi'r1e' illus- trates one application of public policy.

ii: re ii-'fewer,' was a case of dure as. An 'Aryan' wile of a German Jew had been forced to obtain a decree of divorce against her will. She petitioned to the court for a declaration that the divorce was invalid. The court held the decree to be vitlaieri by duress.,--a concept which has been developed in relation to marriage."

10.25. Under section Ei[2}(bj_. already referred to', recognition of the vali- dity of a. divorce or legal separation may be refused if "it is manifestly contrary to public policy." _Two comments are in order with reference to this clause. In the first place. there is no deﬁnition of "public po]ic'_v", and the power thereby conferred is certainly wide. However, the word "rnanifestl_~,r" cautions therconrt against interfering unduly. It is also to be noted, that article ID of the Hague Convention provides that "contracting states may refuse to recognise a divorce or legal separation if such recognition is uranilfestly incornpatible with their pub- lic policy (order public) Such a clause is found in many of the international couvientlons on the subject of private law; for er;ample,----Couven- tion on Alimentary Obligations (15th April. I953, article 2), Convention an Adoption {lﬁth November, 1965. article 15] and so on. But it should be point- ed out that the expression "order public" refers rather to the continental con- cept of orrire public than to the common law concept of public policy. The width of the continental conoept,- mentioned in the convention, is somewhat narrowed down by article 6 of that Convention which. inter nlia. provides that the State in which recognition is sought, shall not review the merits of the deci- sion, subject Io the provisions of article 10' In the English section (section 3}. on the other hand, only the expression "public policy" is used.

10.26. The other point to be noted with reference to section 8(2](b} oi the English Act is that it is silent on the question of Eraud,---except that fraud could fall wihin 'public policy'. We are of the view that it is desirable that it should be speciﬁcally dealt with. It may be mentioned that fraud is speciﬁcally men- tioned iu section 13 of the Code of Civil Procedure. 1903. 'We may also state that it ﬁgures in the Supreme ourt case? We shall revert to this topic later."

ll'J.2'.'i. Under section 8(3) of the English dict. certain incidental orders are not recognised.

VI. MISCELLANEOUS 10.18. -Section 9 and section l0(';] and section l{J(2} of the English Act are not r:_a1er:ial for or: purposes.

Section 1013} of that Act deﬁnes "c-:-unlry" as f:-';;cwse--

".13; In this Act, "cou:_r_-3-"' includes a ['0]-Dll_'s' -:-r" :r.her dependent terri- tory of the United Kingdom. but, for the purposes of this Act, a per- son shall be treated as a national oi such a territory only if it has a 1Mrrcuip:'nc V'. Mricelpine, (1958) Probate 35. "Re Meyer, 1197!} I W.T..R' -ﬂit-

"See Szeehrer 'n". Szechrer, {I970} 3 All E. R. 905. 'Para. 10.23, supra.

5Para. l.l, supra.

'See Chapter relating to fraud. infra. (Chapter 13).

Report on Reeognﬂion of Foreign Divorces {Chapter 1{).--~Englii.sh Actor l9?l as to Recogrtirioit. Chapter 1l.--Eng~!ish Law as to }'rrri.rdica':'on and the Act of 1973.) law of citizenship or nationality separate from that of the United King- dom and he is a citizen or national of that territory under that law."

Section 10(4) of the English Act readsﬁ "(4) The provisions of this Act relatinglo overseas divorces and legal separations and other divorce: and legal separations obtained out- side the British Isles apply to a divorce or legal separation obtain- ed before the date of the commencement of those provisions as well as to one obtained on or after that date and, in the case of a divorce or legal separation obtained before that datc.+--

ta) require, or. as the case may 'be. preclude, the recognition of its validity in relation to any time;before that date as well as in relation to any subsequent time; but a . i do not alfect any property rights to which any person be-came entitled before that date [or a'pply"vvhere the question of the validity of the divorce of legal separation has been decided by any competent court in the British Isles before that date."

lb) This, in short, is a brief survey of the Act.

CHAPTER 11 "ENGLISH LAW as T0 JURISDICTION AND THE ACT or 1972 11.1. We shall now deal very brieﬂy with the English law as to jurisdiction in ,iEg'ard to dissolution of marriage. The subject has an interesting history. The 'following stages of evolution of the law on the' subject are discernible:

(1) The era before Le Mesurier i.e.. before I895.

(2) The doctrine of Le Mes'urier. M i (3) Statutory development after Le Mesttrier.

(4) The Act of 1973----The Domicile anrli' Matrimonial Proceedings Act.

1973. ' 1132; -English Courts were not given authority to entertain divorce cases until 1357.1 The ecclesiastical courts had. in general, given only separation frornbed 'and broad iurisdiction in ecclesiastical courts: triepended' on residence, not 011 rbmicilei. and Parliament, when it granted divorces. bye. private Act, granted divorces without regard to the petitioner's domicile". M M When exercising matrimonial jurisdiction under the Matrimonial Causes Act, 1857', English Courts did not. in the beginning. deﬁnitively adopt the ilvlatrimonial Causes Act, 1857 (20 and 2] ivict. e. Sﬁl. ' / gwﬂii V. Wall, (I949) 2 All E. R. 927, 923 (Pearce 1 5See--- _n 1

(a) Graveson, "Judicial Interpretation of Divorce Jurisdiction' in the Conﬁiet of Law." (1954) 17 Mad. L. Rev. 501; .-- 1. - = t . , .7! _- ' _ ._ , lb} Griswold. "Divorce Jurisdiction and Reeognitiqn.of Divorce Dei:rees--A Compara- tive Study," {I951} 65 Harf. L. Rev. 193; " ' fc) Note, (1945) 22 Brit, Y. B. 11111 Law 264. ' 6-5 L D (?\TD)_"'.v't'.~ Scope of Chapter.

Ihe _ Le. Mesurfevi it the bvfvrp 'it The doctrine of Le Mesurier.

The case of Nibo-

yet.

Domicile test traced to Ameri-

can law.

R390" 011 Reﬂosnition of Foreign Divorces {Chapter Il.--Engh'sh Law as to Jurisdiction and the Act of 1973.) dﬂmiﬂflﬂ rule. That rule came to be adopted later in 1895. in Le Mestrrier'. Prior to Le Mesurier. there apparently prevailed the "contractual theory" limiting jurisdiction to the courts of the country of marriage'.

Uresswell. L. 1. observed in Forster v. Frasier' :

"I should have been very glad indeed if the legislature had said that the court had no jurisdiction except over persons domiciled in England. when Lord Cambell was Lord Chancellor, I asked him to bring in a bill to settle the question and to deﬁne my jurisdiction; but he said_ 'I cannot do it. Whenever that question is raised. it must be decided upon legal principles. It cannot be dcﬁ11ed'."

11.3. After some vacilation, however, the doctrine of domicile was ﬁrmly esta- blished. In 1395, the Judicial Committee of the Privy Council, in Le Mesuricr v. Le Mcsurier,' on appeal from Ceylon reviewed the English and Scottish cases. and came to the conclusion that according to international law, the domicile for the time being of the married pair afforded the only true test of jurisdiction to dissolve their marriage.

Ever since Le Mesuricr 'J. Le Mssuiier'. English Courts have construed the general words in a. statute conferring jurisdiction to dissolve valid marriages. as limited to marriages the parties to which are domiciled in England'-''-'.

1L4. Neither the Matrimonial Causes Act, 1857, nor the Supreme Court of Judicature Act, 1873, contained any express provision limiting the jurisdiction of the court to decree dissolution of marriage by reference to the donticile of the spouses to the suit. That is the reason why. initially. there was some uncertainty and even judicial uneasiness as to the position in this regard. This is illustrated by Nfboyet v. Nfboyet' in which the Court of Appeal applied. but analogy to the new jurisdiction to grant dissolution. the rule applicable to the former jurisdiction exercised by the ecclesiastical courts in cases of nullity--the role based on resi- dence. This is an application of the general rule of construction of statutes that. in the absence of clear words to the contrary, they should be construed so as not to conflict with public international law, or with comity in the sense of generally recognised rules of private international law.

1L5. The test of domicile as a basis for jurisdiction was thus adopted in 1895. in Le Mesnrrier. and it has been stated" that this was done mainly in reliance on Aelican law, It has been pointed out" that in Le Mesurier v. Le Mesurier' the Privy Council in holding that jurisdiction to dissolve a marriage was con-

...._.---

1Le Mesuﬁer v. Le Mesurier. (1895) 2'1. C 517 (P. C.)-

'Dica5', Conflict of Laws (7th ed. 1958), page 290.

'Forster 1r. Forster. (1362) 3 SW. &Tl'. 144, 155.

'Le Mesurier v. Le Mesurier. (1395) A. C. 517 (P. C.)-. _ 5Le Muesurier v. Le Mesurier. (1395-99) 311 Eu PM 335; U395} A. C- 517- 5.21. C. for Alberta v. ﬂock. ([925) A11 E- R- 515; (1926): 5- C 'H4 , '''H. V. H.. {I923} Probate 236, sﬂcrd V, gm, (1935; 2 All E. 11. 1316; (1935) Probate 205.

°Niboyer v. Niboyef. (1878? 4 P. D. 1.

lﬂﬁhtcnzweigh, Conflict of Laws. (1962). page 135.

Report on Recognition of Foreign Divorces {Chapter ll.--.Engh'sh Low as to Jurisdiction and the Act of 19?3.) ﬁned to the courts of domicile, elied on Show v. Gould', which, in turn, rc- lied on Story's Commentaries. The test of domicile as the exclusive basis for jurisdiction to "dissolve a marriage was ﬁrmly established under the doctrine of Le Mesurier. For this purpose, the wife's domicile is the same as that of the husband. She could not, in general, have a separate domicile.

11.6. The rule relating to the wife's domicile,--i.e-, that she could have no separate dc-micile--caused hardship. The Matrimonial Causes Act, 1937' (Sir Alan Herbe-rt's Act), removed some element of hardship in the case of English wives who werer--{a) deserted by their husbands who thereupon acquired a foreign domicile, or (b) denrived of their remedies in divorce in England by their husbands being deported; in either case instead of having to proceed in the court of the husband's new domicile, the wife could. under the Act of 1937. resort to the English Court. if the husband was domiciled in England.

A change was" made in the basis of jurisdiction in divorce at the instance of deserted wives who had grounds for dissolution of marriage but whose husbands were domicile abroad". Such wives could, under the Act of 1949, sue' for divorce in England if they were resident in England and had been ordinarily resident in Englancﬁ, for a period of three years immediately preced- ing the commencement of the proceedings. I This provision was re-enacted in section 18 of the Matrimonial Causes Act, 1950. section 40 of the Act of 1965 and in subsequent re-enactments thereof. There was imported into this section "a somewhat unusual statutory provison"", namely, that in the exercise of this special form of jurisdiction, "the issues shall be determined in accordance with the law which would be applicable at the time of the desertion or deportation'.

This provision of the Act of 1937 was. in substance. re-enacted in later revisions of the law.

11.7. The anomalous position of a wife was rendered more acute owing to the marriage of so many English-women to members of thg Commonwealth and Allied forces stationed in England, during. the second world war,-men who never were domicled in England'. This led to the passage, in 1944, of the Matrimonial Causes (War Marriages) Act, which gave another concession. It rendered it possible, subject to certain safeguards, for the English wives of such men to have recourse to the Divorce Court in,Eugland,.notwithstanding that their husbands were domiciled abroad. It should. however. be noted that this concession applies only to marriages between September, 1939 and June, 1950.

1Shaw V. Gould, (1868), L. R. 3 H. L. 55, 85.

'Para. 1 1: 5, supra.

'Mr. Commissioner Latey, Q, C. "Divorce and Nullity" (1955) 40 Transactions of the Grotius Society 111, 112, 113.

'Section 1(1) ta], Law Reform {Miscellaneous Provisions] Act, 1949.

"As to the expression "ordinarily resident", see Hopkins v. Hopkins, (1951) Probateltﬁ; (1951) 2 All E. R. 1035. _ 'Mr. Commissioner Latey, Q. C. ."Divorce and Nu_llity" (1955) 4-0 '.l"ransactio'ns of the Grotius Society 111, 113. . - -

Developments after Le Mesurier

--ACt of l937--

'Deserted wives.

Act of 194-4--War marriages so Position before l973----sumn1ed up.

Act (IE 1973.

-REPOF1 on Recognition of Foreign Divorces (Chapter 1l.-Engiir'.r.F: Law" as to Jurisrlfction and the Act of 1973.} "-3- 3i 113- Th6 above position continued, in substance, until 1973. "The position before 1913 can be conveniently described in the words of a -widely used work' on the subject-------- . E-

"English courts have jurisdiction to entertain proceedings for the solution of a marriage and the pronouncement of a decree of dim;-cg in "'15 T0110'?-'i|1g Circllmstaﬂces. the ﬁrst of which applies to a petition pre- 5€'=_';'¢d bi' either husba.nd'or wife and the others to a petition only -1555 in WI I3! -' at r .l''' I. If both parties to the marriage are domiciled in England at-theutirhc of the commencement of the proceeding [Leon (l96T;]" ~

2. If a wife has been deserted by her husband. or_a husband; has deported from the United Kingdom, and he was iromediateig 'bnfdte his rleserlion or deportation domiciled in England [Act of 1965.3}. 49(1)].

3. If a wife is and has been ordinarily resident' in England for a period or". three "years immediately preceding the commencement "bi proceedings, and her husband is not domiciled in any other p-artiii the United Kingdom or in the Channel lslands oi-1hc Isle at' Main;

"The '.as: two erciits conferring iurisdicti-on are e:::eptior.s to the genera] principle that di-rcroe ju:isdic:ion is based -on dornicile and were intro- duced to aieviatc the hardship oi wiies who otherwise in these cir- curr.str_r_ces would have been compelled to institute 1:-roe-ea':-dinﬂs for divorce abroad due to the rule that a wife's domicile is always the senie as her husband'j5. -55 "Neither the nationality of either of the parties not the place where marriage was celebrated is of any relevance to jurisdiction."

11.9. in l973. the Domicile and Matrimonial Proceedings Act' was passed in England, and the Act made substantial modiﬁcations in the above position. We need not recite all its provisions. For our purposes, it is enough to state that it made two important amendments relevant to _iurisdictior1--(i} The wife can now acquire separate domicile: (it) English courts can exercise _div_or:fe jurisdiction on the ground of "habitual residence" also, besides the gen ground of domicile. -_-..

Secion 5(2) of the Act of _l9T3 is important. and reads----- 'I .

"Section 5(2}.---The court shall have jurisdiction to entertain p i '_ for divorce or judicial separation if {and only if] ciI'hcr of the parties to the inan-iageu-- - .

(a) is domiciled in England and Wales on the date when tiie pro-' Ceedings are begun: or (1,) ".35 habitually re.rr'den.t in England and Wales Hzroaghont the period .0)' one year emia'ng with that date." ' ' ' {j go-----" <*-- 'T' _--i_-T)

-rudg: Great. Family Law t1_970).ras= 110- _ .

tﬂe-on v. Leon. 1' 1961') Probate 275 (Wife need' not have residence). Tm ' ' cl" 'll - si-:lé:u1 "England it she tastier real home there. _ tlhrsgl n-ear:'Ap:?if§dl:n3:tmi-zﬂciiniaguuaus. 'gut. for ﬂamrte. homers abfﬁai '10 110! 'm_=l'<'-'-P1~J1 [Srrnnsiiy V. Srrnmsh-' U-95"-3'] . ' I'1't;¢ Domicile and Ma1l'it1.19DillPr-pC_=PC]J1'E5 Acts 1903' Report on Recognition of -Foreign Dittorces 31' {Chapter l1.--Engiish Law as to Jurisdiction and the Act' of I973. Chapter 12.-

Reciprocity.) 11.10. Other jurisdictional grounds for divorce are-abolished by the Act--~--that gslgcdsrounds 8-'30"

being the etfect of the words "only if" in section 5(2), quoted above. 1 ' A wife will no longer be able to petition for divorce on the basis,--{i} that she had been deserted or her husband deported and he was domiciled in EnglaJ1d- and Wales immediately prior to such actsl, or [ii) on the ground that she is; and she has been for three years, ordinarily resident in England and Wales and her husband is not domiciled in any other part of the British Isles".

CHAPTER 12 Reciprocity

1. INTRODUCTORY ' 12.1; If legislation as to recognition is needed, the most important question IntroductO1'Y- is,'w'hat should be its basis. In this Chapter. we propose to consider the ques-

tion' whether, in-relation to the grounds of recognition'. itsis necessary that the recognition of :1 divorce or separation on a particular basis should be pro-

vided for only where the foreign country sconcernedeitself recognises Indian decrees of divorce or separation granted on that basis.

II. RECII-"RCICITY----FIRST MEANING This -naturally brings to the forefront-the aspect of "reciprocity". Now, _$p'T'=::1.'{';_l°"o';E 3;

we-wo'u1:1 like to make it clear that the expression 'reciprocity' could be used ciprocity'. iii two senses. In the first sense, it means that the-same criteria of recognition sittzhsld, as far as possible. be adopted, by our law in relation to the recogni- t_io11"of' foreign decrees in matrimonial causes, as are laid down by law in rbspecti of the exercise of matrimonial §uri.stdictiorI by our own courts. This dspect-is better described as -the theory of "eqnivalencc'"'. Reciprocity, in this sense. is not concerned with the test adopted by foreign. courts in recogizising our decrees. but with the test adopted by Indian courts in exercising their own jurisdiction". This aspect, that is, the aspect of 'equ_iva.lenc_e as explained above. is certainly relevant to the subject of recognition as a whole'. Our own view on the subject is that reciprocity in this sense can be legitimately taken into consideration.

lr.'.'.'!-.- T-his approach was adopted in, andis illustra,ted_._by, the English case Qgan GTiswo1.1'. of -Travers v. Hailey'. Even before that decision. the approach had its sup- """""- pbrters-----e.g. Dean Griswold."-9 ' .

'Para. 11:4, supra.

flfata. 11:6, supra.

-_..,,'Chapters 10-11, supra. I 'Cf, Von Mehren and Trautman (I968). "Recognition of Foreign Divorces" in B1 Harv. Law Review, 1600.

55:: para, 6:4, supra.

"See also Chapter 1, supra.

"'Traver.t- v. Hoiiey, {I953} 2 All E. R. 794.

9-Griswold, "Recognition of Foreign Divorces" (1952) 65 am. Law Rev. 193, 227. 'For his later comment, see Griswold in {I954} 6'} Harvflaw Review.

Justiﬁcation.

English practice.

Reciprocity in the .second sense.

Report on Recognition of Foreign Divorces (Chapter 12.---Reciprocity.} For example, if the decree of the foreign Court was one dissolving the marriage between parties domiciled in the foreign country, Indian courts should recognise the dissolution as effected by the decree, irrespective of the question whether or not, the foreign court would itself recognise a decree of divorce granted in India on the basis of domicile.

12.4. This aspect could be better described by using the term "equivalcnce".

as already stated'. Ordinarily, it is undesirable that recognition should be denied where the forum in which recognition is sought. itself employs a. juris- dictional basis equivalent to that employed by the rendering court. The word "equiva1ence" is convenient in this context to connote this aspect.

12.5. In this sense, the principles on which our courts exercise jurisdiction. and the principles on which our courts recognise jurisdiction exercised by a foreign court, should, in justice. tally with each other, wherever practicable,----- although it is not necessarily implied that at a particular moment of time the two should be identical in all respects with each other. One need not over--simplify the problem by assuming that the two po1icies--the policy under- lying the standards for assuming jurisding and the policy underlying the standards for recognition--are identical. The policies that underlie the choice of standards for assuming jurisdiction, however, do furnish a useful starting point for recognition also.

12.6. One writer has pointed out' that many British states now claim jurisdic- tion and purport to exercise it on substantially wider grounds than the territorin-i list concepts embodied in-the international jurisdictional rules which aré basis of the enforcement and recognition of foreign judgments at common law. It was. thus, not unnatural that some attempts were made to enforce and recognise foreign judgments rendered by courts which though not internationally competent. had, purported to exercise a jurisdiction basis which corresponded to a ground. which the forum claimed. Such an extension was made in the area of recognition of foreign divorce decreesi.

III. RECIPROC'.ITY---SECOND MEANING 12.7. We shall now come to reciprocity in the second sense.' We are not in favour of adopting that as a basis, but we may state that theoretically recipro- city in the second sense means that the ground of recognition by our courts and the grounds of recognition by foreign courts, should be identical, or. in other words, our law should not compel our courts to recognise a foreign decree granted on a particular jurisdictional basis, if that particular basis is not adopted by the foreign law as a rest of recognition in relation to the decrees of our courts.

Though reciprocity, in this sense. is familiar in many ﬁeld of law'. we are of the View that it should not he insisted upon in the context of decrees of divorce or legal separation. It should not be_ overlooked that 'Para. 12:2, supra. I 3Pryles "Recognition of Foreign Judgment" in (1912) 12 I. J. I. L. 30, 31. 36. 3(a) Travers v. Hailey. (1953) Probate 3&6',

(b) Re Mropcirtes LIL, (1960) l. W. L. R. 1973.

-'E.g. section '44A. Code of Civil Procedure, 1908.

Report on Recognition of Foreign Divorces (Chapter 12.-Reciprocity.) eitizens are helpless individuals, and to make the recognition oﬁ matters aifect- ing their status dependent on the course adopted by the authorities of a foreign country would lead to injustice.

The very object of the law relating to recognition, in the present con- text, is to "preclude the scandal which arises when a man and women are held to be husband and wile in one country and strangers in another." There could be other objections to pursuing this object too malously. and there could be need for imposing various safeguards and conditions, but reciprocity is not one of them. .'We think that on principle there is no rational justiﬁcation for insisting on reciprocity in the second sense. However, we shall brieﬂy discuss the views prevailing on the subject.

12.3. It would be convenient to begin with the position in the U.S.A.. since 'the doctrine seems to have found some favour there. In the U.S.A. the doctrine that recognition will be denied unless the rendering jurisdiction would re- cognise an analogous judgment by the requested forum, was announced by the Supreme Court of the U.S.A. in Hilton v. Gaynor', which based its decision "upon the broad ground that international law is founded upon mutuality and reci- procity." Four justices, however. dissented, stating that res judicufo doctrine should apply "on the same general ground of public policy that there should be an end of litigation", and that "it is for the government, amt not for its courts, to adopt the principle of retorsion, if deemed under any circumstances desirable or necessary."

In that case. the lower court had-enforced a French money judgment passed in France against a 1.1.5. citizen. The majority opinion held that:

"The cornity of our nations does not require us to give conclusive etfect to the judgments of the courts of Franee;" and this was "in view of want of reciprocity on the part of France. as to the eﬁect to be given to the judgment, of this and other foreign countries."

The same rule seems to be adopted in German law for most classes of casesi.

123. In both countries (U.S.A. and German:-r). h0WEVB1'. there is consider- able disagreement in academic circles about the extent of the rule'.

Scholars in the U.S.A. in general oppose such a requirement. because- (i] it arbitrarily penalizes private individuals for positions taken by foreign governments, and because (ii) such a rule has little, if any, constructive effect, but tends, instead, to a general breakdown of recognition practice'.

twigs." er, Wilson Law Reports 2 Probate 435, 4411.

'Hilton V. Gaynor, -(1895) 159 U. 5. I13, 223, 229. 234.' 'See Von Mehren and Trautrnan "Recogniti_nn of Foreign Divorce" (I968) Harv. Law R61'. 1600. 166-0,. 1661.

