Delhi High Court
Swatantra Arora vs Rajendra Kumar Bali on 29 August, 2018
Equivalent citations: AIR 2019 (NOC) 261 (DEL.), AIRONLINE 2018 DEL 1308
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29th August, 2018.
+ C.R.P. 153/2018 & CMs No.30324/2018 (for stay) & 30325/2018
(for condonation of 54 days delay in filing the appeal)
SWATANTRA ARORA .... Petitioner
Through: Mr. Jitendra Nath Pathak, Adv.
Versus
RAJENDRA KUMAR BALI ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. On 31st July, 2018, when this petition came up first before this Court,
the following order was passed:
"3. This Revision Petition under Section 115 of the Code of
Civil Procedure, 1908 (CPC) impugns the order [dated 1 st
March, 2018 in CC No.23/2017 of the Court of Judge, Family
Court, East District] of dismissal of the application under
Order VII Rule11 of the CPC filed by the petitioner wife for
rejection of a Petition under Section 9 of the Hindu Marriage
Act, 1955 filed by the respondent husband for restitution of
conjugal rights.
4. Rejection of the petition for restitution of the conjugal
rights was sought on the ground that the respondent husband
who was living in USA had obtained a judgment from the US
Court of dissolution of marriage with the petitioner wife. However
only a photocopy of the said judgment was placed on record of
the Family Court.
5. The application under Order VII Rule 11 of the CPC
filed by the petitioner wife has been dismissed reasoning (i)
that the petitioner wife had been unable to produce an
authenticated/certified copy of the judgment and decree of the
foreign court; (ii) that rejection under Order VII Rule 11 of the
CPC is permissible only if on a reading of the averments in the
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plaint/petition itself no cause of action is made out and there
can be no rejection on a plea raised by the
defendant/respondent; (iii) that the respondent/husband had
denied any judgment and decree of the foreign court and also
pleaded the same to be nullity and without jurisdiction and in
the face thereof the petition under Section 9 could not be
rejected outrightly; and, (iv) it was also the plea of the
respondent husband in the petition under Section 9 that the
parties, after the judgment and decree of the foreign court
alleged, had also been residing together as husband and wife
and had substantiated the same by considerable financial
transactions between the parties.
5. The counsel for the petitioner wife states that he has
since received the certified copy of the judgment and decree of
the foreign court and has handed over in the Court a certified
copy of the judgment dated 17th July, 1995 of the Matrimonial
Court of New York State Supreme Court in a proceeding filed
by the respondent husband against the petitioner wife and
dissolving the marriage of the parties.
6. The said certified copies of judgment and decree are
taken on record.
7. I have however asked the counsel for the petitioner wife
the mode of proof of a foreign judgment, if denied.
8. The counsel for the petitioner wife is unable to
appreciate the question put to him.
9. Section 14 of the CPC though requires the Court to,
upon production of any document purporting to be a certified
copy of a foreign judgment, presume that such judgment was
pronounced by a Court of competent jurisdiction, unless the
contrary appears on the record but further provides that such
presumption may be displaced by proving want of jurisdiction.
10. Similarly, Section 13 of the CPC though provides that a
foreign judgment shall be conclusive as to any matter thereby
directly adjudicated upon between the same parties but further
provides that it will not be conclusive inter alia where it has
not been pronounced by a Court of competent jurisdiction or
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where it has not been given on the merits or where it appears
on the face of the proceedings to be founded on an incorrect
view of international law or refuses to recognise the law of
India in cases in which such law is applicable or where it
sustains a claim founded on a breach of any law in force in
India.
11. The foreign judgment of dissolution of marriage is a
default judgment.
12. Though the counsel for the petitioner wife has argued
that the respondent husband having himself sought dissolution
of marriage in the foreign court, cannot challenge the same but
it prima facie appears that it will still not be a case for
rejection at threshold of the petition under Section 9 of the
Hindu Marriage Act.
13. Though the counsel for the petitioner wife is clueless but
it is still deemed appropriate to give an opportunity.
14. List on 20th August, 2018.
15. On request of the counsel for the petitioner wife that the
proceedings before the Family Court are listed for evidence on
9th August, 2018 and certified copy of the foreign judgment will
be required, the same has been returned to the counsel for the
petitioner wife."
2. On 20th August, 2018, adjournment was sought by the counsel for the
petitioner and the proceedings were adjourned to today.
3. The counsel for the petitioner today relies upon (i) Sharmishtha Vs.
Sujoy Mitra MANU/DE/1501/2008; (ii) Pritam Ashok Sadaphule Vs.
Hima Chugh MANU/DE/0946/2013; and, (iii) Harpreet Singh Sekhon Vs.
Rajwant Kaur MANU/PH/4432/2013.
4. I have perused the aforesaid judgments and do not find the same to
be supporting the case of the petitioner.