'See:

' ' This -C of Judgment: Rendered Abroad", (1950) SD cc11,lj;l1,.Rf,fS§:¢v:1']1ise3,SE..'aS$sf13t1ille appliesoudldﬂr when the American party was the defendant abroad, and lost}; _ -

(bl Nadelmann, "Non-R'ecog|1il:io11 of American Money Judgments Abroad and What To Do About 11", (1957) 42 Iowa 1. Rev. 236. 249-55- 5(3); See, .¢_g_, Ehrenzweig, Conﬁict of Laws (1952) page 4-6. 155'. [I3] Nadelmann, "Reprisals Against American Jud5n1ents" {I951} 65 I-I51"-r. L. Row'. 1134.

uss-91;

to Goodrich, Connie: of Laws. Pare 39%-

Reciprocity in tin U.S.A. and Ger-

many.

Criticism in USA.

ti Doctrine not ado-

pted in some States in U.S.A. Position in England, France.

Conclusion.

Introductory.

Divorce granted in country of do-

mieilc.

Report on Recognition of Foreign Divorces-

(Chaprer 12.--Rec:'procr'ty. Chapter l3.--Recomrn£ndm'ions as to existing grounds for Recognition.) 12.10. In any case, the doctrine has not been followed in several American _ jurisdictions notably, New York', Georgia" and California'. Moreover, 'it is important to point out that even where it is followed, it is not applied to judgments in rem.

12.11. It may also be stated that no reciprocity requirement is imposed in relation to the recognition of foreign divorces by----- . .

ta} England': or (1)) France".

Even before the law placed .on a statutory footing by the Act of 1971, the House of Lords. in the case of Ind}-kc', stated that "considera- tions of policy" rather than the principle of "reciprocity" were relevant inthis regard.

12.12. Having considered all of the matter, we have come to the con,- clusion that reciprocity in the second sense} should not he insisted upon' in the present context. We are. accordingly, making our recommendations with- out any restriction or q liﬁcation in this regard, and our recommendations should apply whether the oreign country does or does not recognise our dc'ci'ees on jurisdictional bases similar to those proposed in the law recon1mcnde'd'"b'3r us.

Cmuvrna 13 REc0MMENnA1'_ioNsn_.s 'ro nxrsrtuc GROIJEDS EOE REOQGNITION

13.]. We shall now deallwith certain topics which concern some of the exist- ing grounds of recognition or other miscellaneous matters, namely,----- (a': divorce or legal separation granted in the country of domicile; (ta) divorce or legal separation recognised as valid in the -countrgtol domicile; ' ' - A 5 '-

[c) nomrecognition of divorce by third country not to! be a bar to divc-rce.

13.2. Divorce granted in the county' of domicile is recognised in India. since- we follow the common law rules. 'The question whether this rule should '13::

1(a) Johnston V. Campaigns Generciq,TransarIant.ique, _{l926) 242 N. Y. page 331, 152 N. S. 121 cited by Von Mehren and Trantman, "Recognition etc." (1968) 81 Hat'\r_--iLaw Rev. 1600, 1660, 1661; . ..

{b) Cowuns V. Ticonderoga Pulp 8: Paper Co_, (1927) 219 App. Div. 120, 219 N. Y. Supp. 234, Affd 246 N. Y. 503, 159 N. E. 669. , 9(a) Truscan Steel Co. Ltd. V. Bieglar. (1948) N. E... 26.. 623;

(b) Gouibom V. Joseph, (EH3) 195 Ga. 725. 255- E. 1d.' 575-

3See Pryles, "Recognition of foreign iudgnten 'Ehrenzweig, Conﬁict of laws. (19621.

'English Act of 1971.

'Nade|mann "Recognitiori..of M01153' Judgments 513 Fran"

Comp. L. 243, 251. _ 'Tndyka V. Indyka, {[967} All E.' R. at page 689.

'Para. 12:2, srrpra.

(1956) 5' mil.' 1.

ts etc." (1972; 12 1. 1. 1. L. 39.: '3:1i.}I-.d . - page 165, para. 46, and page 163, footnote 25.' ' ' . diﬁiculties. the most Report on Recognition; of Foreign Divorces (Chapter l3.--Recommendatz'ons as to existing grounds for Recognition. Chapter

14.--Recommendations as to new grounds of recognition.) codiﬁed, is a question of detail. But the principle is as stated above. It may also be stated that Indian Courts have themselves been exercising their juris- diction in matrimonial causes on the principle of domicile. Moreover, some of 'our statutory provisions are also based on the assumption that the country of 'domicile has this jurisdiction. Accordingly, it is 'proper that we need not disturb the present position.

13.3. Where the divorce or legal separation, though not granted in the country of -domicile, is recognised as valid in the country of domicile. it stands to reason that it should be recognised in India. Such a provision is contained in the English Act of 1971'. and the matter should be expressly provided for.

13.4. Besides this, it is also necessary to save the provisions of any other enactment, which provides for recognition'. There is. so far as could be ascer- tained. only one 'Indian enactmenti directly relating to the recognition of decrees of divorce. But the provision as regards recognition by virtue of any other enactment will have to be general.

13.5. Lastly, it appears to be advisable to provide that the non-recognition of a divorce by a third country shall not be a bar to the recognition of the divorce in India. Such a provision is contained in the English Act'. The main utility of such a provision lies in this, that it makes the provisions of the pro- Act operative irrespective of the attitudes of other countries-----particular- ly. countries which adopt other tests for recognising divorces.

CHAPTER 14 RECOMLIENDATIONS AS TO NEW GROUNDS OF RECOGNITION I. INTRODUCTORY 13.1'. Having dealt with the existing law, we shall now proceed to consider what changes should be made in it. The fast major topic. which we propose to'. discuss in this Chapter, will be concerned with the addition of new grounds ol recognition. Retention of the existing grounds has been already dealt with-".

The question may naturally be raised; at the outset, why any additional grounds of recognition should be inserted. and whether the existing grounds of recognition, which are mostly based on the central concept of domicile, are not stﬁhcient for practical purposes. In order to with this question, it is necessary to refer to certain drawbacks resulting from the concept of domicile. atidlalso to take note of certain other aspects relevant to the matter.

11. DOMICILE~----DEFECTS ILL Now, so far as the concept of dornicile is concerned, though, by and 5 outlines in theory are clear, its practical ' application leads to certain important of which is the diﬂieulty of determining that pli_i'l"oE the concept which represents the mental element. Broadly speaking. dﬁgﬁjcile. as understood according to the traditional concepts of the common H. .

large. it 1Section 6(a), English Act of 1971.

'Cf. section 6(b), English Act of l97'l.

3Enactment relating to war marriages.

'Cf, section 7, English Act of 1971.

'Chapter 13, supra.

3.1 Recognition as valid in the country of domi-

cile.

Recognition by virtue of any other enactment.

Non-recognition

-by a third coun- try not a bar to divorce.

Introductory. I -

-Need for addition to the existing grounds--<:on-

cepts of domi-

cile.

Drawbacks in the concept of domicile.

Mental element.

Rigidity of the lingljsh concept.

Report on Recogniriori of Foreign Divorces (Chapter 14.--Recomme:ndatz'oris as to new grounds of recognition.) law world, comprises two elements, which can be conveniently described as the pliysical element and the mental element. Case-law on the subject is legion:

but. for the purposes of the present analysis, it is sulficient to refer to the observations of Lord Wensleydalel: "There are several deﬁnitions of domicile which appear to me pretty nearly to approach correctness. One very good deﬁnition is this: habitation in a place with the intention of remaining there for ever. unless some circumstances should "occur to alter this intention."

The combination of fact and intention. which is required to» constitute domicile. is also indicated lucidly in the observations of Russell. .T."--

"The domicile ﬂows from the combination of fact and intention. the fact of residence and the intention of remaining for an unlimited time.

The intention required is not an intention speciﬁcally directed to a chantgg of domicile. but an intention of residing in a country for an un1i1:n' time".

14.4. The physical element in domicile may not present problems of magni- tude. The mental element does. It may be easy to determine whether a person is or is not residing in a particular place at the time when the proceedings for divorce were instituted. But it is not so easy to determine what his intentions were at that particular moment. A person may not always have a very deﬁnite intention as to what country he proposes to make his permanent home. The inference drawn by the court may do injustice to the person who may not have such intention.

The mere fact of a man residing in a place diiferent from that in which he has been previously domiciled (domicile of origin}, even though his residence there may be long and continuous, does not, of necessity, show that he has elected that place as his permanent and abiding home. Therefore, though the concept of domicile as a test of recognition of a foreign decree is simple in formulation. it is diﬂicult in its application.

14.5. Another diﬁiculty created by the concept of domicile is the fact that it is a very rigid one. In Arnold 1?. Arnold'. it 'Was 0bS¢1"'v'0d--

"The general rule of jurisdiction in divorce in England is that English domicile only is the test and that has to be the domicile of the husband. Pausing there, English conception of domicile is the most rigid in the world. It must be residence with the intention of permanent settlement in that place."

It does not. for example. tally with the American concept of domicile, which. in this context is, to some extent, more liberal. The American concept of domicile is, in practice, if not in theory, diﬁerent from the English one. The Engﬁgh cmjccpt emphasises the subjective element. While judicial pronounce- ments and other current formulations of the requisite intent in the U.S.A. do 1.901; very different troni those en1P10l"'-H1 511 Engmh 13""- Yet in ifctual P""°"°'_=' American courts, in general. have not taken the subjective test as literalh' as that British counterparts-

Reincte possibilities. or even rather strong probabilities. of a future i'et1II:u:

to the country of the previ ' domicile, or other removal from the actual plane of abode would by the yardstick applied by English courts, probably prevent ; 7 House of Lords Cases 124, 154.

'Which 'Re Amines!-fir'. Davidson 1'. An.-iesiey. U926) Ch. 692- '.-irnoid v. Arnold, (1957! 1 ='1"E- R- 570' 572' Report on Recognition of Foreign Divorces (Chapter l4.--Recommendations as to new grounds of recognition.) the acquisition of a domicile of choice. But these have usually been disregard- ed by American courts. This has been done even where the acquisition of a new domicile involved abandonment of a domicile of origin.

Again, in the U.S.A., a change of domicile is said to depend not so much upon the intention to remain indeﬁnitely in the new place, as upon a lack of any present intention to establish a home elsewhere.

Under the Restatement prepared by the American Law Institute, for example, it is enough if the person intends to make a place as home "for the time at least.''' 14.6. Another drawback of the English concept is that apart from statutory modiﬁcation, the domicile of the wife follows that of the husband in general, so long as the marriage is subsisting. It is not only settled that a wife on her marriage acquire by operation of law the domicile of her husband. which she retains so long as the marriage subsistsb" but it is also well-settled that she retains this domicile even if she is deserted by her husband', and even though she may have obtained a decree of judicial separation'.

This aspect of the concept of domicile naturally causes injustice when the husband deserts the wfe, with the result that while the de facto residence of the wife is different from that of the husband, the pre-existing d'omicile. which arose by reason of the marriage, confers jurisdiction on, and only on. the courts of the foreign country where, before the desertion, the husband was domiciled. Until the marriage comes to an end. this position survives where the common law applies.

14.7. To sum up what has been stated above. the concept of domicile suffers from the following principal drawbacks, namely,-

(i) diﬂiculties of application';

(ii) rigidity of content'; and

(iii) injustice to the wife" in certain circumstances.

However, we may note that many countries adopt the test of domicile as a basis for exercising jurisdiction in divorce.

14.8. In relation to those countries, it will obviously be desirable to recognise the decrees of divorce or legal separation passed in these countries on that basis. Such a provision is contained" in the English Act of 1971 also. and its lkestaternent (Conflict of Laws), S0Gli01'| 15(1)"): 3E¢ti0D 13 3AIbarIa 1:. Cook, (1926) A. C. 444 (P, CJ.

'This is the common law rule.

'Yelberton v. Yelberron. (1359) 1 ﬁr. and Tr. 574.

'See discussion in Gartnwaire v. Garth»-cite, (1964) 2 All E. R. 233, 236 (Court of Ap-

pt'-aD (Wilmer. L. L}.

'Para. 14:4, supra.

"Para. 14: 5, supra.-

"Para. 14:6, supra.

'Section 3(2), English Act of I97}.

3'! ,Don1ieiIe of wife.

Diﬂiculties of do-

micile summed up.

Domicile.

L_egislative de-

vice.

Habitual resid-

ence as a_ ground of recognition Deﬁnition of "ha-

, bitnal residence"

not necessary.

Habitual resid-

-ence of either 'P0!-18¢.

Article 2 of the Convention.

Report an Recognition of Foreign Divorces-

(Chopter 14.--Reco.-nmendations as to new ground: of recognition.) utility. even after insertion of the proposed new tests of recognition lies in this that Indian courts, while considering the question of recognition, will not 5; called upon to examine and investigate questions of fact relating to habitual residence or nat1onahty------the proposed new tests, We therefore recommend that the present position in this regard should be preserved. , 14.3.4. The legislative device to be adopted in this connection should, how- ever, be slightly different _from that adopted in the English Act. The English Act includes domicile under habitual residence, in section 3(2). We would pre- fer to mention it separately, and thus adopt a more direct way of dealing with the matter.

III. HABITUAL RESIDENCE 14.9. In view of the drawbacks of domicile to which we have referred, it is desirable to consider the addition of other tests. "The ﬁrst ground of recogni- tion to be newly added. to which we address ourselves, is that of habitlial residence. Though the concept of residence is not known to theocommon'ldw in this ﬁeld, it is not unfamiliar to Indian legislation. Before certain j'udicia'I decisions' (commencing with the year 1921) changed the position, residence was treated as a basis for the exercise of jurisdiction under the Indian Divorce Act. 1869. section 2. It is believed that the concept of "habitual residence"

strips the concept of "domicile" of technicalities and concentrates on the dura- tion of the residence. In particular. it eliminates inquiries as to the mental clenzent.

14.10. Since the question whether residence is habitual will be a question depending on the facts of each case, a deﬁnition of "habitual residence" would not be necessary. The expression "habitual residence" "does not, of course, necessarily mean the last conjugal residence in the country concerned, though. in many cases, the two might coincide. ' '= = 14.11. A more diﬁicult quest'ion,--thoI.1gh a question of detai1.--arises "Where the habitual residence of the respondent and the habitual residenceﬂof the petitioner dilfer. What should be the test adopted in this regard ? Habitual residence of the respondent creates no problems, because, if the _country is one where the respondent was habitually residing, in most cases recognition of a decree of a court of that country would not cause any injustice to the res- pondent. However, the situation where only the petitioner was habitually resi- dent in the foreign country, is'a' difficult one. It is sometimes believed that such a test of jurisdiction--a test connected with the petitioner's residence- might favour what is known as "--forum-shopping", that is to say, the peti- tioner going from one place to another and taking up residence in a country mainly in order to select a-forum favourable to him.

14,12. It appears that at the Hague Conference on private international law, reluctance to admit habitual residence of the petitioner But the delegates of the Scandinavian countries--- ted upon the inclusion of a forum based conference ultimately admitted also, there was some as a ground of jurisdiction.

Denmark, Finland and Norway-insis' on the habitual residence of the petitioner. The ' I ' this as a ground of jurisdiction, though with certain safeguards,-l31p'1°ﬂ% 3} least one year's residence of the petitioner, the fact that the spouses last halal,- tually resided together in the country, and the fact that the petitioner who also a national of that State.

'Sen Keyes v. Keyes, supra.

Report on Recogru'tion'o;f Foreign Divorces (Chapter l4.---Recoimnendarions as to new ground: of recognition.) "I +-

The precise provision in the Convention' is elaborate. Article is as follows :

"Article 2 Such divorces and legal separations shall be recognised in all other Contracting States. subject to the remaining terms of this Convention, if. at the date of the institution of the proceedings in the . State of the divorce orlegal separation (hereinafter called 'the State of origin')---- I (1) the respondent had his habitual residence there: or (2) the petitioner had his halt-it-ual residence there and one of the fol-

lowing further conditions was fulﬁlled:

ta} such habitual residence had continued for not less than one year immediately prior to the institution of proceedings;

(hi the spouses last habitually resided there together; or both spouses were nationals of that State; or (3) (4) the petitioner was a national of that State and one of the following further conditions was fulﬁlled: A

(a) the petitioner had his habitual residence there; or [bi he had habitually resided there for a continuous period of one year falling. at least in part. within the two years preceding the institution of the proceedings; or the petitioner for divorce was a' national of that State and both the following further conditions were fulﬁlled:

{5} la) the petitioner was present in that State at the date of institu-

tion of the proceedings; and {hi the spouses last habitually resided together in a State whose law, at the date of institutio_n of thif. proceedings. did not provide for divorce." I We shall discuss the question of either spouse later. -

Iv. Narrpnnnlrv 11:13. We shall now discuss the test of nationality. In general, and individual has the nationality of State which confers it_upon him, provided there exists a genuine link between the "State and the individual'. ' e The requirement of a genuine ]i:_nk is the tlogical result of the decision of the International Court of Justice in "the' Noraehohm case'. The question of existence of a genuine. link may present problems when the particular country attempts to c without that persorfs consent.

may determine that an individual in its' national. For the present purpose it is not necessary to go into these details of 1iat.iol5'alitjr.l But it is 'pertinent to

1.-In-ticle 2 of the Hague International Convention. ' smpel-_1¢an Law Institute, Restatement of Foreign relations, Law, Second (I905). P336 74, para. 26.

: I .

Worzebohm case, 1 C. J. Report 4'. 49 American Journal of International Law. 396.

outer nationality upod a' persodnot resident within its borders' It inay also happen-that more than one State Nationality tituted in; duty mace. .

Cl!!!)I-

'Dra-

nuine link iusti -

of:=a1ba§'-1_ Ulp as to desira-

bility of recognis-

ins the test of nationality.

Another ground of r-ecognliion is nationality.

apt of natio-

: and ty.

Roman Law.

"East" of nationa-

lity discussed in the context of re-

use _ on by In courts.

Report on Recognition of Foreign Divorces (Chapter i4.----Recorru:zensiai_*.r'ons as 10 new grounds of recognition.) point out that nationality is a concept which is normally evolved in order to determine whether a person owes permanent allegiance to the country con. ccruedl. ,.,g Y, .jliJ 14.14. Examining the desirability of the test of nationality in relation to recognition of divorces. we would state that on this subject, two views are possible. Many civil law countries treat this as a basic ground for the exercise of }U1'lb'diCll0I1 in matrimonial causes; and not to recognise this test amounts to nomrecognition of their decrees in almost every case. At the same time, however. it is 10 be pointed out that nationality, in itself. does not indicate a snﬂiciently close connection signiﬁcant for the present purpose between' a person and a. country.

14.15. Injustice might, therefore. result where a person has abandoned the country of nationality long before institution of the proceedings in which the decree was obtained. Recognising these aspects, the Hague convention' requires certain other safeguards to be complied with. where rccognilion on the ground of nationality is dealt with.

14.16. Nationality has a political aspect, and may involve various methods, such as place of birth, formal allegiance to a sovereign, race or ancestry and many other facts which are not necessarily related to domicile. As Leﬁar has pointed out". "It is entirely possible for a citizen of one country to be domiciled in another."

14.17. The difference between nationality and domicile is of interest. In Roman times, the two ideas, (nationality and domicile), were not clearly separated. The relationship of a person to the laws of a community could be regarded--

[fl from the point of view of his dornestic home being located within the community, or

(ii) irom the poim of view of political tics binding him in common with other members of the community.

14.13. The Romans did not regard domicile as unitary, in the sense ihat a person could he domiciled in 0111)' 0113 lT1fi5diCﬁ0I1 at 3 £iV3ﬂ ﬂ'11°- The id"

was introduced later'. An important factor causing certain countries to derive personal law from nationality, while causing other countries to derive it from domicile, has been the development of federalism'. -

14.19. The test of nationality may now be considered in the Indian context- It can be stated that the majority of the cases coming up before Indian courts for recognition, direcﬂy or indirﬁclhﬂ Will 05 Indians "'h°~ bcfme thﬂir "tum to India, were residing in foreign countries. such as the United Kingdom. some nd Canada. As to such cases.

of the Far Eastern countries, the United States a _ _ I the test of nationality. even if inserted as a ground for recosmtm of the foreign divorce will be merely academic. The nationality' Of 131° Pﬁﬂicss in "W V35' 10;', The U. S. A. Ilnmigration and Nationality Act. 1952, section lllllfaflilll. [I953]:

8 United States Code, section llBlfa)l12l-

'Article 2, para. 14:12, supra.

'Leftist, American Connie: Law-5 l196$3+ case 3|: PMEWP1' 15- '-See Story, Conﬁict of Laws {St}: 661-. 1333}, Ch- 3- lff, Cook. The Logical and Legal Bases of the Conflict of Laws ([9423. Ch. 8.

Report on Recognition of Foreign Divorces 91, (Chapter l4.--Reconiniena'on'oni- as to new grounds of recognition.) majority of such "cases, would be Indian, and the test of nationality would not add anything to the competence of the foreign courts.

However, in a small number of cases, where the parties are not Indian nationals, or at least one of the parties is not an Indian national, the acceptance or rejection of the test of nationality, in relation to recognising the jurisdiction of the foreign court, could be material. If the foreign country exercised jurisdic- tion on the basis of nationality and the parties. though of Indian origin. are its nationals, such a decree may he passed by the foreign court. Utility of recognition of the decree in such cases is obvious.

14.20. Adoption of the test of nationality has another consideration to corn- Point: in_ _faV0llf mend itself, namely, that the test is applied by many of the civil law countries 3; '°°'g',',§",,$' l; for exercising their matrimonial jurisdiction. It follows that if the test is not l1ati_0_l181itY--"

. . . . . . ?os1tion regard-

nccepted and incorporated into our law for recognising the decrees of divorce mg Ch_ﬁ5ﬁa_n._ granted by those countries, than divorces granted by those countries would not valid in India. The parties would then have to institute proceedings for ' "solution again in India. Assuming that this situation will not oﬁten arise in _.-ractioe because of the small number of non--Indians' whose marriage. having F. been dissolved by a foreign court. would be the subject-matter of litigation in Indian courts, it is still to be home in mind that if the situation arise, there will be practical inconvenience, because the question of divorce will have to he re-litigated.

In addition to this aspect of practical inconvenience, there is a theoretical aspect which cannot be brushed aside, namely, the parties, unless they are domiciled in Indiaw-may not even be able to invoke the jurisdiction of an \ Indian court, at least when they are Christians. This is for the reason that 'slander the Indian Divorce Act, 1369, which is the principal enactment for Christians, jurisdiction" in relation to divorce is exercised exclusively on the basis of domicile. If this he the correct position, then it means that, non- domiciled Christians would neither have a foreign decree to stand back upon,- it it is not recognised,~--nor can they seek the aid of our courts for establishing the ground of divorce (whatever that ground may be), and seeking appropriate matrimonial relief. Even if they are prepared to undergo the inconvenience of instituting fresh proceedings in India. the scheme of the Indian Divorce Act would come in their way if they are Christians, as explained above.

14.21. Even where, in the above situations, the parties are Hindus, though not lIil't"$"'-11301?' °£mm of Indian nationality, a similar diiﬁculty could arise, because the provision' in fpm-neg are Hm-

the Hindu Marriage Act relating to the jurisdiction of courts is ambiguous. d""

It is not clear beyond doubt whether the provision is intended simply to deal with the internal venue, i.e., the particular Indian court that should exercise jurisdiction, or whether it is intended to deal with the broader question Ihf the jurisdiction of Indian courts in general with reference to private inter- national law.

14.22. Having regard to the diﬂiculties which would result if the decrees of the 'I_'est of nationa- court of nationality are not recognised. we are inclined to take the view that my r°'°°"""°°d°d' such recognition should be accorded. If this principle is accepted, the next

-'See para 14:19, supra.

'See discussion as to section 2, Indian Divorce Act, 1369 (Chapter 6, supra). 'Paras. 14:19 and 14:20, supra, ' 'Section 19, Hindu Marriage Act, 1955 {See Chapter 5. supra).

Whether other considerations ' should be incor-

porated_ Test of habitual residence etc. of either party, whe-

£361" to be adopt-

Ejiﬂicultv of de-

ciding the basis of recognition.

Report on Recognition of Foreign Divorces (Chapter I4.----Rec0mmer1d£Itions as to item: grounds of recognition.) question to be considered is one of detail, namely, whether the principle of nationality should be subjected to any such additional requirements as contemplated by Article 2 of the Hague Convention' 3 or whether nationality sirnpiiciter should be enough. In either case, another question of detail will also require to be considered, namely. whether the nationality of both boriiiis should he the test, or whether the nationality of one party should suﬂice. ﬁle think that a simple test is enough.

14.23. We note that in Engiand. this test has been adopted without any-gﬁurthér On the other hand. in the International Convention', the-:tgu; The former is preferable.

suffer from : .-tram qualifications".

has been inserted with certain restrictive provisions. In our view; as simpler to apply. and it does not inﬁrmity.

: In 1-ral 14.24. On the question whether the test of nationality should be encumbered with the various qualiﬁcations that are found in article .2 of theslnternigligpzﬂ Convention". we repeat our view' that it should not be so encumbergg,,.", £9!-

two reasons. In the ﬁrst place, such restrictions are not recognised by some "'"' the civil law countries. =aI1d.'ilJ the second place, such restrictions might the practical utility: of :the provisions "for recognition. In practice, this.;test..j§ not likelv to be invoked often in Irelation to persons of Indian origin, angl._,v§*i,ﬂ be mostly invoked in relation to persons of foreign origin. Such cases are not likely to be many. M ,_,| I.V. WHETHER BOTHPARTIES SHOULD SATISFY THE TEST, 14.15. We shall now discuss the question whether it is enough if the _iurisdin,- tional requirement is satisﬁed in respect of one of the spouses, or whether that requirement should be satisﬁed as regards both the spouses. This aspect has caused some concern to us', and has received our anxious =conside1'dtion. since any decision we min; take, would vitally affect the parties. , *1 E 14.25. It may be noted, at the outset, that it is always a dilﬁcult question to decide whether a particular basis°for recognition should be adopted im the wider form or in the narrowei forrn. Against the desirability of recognising only divorces where the pziriies have a real social connection with thecotlntnjr of its own. there must weighed the 'need to avoid situations where the {parties are regarded as being inarried idone country and not married in snotheri. However, the ditﬁcultv is in the application of this broad principle. In what cases can we assert. without hear iof serious contradiction, that there is aiprcall social connection'? This is a rliﬂieult question to answer. and them is 3? T0011} for divergence of approach, as is illustrated by the course adopted in thelE1igIish Act as contrasted with the course--adopted in the Convention.

Under the English Act. it is enough if either spouse {i.e.. one of J spouses). satisﬁes the prescribed' test.

'Para. 14:2], supra.

'Article 2. » - - :

' "section 3{l)(b) of the Englishvhct of 1971. ~' 'Article 2 of the Convention. . I 'Article 2, para. 14:21, supra.

'Para. 14:23, supra. . ' ' ' ' 'Report of the Royal Commission on Marriage and Divorce U955}. C°IT11'n?'-"if ?3P"-1' No_ 9673. pages 1?. and 13.

'Section 3(1) (al this and section am. 1:97! Act. 1=ara- |0=3s Sum-

We have already noted this provisinn;__';,. H Report on Recognition of Foreign Divorces (Chapter 14.--Rer:ommendaIions as to new grounds of recognition.) 14.27. The Hague Convention' is more restrictive in this regard, and lays down a number of conditions to be fulﬁlled where both the parties do not satisfy the jurisdictional test. Article 2 of that Convention3 makes. a distinction between the respondent and the petitioner, fhe habitual residence of the res-

pondent within the territory of the state of the divorce or separation is, by itself, a sufficient ground of jurisdiction, under Article 2(1). This is likely to be the most convenient forum froin the respondent's point of view, and was therefore admitted, at the Convention, with little discussion. But there was more reluctance to admit the habitual residence of the petitioner as a ground of jurisdiction. Some delegates apprehended that such a head of jurisdiction might favour "forum-shopping". The delegates of the Scandinavian countries, however, having in mind the case of a Scandinavian woman deserted, say, by an Italian husband, insisted upon the inclusion of a forum based on the habitual residence of the petitioner~--apparer1tly to secure recognition for divorces grant- ed to the deserted Scandinavian women in a Scandinavian country. In the result, the Conference admitted the petitioner's habitual residence in a state as a ground of recognition but only when coupled with such "fortifying" elements as the ieugth-of the petitioners residence. the fact that the spouses la-st habitually resided together in that State, and the fact that the petitioner was also a national of that State.

It was argued by the Belgian delegate in 1967 that the fact that the spouses had their last conjugal residence in a State should. by itself, found the competence of that state in matters of divorce and separation, but this suggestion was ultimately rejected.

14.28. Some diﬂicalty also arose. in the debates preceding the Convention. as to the admission of nationality as a ground of jurisdiction. Since nationality is the basic ground of jurisdiction in most civil law countries, there was no objection to applying it in general. It was argued, however. by certain delegates that the political tie of naﬁonality did not always point to a sufficiently close connection between a person and a State, to justify, in relation to the person, its assumption of jurisdiction in divorce. It might lead, for example, to the application to a person, against his will, of the laws of a State which he had

- Ion'; abandoned This reasoning was so far acceptedtlrat the mere notiorztliity of the respondent is never, by itself, a recognised head of jurisdiction' under the convention. Nationality of the petitioner suﬁices only when it is coupled with such "fortifying" elements askfli the petitioner's own habitual residence within his national State. (2) his habitual residence there for a continuous period of one Year tallies. at least in Part. within the two Years Pfecﬂdiﬂg the in5ﬁ'U' tion of the proceedings, and (3) the respondent's also possessing the nationality of the State of the divorce.

The Convention makes yet another concession tc the nationality principle. Article 2(5) recognises that a Deliliﬂﬂﬁl-' 11133' Seek the 1'9ﬂ'l3dlr' Of di""01"33 in "'15 state of his nationality if (a) he was present in that State at the date of institu- tion of proceedings and (b) the spouses lost habitually resided together in a State whose law, at the date of institution of the proceedings, did not provide for divorce.

1Article 2, Hague Convention.

'Para. 9.3. .91.-pro.

ans rm-[..;j,,n, though pressed by the delegates of Austria, Belgium, Germany. Greece and Yugoslavia, was rejected by a large majority of states.

.1_s L own us Article ;.

Convention.

Hague Question of Illa-

tronality.

-Hlgue '94 Our approach.

Peculiar social fact relevant to Indian women with husband's re-

sident abroad.

Recommendation up to habitual re-

sidence etc. of both parties.

Revision in English Act or Conven--

than not favour-

ed.

Report on Recognition of Foreign Divorces (Chapter l4.----Recomniemi'ations as to new grounds of recognition.) This provision is designed to meet the case where, for example, a girl of Swiss nationality who is married to an Italian wishes to obtain in divorce in Switzerland without necessarily taking up or resuming an habitual residence there. Though this provision clearly opens the way to a species of "air ticket divorce" for the wealthy, the delegates of Italy and Ireland were among those who voted in its favour.

14.29. So much as regards the provision in the Convention. The question now to be considered is, what should be our approach? Should we adopt----(i} the English Act, (ii) the Convention, or (iii) any other course ? Adoption of the English Act' would mean that the jurisdictional test need be satisﬁed only in relation to one party. Adopting the Convention' would mean that (i) _ both parties must satisfy the test, or (ii) if only one party satisﬁes the test, certain other requirements should also be satisﬁed.

14.30. In making our recommendation on the subject, we cannot disregard the social fact that many Indian women in India marry young Indians who, soon after marriage, return to a foreign country where they have already taken up their residence, the wives remaining behind. The Indian husband may then obtain a divorce in the foreign country on the basis of, say, his own habitual residence in the foreign country. The wife may not have visited the foreign country, or may not have resided there for a long period.

If. in this hypothetical situation, a court in a foreign country grants, a divorce and the divorce is recognised in India, injustice would be caused to the wife, because, on the facts assumed in the above hypothesis, the wife cannot be presumed to have accepted the foreign country as her legal home.

Of course, the same reasorI.ing_applies. where a husband returns to India. leaving the wife in the foreign country and the wife obtains a divorce in that country. But this situation is not likely to be as frequent as the situation mention-

ed above.

14.3]. Having regard to what we have stated above, we have, after careful consideration, come to the conclusion that in order that recognition may be granted by Indian law to a foreigndivorce, the proposed law should require that both the parties should satisfy the jurisdictional tests. In coming to this conclusion, we have been chieﬂy impressed by the fact that if recognition is granted on the basis of the domicile. habtitual residence or nationality of one of the parties, injustice would often be caused to the woman, in the special circumstances already mentioned'.

14.32. It follows from what we have stated above that we do not consider the provision in the English Ac? as appropriate for India. We may also mention that we are not inclined to adopt the compromise formula adopted in article 2 of the Hague Convention'. Such a formula might prove rather cumbersome. That article is not a model of pristine simplicity. But, that apart, we are pot certain if the formula given in that article will be Easily Wﬂfliablﬁ ill PT3°t1C¢- hedged in, as it is, with a number of restrictions which might require the re- cognising court to satisfy itself about a number of tests.

1Para., 14.26, supra.

3Para. 14:28, supra.

"Para. 14:30, supra.

'Para. 14:26, supra.

5PaIa. 14:28, supra.

Report on Recognition of Foreign Divorces [Chapter 14.--RecommendaIions as to new grounds of recognition.) (Chapter l5.----DomiciIe and Nationality of the M-'!'fe.) 14.33. We would, therefore, prefer the stricter approach', namely. that both parties must satisfy the jurisdictional tests. No doubt, such an approach carries certain implications, since it lays down a narrow scope for recognition. If the husband is, say, habitually residence in country X, and his wife is habitually resident in country Y, a divorce obtained in neither country would be recognised in India. The same applies to cases where the parties are domiciled in, or nationals of, different countries.

14.34. However. this is the position even now under Indian private interna- tional law. which, following the English rules, requires the domicile of both parties in the foreign country, before the divorce is recognised. In any case. this aspect must be weighed against the possibility of serious injustice, parti- cularly to the woman. as explained abovei, if the test of habitual residence etc. of either party is adopted.

V. RECOMMENDATION

- 14.35. Having regard to all aspects of the matter, and after taking into account the various points discussed above, we have come to the conclusion that it is desirable to provide for the' recognition of divorces or legal separations granted by countries where both were habitually resident, or by countries of which both are a national. In addition, the present test of domicile should be continued.

CHAPTER 15 DOMICILE AND NATIONALITY OF THE WIFE

1. DOMICILE

15.1. Two questions concerning married women may now be dealt witl".--domi- cile and nationality. A married woman's domicile follows, in general, that of her husband. This is described as the domicile of dependence. Domicile of depend- anc;-, as a basis of jurisdiction has attracted much criticism over a long period, particularly in that it may be unfair to a married woman who can have no inde-

pendent domicile.

15.2. It may be noted that so far as domicile is concerned Indian courts have. in general, followed the English rules. whenever occasion al'ose,--as for example, in cases under the Indian Divorce Act. The Indian Succession Act' has a speciﬁc provision whereunder the domicile of the wife. in general, follows that of the husband---though, the applicability of this part of the succession Act is imited.' 1" this position, if the rule of English law is to be modiﬁed, an express provision appears to be desirable.

15.3. 'While the advantage of domicile is that it covers people who psychologi- cdly "belong" to a country, the theory of dependent domicile of a wife is the main disadvantage. This theory of dependant domicile violates the modern prin- ciple of equality of sexes, and has been discarded in many commonwealth coun- tries, such as, Canada,5 Australia' and New Zealandf IP31-a,"]_4:3| and 14:32, supra.

=Para. I4: 30, supra. _ 3Sections 15 and 16. Indian Succession Act, 1925. 'Section 4, Indian Succession Act. 1935- 5Divorce Act. 1968 (Canada).

s[Au5n-align] Matrimonial Causes Act, 1963.

Tﬁgw Zcaland '.W8,U'lm.°ni3_] C3'-'S35 Nita 95 Effect of the re-

commendation considered.

Recommendation.

Dependent do-

micile of wife.

Indian law.

Criticism of theory of depen-

dent domicile.

Recommendation as to w1fe's do-

mlclle.

Introductory.

Report on Recogrtition of Foreign Divorces (Chapter l5.~--Domicz'!e and Nationality of the wife.) Abolition of the wife's dependant domicile has been achieved in England by section 1 of the Act1 of 19".-'1, which reads----

"U3 (1) Subject to sub-section (2) below, the domicile of a married woman as at any time after the coming into force of this section shall, instead of being the same at her husband's by virtue only of marriage. be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile.

(2) Where iinniediately before this section came into force a woman was married and then had her husband's domicile by dependence, she is to be treated as retaining that domicile (as a domicile of choice, if it is not alsopher domicile of origin) unless and until it is changed by acquisition or revival of another domicile either on or after the com-

ing into force ofithis section.

(3) This section extends to England and Wales. Scotland and Northern Irelzm 15.4. Some countries still apply the common law rule.

15.5. In our view. it would be fair to provide that for the purposes of the pre-

' sent proposals, the domicile of the woman should be determined independently of that of the husband. Such a provision is required not only in View of the rule at present applied in India" but also in View of the fact that some countries still apply the common law rule." Such approach would he in conformity with the spirit of the Indian Constitution.

II. NATIONALITY--GENERAL DISCUSSIONS l5.5A. The next topic to be considered is the nationality of a married woman. Legal systems have adopted different approaches in this regard. -' The possible alternative principles which may govern the nationality of married woman are 2' (1) that marriage shall have no eﬁect; o-r {2} that the wife shall take such nationality as shall depend on her own election:

but these are subject to variation. That marriage shall have no effect was the, common law rule in England," but it was changed by the Nauturalisaiion Act 05 l87{}, for the second rule. and this was in force for some time. It was the rule in the United States until reversed by the "Cable Act" of 1922, and. since then,"

a British woman marrying a United States citizen does not. without express naturalisation. become a citizen of_ the United States.' On the other hand. she; looses her British nationality. and is, therefore. stateless. while a woman of United States who marries a British subject at the same time retains American nationality. These cases of statelessness and double nationality are the result of the present contradictory systems. ln general. they are avoided under the French 1Section 1, English Act of 197].

2Para. 15.2, supra.

"Para. I5.-4, sttpra.

*See [[930] Law Journal, page 144.

-'See H933) Law Journal. page 1-1-4.

"See (1930) Law Journal. page 144.

Report on Recognition of Foreign Dl'vorc£$' [Chapter liﬁﬂomiciie and Nnfionofity of the wife.) nationality law of 192?, which substantially adopts the third rule, and makes the wornatfs change of nationality depend on her election.'-

We consider it essential that married women shall have the right to deter- mine their own citizenship, corresponding to their present equality in respect of property and political rights. The tendency in Europe appears to be to adopt the English rule, and make the wife's nationality follow that of the husband."

Apart from the abstract point of liberty and equality. tl1is is probably the con- venient ruie. At any rate, the most pressing matter is to source, not that a mar- ried woman shall have any particular nationality, but that she shall not, by marriage, lose her original nationality without gaining another. In other words, the loss of one. nationality should be conditional on the acquisition of the other; and this was one of the suggestions of the League of Nations Codifylng Committee "which dealt with the subject.

There is a careful survey of the whole question in a paper read by Mr. F. Liewellya Jonein, M. P., before the Grotius Society'. where the position was des- cttibed in detail. As rapporteur for the International law Cornrnission. Hudson expressed the following opinion.' "Under the law of some States nationality is conferred automatically by operation of law, as the eﬁect of certain charges in civil status: adoption. legitirnation. recognition by aﬁiliation, marriage.

Appointment as each at a university also involves conferment of natio- nality under some national laws.

While these reasons for the cont-ernient of nationality have been recognis-

ed by the consistant practice of States and may, therefore, be considered as consistent with international law, others have not been so recognised."

III. NATIONALITY--ENGLISH LAW 15.6, Under the English common law, at least npto 1834, marriage did not affect a woman's nationality. In the Countess Com+'ay'.s ca.s'e5 reported in that year. Baron Parke said:--~ " A French woman becomes in no way a British subject by marrying an English man; she continues an alien, and is not entitled to dower."

I-I: referred to Coke on Littletonn" in this connection, the position in this regard has, however, been altered by statute in England-

The Natnralisation Act, 1870. in section I15," ﬁrst laid down that a woman who is a British subject and marries an alien, should be deemed an alien. Section 10(1) of the British Nationality and Status of Aliens Act. 1914, expressed the same principle more elaborately. and enacted' that "wife of a British subject shall be deemed to be a British subject, and the wife of an alien shall be deem- ed to be an alien."

15:: {1930} law Journal 144.

'See U930} Law Journal 144.

"F. Liewellyn Jones, M. P., Transactions of sy,-bk, L L. C. (19513 11.3. The rubric employed is :

operation of Law".

ﬁcotinress Cnnwnfs case. (1834) 2 Na Born. 31, S4.

'Coke on Litt'le1on, page 325.

i'Creig, International Law, £I9?[I), page 291 the Crelius Society (1930). Vol, 15.

"Conferrnent of nationality by pp. 364, 363, cited in 3471' A.s-hrr, A. I. R. 1929 #3' enema Provision in Citi-

zenship Act.

Case law nationality wzifo.

Legislative vice.

as to of de-

Report on Recognition of Foreign Divorces (Chapter lS.--Domici.t'e and Nationaiity of the wife.) The position was again changed as a result of international conventions on the subject, and an amendment which was made in 1933 reversed the rule. The later Act of 1948, which contains the present British law on the subject. pro-

vides. in effect, that marriage does not. in itself. change the nationality of a woman.

IV. NATIONALITY--INDIAN LAW 15.7. As regards Indian statute law relating to nationality, it may be stated that under section 5(l)(c) of the Citizenship Act, 1955, a woman married to a citizen of India does not automatically become an Indian citizen, though she may make an application and be registered as a citizen of India. A decision of the question whether she should be registered, is left to the discretion of the Central Govern- ment. In substance. the scheme of the Citizenship Act is in conformity with the U. N. Convention on the Nationality of Married Woman} The provisions of the Citizenship Act are, however, of no use in deter- mining the question how far as Indian woman married to a foreigner becomes in foreign citizen. Nor does that Act deal with the question how far a non-Indian woman, on marriage, acquires the nationality of another country of which her husband is a national. These questions have to be determined apart from the Act.

15.8. It has been held" by the Assam High Court that there is, in India, no pre- sumption that the wife would, by marriage, acquire the hubsand's nationality.

So far as nationality is concerned, the theory of unity of the husband and wife for the purpose of determining the nationality does not seem to have found favour in England, or in other oommonwealth jurisdiction."

However, this theory seems to have been accepted in some foreign coun- tries and it is because of that position that it may be desirable to provide, in the proposed law, that the nationality of the wife should be determinable separately from that of the husband.

V. RECOMMENDATION 15.9. The position, therefore, that emerges from the above discussion is that it is desirable' to provide that the rule that on marriage the wife acquires the domicilei or nationality" of the husband "shall not apply in relation to the recog- nition of foreign divorces and separations. There are several ways of providing what we have stated above. and, so long as the object is achieved, it does not matter what drafting device is adopted.

We give below some drafts for the purpose.

1ArticIe 3, U. N. Convention, U. H. Series, Vol. 139, page 87.

'Assam L. S, 1970, Assam 209 [Quinquennial Digest 1966-70, page 2?5, right ihlnd. under Citizenship Act. section Zthj] _ 3Rood Phillips, Constitutional .5: Administrative Law (1967), pages 416 and 413-. '-Para. 15:7, supra.

=Para. 15:3, supra.

"Para. 15:4, supra.

Report on Recognition of Foreign Divorces [Chapter lS.--Domici£e and Nationality of the wife. Chapter l6.--Exeeptiotr£ to Recognition.) Proposed section as to domcile and nationality of wife (1) For the purposes of this Act, and subject to the provisions of sub-sec-

tion (2), the domicile of a married woman as at any time after the commence- ment of this Act shall, instead of being the same as her husband's by virtue only of marriage, be ascertained by reference to the same factors as in the case of any other individual capable of having an independent domicile.

(2) Where, immediately before the commencement of this Act, a woman was married and then had her husband's domicile by dependence, she shall be treated as retaining that domicile (as a domicile of choice. if it is not also her domicile of origin). unless and until it is changed by acquisition or revival of another domicile either on or after the commencement of this Act.

Alternative d.-rﬂt (1) For the purposes of this Act, and subject to the provisions of sub-sec- tion (2), the domicile of a woman who is, or has at any time been. married.

-shall be determined as if she had never been married.

(2) Where, immediately before the commencement of this Act. a woman was married and then had her husband's domicile by dependence. she shall be treated as retaining that domicile (as a domicile of choice. if it is not also her domicile or origin), unless and until it is changed by acquisition or revival of ' another domicile either on or after the commencement of this Act.

Another Alternﬂive draft (1) For the purposes of this Act. and subject to the provisions of sub-sec- tion (2); any rule of law whereby a woman on her marriage acquires her hus- band's domicile or nationality shall not be taken into account.

(2) Subsection (2) as is main draft.

Cnsrrrsa 16 EXCEPTIONS TO RECOGNlTION--N0'I'ICE AND OPPORTUNITY 16.1. Recognition of a foreign divorce or legal separation, whether on the pro- posed new grounds." or on grounds3 already regarded as valid in our existing law. must be subject to certain overriding requirements which justify the making of exceptions to the general rule of recognition.

16.2. The attacks on a judgment may be classiﬁed as collateral. direct and equitable. A collateral attach operates in regard to a judgment only if it is void for want of jurisdiction. the theory being that a Court without the power to act can. in no way, affect legal relations.' Direct attack on a. judgment is an attempt in the original proceeding to have the judgment set aside for error. Lasﬂy. a prayer for equitable Ielief--either by way of an independent proceed- ing or by way of defence--protects a party from the eﬁect of a judgment sought to have been obtained by improper means. Fraud belongs to the last category.

'The last alternative draft is preferable.

"Chapter 14, supra.

3Chapter 13. supra.

'Note, "X Devcl-opInen{s--See jua'i'cara", (1952) Harvard Law Review 818. 850.

'99 Introductory.

Grounds of attack on Judgment.

100

Cases where ex-

ception needed.

No subsisting marriage.

Certain special situations illus-

trating the ab-

sence of a valid marriage after divorce valid under proposed Act.

Report on Recognition of Foreign Divorces (Chapter l6.--Excepn'ons to Recognition.) 16.3. Broadly speaking. the need for making such exceptions to recognition appears to arise in the following cases-

(all lb) where there is no subsisting marriage according to Indian laW;' where the rules of natural justice have not been observed by the for-

eign court?

[:1] fraud.' We shall deal with the first two in this Chapter, reserving a discussion of the rest to other chapters.

16.4. First, as to the case' where there is no subsisting marriage according to Indian law (including -its rules of private international law and also including the provisions of the proposed Act}." the iustiﬁcation for non-recognition of the divorce in such a situation is obvious. Where there was no subsisting marriage according to Indian law in the sense explained above, and the situation is one where the Indian law of imzrrioge is properly applicable, the grant of recognition to the divorce or legal separation would be illogical, and would create confusion. Recognition of the divorce would mean recognition of the marriagewand if there is no marriage according to Indian law. this would create an inconsistent situa- tion.

16.5. In this context. one aspect should also be referred to. Where the eﬁect of applying the provisions of the proposed Act would be to confer validity on a divorce granted by a foreign country X, then. obviously. the marriage in respect of which divorce is decreed cannot subsist after the decree of divorce, if the decree falls within the class of decrees covered by the proposed Act. Now, it may happen that country Y (i.e. another country), does not recognise that divorce, and a court of that country later grants a divorce to the same parties in respect of the same marriage. This later divorce cannot be recognised by our courts; since our courts are bound to recognise the ﬁrst divorce, the marriage does not subsist according to our law. The second divorce has, therefore. to be treated as void by our courts.