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5. In Sharmishtha supra, the husband had filed the divorce petition in
Delhi, after a decree of divorce from the Court of Pennsylvania, United
States of America (USA). The wife applied for rejection of the divorce
petition filed in Delhi, owing to the marriage of the parties having already
been dissolved by the decree of divorce of the Court of Pennsylvania. The
said application of the wife was dismissed. Impugning the said order, this
Court was approached. It was the contention of the husband in that case,
that divorce obtained from a foreign country was required to be confirmed
by the Courts in India. After referring to Sections 13&14 of the Code of
Civil Procedure, 1908, this Court allowed the petition and dismissed the
divorce petition filed in Delhi, reasoning that since the wife was
acknowledging the decree of divorce granted by the State of Pennsylvania
and was further acknowledging the same to be a valid decree, there was no
challenge to the foreign decree of divorce and there was thus no need for a
second divorce petition in Courts at Delhi.
6. It would thus be seen that in Sharmishtha supra, there was no
challenge to the foreign decree. The Court nowhere held that it is not open
to either of the spouses to challenge the foreign decree. The said judgment
can thus not be the basis for summary dismissal of the petition for
restitution of conjugal rights filed by the respondent/husband, thereby
depriving the respondent/husband of opportunity to contest the validity of
foreign decree.
7. Similarly, in Pritam Ashok Sadaphule supra, this Court was
approached against the order of dismissal of an application filed by the
husband for summary dismissal of the proceedings filed by the wife under
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Section 13(1)(ia) of the Hindu Marriage Act, 1955, on the ground that the
marriage of the parties already stood dissolved by a decree of the Foreign
Court. This Court upheld the order of the Matrimonial Court refusing to
summarily dismiss the divorce proceedings filed by the wife. The reason
which prevailed was that the foreign decree was not conclusive under
Section 13 of the Act. The said judgment thus, rather than being in favour
of the petitioner/wife, is against the petitioner/wife.
8. The counsel for the petitioner/wife states that Harpreet Singh
Sekhon supra also is against the petitioner/wife.
9. Exceptions (a) to (f) incorporated under Section 13 of the CPC are
enacted to safeguard the interest of a person against whom a foreign
judgment is claimed as res judicata. The said exceptions do not make any
distinction, whether the foreign judgment is in a proceeding initiated by the
person so claiming res judicata or by the person against whom claim for
res judicata is invoked. Thus, it matters not, whether the divorce
proceedings in the foreign Court were initiated by the respondent/husband
or by the petitioner/wife. Even if the divorce proceedings in the foreign
Court were initiated by respondent/husband, the language of Section 13
suggests that it is still open to the respondent/husband to contend that the
(a) foreign judgment has not been pronounced by Court of competent
jurisdiction; or (b) that the foreign judgment has not been given on the
merits of the case; or (c) that the foreign judgment, on the face of the
proceedings, appears to be founded on an incorrect view of international
law or a refusal to recognise the law of India; or (d) that the proceedings in
which the foreign judgment was obtained was opposed to natural justice; or
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(e) that the foreign judgment was obtained by fraud; or (f) the foreign
judgment sustains a claim founded on a breach of any law in force in India.
10. Perhaps only the plea of estoppel can be invoked by the
petitioner/wife i.e. of the respondent / husband being estopped from
contending that the foreign judgment in a proceeding initiated by the
respondent/husband himself is not res judicata. Reference in this regard
may be made to Y. Narasimha Rao Vs. Y. Venkata Lakshmi (1991) 3 SCC
451 and Deva Prasad Reddy Vs. Kamini Reddy ILR 2002 KAR 2835 (DB).
However, a plea of estoppel cannot lead to summary dismissal of the
petition for restitution of conjugal rights filed by the respondent/husband. It
will also have to be examined whether the plea of estoppel at all is available
against the statute i.e. Section 13 CPC.
11. In addition to Section 14 of the CPC referred to in the order dated
31st July, 2018 reproduced above, mention may also be made of Section 74
of the Indian Evidence Act, 1872 defining public documents as including
documents forming the acts or record of the acts of judicial officers of a
foreign country and Section 78(6) of the Indian Evidence Act providing for
proof of public document of any other class in a foreign country by
production of original or a copy certified by a legal keeper thereof with a
certificate under the seal of Notary Public or a diplomatic agent that the
copy is duly certified by the officer having the legal custody of the original,
and upon proof of the character of the document according to the law of the
foreign country. Though Section 76 of the Act obliges the public officer
having custody of the public document to issue certified copy thereof and
Section 77 of the Act provides for proof of public document by production
CRP 153/2018 Page 6 of 7
of certified copies but since Section 76 of the Act does not bind foreign
Courts, proof of foreign judgments cannot under Section 77 of the Act by
by mere production of certified copy thereof and has to be in accordance
with Section 78(6) as aforesaid. Mention in this regard may also be made of
Section 86 of the Evidence Act which again entitles the Court to presume
that any document purporting to be a certified copy of judicial record of any
country not forming part of India is genuine and accurate, if the document
purports to be certified in any manner which is certified by any
representative of the Central Government in such country to be the manner
commonly in use for certification of copies of judicial records. Thus a
foreign judgment is to be proved, not by mere production of certified copies
thereof, but such certified copies must be further certified by the diplomatic
agent of India in that country in the manner provided in Sections 78(6) and
86 of the Indian Evidence Act.
12. This petition thus cannot be entertained and is dismissed.
13. It is however clarified that this order will not preclude the
petitioner/wife from taking any pleas which may be available to her in law
before the Family Court.
RAJIV SAHAI ENDLAW, J.
AUGUST 29, 2018 bs ..
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