A negative illustration can also be taken. Let us assume, that by virtue of the proposed provisions. a particular foreign divorce cannot be recognised in India. The divorce is, however, recognised by, say. country X and a party to the marriage, now divorced. enters into a re-marriage with a third person in country X. This re-marriage is not a valid marriage in the eye of our law, since our courts do not recognise the divorce. The second marriage is. thus, void in the eye of our law. If this re-carriage i.e. itself disolved by a decree of divorce in a foreign country, that divorce cannot be recognised in India. there being no subs- sisting (valid) marriage according to the conceptions of our courts. In order to ensure such a position, it is desirable to make a suitable provision by way of exception to the normal rules for recognition.

1Para. 16:4, infra.

1Para_ 16:'.-', infra.

3Chapter 17, infra.

'Chapter 18, infra.

5Para. 16:4, supra.

"Para. 16:5, infra.

Report on Recognition of Foreign Divorces (Chapter l6.--Exceptions to Recognition. Chapter 1?.--PubIic Policy.) A general formula, such as+~"where there is no subsisting rnarriage"--- would cover all these cases. The English Act' has a provision on the subject, on similar lines.

16.6. It may be added that the situation may be one where Indian Law (inter- nal Indian law). does not apply to the divorce.

Rules of private international law, as is force inlndia, are to be taken into account in that case. and if the result of the application of these rules is that there is no subsisting marriage, then, again, the divorce cannot be recognised. This situation may arise where the marriage is null and void by reason of the application of Indian rules of private international law. For example, if the marriage was solernnised in India in violation statutory requirements as to pro- hibited degrees, the dignity a.nd consistency of our legal and judicial system would demand that the divorce be disregarded.

16.7. This takes us to the second exceptioni needed in relation to recognition. That relates to a foreign decree passed in breach of natural justice. The English Act3 has a specific provision on the subject, the gist of which is that a foreign decree will not be recognised in England if either the other party had no reason- able notice of the proceedings. or if the other party had. apart from notice. no reasonable Opportunity of hearing. For both the purposes--i.e, for determining the reasonableness of the notice and reasonableness of the opportunity--regard is to be had to the nature of the proceedings and "all circumstances" (of the case).

The relevant provision in the English Act reads----

"I{2) Subject to sub-section (1) of this section, recognition by virtue of this Act or of any rule preserved by section 6 thereof of the validity of a divorce or legal separation obtained outside the British Isles may be refused if, and only if-

(a) it was obtained by one spouse-~

(i) without such steps having been taken for giving notice of the proceedings to the other spouse as, having regard to the nature of the proceedings and all the circumstances. should reasonably have been taken; or

(ii) without the other spouse having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to the matters aforesaid, he should reasonable have been given; o-r".

This could be adopted in our law also, being obviously fair and required by the canons of justice.

CHAPTER 1?

PUBLIC POLICY

1. INTRODUCTORY 17.1. Public policy constitutes another possible exception in regard to the re- cognition of foreign judgments.

1Section so), English Act of l9'.u'I,Vpara. 10.15, slipm "Para. 16.3, supra.

5Section 8(2), English Act of 197] 'ﬁll Breach of natural justice.

Introductory.

ltlz Public Policy not a deﬁnite expres-

sion.

Public policy not concerned the idea}.

with Reporfon Recognition of Foreign Divorces (Chapter l'l'.--Pubh'c Policy.) 17.2. It must be stated, at the outset, that public policy may not be a very pre- cise ground for non-recognition.' The expression "public policy" is not a very deﬁnite one. In broad terms, however, it may be described as a reflection of the general ideological approach of the legal system?

Edwin W. Patterson? points out that "policy", in its etymological signiﬁ- cations, refers to plans for governmental action rather than to moral or ethical principles. However, the expression is now familiar, and almost all legal systems have some provision or other for not recognising foreign judgments on the ground of "public policy" or "order public" or some similar concept. The details and names may differ, but the concept is substantially the same.

The aspect of public policy was m-entioned in Satya'.s' case where the Supreme Court observed--

"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 .

mics of our private international law. But an awareness of foreign law in a parallel jurisdiction would be a useful guideline in deter-_ mining 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 1., "We are not so provincial as to say that every solu- tion 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.' Loucks v. Standard Oil Co. of New York (1918) 224 N. Y. 99 mp. 111."

The various approaches to public policy have been described more often than onccf and we shall also refer to them later'. The concept is essentially' elastic. In a case where the matter is not governed by a statute or by clear estab- lished principles, the consideration of what is "public policy" must necessarily involve the balancing of advantages against disadvantages,' to the community at large, in the light of current notions of propriety.

17.3. Public policy is not concerned with what ought to be the law. Winﬁeld' pointed out long ago, that while some ethical standard may be discoverable in judicial legislation, it will not be found in public policy. That doctrine, he said, may answer the question, "What is it that the community wants now?" It is dumb before the question, "What is it that an ideal community ought to want?"

1Freud, "Reflection of Public Policies in the English Conﬂict of Law", (19541 39 Tran' sactions of Grotius Society 33.33- Swinﬁelcl, "Public Policy", (1929) 42 Harv. Law Rev. 76.

3Patterson, Jurisprudence, (Brookyln 1953), page 282.

'Surya V. Taja, A. I. R. 1975 S. C. 104, 115, para. 38.

5(3) Nmman March, "Severance of Illegality" (1948) 64 Law Quarterly Review 230, 347;

(b) Mussbaum; "Public Policy in Conflict of Laws", (1940) 49 Yale Law loumal 1027;

(c) Knight, "Public Policy in English Law". 33 Law Quarterly Review. 207.

5Para. 14:11 to 14.14, infra.

IAp{_ v_ Apr, (I94?) 2 All Eng. Reports 67? {Cohen L. J.).

"Winﬁeld "Public Policy" (1929) 42 Harvard Law, Rev, 76, S7.

Report on Recognition of Foreign Divorces 1&3 (Chapter l7.--Public Policy.) "A judicial decision on public policy will give us something more subtle than the common place of a Greek tragic chorus, but it will not soar to the ideal of the citizens in Plato's Republic; and, it one may say so with- out impertinence; nothing but danger and confusion could result it the judges made any such attempt. Our common law is at such a mature age now that the lines of its trunk are settled, whatever may be the Qlireclion of its new branches".

114. As to public policy. it is. not surprising to ﬁnd contradictory opinions. ex- I-Iis_tory of public pressed as to its value by diﬁerent judges, or even by the same judge on ditierent 1'°'1'"3"' occasions.' In 1824, in the Court of Common Pleas and Court of the King's Bench," there are dicta which are not easy to reconcile. In the King's Bench case, Abbott, C. J. not only took public policy as he found it. but carried it a step further than it had gone before him." In the Common Pleas case', on the other hand, Best, C. I. thought that the courts had gone much further than they were warranted on questions of policy. and that where such questions were doubt-

ful, thy ought to be left to the legislature. It was in the same case'"--Rt'chc:ra'.s'an V. MeiIish--that Mr. Justice Burrough took a similar View and used the cxpres~ sion "unruly horse"--a phrase which he is said to have borrowed from Chief Justice Hobart and which has now been quoted times out of number-

l"r'.5. lt was a Roman practice to incorporate. in statutes, a saving clause to the Roman law' eﬁ-ect that it was no purpose of the enactment to abrogate what was sa-cro-sanct or justﬁ Public policy achieves some such result.

17.6. Public policy in the realm of contracts is well-known. It is recognised Public ppjiq, in in section 23 of the Indian Contract Act, 1372. One hears of public policy in °°""'3°'5- contracts in restraint of trade certainly, as early as Elizabeth,' and, though. in many of the cases, public policy is not mentioned, or is preferred to only as one of the grounds of the decision. one can safely say that it was clearly recognized by the time oh Mitchel V. Reynolds," which was decided in 1111 and was, for a long time, a land-mark in this branch of the law.

Various shades of this concept are found in judgments reported in the 17th and 18th centuries.

17.7. Then, public policy bulks large in that great decision on the rule against Public policy and the Dtrpetuits perpetuities, the Duke of Norfolk': case." ml' To the question. "where will you stop, if you do not stop here?", Lord Nottingham retorted, "I will tell you where ] will 'stop: I will stop wherever any visible inconvenience doth appear."

'Winﬁeld, "Public Policy", {I929} 42 Harvard Law R;-ie-iw 76. 87.

'See Plumer, V. C'., and Eldon, I... C., in Vauxhall Bridge Ca. V. Spencer, (1317), 1 Madd. 356, 365 Ah-bot, C. J. in Card 1'. Hope. (1824), 2 E-. & C, 661,610, "Card 1'. Hope. (1824). 2 B. & C, 66], 676. While- public policy is not mentioned in the judgment, it underlines the decision.

'Richardson V. Melfilrii, (1334) 2 Bing. 229, 242-243, 252. Richardson v. Mcliish, (1324) 2 Bing. 229.

'Winﬁeld. "Public Policy", (1929) 42. Harvard Law Rev. 76, 159.

"Winﬁeld, "Public Policy", {I929} 42 Harvard Law Rev. 76. 85.

5".5.gain5t the policy of the common law", I. P. Wins. 1781, 133 (1711); "against the policy of the law", a'bid., at 137. Cf. "Encounter is necessity del commonwealth". Anon. Moore K. B. 242 (1586); Claygare v, Batcheior, Owen 143 (1600); "contrary to common good," Jultier V. Broad', No]! 98 (IIEI9).

9Duke of Norjo-llx".s case, (1531) "Policy of the Kingdom," Ch. Cas. I. 20 "inco-n'venience."

J'lu'd.. at 49, 51.

in "Conflict of I_,av.-'s and public policy".

Public policy in relation to extra-

state causes of action.

American cases.

Report on Recognition of Foreign Divorces (Chapter 17,---Pubt'z'c Policy.) We have. in the above discussion, drawn some examples from other branches of the law. We shall, in due course. deal with the ambit of public policy in the conllict of laws. But, before we do so. its proper scope in general may be conveniently dealt with. with reference to a few cases.

17.8.

II. AMERICAN CASES ON PUBLIC POLICY IN CONFLICT OF LAWS 17.9. Public policy is not necessarily identical with the current laws of the par- ticular country. Judge Cardozo, in the famous Loucks case,' observed that "we are not so provincial as to say that every solution of a problem is wrong because we deal with it "(tntherwise at home". In the Mertz case} the New York court reverted to the old rule. after Cardozo was gone. But, again recently. the New York Court of Appeal {Cardozo's court), has re-established his enlightened hos- pitality to extra-state causes of action,----causcs of action which New York's subs- tantive law would not have allowed in the ﬁrst place.

That was the case of Intercontinental Hotels Corp. v. Golden,' the New York action was on a cheque and several "I. O. U.'s" which the defendant {New York resident) had given in Puerto Rico, in return for money subsequently lost at play in the plaintiffs gambling casino there. These gambling debts were valid under the Puerto Rican law, but the contracts involved would not have been valid in New York. Recovery was. nevertheless, allowed.

Local public policy, as a ground for denying access to local courts. was not abandoned, but was restricted to transactions "inherently vicious, wicked, or immoral, and shocking to the prevailing moral sense". Emphasis was placed on the idea that public policy, for this purpose, is to be discovered by the courts not so much from statutes or constitutions (law in the books), as from currently prevailing community attitudes.

17.10. In the case of In re Liberman' the New York Court of Appeal held that a condition in a trust arrangement. to the eifcct that the beneﬁciary should lose the right to the trust fund if he should contract a marriage without the consent of the trustees, was contrary to public policy.

In Big Cottonwood Tanner Bitch Co., v. Moyle,' the Supreme Court of Utah made the following statement:----

"In view of the fact that Utah is an arid state and the conservation of water is of ﬁrst importance, it is with great hesitancy that we subscribe to any contention which would make it appear to be more diﬁicult to save water. It has always been the public policy of this state to prevent the waste of water."

'lL0uCkS v_ Standard 0;; co" (1913) N, Y. 99, 111, 120, N. E. 198, 201, cited by Lunar, American Conﬂict of Laws (1963), Past? 105- 'Men: v. Merrz, (1935) 271 N. Y. 455, 3 N. E. M 597, 108 A L. R. 1120 (tort action by wife against husband; New York_ refu occurred, would give a cause of action};

page 105.

' ..Gld.l9641SN.Y.2»cl9,13,203NE2d2l0, 212 {iii 15q2qIi:eIfi"2t9{3o(!l«'«'iaj'rirityavi-.f'i\Ir),(cited) by Leﬁar, American Conﬂict of Law:

(1963), page 105.

on re Lfbgyman, (1939), 18 N. E. 2d 658, cited in Bodenheimer, Jurisprudence (1967).

page 314.

(','oﬁan_-Wood Iignngf Ditch CO. V. _i'fGJ-'I-3: Utah Cited. in MDdCnil§i' cited by Leﬂar, Amerimn Conﬂict of Laws £1968].

mer, Jurisprudence (1967), page 314.

sort to enforce, though Connecticut, where the facts ' Report on Recognition of Foreign Divorces (Chapter IT.+-Public' Policy.) 17.1]. These cases will show the scope of public policy, and the emphasis plac- ed on various considerations in the U. S. A. III. CONFLICT OF LAWS----PUBLlC POLICY ON THE CONTINENT.

17.12. On the continent, in the ﬁeld of conflict of laws, the principle of public policy is of great importance. It appears that under this rubric, the application of foreign legal rules is barred where such application would conflict with the fundamental moral ideological. social. economic or cultural standards of the forum. or where it is necessary that the domestic legal rules should be uncondi- tionally and absolutely applied, or where the principle of the foreign legal rule conflicts with the mandatory rules of the law of nations. or international commit- ments of the state of the forum, or the requirements of iustice, as generally recog- nised by the international legal community.

17.13. An early "statutist" version of the "orders public" can, perhaps, be seen in the refusal to apply statutes odiosa, and an equivalent may be seen in Huber's cautious and incidental reliance on the overriding interest of ordre public against such modest universality as conflicts law based on mere comity could command.' But only Mancinfs allembracing principles could move the ordre public into the centre of attention".

17.14. In the Russian Civil Code." for example', it is provided that "foreign law cannot be applied if it is inconﬁict with the foundations of the Soviet system."

According to the Hungarian law' on marriages, foreign law cannot be admitted "if it infringes the Constitution or a rule of Hungarian law which in- sists on absolute application." Again. according to the Hungarian Law of Civil Procedure' the decision of a foreign Court cannot be recognised in Hungary. if recognition infringes the Constitution or a rule of Hungarian law which insists on absolute application.

17.15. It has been stated by William Butler':--

"The conception of ordre public, or public policy as the somewhat nar- rower principle is known in common law countries. has not produced fundamen- tal ideological cleavages among continental European and Anglo-Kmerican juris- dictions, although many jurists have justly been apprehensive of its inchoate and potentially unlimited scope. To Soviet jurists, however. the option of excluding the application of foreign law deemed incompatible "with the essential principles of justice and morality of the forum seemed to be a tailor-made excuse for re- fusal to recognise the social and legal reforms wrought by the revolution of 1917. And indeed this fear appeared to be conﬁrmed when, particularly in the interwar period, many Westcm courts declined to give extra-territorial effect to Soviet nationalization decrees partly on the basis of public policy. Soviet courts, of 1Ehrenzv.-eigh, Conﬂict of Laws, (1962). page 342. =1-zhrcnzweigh, Conﬁict of Laws, (1962), page 342.' 3Section 568, Civil Code of Russian Federation, [June 11, 1964}. 'A5 to Russia, see, further, para. l7. l5, infra. 'Section 45, Hungarian Decree No. 23 of 1952--Marriage, family relations and guarv dianship.

"Decree No. 22 of H52 (Code of Civil Procedure} Section 16.

rwimam e_ Butter (Reader in Comparative Law, University of London). Book Review of Andre Cal-nefsk-3:, Public Policy in Soviet Private International Law, (1970) (2d ed.) Vol.

18, A. J. C'. L.'ﬁ04.

1133

Public pglicv on the continent in conﬂict of laws.

Example from Eastern Europe.

106

Public France.

policy French cases.

in Report on Recognition of Foreign Divorces (Chapter 1'l.--Publr'c Policy.) course, might have retaliated by framing their own doctrine, of orrlre public. But there is an aversion to judge-mades law in the U.S.S.R., and public policy seldom is cited in reported Soviet decisions."

IV. FRENCH LAW 17.16. In French law, the corresponding concept is "ordrc public". The concept "ordre public" is applied. in private international law, to prevent undesirable results from a too objective an "international" approach. To start with, there is a system (more or less clearly deﬁned), of choice of law and other conﬁicts prin- ciples. But this system is liable to be checked by public policy or "orri're public". The effect of the check is to prevent the application of foreign law and to subs- titute French law.

Public policy may be said to operate in two ways in private international law': ta) it may ignore foreign prohibitions which are distasteful to the lex forif' [b} it may-introduce objections and prohibitions not contained in the foreign law. In illustration of (b). it may be stated that in practice, cases before the French courts may be decided by French law, even if the personal law of the parties is derived from another system. This could take place when the foreign solution shocks French conceptions of morality or justice; for example, a foreign law which permitted the marriage of a brother and sister_ or recognised slavery as a legal status, would not be recognised in France.

17.17. Speciﬁc French ruling as to the non-recognition of foreign divorces are not available in the context of "public ordre" However, it would appear that French practice makes a distinction between (i) cases where rights have been already acquired by foreigners and only enforcement or recognition is sought in frame, and (ii) cases where the suing party directly seeks to acquire rights in France in accordance with the provisions of "a foreign legal system. In the former case. the French Courts are ready to give a wider recognition to the foreign judgment. than in the latter case.

Thus, although the French courts will apply the divorce law of the nationa- lity of the parties, "public ordre" will not permit a decree to be granted by a French court on grounds not permitted by domestic French law. But a decree of divorce obtained by foreigners abroad would be upheld in France, even though the ground of divorce is not one on which a French court would grant divorce. Again, as regards the ceremony of marriage, French law permits foreign nationals marrying in France to enjoy the beneﬁts of their own domestic law, except where the foreign law ignores vital social considerations--as for example, minimum age. Again, a marriage celebrated between foerigrters abroad in accordance with the foreign law, between an uncle and niece which, if solemnised in France, is per- mitted only by special dispensation, would be upheld without the safeguard of the dispensation, but a marriage between brother and sister would be regarded as void under all circumstances."

, A French court would reject a German judgment ordering a putative father to maintain his child, as being contrary to "public ordre", since the judgment could be used to found a claim of paternity under the Civil Code which could not otherwise be maintained'.

lsee Niboyct, Traite de Dreoit international private franchise (Vol. V, 1943). section 1492, referred to in (1961) Can. Bar Rev. 307.

2Cf. Sotromver v. De Barres, (No. 2} [lB'l9}, S P. D. 94 as to English Law.

3Lloyd, public policy (1953), pages 80-82.

'Lloyd, Public Policy (1953). pages 96-97.

Report on Recognition of Foreign Divorces"

tffhapter. l'?.----Pub!ic Policy.) V. COMMON LAW 17.18. In the common law system. public policy has a more lirnitcd Win: in thﬂ ﬁeld of conflict of laws. There is no choice of law problem in regard to divorce. Also, there has not been, on the whole, so much emphasis on methodology as in French law' {and in some other European systems]--in.vo1ving a division of the problem into (a) the application of the conflicts rules, (b) the effects of public policy. If the Fer fort is not applied, then the choice of law determinants which affect recognition pro-blems. are (i) the personal law, and (ii) the rule locus regit actum'. The former enters into questions of capacity to marry in many jurisdic- tions. and the usual attitude of the courts is to reject a foreign law solution indi- cated by the personal law, only where the solution is considered to be inconsistent with fundamenrrzl moral or social concepts. Public policy is thus an ulrimum remedium, and there have been few English cases" in which it has been raised explicitly in the context of private international law.

17.19. A query has been raised whether this means that the common-law systems consider the content of the foreign Iaw only in exceptional circumstances. where the foreign law might oiiend some of the most deeply held policies of the forum.

In this context, Drucker'* quotes. from a book on private international law by Professor Lund of Moscow University, published in 1949, a statement to the elliect that in the Anglo--American jurisdictions, private international law is : "One of the means of legal technique directed to restrict the applicability of foreign 9! laws, and to widen the sphere of municipal law ................... .. . This would show that the objective employed is the same. both on the continent and in common law. though the scope for the application of the doctrine of public policy is more limited in common law than in continental countries.

17.20. English reported cases dealing with public policy, are comparatively few, in the ﬁeld of conflict of law." Most of the English cases which" are habitually adduced to prove early appication of public policy, are not really' in point? And, indeed, there was neither need nor use of the doctrine until the establishment of the "vested rights" dogma at the end of the last century.

In this ﬁeld, as in others, "public policy" appeared when the common law ﬁiled to keep "in touch with the needs of the day."' 1Cf. Para. 17.13, svrprrr.

"t']96I) Can. Bar Rev. 309, 'See for instance----

(3,) Pugh v. Pugh (2951) Probate 432; (1951) 2 All. E. R. 680 (Capacity to marry). {'b)I;1l£e. Paine, (19441) 1 Ch. 46; (Capacity to marry). For conirnctnt, see 56 L. Q. R.

(c) Brook v. Break, (1361) 9 H. L. C. 193; (Capacity to marry) {Deceased wife's sister).

id) Metre v. Metre,' (1859) 1 SW. and Tr. 416. {Deceased wife's half sister).

'Drucker in (1955) 4 Int. & Comp. L, Q. 336.

5See para. 17.18 supra.

"See also Katzenbach, "Conﬂicts on an Unruly Horse: Reciprocal Claims and Toleran- ces in Interstate and International Law", (1956) 65 Yale L. J. 103?.

*"Ehrcnzweigh, Conﬂict of Laws (I962), page 342.

"Robinson v. Bland'. 2 Burr. 1077, 97 Eng. Rep. 1'11, (1760) (contract unenforceable under both laws); De Wurz, v. Hendricks, 2'Bmg. 3l4,_130 Eng. Rep. 326 (1824) (contract held "contrary to the law of nations" as directed against friendly government); Santos v. Itlidga 8 C. B. {N_. S.) 86], 1-=_ll Eng. Rep. 1404 [1850 (lutaerpretauon of statute in terms of applicable to foreign transact1on)','Crei! v. Levy. 16 C. B. (N) S.) 73, 143 Eng. Rep. 1052 (1864) (contracts to be performed in England). Only Hope V. Hope 8 De G. M. & G. 731, 743, 44 Eng. Rep. 572, 576 (I85?) was based on the forum's "pol|cy".

°Ho1dworth_.. A History of English Law (1926), Vol 8 page 56.

107;

Public policy In common law in relation to eonﬂict of laws.

English cases.

108

Alternative _ to public pol1cy--~ Story': approach.

Classiﬁcation by Cheshire.

Report on Recognition of Foreign Divorces (gfiapter l?.--PrrbZ t'c_ Policy.) 17.21. In 182?, Louisiana court remarked "that in the conflict of laws, it must often he a matter of doubt which (law) should prevail. and that whenever that doubt exist, the court which decides, will prefer the law of its own country. to that of the stranger." Story found "great truth" in this statement, and returned to its message in virtually every chapter of his analysis", without having to resort to an "exception" of public policy.

Only in those few areas where past centuries had produced a semblance of rules "by which nations are morally or politically bound." was there need, and indeed room, in his work for such an exception.' 17.22. Cheshire, in an earlier edition' of his Private International Law, divided English cases on public policy into four classes, viz..---

(1) Where the fundamental conceptions of English justice are disregarded for e.xa.mple. where a party has been denied a proper hearing, or there is fraud, undue inﬂuence or duress as in the case of Kaufman v. Ger- son.' (2) Wliere English conceptions of rnorofify are infringed.' This is appa- rently conﬁned to sexual immorality.

{3} Where the transaction preiudices the interests of the Unhed Kingdom or its relations with foreign powers; e.g.. agreements involving rela- tions with enemy aliens', or to further revolt abroad,''' or for the import of liquor contrary to foreign prohibition laws." The cases cited were concerned with English contracts. It may be, however. that the rule of internal public policy would probably be applied externally in the case of similar contracts governed by foreign law.

(4) Where a foreign status offends the English conception of human liberty and freedom of action,-----e.g.. a contract relating to slavery, or the status of a 'prodigal' in French law", or a foreign rule prohibiting rc- marriage after :1 decree of divorce has ﬁnally dissolved the marriage.

The last mentioned class. according to Lloyd", seems indeed to be nomore than an illustration of English public policy in relation to personal freedom, and it probably needs to be broadened to cover such other freedoms as freedom of trade, which the common law regards as its distinctive policy to protect."

=sauz v. His Creditors '5 Martin R. m. s.) 559, 595 (La VISET].

9Story 29.

"Story 71.

«Thus-_ Stgry believed that "by the general law of nations, jure geutiurn fa -contract Valid under the law of the place where it is made. is) held vali-:l_everywhere". Story 2131. To correct the results of this (erroneous) assumption. the [ex fort re-enters as to con- tracts "against good morals, or region or public rights"_ ]d.; at 113, See also as to marriage contracts, id. at 104. _ 5Cheshire, Private International Law {I952}, Pll 3453; "ltd bi' U953) of Cheshire 1975. page 152-I55.

5Kan:f.man V. Gerson, {I904} 1 K. H.591.

TR0bf,r_u-on 1,I'_ Biﬂﬂd. 2 Bl-1l.'l'.

"Dynamit A. G. v. Rio Tinro. (1913): 5- C- 293- "De Wit: v. Nedricks. {[824} 2 Ring, 314.

1"Fos.rer V, Criscoﬂ. (1919) 1 K. B. 470.

um Worms v. De Colder, (1880) 49 L. I. (CM 26!; (in) Re .S'elor',~;- Trusts, (1901) 1 Ch. 438.

"Lloyd. Public Polio? (1953). D333 95- "Cf. fa} Rouss-ilion v. Rousriilon, (1830) I4 Ch. D. 351} lb) Warner 1;. H-efsort, (I937) 1 B. 3139-

Lloyd, Public Policy . that matters to the plaintiff is that.

Report on Recognition of Foreign Divorces (Chapter l?.--Pubiic Policy} ' 17.23. Public policy could be a useful head for dealing with duress. If fraud is regarded as a vitiating cause, then duress also should be so regarded. The means employed should not matter. if the freedom of will of a party is in issue. It should also "be immaterial whether the vitiating factor operated on the party directly or so acted indirectly. Lord Devlin observed, in another context} "All metaphorically speaking, a club has been used. It does not matter to the plaintiff what the club is made of----whether it is a physical club or an economic club. a tortious club or an otherwise illegal Club."

17.24. We may refer to a case illustrating duress. In Szechter v. Szecher', the petitioner consented to marriage, in order to escape from imprisonment in truly appalling conditions and from threats of a mental home; a severe sentence of im- prisonment. followed almost certainlv by re-arrest: and. in any event, by the pros- pect of penury, inability to obtain any employment other than of a mental nature and inability ever to lead a normal life. Sir Jocelyn Simon. President. in giving his reasons for making a decree of nullity, said-- ' "It is, in my view, insuﬂicient to invalidate an otherwise good marriage that a party has entered into it in order to escape from a disagreeable situa- tion, such as penury or social degradation. In order for the impediment of duress to vitiate an otherwise valid marriage. it must, in my judgment, be proved that the will of one of the parties thereto has been overborne by genuine and reasonably held fear caused by the threat of immediate danger (for which the party is not himself responsible), to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedloc He also added that for a threat to be an immediate speciﬁc threat, "It is suﬂi- cient if there is a present continuing danger. though the apprehended death. in- jury or deprivation of liberty may not happen until an unknown future time. Equally, in my judgment, though dangers of mere penury or social degradation will not of themselves invalidate an otherwise good marriage, they cannot be disregarded it they form an essential element in the danger to life, limb or liberty."

17.25. In the ease of Mayer'. Bagnall J. after discussing Szechrer v. Szech.ter'.

observed :---

"The doctrine of duress then applies to the contract of marriage; does it apply to a dissolution of marriage? If the question arose in relation to a system of law which recognised divorce by consent, I should have no doubt that the doctrine would apply. For, as in marriage there would be a special type of contractual arrangement which altered status. But the doctrine is not conﬁned to acts which are contractual. or bilateral or mul- tilateral; it applies to making a will and it applies to a voluntary dispo- sition inter vivos. I can see no reason in logic or in principle why it should not apply to a decree of divorce obtained under duress, at any rate where an English court is considering a decree granted by another jurisdiction.

'Rookie V. Bernard, (1964) A. C. 1129, I209 {that Lord Devlin); also ¢'bid.. at PP. I109, mi _ 'Euchre? V. Szecltter, (1971) 2 W. L. R. I70, 180. 'In re Mayer, (1971) 2 W. L. R. 4-OI, 407, 408 (B-agnall 1.).

'Szechrer v. Szechrer. {I971} 2 W. L. R. 170, (Para. 17' 14. -WEN-l : -Ba-5 LD=:'ND)}75 109 Public policy and duress.

Durees in relation to marriage.

Duress in relation to dissolution.

110

Public policy as the_ ultimate foun- danon.

Doctrine else-

where.

English Act.

Conclusion.

Report an Recognition of Foreign Divorce:

-(Chapter l7.----PubIr'c Policy) It may be that different considerations would apply if an English court were considering a decree pronounced by an English court; but I am not concerned with that situation.

"I should add that I am fortiﬁed in my opinion by an obiter dictum of Barnard J. in Burka V. Burke' shortly reported in the Times, March 17. 1955, where after holding that a marriage contracted in Russia, was in- valid, the judge added that if the marriage had been valid, he would have held that a decree of divorce obtained in Russia would have been ineffec- tive to dissolve it because the wife was being "persecuted and tyramiised to obtain a divorce". It appears from the ﬁle, which I have examined. that there. the Russian wife and her mother were being threatened" with terms of imprisonment unless she obtained a divorce."

17.26. In India. England, America and other countries, generally riﬂes which protect a person against undue inﬂuence, exploitation bordering on blackmail or extreme restriction of personal freedom. are welllcnown. These rules could be regarded as the special manifestations of the principle of good faith and decency; but, in the ultimate analysis, they could be treated as application of the doctrine of public policy. The application of the doctrine, no doubt. varies in time and space. and also with the sense of justice of the Judge. ' Further, it involves a value judgment, standing above the literal text_.of the law; but the rationale of its application, in general. is that the foreign legal pro- vision which is otherwise regarded as applicable under the rules relating to the conflict of laws is not acceptable, being inconsistant with the values. explhit or implicit. in the internal legal order.

17.27. It is to be noted that the doctrine of public policy is not conﬁned to con- tinental countries. and similar doctrines are found in many other countries. for; example, Argentine", Brazil'. and Mexico'. The application of the doctrine is not conﬁned to recognition of judgments. The doctrine is also relevant incon- nection with the proceedings in progress or terminated abroad, and in cor'i_nec- tion with certain other procedural matters. " i VI. STATUTORY PROVISION IN ENGLAND 17.28. The recent English Act as to the recognition of foreign divorces and sepa- rations allows the English courts to refuse recﬁﬁiliii'-W 011 the 517011115 0'3 Public policy'.

VII. CONCLUSION 17.29. Having regard to all aspects of the matter, we are of the view that a simple provision on the subject ofgpublic policy should be inserted.

'Burke v. Burka {unreported}-

"Argentina Federal Code of Civil Procedure, section 599. 3Brazilian Code of Civil Procedure. section 792. 'Mexican Code of Civil Procedure. section 785.

-"English Act of 19?], section 3l2){b}.

Report on Recognition of Foreign Divorces CHAPTER 18 FRAUD I. INTRODUCTORY

18.1. Fraud as a ground of non-recognition of decrees of zlivorcc and legal separation appears to be a topic having an importance of its own.

The importance of a consideration of the matter in the context of recog- nition of foreign decrees of divorce is obvious. On the one hand, conﬁdence must be placed in the judicial process of other countries. and too frequent a departure from the general rule could mean creating limping marriages. On the other hand. there are special circumstances which should be taken note of.

That is the broad consideration which underlies the exception for fraud.

18.2. We may mention that there are two categories of fraud.--{i] fraud as to the merits of the case. and (ii) fraud as to the jurisdiction of the Court. In general. fraud of the ﬁrst category is not taken into account by the courts in India when exercising the power preserved by speciﬁc statutory provisions1 in relation to questioning the validity of a foreign judgment in particular, or judgments in general. In the ﬁeld of matrimonial law also. the cases more frequently relate to the second category of fraud.

In the U. S. A., it is stated that courts will consider only that fraud which deprives a court of jurisdiction, such as service of process obtained by fraud. Fraud. which may give rise to equitable relief [often called extrinsic fraud] does not deprive a court of jurisdiction. It is. therefore, stated' that the real basis for: the attack on a judgment is want of jurisdiction. the fraud only being a cause therefor. We need not express an opinion on this view. In any case. if this View is correct. it reinforces the need for recognising fraud as a ground of attack.

11. INDIAN LAW 18.3. With reference to Indian law. we shall ﬁrst examine the effect of fraud on judgments in general. In India, it is well-established that the validity of a jnibmnt is subject to attack on the ground of fraud. Inn Ahrncc.ibhoy's case', the Bombay High Court considered at length the question of fraud as affecting jmdgnents, on general grounds of English law, with reference to three classes of persons, namely---

(a) privies:

(b) persons, who though not privies, were represented in the proceed- tugs;

(C) strangers.

The High Court observed-

"In the ﬁrst place the judgment may be an honestene. obtained in a suit conducted with good faith on the part of both plantiif and defendant. In such a case. the previous judgment is clearly binding both on class (a) and class Cb); class [cl will be in no way affected by the judgment if it is inter parties. but if it be one in rem passed by a competent Court they will be bound by and cannot controvert it. In the second place. the judg- ment may be passed in a suit really contested by the parties thereto. but may be obtained by the fraud of one of them as against the other. There lSeﬂion 13, Code of Civil Procedure and section -1-]. Evidence Act. Esau. [3,] Note "Foreign Iudgrnernts and res fr.-dical'a" ([923) 4] Harv. L. R. 1955. and [bi "1vglopm:q1ts--res_iudI'ca!a" U952) 65 Harv. L. R. SIS, S51. Mhmedbhoy -.r, Rubibﬁoy. [[881] I. L. RS6 Born. 'I03.

1 1- 1- Introductory.

Two fraud.

trpesof I_3ifect of fraudin 1udgments----Ana-

lltsis in Bombay '3?" Pi S-1I'|.I':1tlII.'rIIE.

various 112 Ex--parre decrees.

Power of Court.

Fraud as a de-

fence to a' judg-

ment-

Legislative ap-

proach in India---

Section 13. C.P.C.

and section 44.

Evidence Act.

Report on Recognition of Foreign Divorces (Chapter l8.---Fraua') has been a real battle, but a victory unfairly won. In this case. again. class {at} and class (bf! and, as regards judgments in rem, class (c). are in one and the same position, which is that of the parties themselves. The judgment is binding on them so long as it remains in force, but it mt)! be impcaccd for fraud and set aside it the fraud be proved. In the third place, the previous judgment may have been obtained by the fraud and collusion of both the parties to the former suit. In this case, there has been no battle. but a sham ﬁght. As between the parties to suchsaé judgment, it is binding. The same 'rule will apply between the priviesi of these parties, except probably where the collusive fraud has been on a provision of the law enacted for the beneﬁt of such privies."

We have quoted this passage to show the general approach adopted by"

courts in India in relation to fraud as aﬁecting the validity of a judgment. _i_ 18.4. It may be noted that these principles apply even where the procedural law allows other remedies to deal with the particular species of fraud- Thus, in the case of an ex parte decree. the defendant can ﬁle a suit to have it set:

aside on the ground of fraud, even though he has failed to have it set aside Order 9. rule 13, of the Code of Civil Procedure, 1908.' The two remedies are distinct. The remedy under Order 9. rule 13. is a summary one. The suit on"

fraud is really an analogue of the Equity 'B'ill'."

18.5. The authorities on the question as to the powers of :1 Court to treat dc-_ crecs which had been obtained by fraud as nullities, are reviewed at some length in the judgment on the original side in the High Court at Calcutta by Stonley, J. in the case of Nisraraﬁni Dorm' v. Nundo Lat' Bose.' In the lattericasc of Rajib Panda v. Lakhan Sertdh Mahapatri.' also, the true meaning and cﬁect of section 44 of the Evidence Act were considered.

18.6 Fraud. besides being made a ground of attack, can be a ground of defence also. When a subsisting judgment, order or decree, which is relevant sections 40. 41 or 42 of the Indian Evidence Act, l3?2. is set up by one party to a suit as a bar to the claim of the other party, it is not necessary. ,fnr__,;l;ﬁ' party against whom such judgment. order or decree is set up, to bring 31 sci)a-.- rate suit to have the same set aside. but it, is open to such party, in thejsaane suit in which such judgment, order or decree is sought to be used,_ him, to show, if such be the case, that the judgment. order or decree relied 'upon by the other side was delivered by a Court not competent to deiivcrit, tor was obtained by fraud.' 13.7. These principles are not conﬁned t-o judgment of Indian courts; they are equally applicable to foreign judgments. We may mention. in this connection. that section 13 of the Code of Civil Procedure, 1908, to which we have already made a reference' in our general discussion of the Indian law as to recognition of foreign judgments, speciﬁcally mentions fraud when enumerating the circums- tances in which a foreign judgment is not conclusive proof. Similarly, the" India Evidence Act, in section 444, while providing for the relevancy of certain judg- ments, expressly' allows a judgment, even if otherwise relevant. to be "attacked 1Radha Roman V. Fran Naif}. I. L_,R. 28 Cal. 475 (P. C.). _ 5'Cf. W)-err v. Painter, W. N. (20th May, 1899), page 74, referred to in Nisrmrini Dram' 'Ir. Nundalalﬂose, I. L. R. 2sca1.s91, 915. j r ,-.

3Nt'stari'.P1t Dasri V. Nundo Lai Fare. H899}, I. L. R. 26 Cal. '39_l.49D7 to 910. _ 'Rajib Panda V. Lakizun Send}: Mahapatri, (1899) I. L. R. 27 ll, 15, 21 ﬂl-Ielenn C. J. and Bancrjec, J.). . ' . ' , 4 j_ 5'Ban.ri Lot v. Dhapo. (I902) I. L. R. 24 All. 242, 247 _fStaI1.l¢«'Y. C. I. and 'B11!!!-B: 1.]. 'See Chapter 4, supra. . _ -- ' "'Socti0J.1 44, Indian Evidence Act, 1872, quoted in; para, 1317. infra-

Report an Recognition of Foreign Divorces (Chapter l3.n-Fraud] on the ground of fraud. This provision of the Evidence Act applies also to judgments mentioned in section 41 of that Act~i.e. certain judgments aifecting status. These statutory provisions give suﬂicient indication of the legislative recognition, in India, of the common law principle that the validity of a judg- ment can be questioned on the ground of fraud.' 13.8. We need not, for the present purpose, discuss the precise boundaries of this principle, or the proper procedure that should be adopted for invoking the jurisdiction of the court. But it is desirable to mention a few points of impor- tance, and we shall discuss these points after dealing with the English law on the subject of fraud.

III. ENGLISH LAW 183A. In England, the general principle that the validity of a judgment can be attacked on the ground of fraudg, is accepted. Coe V. Lungjord', for example, decided that where the judgment has been obtained by fraud, the court has jurisdiction, in a subsequent action brought for that purpose, to set the judg-

ment aside.

ln Jonesco v. Beurci,' it was said by Lord Buck1naster--

"It has long been the settled practice of the court that the proper method of impeaching a completed judgment on the ground offraud is by action in which. as in any other action based on fraud. the particulars of the fraud must be exactly given and the "allegation established by the strict proof such a charge requires."

18.9. It is sometimes stated that, in England, advantage of a fraud can be taken only by a stranegr to the judgment, who is not privy to the fraud. the reasoning being that a party to the proceedings could have applied to vacate the judgment. The theory advanced in this regard is that«-- (i) a party if guilty, cannot take advantage of his own wrong, and (ii) a party, if innocent, should have pursued the remedy by way of appeal. However,.the position on the sub- ject is not entirely beyond doubt." In any case, so far as challenging a decree of divorce on the ground of fraud is concerned, English Courts seem to have adopted" a liberal attitude on this point. and have 'not regarded a party to the decree as debarred from claiming relief.' is well established in England that foreign judgments can be impeach- ed qnthe ground of fraud, 3-''--1"--''-"-13 in so far as it affects the jurisdiction of the foreign court.

- )1See paras'. 13:8 to 13: it), infra.

' some Kennedy v. Dangrid, (1943) 2 an England Reports 505.

Bcae v. Langford, (1393) 2 Q. B. 315. ' 'Jonesco v. Beard, (1930) A. C. 293, 300.

" 5See I), M, Gordon, "Actions to set aside judgments". {I961} 73 L. Q. R, 533.

'Bonaparte v. Bonaparte, (1392) Probate 402.

'See para. 18:7, supra and 18:13, infra.

'A boulfof v, Oppenheimer, (I382) 10 Queen's Bench Division 195.

'Wadala v. Lewes, (1390) 25 Queen's Bench Division 310.

weodd v. De-Ian, (1905) 92 Law Times 510.

11H,-1, Fggng Hang v. Neotia, (1918) A. C. 888 ('F'nivy Council].

"Elkrmun Lines v. Read, (1928) 2 King's Bench 14-Ii-.

nsyal v. Heyward, (1948) 2 All E. R. 576 (C. A.).

Fraud in England as alfecting judg-

ments in ge.rIe1'nL Whether remedy conﬁned to stran-

gers.

Position in England as to for-

oten Judgment.

114

Divorce.

_Position as to Judgments in rem.

Report on fiecognition of Foreign Divorces [Chapter l3.--Fraud) 18.11. It is pertinent to point out that it is not denied in English law that fraud is a valid ground for not recognising a foreign decree of divorce.' Fraud as to the merits of the case decided by the foreign court would ordinarily be ignored in England ; but fraud as to the jurisdiction of the foreign court would be taken into account". The case of Middleton V. Middleton" dealt with both aspects of the matter. In that case, the husband had obtained a decree of divorce in the State of Illinois (U.S.A.) by making two false allegations : first, that he had been resident in the State for over a year. and secondly. that his wife had desert-

ed him.

Both the allegations were false, but were believed by the Illinois court. It was held in England that---- .

(i) the husband's false evidence as to be matrimonial allegations {deser-

tion in this case) was not a ground for refusal to recognise a decree. but

(ii) his fraud as to the jurisdiction of the Illinois court justified a refusal to recognise the decree in England.

18.12. As to the rule' that foreign judgments can be set aside for fraud it is sometimes stated that there is-a possible exception in England as to judgments in rem. Halsbury states', for example----

"In accordance, however. with the general principle that judgments in rem are conclusive and binding on all the world, an action here based on fraud in obtaining such judgment will not be entertained so long as the judgment stands in the original country."

However, it should be stated that even this view is not universally accepted. For example, as one writer' concludes : c "There seems no reason why a foreign judgment in rem obtained by fraud should be sacrosanct."

Similarly, Dicey' states: A "Any judgment whatever. and therefore any foreign judgment. is. if ob- tained by fraud, open to attack."

Dicey further remarks' that the doctrine "may apply" as between litigants to a judgment in rem".---though he acknowledges that there are some 'doliblil whether it vitiates a judgment in rem so as to affect the rights of third "

In Me Alpine';S case'. the husband obtained a divorce in Wyoming (U.S.A.) by misrepresenting to the Court the wife's address. and by reason of this fraud. the wife had no notice. The divorce was not recognised, for this reason." 1' 1Bc.-rlaparre v. Bonaparte, (1892) Probate 4-D2. '3Middl'errm V. Middleton, [1966] I 'All E. R. 168. See. for detailed discussioqi the case, 29 Modern Law Review 327 and 41 British Year Book -of International Studies.

Hnrsddiexon v. Middleton, {I966} 1 All E. R. 168.

'Para. 18:8, supra.

-"Halsbury, 3rd Edn., Vol. 7, pay 148.

'Wolff, "Res Iudicata. in Divorce" U. West, Austl. Anu_._L Rev. 'Vql. {(1948-501.915! 369 at pages 373-80 (I948-50], quoted in Pyrles. "Recognition oi foreign Judgtnents etc."

H972} 12 I. I. I. L. 3], 44. ' 7Dicey, Conflict of Laws ( 1967], page IM7.

3Dicey, Conﬁict of Law, (1967), page 1010.

'Me Alpine V. Mr: Alpine, (1957) 3 W.L.R. 698, noted in (1953) 14 L. Q. R. pan! 8.

Report on Iiecognirian of ii'oreign Divorces (Chapter 18,--Fraud) IV. FRAUD. PUBLIC POLICY AND NATURAL JUSTICE I 13.13. The categories of fraud and breach of natural justice might sometimes coa1esce.--as for example. where the foreign court is deceived by the statement of the petitioner that the whereabouts of the respondent are not known. In such a case, the foreign decree would not be recognised', and the legal grounds for non-recognition are two-fold, though the same set of facts gives rise to the two grounds, namely, (i) fraud affecting the jurisdiction of the court'. and (ii) breach of natural justice in that respondent, the wife, had no notice.

18.14. At this stage. we may refer to the view sometimes taken on the question whether fraud forms part of public policy. In the Hague convention. public policy is speciﬁcally mentioned as a ground of non-recognition. But the con- vention is silent as to fraud. It appears that. in the discussion on the draft international Convention on recognition of divorces, the delegate from Austria did press for the inclusion of the ground of fraud as constituting a sepanate exception to the general rule of recognition, but their suggestion did not ﬁnd favour with the Conference, apparently because the practical importance of fraud in Continental countries was not considered to be very great. It is. how- ever. well established in the common law that the judgment of a foreign court procured by fraud is not binding on English courts, and will not be recognised in an English court, even if the judgment is otherwise valid and even if all the other requirements of recognition are satisﬁed. In view of speciﬁc Indian legis- lative precedents on" the subject. it is advisable to mention fraud separately as a ground for non-recognition.

18.15. Fraud and breach of natural justice are sometimes taken as connected with each other. In Middleton's case', the Court observed:

"Finally, I might mention an old decision which has nothing to do with divorce. but is of some assistance on the attitude of our courts towards foreign judgments obtained by fraud'. and which indicates that the con- ception of what is contrary to natural justice may be wide enough to cover the present facts. O.rche.renbe.t'n c. Papefieri, was a case before the Judicature Act. 1873. where the Court of Chancery was asked to grant an injuction to restrain a party, who had obtained judgment for a debt in a foreign court, from bringing an action on the judgment here because the judgment had been obtained by fraud. On appeal, it was held by Lord Selborne L. C. and Mellish L. I. that the injuction could not be granted because a common law court would take cognizance of the fraud.

"The Lord Chancellor said":

'I should be sorry to think that anything should fall from this court which might give the least colour to any doubt as to the power of court of law to take cognizance of fraud in obtaining foreign judg-

ments.' "And Mellish L. J. said':

'Macdpine v. Macalpine. (1957) 3 All E. R. 134.

"Para. 18:2, supra.

"Middleton V. Middfe-ton ([906) 1 All E. R. 168, 2 W. L. R. at page 523. 'Emphasis added. ' 'O.rch.senbei'n v. Papelier. (1373) 8 Ch. App. 695.

'Oschseabein v. Papelier. {'l3'l'3) 8 Ch. App-. 698.

'Oschsenbein v. Paneliér, (1373) 8 Ch. App. 700.

113

Natural justice.

Fraud--W'hether part of public policy.

Fraud and natu-

ral justice.

as Facts must have been discovered since the trial.

Recommendation.

Introductory.

ﬁeport on'1iecogniti'on- Foreign Divorce} (Chapter l3.--Fraud. Chapter 19.--Anciﬂary orders] 'It was always held that a foreign judgment could be impeached at law as contrary to the principles of natural justice. as for instance. on the ground of the defendant having had no notice of the foreign action. or not having been summoned. or of want of jurisdiction or that the judgment was fraudulently obtained.' "The interesting point is that Mellish L.J. treated both want of juris- diction and obtained a judgment by fraud as instances of a judgment be- ing contrary to the principles of natural justice.

"From these citations I reach the following conclusions:

'The rule in Armitage V. Attorney-General' is not an over-riding principle, but is subject to exceptions. One exceptionis where the decree was obtained by fraud going to the point of jurisdiction. If the rule is as stated in some of the authorities yhsy yhr only excep- tion is where the decree was made in circumstances which offend natural justice or 'substantial justice, the deﬁnition of what is con- trary to natural justice or substantial justice, is Wide enough to cover such a fraud as was perpetrated by the husband in this case."

Of course. the same set of facts may amount to fraud as well as to breach of natural justice'*, as we have already pointed out.

18.16. English law permits a domestic judgment to be challenged on the ground of fraud only if the facts upon which die challenging party relies were discover- ed since the trial". However, this general rule creates some problems in rela- tion to perjury'.

V. CONCLUSION 18.17. Having considered all aspects of the matter. we are of the view that--

19.1.

judication as to divorce or legal separation.

(a) fraud should be speciﬁcally mentioned as a ground for non-recog- nition, and should not be left to be dealt with under the head Of "public policy" or as breach of natural justice";

(b) the provision in this regard should be a simple one, as in section 44 of the Evidence Act'.

CHAPTER 19 ANCILLARY ORDERS I. INTRODUCTORY So far, we have discussed the question of recognition of the principal ad- It is well-known that. in almost every country, when a courtorders the dissolution of marriage under a legisla-

lirmaxage v. Attorney-General, {I906} Probate I35.

'Para.

13 : 9, supra.

3(a) Duchess of K:'gs:on'.s case, 2 Sm. L. C. 'I54 {l2th Ed.)

(b) Young 1:. Kcighrly. (1809) lo Ves. 3:18, 33 E. R. 1016. {:3} Wagon V. Weszminister, (1351) 4 L. T. 30.

'Para.

5P:ra.

"Para.

13:10, srrpra.

13:11, supra.

18:12. supra.

Report on Recognition Ofifareign Divorces (Chapter 19.-----AnciHary orders) tive enactment, the enactment contains provisions empowering the court to pass orders for maintenance. custody of children, alimony and similar matters. For the sake of convenience. we may refer to these orders as 'ancillary orders',----an expression frequently used1 in the literature on the subject.

In this Chapter, we shall discuss the question, how far ancillary orders passed in matrimonial proceedings by foreign courts should be recognised.

19.2. The jurisdiction to pass ancillary orders in matrimonial causes has an interesting history, According to common law, the spouses were bound to live together, but, in certain circumstances, a decree of divorce a memo or there could he passed by ecclesiastical courts. A learned writer has stated" the posi- tion in these words--

"Where the decree was pronounced at the suit of the wife. the mere per- mission to live separate would not give her adequate relief. By the mere fact of the marriage the whole of her property passed under thc control of her husband, and she could not live apart from him unless provided with the means to live. The court, therefore, would pronounce in her favour a decree for alimony as anciflary to the decree for separa- tion."

19.3. This is the germ from which modern jurisdiction to pass ancillary orders is derived. The precise question to he considered on the subject is, whether such orders passed by foreign courts should be recognised in India. For reasons which we shall indicate in detail later', we are of the view that there should he automatic recognition of ancillary orders passed by a foreign court, even where the grant of divorce, in consequence of which the ancillary order is pass- ed, is required to be recognised under the proposed law.

19.3A. Findings of fault also need not be recognised. The ﬁnding of a court regarding fault is. of course. different from an ancillary order. But. apart from certain other aspects which will be mentioned later', it may be stated that there is no real illogicality in not recognising such ﬁnding, because non-recognition of the ﬁnding does not affect recognition of the divorce or legal separation. It may also be stated that if the ﬁnding of fault is made conclusive, injustice may sometimes arise--for example, where the proceedings in the foreign court were eat Pﬂrre.

Apart from this consideration, the theoretical justiﬁcation for not recog- nising thc ﬁnding of fault is that what the law should recognise is the effect of the determination by the foreign court on status. it being the general policy of the law that in the absence of certain special circumstances, persons who are divorced in one country should not be regarded as married in another country. This policy of the law is satisﬁed by recognising the decree in so far as it dis- solves the marriage, and there is no compelling necessity further to recognise the finding of fault also.

11. PROVISION IN ENGLISH ACT AS TO NON-RECOGNITION . ANCILLARY ORDER 19.4. At this stage, we may, in order to indicate more precisely what we have 'in mind, refer to section 8(3) of the English Act of 1971. which reads'---

OF 1E. (3.. sec Dara. 19:2, infra.

9]. L. Barton, "Enforcement of Financial Provisions, in Graveson {Ed}---A Century of Family Law, pages 352, 353. , 'Paras I921!) and 19: ll, infra.

'Paras. 19:4 and -19:1], infra.

5Section 8(3), English Act of 1971.

3!?

History.

Question to be considered.

Findingl of fault.

Section 8(3) of the English Adi of 1971.

in Principle underly-

ing _ the English provision.

English case of Wood v. Wood.

Report on Recognition of Foreign Divorces {Chapter l9.---A ncillary orders) "{3} Nothing in this Act shall be construed as requiring the recognition of any ﬁndings of fault made in any proceedings for divorce or sepa- ration or of any maintenance. custody or other ancillary order made in any such proceedings."

19.5. The principle underlying this provision in the English Act is that a decree of divorce primarily determines status, and it is not necessary for another country to recognise ancillary orders passed in consequence of the decree. nor is it necessary for that country to recognise the ﬁndings of fault. Both these matters are. so far as the foreign country is concerned, unimportant. Moreover. the first belongs to the realm of obligaﬁonl. As Parker L. J. (as he then was), observ- ed with reference to ancillary orders in general".-

"The application of the foreign law as to status does not involve apply- ing the foreign law as to obligation."

It is true that these observations were not made in the context of divorce. but they do apply to divorce. -Thus, it has been held" that dissolution of a mar- rriage by a foreign court does not put an end to maintenance, even where an English court has made an order for alimony in a suit for judicial separation. It was so held' by the Court of Appeal in Wood v. Wood'.

19.6. In the English case of Wood v. Woods. referred to above, the Court of Appeal drew a distinction, in regard to divorce law, between. on the one hand. matters of status, and on the other hand, matters of personal right and obli- gation ﬂowing from a decree. The English court accepted the foreign decree as ending the status of marriage. but did not accept the contention that the foreign decree discharged existing personal rights under the maintenance orders._ ;To that extent--but only to that limited extent--is the M doctrine of "divisible divorce" accepted---a doctrine often put forth' as a description of the rule discussion.

In a note on Wood v. Wood (supra). a learned writer observed':-

"So far as the problem under discussion is concerned, it would seem to be both good law and good policy that an adjudication by the court! of the husband's domicile upon his wife's right to maintenance should not be recognised without possibility of question simply because the dissolu- tion of the marriage which was the outcome of the some proceedings would itself be so recognised .......... .. As a matter of policy. it is scar- cely desirable that. regardless of the circumstances. an English court should in all cases be compelled to deprive a woman, resident and pro- bably now domiciled in England. who has possibly committed' no offence known to English law. of her rights and those of her children under a maintenance order. leaving her to obtain what relief (if any) the court of a possibly distant country has decided to. give her in proceed- ings of which she possibly and reasonably knew nothing."

1-a. Para. 19:6, infra.

9Me'rh'r.9 v. National Bank of Fresco. (1957) 2 All ER 1:13 (C. A.) 2 All E. R. 1. 13 (C. A.) {per Parker, L. 1.).

"Wood v. Wood, (1957; 2 All E. R. 14:24, 29. 100 s. J. 360, reversing (1955) 3 All E. 11.

645. 'Wood V. Wood (1957) 2 All E. R. 14.

'Para. 19:10, irafra.

"P. B. Carter in U957) 33 British Year Book of International Law 336.

Report on Recognition of Foreign Divorces (Chapter 19.--Anct't'Iary orders) III. AMERICAN DECISIONS 19.7. It may be mentioned that the decision of the Divisional Court in Wood in Wood'. which led to the judgment of the Court of Appeal in the same case to which we have referred above," was the subject of a note by Professor Good- hart in the Law Quarterly Review." In that note, he referred to certain Ame- rican cases, and particularly to Esrin v. Es-rin',--a decision of the Supreme Court of the United States, and Vanderbilt v. Vanderbilt.'--a decision of the Court of Appeals of New York. (After the note, the decision in Vanderbilt was approv- ed by the Supreme Court). The rationale of these decisions is that a court can- not adjudicate a personal claim or obligation unless it has jurisdiction over the person of the defendant.

In both these American cases". the questions before the court were pri- marily directed to the impact of Article IV, section 1*. of the Constitution of the United States (commonly called the "full faith and credit clause"), on the law of New York State as expounded or enacted. That article provides that "Full Faith and Credit shall be given in each State to the public Acts. Records. and judicial proceedings of every other State."

19.8. In Estin v. Estini,---a judgment of the Supreme Court of the U.S.A.--the wife had obtained, against her husband, a support order (equivalent to our main- tenance order), from the New York court. at a time when both parties were do- mic-iled in that state. Later, the husband. having acquired a domicile in Nevada, obtained an "ex parte" decree of divorce. The highest court in New York hav- ing [as the majority of the Supreme Court thought) held that its jurisdiction to maintain the support order survived the divorce. the question was whether that conclusion was consistent with the full faith and credit clause of the.Constitu-

hon.

There was a division of opinion in the Supreme Court, Iackson J.. being of opinion that New York was discriminating against a particular kind of de- cree, an "ex parte" decree, and that it could not do so consistently with the obli- gation of the full faith and credit clause; Frankfurther, 1., however, not being satisﬁed that the New York Court of Appeals had, in truth, reached the con- clusion attributed to it. favoured a reference back to the New York court accordingly.

_ The view of the majority of the Supreme Court of the U.S.A. in this case rested on the circumstance that the decree was an "ex parte" decree. Tak- ing the view that the highest court in New York had held that a support order could survive such a divorce, and that the support order in the case before them had so survived. they were of opinion, first. that a change in marital status did not necessarily involve the result that all the legal incidents of mam'age---in- cluding the quasi-proprietary personal rights of a wife under a support order--- were thereby alfected; and. secondly, that in the case of an "ex parte" divorce, E 'Wood v. Wood (1955) 3 an E. R. 545 ii). c. on Appeal Wood v. Wood. (1951) 2 All . R. 14.

"Para. 19:4, supra.

9-Goodhart in (1957) 13 L. Q. R. 29.

On appeal, Vanderbilt V. Vanderbilt, (1957) 354 U. S. 416. 413.

'Esrin v. Esrin. (1943) 334 U. S. 541, Para. 19:8, infra. Wanderbii: v. Vanderbilt, (1956) 135 N. E. Ed 553. [New York Court of Appeals}. On appeals, Vanderbilt v. Vanderbilt, (195?) 354- U. S. 416, 418.

'See discussion in Wood v. Wood, (1957) 2 All E. R. 14 (C. 4%.). 'Article IV, section 1 of the Constitution of the U. S. A. 'Emu v. Estin, (1943) 334 U. S. 541, 546, 547, 549.

1i'9 American cases.

American cases.

150

Principle of Ame-

rican cases, Colhteral and divorce'.

orders 'divisible deport on Recognition of Foreign Divorces (Chapter 19---AncilIary orders) there was nothing ollensive to the full faith and credit clause in the View taken by the New York courts that scope of the Nevada decree did not, outside Nevada, extend beyond a determination of the marriage status. The majority opinion of thesupre-me Court delivered by Douglas 1.. contained this passage:

"Nevada ............. .. apparently follows the rule that dissolution of the marriage puts an end to a support order." The majority further said that the claim of the husband, if accepted, would involve "nothing less than an attempt by Nevada to restrain (the wife) from asserting her claim under (the judgment) of the New York court.

19.9. We need not discuss Vanderbiifs case. But, it clearly emerges from the two cases that, ifmto take a hypothetical case--a wife obtains from her hus- band, (then domiciled in New York), a maintenance order or its equivalent {as by the law of the state she might clearly do), and if. thereafter, her husband acquires an English domicile and obtains an ex parte divorce in England, the courts of the New York State would regard themselves as perfectly free to con- tinue or vary, as they thought ﬁt, their own pre-existing maintenance order. either (i) on the ground that the principle of eomity did not require any greater acknowledgment of the "ex parte" English decree than a recognition ofllthe determination of the marriage status, or (ii) on the ground that, since the English decree, on its face, did not purport to do more than determine the married sratus (and particularly did not purport to affect the New York law as to maintenance and the order made thereunder). it was a matter wholly within the competence of the New York courts to decide what, according to their own law. was 'the elfect of the English decree on the position and personal rights of its own citi- zens (including the children of the marriage). ' Thus, the American view as-can be deduced from the above decisions' and the English view are, in substance, the same.

Iv. DIVISIBLE DIVORCE 19.10. It is in this context that the expression "divisible divorce" is often used'. but, strictly speaking, the expression is not accurate'. What is divisible is not the divorce, but the composite order, of which divorce is the occasion A right to support normally exists under the marital status, but it is a ' purely personal right, owed by one spouse to the other as an individual. Though alimony is often awarded as an incident to a divorce decree, it may be granted without divorce. as a decree for separate maintenance. The decree for main- tenance thus given does not aﬁect the existence of the marital status; that re- mains as before, still subject to a divorce action brought at the proper forum. Leﬂar' has explained this aspect --

Leﬂar then points out':

"Conversely, a prior alimony award is not always superseded by a later ex parte divorce decree to which the one to whom alimony has been awarded was not a party. It will sometimes be impossible to secure a valid award of alimony in connection with an admittedly valid divorce decree, since the divorce action may proceed in rem against the liary marital status. with only the suing plaintiﬁ before the court. The 1E.g. See Leﬁar, Cnﬂict of Laws (1968), page 551. 3Para. 19:6, supra. ' 'Leﬁar, Conﬂict of Laws (I968), page 551.

'Lcﬁar, Conﬂict of Laws (1968), page 551.

Report on Recognition of Foreign Divorces (Chapter l9.--A ncillary orders) action for alimony must be based either on personal jurisdiction over the defendant sued, or on attachment or garnishment brought against his local property. In such case, the prior decree for separate maintenance still remains in force after the divorce, if the law of the state in which 131 the prior decree was rendered says that it dies.

19.11. In this connection, it may be noted that the second paragraph of Article 1 of the Hague Convention' indicates that the Convention is limited to securing recognition of the fact that the marniage has been dissoived. The underlying objective, in the minds of most delegations attending the discussions that led to the Convention, was to reduce artiﬁcial barriers to the re-marriage of either spouse after divorce. This made them unsympathetic to a German proposal, espoused also by the delegations of Austria, Holland and Belgium, to Secure the recognition. under the Convention, of ﬁndings of fault'. This proposal of Ger- many seemed to ignore the fact that, in different countries with different social conditions, different views may be taken of what amounts to "fault" or whether, indeed, any account should be taken of fault. It may be noted that in some countries, divorce is allowed irrespective of fault, c.g., by mutual consent.

Apart from ﬁndings of fault, the delegations were reluctant to extend the Convention to ancillary orders. such as, those relating to maintenance and to the custody of children, partly because of the existence of other Conventions"

relating to such orders, and partly because of the fear of introducing complica- tions which might prejudice agreement on the essential objectives of the Con-

vention.

Ancillary orders, such as, orders for the payment of maintenance or orders regulating the custody of or access to children, present special problems. because they are seldom ﬁnal in their effect.

19.12. These were the reasons which explain article 1, second paragraph, of the Convention, and broadly speaking, these reasons justify the inclusion of a spe- ciﬁc provision on the subject. For this purpose, section 8(3) of the English Act, which we have already quoted', furnishes a suitable precedent. We agree with the principle on which it is based', and we recommend that it should be adopted.

V. NEED FOR PROVISION FOR ANCILLARY ORDERS 19.13. Of course, the non-recognition of ancillary orders, which we have re- commended above", may leave a vacuum'. What will be the legal position ween the parties on matters on which ancillary orders were or could have been passed ? Such problems can arise. The difﬁculty is illustrated by the English case of Term': v. Torok', which we shall discuss later'.

1Esn'n v. Esrin. H948} 334 U. S. 541.

'Article 1, second paragraph of the Hague Convention.

3E, g., fa] the Convention of October 2%, 1956, on the law applicable to alimony obli-

gations towards children, and --

{b} the Convention of April 15, 1958, relating to the recognition and execution of deci-

sions concerning alimentary obligations towards children.

'Para. l9'4. SEPTE-

'Pa.ra. 19-5, supra.

'Para. l9'l2, supra.

7See also para. 19-15, supra.

"Tarot: v. Torok, (1973) All England Reports 101, (1913) 1 Weekly Law Reports, 1066.

9See para. l9'24, infra.

"121 Provision in the Convention against recognition of ﬁnding of fault and ancillary orders.

Recommendation not_ to recognise ancillary orders.

Igftect of recogni-

tion of divorce and II to mamtﬂnance.

I22 Outline of provi-

sion needed to empower Indian Court to pass ap-

propriate order.

statutes maintenance.

Report on Recognition of Foreign Divorces [Chapter 19.----AncI'iiary orders) 19.14. We may, at this stage, state brieﬂy, in outline, the provision that is need- ed to empower Indian Courts to pass appropriate orders'. Where the foreign divorce or judicial separation is recognised by virtue of the proposed new Act, the-n. whether the foreign court has or has not passed orders for the maintenance of either party. or orders for the custody, education or maintenance of the chil- dren of the marriage. or orders for the disposal of any property of either of the parties or their joint property. or other ancillary orders, either party may apply to the competent court for passing ancillary orders.

In this context, the "competent court" will mean the court--

(a) which, under any law for the time being in force, would have been competent to try a proceeding for divorce or judicial separation, as the case may be, if such a proceeding had been instituted on the date on which the present application is ﬁled, by the party now applying for an ancillary order, on a ground available under that law. and

(h) which. under such law. would have power to pass such ancillary order, (that is, the ancillary order now applied for). on_or after ter-

mination of the proceedings for divorce or judicial separation.

19.15. The need for such a provision arises by reason of the combined opera- tion of the following two factors:----

[a) The divorce granted by the foreign court is to be recognised under the proposed law, and the parties would no longer be husband and wife.

(bl At the same time. since the proposed law is going to provide' [in eliect} that the ancillary order passed by the foreign court may not be recognised, the ancillary order will be of no oonsequence in India.

The result will be that there will be an hiatuss, in regard to matters governed by ancillary orders. It is in order to ﬁll up this hiatus that a provision of the nature suggested above' is needed.

v1. PROVISIONS IN VARIOUS ACTS AS TO MAINTENANCE AND cusroov 19.16. It may be mentioned in this connection that the existing provisions of Indian statute law may not over all aspects of the situation. For example, as regards maintenance, the Hindu Adoption and Maintenance Act, 1956, and section 125 of the Code of Criminal Procedure, 19?3--to take two important provisions---would not cover the case, since. after'a judicial divorce. neither of these two legislative provisions applies. Thus, section 18 of the Hindu Adop- tion and Maintenance Act, 1956, provides for the maintenance of a 'Hindu wife'

--which expression would not be applicable after a legally recognised foreign divorce. Section 125 of the Code of I9'?3 is not meant for a wife divorced judi- cially. Nor would it be possible to resort to any supposed common law doct- rine imposing an obligation to maintain. because, once the marriage is regarded as having been lawfully terminated. there is no such obligation to maintain the ex-wife at common law.

1This is not a draft section.

3Para. 19:12, .vttP't'ﬂ-

3Para. 19113. SHE?"-

'Para. 19114, WP"-

Report on Recognition of Foreign Divorces (Chapter 19.--Am:i!Iory orders) 19.17. Similarly, as regards the custody etc. of minor children, the other Cen- tral Acts will not cover the situation. An application for the appointment of a guardian of the person can, for example, be made under the Guardians and Wards Act, 1890, and orders for custody can also be passed under that Act in certain circumstances, but that Act is not framed with the object of dealing with the situation arising on dissolution of the marriage. Same applies to the Hindu Minority etc. Act, 1956. Moreover, because of the very restrictive provisions contained in the various Acts,--e.g. section 6, Hindu Minority and Guardian- ship Act', 1956. and section 19, Guardians and Wards Act". 1890,-«certain ditﬁ- culties arise. These difﬁculties are illustrated by a few reported cases"-'.

19.18. In this connection, we may quote section 19 of the Guardians and Wards Act. 1890, which provides as follows:--

"I9. Nothing in this Chapter shall authorise the Court to appoint or de-

clare a guardian of the property of a minor whose property is under the supcrintendcnce of a Court of Wards, or to appoint or declare a guorcﬁan of the pgrson----

(a) of a minor who is a married female and whose husband is not, in the opinion of the Court, unﬁt to be guardian of her person, or

(b) of r: minor whose father is living and is not, in the opinion of the Court, unﬁ: to be guardian of the person of the minor, or

(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor." ' Clause (b) of the section is of particular relevance.

19.19. In the Hindu Minority and Guardianship Act, 1956, section 6 provides (in effect), that the father has a preferential right to guardianship. though the mother has the preferential right to custody upto a certain age. By section 19(b) of the Guardians and Wards Act, 1890, (quoted above)', it is enacted, in sub- stance, that the Act does not authorise the court to appoint or declare a guar- dian of the person of! a minor whose father is living, if the father is not, in opinion of the court, unfit to be the guardian of the person. of the minor. These two provisions are slightly weighted in favour of the -father. But, section 26 of the Hindu Marriage Act, 1955, which deals with orders for the custody etc.. of the children in the course of. or on the termination of. the matrimonial proceed- ings under the Act, is on a different line. Under that section, the court may _ make such orders with respect to the custody. maintenance and education of . minor children, as it may deem just and proper, consistently with the wishes of the child wherever possible. ' 'Para. 19:19, infra.

"Para. 19:18, infra.

'Cap.rnin Rattan Amrir Singh v. Kmaljit, A. I. R. 1961, Punj. 51.

'Sum? Kumar V. Sotirani, A. I. R. 1969 Cal. 573.

5Kamalakshm:' Ammo v. Bhoskor Me-non, A. I. R. l96l Kerala 154, l5S, para. 2. "Raghavon Nayar V. Lakshmi Kutti, A. L R. 1961 Ker. 193.

7Ku.s'o' Porida v. Vaishnob. A. I. R. 1966 Orissa, 60 Mvinosh Devi v. Dr. Khazan Singh, A. I. R. 1962 Punj, 326; Para. 19.19, infra.

"Para 19-18, supra.

123

Custody.

Provision in Guardian: ate.

Act.

Hindu_ law_ as to guardianship.

:24 Case law U. tion.

N. Cc-n\'en~ Report on Recogniriort of Foreign Divorces (Chapter 19. ----A raciiiorjl orders) The contrast between the Hindu Marriage Act and the Acts relating to guardians was noted in a 1::-unjah case'. It was pointed out that the section in:

the Hindu Marriage Act introduces no restriction, (in contrast with the prowl- sions in the Guardians and Wards Act, or the Hindu Minority etc. Act) as to the orders that can he passed, and gives no special status to the minor's father.

19.20. The shift in emphasis in the various statutory provisions is also illus-

iratcd by a Calcutta case". In that case, S. K. Chakravarti, I. held that though under section 19 of the Guardians and Wards Act, 1390. if the -father is not un- ﬁt to be the guardian of the person of a minor aged more than 5 years, the father should be the guardian," still, under section 13 of the Hindu Minority and Guardianship Act, the prime and sole consideration will be the welfare of the minor. Section [9 of the Guardians and Wards Act, I890, will, therefore, have to be read subject to section 13 of the Hindu Minority and Guardianship Act, 1956, so far as Hindus are concerned.

P. N. Mookerjee, I. discussing the point at still greater length, held that section 13 of the Hindu Minority and Guardianship Act had brought about a material change, so far as Hindus were concerned. It made it quite clear. that in all cases. i'rre.s';Iect:'ve of the status of the person claiming the guardianship, the welfare of the minor would be the paramount consideration. He held that under the Guardians and Words Act, so far as the father is concerned, his claim for guardianship in the case of a ho)' of more than 5 years of age would he the ' paramount consideration. In regard to other persons c--Ia1'm1'ng guardianship, the said' Act put the welfare of the minor in the forefront, and made it the para- mount consideration. He also added that the welfare of the minor, though not the paramount consideration in cases coming under section 19. is not altogether without signiﬁcance. It will be one of the considerations, or one of the facts. to be considered in the matter of the claim of guardianship, even of the father, and as one of such considerations, it may, in the ultimate result, outweigh the otherwise paramount claim of the father.

19.21. No doubt, the various provisions still leave a discretion to the Cain, and, with a change in sttcial concepts, a change in judicial attitude can be anti-T cipated. Recently, for example. the Supreme Court has pointed out the need to have regard to the special circumstances under which the mother could be held to be the natural guardian.' 19,21. It may be noted that the U.N. Commission on the Status of Women'.

recommended the following provisions as to rights of women in regard to ~ guardianship ':

(:1) Women shall have equal rights and duties with men inﬂrespect to guardianship of their minor children and the exercise of parental authority over them, including care, custody, education and mnin--

tenance 1 i,.[,,;,,,,,;, Devi v_ Dr. Khazun Sing!'-I, A. 1, 11. 1962 Puni. 326; E2 P1mj.--l., Reporter -.354 (A. N Grover ll-

9.S'uru'I romw V. Srrti Rani. A. I. R. 1959 Cal. 513, 575, 57?. paragraphs 10 and 13 (P. N. Mookerjec and S. K. Chakravarti, JJJ. ' --

q5im_rﬂ gala, H961) 55 Cal. "N. 1133; I-. L. R. H.961)" 2 Cal. 40, reierred to.

'life Bai V. Fathom Khan. A. I. R. IQTI S. C. 315.

We-rue n).

3113:}, Session, 13th February -to 6th March. 196? (U, N. Commission on Status of 'md went to live in Canada.

Report on Recognition of Foreign Divorces (Chapter 19.~----A nciiiary orders) {b} Both spouses shall have equal rights and duties with regard to the administration of the property of their minor children, with the legal limitations necessary to ensure as far as possible that it is adminis- tered in the interest of the children.

(c) The interest of the children shall be paramount consideration in pro- ceedings regarding custody of children in the event of divorce, annul- ment of marriage or judicial separation.

(d) No discrimination shall be made between men and women with regard to decisions regarding custody of children and guardianship or other parental rights in the event of divorce, annulment of mar- riage or judicial separation. i This also shows the changed social attitude. Nevertheless, the weighi- age in favour of the father is obvious under the Guardians and Wards Act'.

19.23. So much as regards the various statutory provisions relevant to guardian- ship. We may now note that sections 25-26 of the Hindct Marriage Act, which provide, inter alia, for orders as to custody etc., cannot be resorted to in connec- tion with a foreign divorce. unless we provide for it. It has been held*' that the provisions of the Hindu Marriage Act can be resorted to by the court only if the marriage is dissolved under the Hindu Marriage Act, and not if the mar- riage is dissolved under any other Act, such as the Madras Aliyasanthana Act.

Section 15 of the Madras Marumaldrathayam Act, 1932. provided that--

"the mother shall be the guardian of the person and property of her minor children if their father is dead or the marriage of their parents is dissolv ."

It was held that only this provision would govern the parties, where the divorce was obtained under that Act.

VII. ENGLISH CASE OF TOROK 19.24. The above discussion shows the need for a provision that would take care of matters normally dealt with by ancillary orders in matrimonial causes. The need for some speciﬁc provision as to ancillary orders in the proposed law is illustrated by the English case of Tomi: v. Torok". In that case, the parties left Hungary at the time of the Hungarian rising in 1956, and came to the United Kingdom. They married, became naturalised British subjects, and lived in England together with their children until the husband left the wife in 1967 The wife and the clnldren continued to live in England, in a house of which the parties were the owners. In 1.972, the husband, who. by the laws of Hungary, was still a national of that country. brought proceedings in a Hungarian courtgfor divorce based on the ground that the parties had lived apart for 5 years. The wife entered an appearance. The Hungarian court pronounced a "partial decree" of divorce, and the wife gave notice of and lodged an appeal in Hungary against the pronouncement of the decree.

19.25. The wife also petitioned in England, for dirviorce. Since the English courts would recognise the Hungarian decree if it was made ﬁnal, under sec- ' 'Para. 19:18, supra.

3P1-ema v. M. Anad Sherry, A. I. R. 1973 Mysore 69, 1'], para. 17 (Dissolution under the Madras Aliyasanthana Actl. ' 3Torok v. Torok (1973) l W.L.R_ 1065.

T 125 Hindu Marriaae Act.

English case of Tarak _V. Tarak.

1115

Observations made in the English case.

Recommendation as _to orders for ntaintenance etc. Report on Recognition of Foreign" Divorces (Chapter l9.--A nciiiary orders] ﬁ0l1S 3(1) and 5(1) of the Recognition of Divorces and Legal Separations Act. 1971', and the court would then have no jurisdiction. under the Matrimonial Proceedings and Property Act, 1970, tomake orders concerning property and ﬁnancial provision for the wife, the wife petitioned for a divorce under section 2(l)(e) of the Divorce Reform Act. 1969 (which was the law then in force). She also prayed for exercise of the discretion of the Court to expedite the making of the decree absolute. -

On the question whether the court should grant a decree and exercise its discretion to expedite thelmakiug of the decree absolute, it was held, granting a decree. that the English court had jurisdiction on the wife's petition to gram a decree of divorce and there was no ground on which it could refuse to do ID; that, since the court had jurisdiction only under the- Matrimonial Proceedings and Property Act, 1970 if a decree' had been granted by an English court, the wife would be disabled from using or taking advantage of that Act if the Him- garian decree were made ﬁnal beforeithe English decree was made absolute ahd. accordingly. since shc_ would thereby suifer a severe injustice and the husbind no injustice if the decree absolute was expedited. the-decree would be made absolute forthwith.

19.26. In this way, substantial justice was done. The Court, however. observ- ed" that the situation presented in the case--re1ating to two people, who had been Iiving in England. with children who had been brought up in England, and with a matrimonial home in Eug1and.--was unforeseen when the Recogni- tion of Divorces and Legal Separation Act. 1971 was drafted; because the eilect of the Act is to oust, in effect, the jurisdiction of the English court to deal with a family living in England and with property in England (if the foreign divorce is one which has to be recognised under the Act}.

Fortunately, in this case, the foreign divorce had not yet become ﬁnal. But, if it had become ﬁnal. the situation would have been hard. The need for a speciﬁc provision is illustrated by the facts of this case. Such a situation could arise in India, or, for that matter. in any country, if a couple divonoed elsewhere comes back to that country or if even one of the spouses. so divorced. comes back.

vln. RECOMMENDATIONS 19.27. In view of what we have stated in the above discussion. we recommend that a provision of the nature already suggested'. empowering the appoptjate Indian Court to pass orders as toinaintenance etc. and other ancillary meters discussed above should be insertedjin the proposed law. What we have sug- gested above is. of course, not at draft section. but it gives all the 68501-'II'-iii tequi- sites thereof. ' ' - i This provision will be in addition. of course. to the provision for~I'oI1- recognition' of the foreign ancillary order, llieeognition of Divorces and Legal Sleperetions Act, 1971, section 3{1l- I ' ' 3Torok v. Tarak. { 1913), 1 L. R. 1966, page 1069. portion H. Page 1070, portions 3-3.

1' 3Para. 19.14. supra. ' I ' 'Para. 19.12, supra.

_a law relating to the recognition of foreign diV0l'0.€§'-

Report on Recognition of Foreign Divorces CHAPTER 20 ORDERS FDR CUSTODY VARIATION BY THE MATRIMONIAL COURT is I. INTRODUCTORY 10.1. In the course of our consideration of the subject of ancillary orders' we hid occasion to consider the question whether an order for the guardianship of the person under the Guardians & Wards Act, 1890, would be subject to an order passed later by a court which exercises matrimonial jurisdiction and passes 11! N1'-"-_ii1€if3v' Order in regard to custody, education and maintenance of children. In other words, can a matrimonial court pass an order modifying an earlier order passed by a competent court under the Guardians and wards Act as to the custody of children ? Or, the order earlier passed by the Court competent under the Guardians and Wards Act, must hold the ﬁeld--subjeet, of course, to variation by that very Court '? This was the question raised for our considera- tion.

20-2. A typical provision empowering the matrimonial court to pass orders for custody of children is in section 26 of the Hindu Marriage Act, quoted below: G "26. In any proceeding under this Act, the Court may, from time to time, pass such interim orders and made such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wher- ever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provi- sions with respect to the custody. maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also irom time to time revoke. suspend or vary any such orders and provisions previously rnadc.""

1;I|.3. In order to enable us to consider the issues raised by the query, we studied the legal position on the matter and on an examination thereof, ultimately come to the conclusion that -it falls outside the scope of the present Report.

However, we thought that since we have studied the matter, and since the matter is of some importance and may fall to be considered by the Commission in the future, it would not be inappropriate if we state below, in brief, the ques- tion, the legal issues raised thereby and the present position.

2044. We may, at the outset. point out that» the matter is really of a general na- tpre. and is not conﬁned to the Guardians and Wards Act. The query was raised reference to the Guardians and Wards Act,ihtit it really involves a wider ijuestion relating to the competence of the rnatrimonialn court to modify previous orders as to custody passed by other courts by virtue of powers conferred by the relevant Acts. Law conferring such a power is not to be found in any single ehitctment. We are mentioning this aspect because if.-in the future. further legis- lation is contemplated. this aspect will be of some importance in coming to a conclusion as to whether further legislation is needed. Even if further legisla- tion is considered proper. it cannot prima fticie. T8193 'hi Shape of a PWVISIOD 111 1Chapter 19, supra.

3Section 26, Hindu Marriage Act, 1955.

I39?

Conﬂict between order of the ma-

trimonial Court and order under the Guardians & Wards Act.

Section 26, Hindu Marriage Act, 1955.

General nature of the queltiol.

2:23 Guardianship and cutody.

Various provi-

iions.

Guardians and Wards etc., Act.

Report on. Recognition of Foreign Divorces (Chapter 2D.w~0rders for Custody--------Variation by the Matrimonial Court) 20.5. It may also be stated that matrimonial legislation in India is not contain- ed in one enactment, but is to be found in several enactments. We need not respect all that we have already stated on the subject carlierl in this Report.

Before we deal with the relevant legal provisions, we may also make it clear that guardianship and custody are 'not identical concepts. The guardian may well not have the custody and yet, by virtue of his guardianship, he may still exercise powers regarding marriage and education. "Guardianship is'daI- tainly a more comprehensive and-'hiore valuable right than me»re~'custody;"-'«-ti Though under section 24 of the Guardians and Wards Act. the guardian 'is r.-min» ed with custodyi, the two- concepts are not identical. After these introductory observations, we shall consider the present II. PRESENT LAW 20.6. Proceedings concerning custody, or guardianship of the person; or both. fall under a variety of legislative or other provisions and can be instituted-hr':

variety of modes. Amongst these are:--

(i) The Guardians and Wards Act. 1390:

The Hindu Minority and Guardianship Act, 1956;

The provisions of sections 97 and 98 of the Code of Criminal Pro- cedure, l973 ;

The writ of habeas corpus :

The original jurisdiction of the Chartered High Courts to appoint guardians;

(ii)

(iii)

(iv) (V) Suit in a civil court;

Matrimonial legislation. such as. section 26 of the Hindu Marriage Act, 1955 and compamble legal provisions."

(Vi)

(vii) The precise question to be considered in this Chapter raises the issue as to how far an order under-(viii) above can modify an CI-ITIC-I' I-ll1d=1' (ll (Vi) above.

"Wardship" of a court ttnder state legislation is another institution of the law. Under the relevant, State Act. a minor may, by appropriate action, be made a ward of court under the provisions of that Act. However. in most mans, orders made under those Acts do itbt. in practice, affect the control of the person of the minor, and we shall not therefore go into those Acts. ;

20,7, Coming to guardianship of the person, we may state that such ship of the minor is governed by the relevant rules of personal law. But,.I.di_d_et' certain Conditions, it can be conferred by the court in proceedings for gudrC_i§n= ship. The principal Act. on the subject is the Guardians and Wards Act,"i3!}_. We have, in an earlier Chapter', already discussed its provisions. so far astheji are material -for the purposes of this Report. ' ' i '5 'Chapter 5, supra. ._ 1-a. Kumuraswamj V. Raiammcii. A. 1. 12. 1957 Mad. 'sea, 56?. Fare. 13.

"Section 24, Guardians and Wards Act, 1890.

'~'Para. 20:2. supra.

'Chapter 19, supra.

Report' on Recognition of Foreign Divorces (Chapter 2D.--0rder.s for Custlody---Variation by the -Mairinzontol Court) For the present purpose. it will suﬁice to state that under section 7 of that Act. the court may appoint a person as the guardian of the person or property of a minor. The court must be satisﬁed that such appointment will be for the wel- fare of the minor. But this appointment cannot disturb the guardianship of a person who has been appointed by a will or by other instrument or by the court or who has been declared by a court.

As to the award of custody, the jurisdiction of the court under section 25 of the Guardians & Wards Act arises only where the application is for an order for the return of the ward to the custody of the guardian and where it is alleged that the ward has left or is removed from the custody of the guardian. The order for the return is made only if the minor should be made to return from the point of view of the minor's welfare.' Ill. The Hindu Minority and Guardianship Act. 1956. is primarily concerned with natural guardians, and not with appointment by the court. though section 13. which deals with the principles for appointing guardians. is so worded as to apply also to guardians appointed by the court.

As to natural guardians, section 6, so far as is material, provides that the natural guardians of a Hindu minor in respect of his p6l'son are 2--

{a) in the case of a boy or an unmarried girl~--the father, and after him, the mother; provided that the custody of a minor who has not com- pleted the age of ﬁve years shall ordinarily be with the mother;

(b) in the case of an illegitimate boy or an illegitimate unmarried girl--

the mother, and after her, the father; s .

Under the uneodiﬁed Hindu law, where natural guardians are not alive, for the appointment of the guardian" must be had to the court as r'epre'scnting the rights of the King. The pI'in_ciple- that the appointment of a guardian rests with the ruling power is, thus. not unknown to Hindu law.' In modern times, this jurisdiction is exercised under the Guardians and Wards Act, ﬂ1a"pnovisions whereof have been expressly mved by the Hindu Minority etc. Act.

13.9. The provisions of the Code of Criminal Procedure; 19_'l'3-----sections 97 and 9E--'dmpower the competent Magistrate to pass orders -for custody in certain These sections are meant principally for cases of abducted persons and _ pﬁiaons illegally detained for an improper purpose.

nan The writ of habeas corpus is sometimes resorted to for obtaining orders lltﬁlcustody of minors. The underlying principle' it thp protection and well- hdgrof the person brought before the court" .

'. i~151u---

(L) Rosy Jacob v. Jacob. A. I. R. 1973, S. C. 2090; _('hJ Pamela Williams' v. Patrick Martins, A. I. R. 1970 Mad. 427.

*Gul'bal', In re, I. L. R, 32 Bom. S60.

'Thayommal V. Karpparmo. (1915) I. L. R. 38 Mad. 1125. 1136' (S.-adasiva Ayyar, J.].

'Sea the passage from Mc. Naghten's Precedaenta and Principll;'a of Hindu Lair'. quoted in Cbennapa Y. Chermapa, A. I. R. 1940 Mad. 140 (Leach, C. J.).!' V K '$'arabibi v. Abdul Razzalr. U911) 12 Born. L, R. 891. 'Guitar Begum V. Suggi. A. l. R. 1960 S. C. 93, 96, Para. 10. ' .

iiﬁ' Hindu etc. Act.

Code of Criminal Procedure.

Habeas corpus, minority 131'] Chartered Courts.

High Report on Recognition of-Foreign Divorces (Chapter 2ﬂ.--0rder.r for Cu$:bdy~--Vnria:ion by the Mon-fmonini Cows') At common law, once out of a father's or guardian's control. a minor could be resorted only by the issue of a writ of habeas corpus requiring the'per- son in charge of the minor to produce him and justify his detention. If the child"

were over the age of discretion {fourteen for boys and sixteen for girls)-, 9, writ would not issue to the father or guardian as a matter of right against the wishes;-' of the minor.' ' In India also, the guardian is entitled to custody of the person of the minor, which he may vindicate either by a writ of habeas corpus or by an appli- cation under section 25 of the Guardians and Wards Act, 1890, unless his are modiﬁed by special law or by: an order of the court. "

20.11. Then, in the exercise of its special jurisdiction, a Chartered High Court may make any order it thinks ﬁt in the matter of the guardianship of a minor. The Chartered High Courts have special or inherent jurisdiction confared .upou_ them by their Charters or Letters Patents, which no other Courtspossess. They enjoy such jurisdiction apart from the Guardians and Wards Act, 1890, thatis to say, in addition to the jurisdiction conferred by that Act upon a High Court in its ordinary civil jurisdiction. ' We are referring to these High Courts as Chartered High Courts.-because they have this jurisdiction by virtue of their Charter or Letters Patent.

The jurisdiction referred to above is wide. For example, it is now well-' settled that under Hindu law, a gmtdian cannot properly be appointed in reaped of the infant's interest. in the property of an undivided Mitakshara family'. But the Chartered High Courts can exercise this power. ' ' This jurisdiction stands expressly saved by section 3 of the Guardian. and Wards Act. 1890. in the case of the High Courts established under thelstatute. the High Courts Act (24 and 25 Vic. c. 104}. ' It was provided by section 9 of the High Court Act' that the shall exercise all such power: as shall be granted by the Letters Patent, and. except as otherwise provided therein. it shall have and exercise all jurisdiction vested in the Supreme and Sudder Courts. Clause 1'! of the Letters 1865, stated that the High Court shall have the like power with respect to and other in the province as wasivested in the High Court immediately pfiorgdo. the publication of the Letters Patent, i.e.. the power that it had Imdet stuns of the Letters Patent of 18052, which had stated that the Court should have the same jurisdiction as was then treated in the Supreme Court. in the Supreme Court were the same as those possessed oery in England----See clause 25 of the Charter of 1714. establishing the"

Court at Fort William, Clause 32 of the Charter of 1800, constituting the Supreme Court at Madras and Clause of the Charter of 1823 relating to the supreme Court at Bombay. ' .

1322- -- ' ' on R. v. cram. Re Race. (13:71 119 E. n. 1217:

(b) R. r. Howey ex p. Bnrford, flaﬂj} 3 E 3:. E. 332;

{c} R. 1|'. Greenhiit, (1335) in E. I:-. 912. 917.

'ﬁltarihuﬂah 'V. Khninp Singh, (1903) I. L. R. 25 A11. #97: L. P..'3D I. At. 155:

'The High Court: iict, 2'4 it 25 V43, c. E04.

Report on Recognition of Foreign Divorces (Chapter 20.----0rders for C'urrody---Iﬁariation by the Matrimonial Court) As was observed by the Madras High Court in Annie Boson: V. Noraya- nioh', "the jurisdiction in connection with the estates and persons of minors is ...................... .. the jurisdiction which was exercisable by the Lord Chancellor "in England acting for the sovereign as parens patriae, when the Supreme Court . was instituted."

In England, the Court of Chancery has always had the power of appoint- ing guardians for infants on a proper case being made, whether such infants have property or not."-3 20.12. This jurisdiction is often referred to as_juri'sdiction to make a person "ward of court". 'Ward-ship of court diifers Enoin other types of orders, inasmuch as if a child is made a ward of court, the custody vests in the court. Of course.

rfor practical reasons, care and control of the child is given to an ind.ividual--it can, in appropriate cases, be given to a local authority in modern times, but the person or authority so placed in charge will be in the nature of an agent of the court. responsible solely for the day-to-day supervision of the ward. He or it must keep the court informed of the progress of the case. and may always turn to the court for guidance and assistance.' Being a jurisdiction ﬂowing from the Crown's prerogative and exercisable on the merits of each individual case. the jurisdiction transcends purely territorial as well as diﬁerenee of race. T Latey I.' traces the origin of this wardship jurisdiction as follows :

"All subjects owe allegiance to the Crown. The Crown has a duty to pro- tect its subjects. This is and airways has been specially so towards minors. that is to say, now the young under the age of 13. And it is so because children are especially vulnerable. They have" not formed the defences inside themselves which other people have, and therefore. need special protection. They are also a country's most valuable asset for the future. So the Crown as parens pat-riae delegated its powers and duty of protec- tion to the Courts." i 3.13. Thus, it has been held that the original side of the Calcutta High

-Court" has jurisdiction to entertain an application for the appointment of a guar- dian of the person of a minor who ordinarily resides within its ordinary original civil jmtlrdicrion as also those resident within the Bengal Division of the Presi- dency who are "British subjects". The jurisdiction over infants under clause 17 of the Letters Patent, preserved by section of the Guardians and 'Wards Act, is operative on the person and estate of all infants within Bengal Division of the

- Presidency' in regard to British subjects.

The Guardians and Wards Act does not take' away this special jurisdic- tipn of the High Court. Section 3 of the Act provides that "nothing in this Act nlnll be construed to affect or take away power possessed by any High Court established under the Statutes 24 and 25 Victoria, Chapter 104. (An Act for '-Annie Ber-an: v. Na-royaniolz, {I913} 25 M. L. J. -661," 686_A.l.R. 1915 Mad, 157 (White, C. J. and Oldﬁeld, 1.).

_ 'Re Spence. 2 Phil. 247, 252.

' 'Re Flynn, 2 De G. & Sm. 457. 481 N.I.-C. 1.

'See Cross, "Wards of Court" 33 L.Q.R. 201.

'Rex in minor), [l9T5] 1 All. E. 11., 69?. - -

'In the matter of Lo-vejoy Patel}. !.L.R. (1943) 2 Chi. 554; A.I.R. 1944 Cal. 433, 433, 439 (Bus. 1.). -

'In re Taruchandru Ghost-, A.I.R. 1930 Cal. 598 {L011 Williams, L).

Wardship.

-131 I32 Chartered Courts.

High Suits for custody.

Ancillary orders in matrimonial cases.

Variety of dis-

puree.

Custody--a divi-

Iible right.

Report on Recognition of Foreign Divorces {Chapter 20.-----Orders for Ctt.rrady--Variatz'on by the Matrintoniat Court} establishing High Courts of Judicature in India}." The power is also saved by the Hindu Minority and Guardianship Act} 20.14. Subject to the paramount consideration being the welfare of the minor and his estate, a chartered High Court may, in the exercise of its special jurisdiction referred to above make any order which it deems ﬁt." Its jurisdiction being inde- pendent of the Guardians and Wards Act, a chartered High Court is not restrict- ed by the speciﬁc provisions of that Act.

20.15. Apart from proceedings of the nature mentioned above, it would appear that a suit can be ﬁled for custody. How far such a suit can be ﬁled by the father is a matter for controversy- Accortling to the Bombay view", a suit by aiftthefr for the custody of his child is mazintainable, especially since because of section 19 of the Guardians and Wards Act, no remedy at the instance of the father exists under that Act.

According to the Madras High Court'. on the other hand, a mofussil Oourt other than the District Court has no jurisdiction to entertain a suit by a fothﬁr for the custody of his minor child. _ We need not go into further details of this controversy. But the proposi- tion that in certain circumstances a suit for custody can lie. is not in digtutac. Such a suit is expressly mentioned in the Provincial Small Causes Coqrtsjtctq' 20.16. Finally, matrimonial legislation usually contains provisions empowering the court to pass orders for the custody of children of the marriage both during the pendeucy and on the termination of matrimonial proceedings. When matri- monial relief is decreed, custody is granted speciﬁcally by the courtas a con- comitant to such relief, on such relief, on such terms as the court may deem just. An example in point is the provision' in section 26, Hindu Marriage Act. 1955.

III. VARIETY OF DISPUTES 20.17. This brief resume of provisions empowering the court to deal with the custody of chiidren, shows the variety of powers possessed by various It may also be stated that real estates concerning children are of many and may arise-----(i) independently, 'or (ii) pending matrimonial proceedingltg or

(iii) in the aftermath of matrimonial-_ proceedings between' the parents. Thetpﬁs pute itself may be between the themselves, 01' between the parbnte (united or divided) and -the t1u'i~d,_ 'parties like -inlaws. and grandparents. this subject matter can be the question who is best suited or placed to bring'-tip-a child. or merely a speciﬁc point of disagreement,--for example, over access education or maintenance.' 20.18. "Custody" is a divisible right, which enables a court, in proceedings re-

lating to a child, to make an order for custody subject to quaiiﬁcations.-ta' to divide the rights inherent in custody between the parents or other. partie r-- ' _ _ - 7 1 'See section 12, Hindu Minority and Guardianship Act, 1956. 9Raja of Vizinnagaram tr. The Secreljary of State for. India. I. L. R. (1931) Med. 383:

A.I.R. 193'? Mad. S1, 76. ' 3 j-

'Ackarr.rj'tai V. Chimantat. U916] I.L.Ra 40 B0111» 600: 505- :

tsarhi v. Ra.-ncmdi, 1919 .LL.R. 42 Med. 64?; 37 M. L. J. 93, A.l.R. 19230 Mal. 937 (F. 11.). ' 'See Provincial Small Causes Court: Act. 1887. of a minor". { _ 'See Chapter 19, supra, and the opening paragraphs of this Chapter.

7Grant, Family Law (1910). races 13:. 133.

Article '3r--".n. suit for.........ehItody' Report on Recognition of Foreign Divorces {Chapter 20.--0nders for Custody--Var:'atI'on bytheMatrim0n.ia1 Court} example, by giving custody to A subject to care and control to B. or custody to A and B subject to care and control to A or B or even C. These permutations enable a court to give both parents, and other persons who may be concerned, a share or stake in the upbringing of a child where such arrangement is likely to be of beneﬁt'.

IV. POWERS OF THE MATRIMONIAL COURT :ﬂ.19. We now come to the speciﬁc question to be considered in this Chapter. namely, the extent of power of the matrimonial court to modify an earlier order passed by a court under the Guardians and Wards Act, 1390. The statutory provisions relating to the matrimonial courts competent under the various enact- guents are silent in this regard. inasmuch as they do not speciﬁcally permit the matrimonial court to vary an earlier order of another court, not do they prohibit it from doing so.

20.20. So far as we could ascertain. the question whether the matrimonial court can vary an order passed by the guardianship court does not appear to have arisen in any reported case under Indian matrimonial legislation.

Of course, the power of a guardianship court to vary its earlier order is recognised. I 'W6 Orders as to the custody of a child under the Guardians etc. Act are ._ ways of a temporary nature. Those interested in the minor are at liberty to ly,to the Court for modiﬁcations or alteration of such order whenever neces-

arises."-3 Similarly, the power of a matrimonial court to vary its own order is not disputed. In a Calcutta case' between Parsis, it was ilaid down that merely be- cause of an ancillary order passed in matrimonial proceedings,' the father has been given the custody of the children and there is nothing against him so far as the children are concerned, it cannot be said that he has an absolute over- right in the matter of custody of the children. In this case, an order for custody was passed in a suit in which judicial aparation had been granted to

- the wife.

Necessity for review of the order arose. lt'see_ms, because of some differ» ences of opinion between the parents as to the school in which the children should be educated. Taking the View that the earlier order could be reviewed. the High Court pointed out that under section 49 of the Parsi Marriage and Divorce Act, the position would have to be considered in the light of all the 'circumstances and in the context of the chi1dren's welfare.

;p.2l. The question dealt with in this Chapter does not appear to have directly arisenin any English case also. although caselaw is available as to the power of the High Court to vary an earlier Magihterial order. In one case, the High Court, in exercise of its wardship jurisdiction, was asked to modify an order . 'in re. N. (I967) 1 W.L.R. 479. the Court oi' Appeal annoyed of a care and control order to one party, without any other order for curried?- hiareswott Sripad, l.L.R. (1941) Both. 455; 43 Born. I... R. 1'91; A.I.R. 1941 Bent. I03. 3Rnt.t::m Amok Singh V. Kamatjit Kaur, A. L R. 1961 Pan}. S1, S4, Para, 1?'.

'Iambhed v. Zerirt, A.I.R. 1974 Cal. lll, I14. 115, paragraphs '15 and 18 (S. K. Muk]1er- fee and S. K, Dutta, IL).

'Section 49, Parsi Marriage and Divorce Act, 1936.

133

Statutory provi-

Slot].

Case law.

English cases.

1.34 Two views pos-

tibia.

Modiﬁcation of Ieetion 13. C.P.C.

and section Evidence Act.

41. Report on Recognition 03% Foreign Divorces (Chapter 20.---Orders for Custod,v--Varz'ation by the Mairimonihl Court. Chapter 21.----M'odiﬁcot1'on of section 13, Code of Civil Procedure and section 41. Evidence Act') made earlier by the Magistrates Court} Stamp J. held that although be an- doubtedly held jurisdisction to hear the case, he should exercise it only in excep- tional circumstances. "

It would appear that such jurisdiction could be exercised by the High Court where the case had special complexity' or where the jurisdiction of the High Court is more extensive, eﬁicacious or convenient, or where it is necessary to supplement the order passed by the Magistrate by giving relief which the Magistrate had no power to give. It may be noted that in the exercise of the wardship jurisdiction, the High Court may issue an injunction prohibiting a person from taking the child out of the jurisdiction. In one English case.' s_u_ch an order was passed by the High Court to give eﬂect to the Magistrate':

awarding custody to the mother. , V. CONCLUSION 20.22. Since the case law throws no light on the question which we are now in-

vestigating, the question is of ﬂnst impression and had to he so approached. Now, it would appear that two veiws are possible on this question. On the one hand, the order passed earlier under the Guardians and Wardsﬁct -or other cognate provision would have been passed on a consideration of the state at aﬁairs then existing. If there is a material change of circumstances by reason of the dissolution of marriage or by the grant of judicial separation. at. new fac- tual element is introduced. which at least requires consideration by the matri- monial court. On this reasoning it could be argued that the jurisdiction of that court should be treated as wide enough so as to enable it to take into account:

the factual element just now referred to. On the other hand. a fresh order would mean a modiﬁcation of the order of another court, and since, prime facts, the , section is silent on the subject. itcan be argued that it does not permit any such course.

It is not necessary for us no express any opinion on the question. in any case, the matter falls outside the scope of this Report. If and when the question comes up for consideration-. several aspects may have to be in_ mind. The brief discussion in this 'Chapter of the legal issues will serve to inlti-' cate broadly the scope and Imsniune of the problem. But, as we havealready indicated. this problem is outside the scope of this Report.

-Ci-uuvrnn 21 Montntcariou on SECTION 13, coins on CIVIL PROCEDURE AND SECTION 41, EVIDENCE ACT 21.1. Our recommendations cover many matters which are. 31 touched upon by certain. statutory provisions' to which we have already ﬂak a reference. It is necessary, as a icnnseqitential amendment. to mbdity_'ti1oon provisions,--name1y._section 13. Code of Civil Procedure, 1908. and sectioii: 41.

Evidence Act, l8'il,------so as to egtclude their application in relation to the that will be covered by our recommendations. when their nre.si'-'=I1_ 1¢s|ﬂ_g§?° eifect. . . . .

'Re. .P.. (I96?) 2 All E, R. 129. ' me. P'. (1968) l 'W.L.R. 191'-E. 'Re H.. (I956) 1 All E. R. 952.

'Chapter 4, supra.

fieport on Recognition of Foreign Divorces (Chapter 2l.---Modiﬁcation of section 13, Code of Civil Procedure and section 41, Evidence Act. Chapter 22.--Recommendarions) 21.2. It is obvious that in so far as there is, on any matter. a speciﬁc provision in the recommendation in regard to recognition of decrees of divorce, the posi- tion should be governed exclusively by the recommended provisions, and not by the provision in section 13 of the Civil Procedure Code. or section 41 of the Evidence Act, as the case may be. Hence the need for a consequential amend- ment. In the absence of a consequential amendment. there will be overlapping. and this might create confusion.

Cnsrvrea 22 RECOMMENDATIONS 2.1.1. In the light of the discussion in the preceding Chapters, we recommend the enactment of a separate law on the lines indicated in the Bill annexed to "this Report} The Bill is. as is the usual practice of the Commission, a rough draft. intended to indicate in a concrete form our recommendations.

We may repeat what we have stated. namely. that suitable amendment excluding the application of section 13, Code of Civil Procedure. 1908. and sec- tion 41. Evidence Act, will also be required.' if our recommendations are accept- ed and the Bill introduced.

15.'. Appendix.

'Chapter 20. supra.

l§ecommenda--

trons.

1'35 Short title, extent and commencement.

Deﬁnition.

Cf. section 8(3) English Act.

Recognition of foreign divor-

ces and legal separations.

Cf. section 2.

English Act.

Grounds of recognition.

Cross-proceed-

lugs and separa-

tion converted 'usto divorce.

CE. section 4, _ English Art.

Cf, section 5.

A1'=1'=ﬁNi'J1x 1' The Recognition oi Divorces and legal Separation Bil, 1976.

ll) This Act may he called ' (2.). It extends to the whole of India except the State of lemons and Kashmir» _ {3} It shall come into force: on_such date the Central Government mill'. bl' notici- tion in the oflicial gazette. appoint In this behalf.

2. In this Act-

{a) "country" includes a colony or other dependent territory of the United l_(.lI1r dam, but for the purposes oi this Act. a person shall be treated as a national of such a territory only if it has a law of citizenship or nationality separate ' from that of the United Kingdom and he is a citizen or national of that {kri- Lory under that law; ' ' (tn) "pro::eeding" includes any act which might be suﬁicient to effectuate a dissolu- tion of marriage, however iniormal that act might be and whether or not any formality or legal process is required; _ [cl institution, in relation to a proceeading constituted by an act otherwise than before an authority, means,commem.'cn'unt that act.

3. Sections 4 to 6 shall have effect, subject to the provisions of section 1'', as respocls the recognition in India of the validity of foreign" divorces and legal separations, that us to say, divorces and legal separations wh.ich-- ' ._ i

(a) have been obtained by means of judicial or other proceedings in any country outside India; and

(b) are eﬁoctive under the law of that country.

4. Ill} The validity of a foreign divorce .or legal separation shall be recognised if. at the date of the institution of the proceedings in the country in which it was obtained-

ia) either spouse was habitually resident in that country; or lb) either spouse was a national of that country; or

[2] In relation to a country comprising territories in which different systems of law are in force in matters of divorce or legal separation, the provisions of sub-motion (1) (except those relating to nationality) shall have effect as if each territory were a separate country.

5. [I] Where there have been cross-proceedings, the validity of a foreign divorce or I; separation obtained either in the orightal proceedings or in the cross-proceedings shall recognised it' the requirements of clause (a) or (ls) or {c} of sub-section (1) of section 4 no satisﬁed in relation to the date of the institution either of the original proceedings or of the cross-proceedings, (2) Where a legal separation the validity of which is enﬁtled to recognition by virtue of the provisions of section 4 or suly-section (I) of tlus section is converted, in the country in which it was obtained, into a divorce, the validity of the l'.lJ'VDIOB shall he reoo ' whether or not it would itscif be entitled to recognition by virtue of those provisions.

6. ii) For the purpose of deciding whether a foreign divorce or legal separation is entitl- ed to recognition by virtue of the provisions of sections 3 to .5, any ﬁnding of fact ' {whether expressly or by implication} in the proceedings as a rcs}1lt.of which the divortte or legal separation was ohlairled and on the basis of which turrsdiction was assumed in those proceedings shall-~ {a) if both spouses took part in the proceedings, be conclusive proof of the fact:

found; and (la) in any other case, be sufﬁcient proof of that fact unless the contrary is shown. (2) In this section, "ﬁnding of fact" includes a l'1nd.i.ng_that ther spouse was habi-

tually rcsident or domiciled in, or 21 nations; of, the country In winch the divorce or legal separation was obtained; and for the purposes of clause is} of subaecﬁon (1), a spoon who has appeared in judicial proceedings shall be treated as having taken part in them, 136 Report on Recognition of Foreign. Divorce:

7. 1' l) DivorcBs_or legal separations obtained in a country other than the country of the spouses' domicile, and recognised as valid in the country of their domicile, shall be recognised in India.

(1) In any circumstances in which the validity of a divorce or legal separation ob- in a country outside India would be recognised by virtue of sub-section (1) if II I' la) the spouses had at the __ or i {b) the divorce or separation were recognised as valid under the law of the spouses' domicile.

its validity shall also be recognised if sub-section (3) is satisﬁed in relation to it.

(3) This sub-section is satisﬁed in relation to a divorce or legal separation obtained in a country outside India if either-

rnatcrial time both been domiciled in that country;

'died in that country and the in) one of the spouses was at the material time do r the law of the domicile of divorce or separation was recognised as valid un the other spouse; or

(b) neither of the spouses having been domiciled in that country at the material time, the divorce or separation was recognised as valid under the law of the domicile of each of the spouses respectively.

(4) For any purpose of sub-section (2) of sub-section (3), "the material time", in relation to a divorce or legal separation, means the time of the institution of proceedings in the country in which it was obtained.

(5) Sections 4 to 6 shall be without prejudice to the recognition of the validity of divorces and legal separations obtained outside India by virtue of sub-sections ( 1) to (3). or of any enactment other than this Act; but, subject to this section no divorce or legal separation so obtained shall be recognised as valid in India except as provided by these sections.

3. where the validity of a divorce obtained in any country is entitled to recognition by virtue of the provisions of sections 3 to 6 or by virtue of any rule or enactment pre- served by sub-section (2) of section 1, neither spouse shall be precluded from re-marrying in India on the ground that the validity of the divorce would not be recognised in any Ctlher country.

9. [1] The validity of a divorce or legal separation obtained outside India shall not be recognised in India if it was granted or obtained at a time, when according to the law 0! India (including its rules (of private international law and the provisions of this Act}. there was no subsisting marriage between the parties, (2) Subject to the provisions of sub-section Ill). reco 'tion by virtue of sections 3 to 6 or sub-section (2) of section 1' or_oﬁ subsection (5) c section '.|' of the validity of I divonce or legal separation outside India shall be refused if, and only 11'.---

(a} it was obtained by one spousi%

(i) without such steps having been taken for giving notice of the proceedings to the other spouse as, having regard to the nature of the proceedings and all the circumstances, should reasonably havegbeen taken; or

iii) without the other spouse having been given if any reason other than lack of notice) such opportunity to take part in t e proceedings, 85. l1a_Vil1£ regard to the matters aforesaid. he should_ reasonably have been gtvient OI'

(b) it was obtained by fraud; or tel its recognition would manifestly be contrary to public policy.

(3) Nothing in this Act shall be construed as requiring-"the recognition of-

[a} any ﬁndings of fault made in any proceeding for divorce or separation. OI' lb} any maintenance. custody or other ancillary larder made in any such proceed- ings. ' ID. The provisions of this Act relating to foreign divorce: and legal 'separations apply to a divorce or legal separation obtained before the date o_f_ the commencement of this Act as well as to one obtained on or after that date. and, ;m the case of a divorce or 13331 separation obtained before that date-

1-737 Recognition oil the ground of domicile.

Re-marriage.

Cf. section 7.

English Act as amended In 1973.

No subsisting marriage.

Cf. Section 3(1) lb). English Act.

Cf. Election 3(2), English Act as amended in 1973, Cf. section 31' 21%}, Ellﬂlilll Act.

Cf. eclion 3f2llb) English Act.

Cf. section 5(3), English Act.

Cf. section 3(4), Enshsh Act.

13$ Modiﬁcation of application of certain provi-

sions in rela-

tion to certain decrees.

Ancillary orders, Domicile and nationality or wife.

Report on Recognition of Foreign Divorce:

in re-

uent la) require or as the case may he preclude the reco " ' ' ' . ' - . . . _ gmtion of its vshﬁi é,-Zlilgillbﬁ an)' tune before that date as well as in relation to any su lb) do not affect any property rights to which any person became entitled before that date or apply where the question of the validity of the divorce or"le3isl separation has been decided by any competent court in India before that 'date.

11. In_ relation to the effect of decrees of divorce or legal separation to which thin Act applies, the following provisions shall not apply as regards matters provided is; by this Act, na.meIy1.-- _

(a) sections 4] and 44 of the Indian Evidence Act, 1872; (la) section 13 of the Code of Civil Procedure, 1903.

12. ( 1) Where the foreign divorce or legal separation is recognised by virtue oi lthil Act. then. whether the foreigngcourt-has or has not passed ancillarjr orders. either party may apply to the competent court for passing ancillary orders.' Explanation I.--"Ancillary order", in relation to a proceeding for divorce or legal separation. includes an order-----

(a) for the maintenance of either party to the proceeding, or

(b) for the custody, education or maintenance of the children of the family. or

(o) for the disposal of any property of either of the parties or their joint property.

Explanation 2.A"Competent Court', in relation to an application for an ancillary order, means the court which, under auy.1aw for the time being in force in India.-

(a} would be competent to try a proceeding for divorce or judicial separation, as} the case may be, if, on the date of the application for ancillary order such a pro- ceeding wcre to be instituted by the applicant, seeking divorce or judicial le_pa- ration on a ground available under that law for divorce or judicial separation. as the case may be, and lb) would have power to pass the ancillary order ii_o'_w applied for, on or after ter- mination of the prooeedils for divorce or judicial separation. (2) On such application being made, the Court shall hear and dispose of the appli- cation according to Law.

I3. {I} For the purposes of this AC1. Slllllﬁ-if *0 U15 PI'O'|"iSi0l'18 Of 31ll>_-Seﬁtlull l3). the domicile of_a married woman or at any time after the comrne-nce_ment of this tall, instead of being the same as her husband': by virtue only_ of_ marriage, be ascertained by reference to the same factors as in the case of any other individual capable of harm] an independent domicile '-*.

{2} where, immediately before. commencement of this Act, a woman was _ ar- riod and then had her husband's do|nicil' by dependence. she 31191} bl-'r 8! that domicile [as a domicile of choice, ' it is not also her _doinici]e of origin , unielsgand until it is changed by aoquisiton or revival of another domicile either on or the com-

mencement of this Act.

Aﬂaerilative draft (I) For the purposes of this Act. 'and subject to the provisions of sub-section I121. the domicile of a woman .who is, or has at any ti.r_ne married, shall be determined as if she had never been married. _ , before the 'commencement of this Act, a 'Woman was married dependence, she shall be treated as retainin that o her domicile of origin), unless Intil either on or after the co1nn1e*IIce-

(2} Where, immediately. _ _ and th had her husband's dotruqle_b1_g domicile (as a don'iici_1e_ _of choice,_1.t it is not als _ _ it is changed by acquisition or revival of another domicile merit of this Act.

Another alternative draft F th of this Act, Iaad subject to the provisions of sub-section l2}. any 1-ul1l3l ofclaw ewﬁgilepggsrﬂla woman on her marriage acquires her husband': domicile or nationality shall not be tak into account.-

? wh ,imn1ed'tI,bef theooinnieiiceineiit of this Act, avionianwas_1Im'- tied arld)tl'1enelhead her hlis§aliid's llo£::1l-¢il9 in dependence. she shall be mated as reams choice, if it is not also her domicile -of origin), unleai laid that domicile (as a doniii:i1e_ 9f_ _ , _ _ until it is changed by aoqinsiuon or I'll-Ytllll or another domicile other on or commencement of this Act.

lseechapterzoofthelleport. . -- - * 2555 Chapter 19'of the Report Para. 19:14 and 19:27. 'See Chapter 15 of the Report.

*The last alternative draft is preferable.

Report on Recognition 'of Foreign Divorces 139;

APPENDLX 2 LETTER FROM THE it-[E[NIS'I'ER OF LAW, JUSTICE AND COMPANY AFFAIRS D.0. No. F. ?f|5L"?5-IC Nzw Datmjlloﬂﬂl Manon 13. B75.

My Dim. G.umo1:.~.oA1:»x2.a Smash, _ I am sure the learned Mhets of your Commission have read with iutetut the Judgment of Supreme Court in 5'mt._ Saryo v. Tefa S2':-13!: {A.I.R._l975 S. C. 105} reefusing to recognise a decree of divorce obtained by Hindu husband against his Hindu wife from '5 Nevada court on t]_::e ground, inter alia, that it was obtained by fraud. The Court (Chandra- chud I.) after noting that a divorce decree granted by a foreign court is recognised in another iurisclicﬁon as a matter of oornity, public policy and good morals but that comitv does not require a mount}? to give effect to the divorce laws of another which are repur- nant to its own laws and pubtic polio}; oh-served at page 1172-

"unhappily, the marriage between the appellant and respondent has a Limp. 'I11-::.r will be treated as divorced In Nevada but their band of matriniotur will remain unsnapped in India, the eotantnv of their Ciﬂlitl-CHE.' t t 1 1 1 "Out Iegislature ought to ﬁnd 9. solution to such schizoid situations as the British Parliament has, to a. large extent, done by passing the 'Recognition of Divorces and Legal Sopalations Act, 1911'. Perhaps, the International Hague Convention of E9?!) which eontaios a comprehensive scheme for relieving the confusion caused by clitor- ing :55-'st¢_?ms of conflict of laws may serve as a model. But any such law shat! have to provicte for non-recognition of foreign dec_re_cs procured by fraud bearing on jurisdictional facts as. also for tho l'l0l'I-r-Bcogrllllclll of decrees, the recognition of which would be contrary to our public policy."

may I. Iiterefore, request you to get the matter examined by the Law Commission and favour us with a report.

with warm personal regarde.

Yours sincerely, Sd.f-it x x (11 FL. GOKHALE}.

Dr. P. B. Guawnmonnmm, Chairman, Law Commission, New Delhi, 140' Report on Recognition of Foreign Divorces We would like to place on -record our warm appre- ciation of the valuable assistance we have received ﬁom Shri Bakshi, Member-Secrefary of the Commission in the preparation of this Report.

P. B. GAJENDRAGADKAR Chairman P. K. TRIPATHI ' Member S. S. DHAVAN Member S. P. SEN-VARMA Memoer B. C. MITRA Member P- M- BAKSHI Member-Secretary Dated New Deihi the Ayn"! 5, I976.

G[p'N--Sﬁ----5 L.D. (N.D.'JfTﬁ--7-12-?5--2,DDO.

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Recognition Of Foreign Divorce