Delhi District Court
R/O H.No. 67C vs Smt. Swati Kalgaonkar on 30 August, 2012
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IN THE COURT OF SH. V.K. JHA: CIVIL JUDGE: ROHINI COURTS:
DELHI
Suit no. 317/11
Sh. Rahul Goyal
S/oSh. Anant Kumar Goyal
R/o H.No. 67C, Ground Floor,
Parsvnath Panchvati,
Taj Nagari, PhaseII,
Agra , UP282001
...... Plaintiff.
V/s
Smt. Swati Kalgaonkar
D/o Sh. Shashi Kant Kalgaonkar
R/o H.No. 3615, Squaw Road,
West Sacramento,
California956915446, USA
Also at
73, Vikas Sheel Apartments
Sector 13, Rohini, Delhi85
....... Defendant
Date of institution : 04.06.11
Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar
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Date on which judgment reserved: 28.05.12
Date on which judgment announced: 30.08.12
SUIT FOR DECLARATION THEREBY PRONOUNCING THE EX
PARTE DIVORCE DECREE DATED 01.03.06 PASSED BY SUPREME
COURT OF CALIFORNIA, USA AS NULL AND VOID AND
INOPRATIVE.
JUDGMENT:
1. Vide this judgment I shall dispose of the suit for declaration thereby pronouncing the exparte divorce decree dated 01.03.06 passed by Supreme Court of California, USA as null and void and inoperative.
2. In brief the case of the plaintiff is that the defendant no. 1 is the wife of plaintiff and defendant no. 2 and 3 are the parents of defendant no. 1. It is the case of the plaintiff that father of plaintiff had given a matrimonial advertisement in Desi Match Maker matrimonial Magazine on 15.06.03 in USA for the marriage of plaintiff and defendant no. 2 and 3 responded on the said advertisement and contacted parents of plaintiff in the month of July 2003 on their landline number. Thereafter both families communicated telephonically and even personally met on several occasions and every occasion defendant no. 2 and 3 disclosed Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -3- that their daughter i.e defendant no. 1 was unmarried and a Non Resident of India. On 05.08.03 plaintiff received an email introduction from the defendant no. 1 and plaintiff got married with defendant no. 1 on 24.12.03 at Arya Samaj Mandir , BJ Block, West Shalimar Bag, Delhi52 in the presence of his relatives and Rs. 2,00,000/ was spent by the plaintiff. After the solemnization of marriage defendant no. 2 initiated all the steps for registration of marriage of defendant no. 1 at Kanjhawala, Delhi on 29.12.03 by filing false affidavits regarding the unmarried status and citizenship of defendant no. 1. It is averred by the plaintiff that after marriage defendant no. 1 resided for seven days and consummated her marriage with the plaintiff at C13/74, Sector3 , Rohini, Delhi and thereafter defendant no. 1 left for USA on 31.12.03 and never came back despite all her assurances to come back early. While leaving India defendant no. 1 took her all jewellery, ornaments and other valuable articles gifted to her from the side of plaintiff. Defendant no. 1 filed a visa application i.e I130 in favour of plaintiff on 17.01.04 on constant request and reminder of plaintiff.
3. It is further the case of the plaintiff that in August 2004 plaintiff shifted to Ahmadabad at his elder brother's residence with his Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -4- parents and in the month of September 2004 parents of plaintiff went to defendant no. 2 and 3 to know as to when the defendant no. 1 would be coming back to India to perform her marital obligations towards plaintiff, but the parents of defendant no. 1 returned back to their residence without having a whisper about the whereabouts of the defendant no. 1 and her real intention. On 02/04.10.04 plaintiff sent a letter to the defendant no. 1 regarding change of his address and in the month of Oct. 2004 defendant no. 2 and 3 at the behest of defendant no. 1 started putting pressure on the plaintiff to shell out 20,00,000/ for processing his visa application and plaintiff lodged a complaint dated 20.10.04 against defendant no. 1 to Chief of Davis Police , CA USA, USCIS, USA, The Interpol, General Secretariat France and Fedral Bureau of investigation, Sacramento,Falifornia USA. In the month of November 2004, plaintiff received a letter from National Visa Centre, USA wherein it was disclosed that defendant no. 1 had withdrawn visa application forwarded in favour of plaintiff and plaintiff lodged a complaint dated 10.11.04 against defendant no. 1 to Officer Incharge, US Department of Homeland Security, American Embassy, New Delhi and another complaint dated Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -5- 29.11.04 to CBI. In September 2005 defendant no. 2 filed one complaint U/s 420/503/ 506/323/498A /500/ 501 IPC read with Section 4 of Dowry Prohibition Act with PS Prashant vihar however no summons were received by the plaintiff and his family members. In the month of November/ December 2005 plaintiff got a job in Libya and the plaintiff left for Tripoli Libya on 13.12.05 and in the month of January 2006 to June 2006 plaintiff called the defendant no. 1 from Tripoli Libya to USA to meet the defendant no. 1 but defendant no. 1 threatened the plaintiff with dire consequences . In December 2006 father of the plaintiff plaintiff made a call to him and asked him to come back India as soon as possible as there was pressure from the side of defendant no. 2 and 3 to settle the matter with regard to his marriage and plaintiff came back India in the month of March 2007. Then in the month of August 2007 plaintiff went to Dubai for three years but again was compelled to come back after six months by defendant no. 1 to 3. In the month of June 2008 defendant no. 2 lodged a complaint against the plaintiff and his family members to Cyber Crime Wing, Delhi and plaintiff received a call from one person who after posing as an Inspector threatened him for sending Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -6- unwanted emails. It is further stated that in the month of December/ January 2008/2009 plaintiff received a copy of I130 visa application moved by the defendant no. 1 wherein it was found that viz, a. Petition I29F filed without the consent of the plaintiff with plaintiff forged signatures on his biographical information. b. In the withdrawal letter deposited by the defendant no. 1 for petition I130 to USCIS dated 22 June 2004 and 26 August 2004 it was mentioned that " my husband and I have mutually decided to annual the marriage". Whereas it was never mutually decided.
4. It is further stated that on 02.02.09 plaintiff sent a legal notice to the defendant no. 1 and reply of the defendant no. 1 was received . Thereafter plaintiff again sent a legal notice dated 27.03.09 to defendant no. 2 and in around March 2010 plaintiff came to know that the defendant no. 1 got married to some another person in USA without giving him divorce in India and in July 2010 plaintiff again came to know that about the marital status of the defendant no. 1 prior to his marriage was of a divorcee Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -7- contrary to their stands being unmarried. It is further stated that again in the month of December 2010 plaintiff came to know that defendant no. 1 had obtained exparte divorce from him by showing her own residential address by defendant no. 2 and 3 as plaintiff address in USA and plaintiff filed a complaint against defendant no. 1 to 3 via email and through registered post but all in vain. Hence present suit.
5. Thereafter summons of the suit were served on the defendants and WS filed on behalf of defendant no. 2 and 3 wherein it has been stated that the suit of the plaintiff is liable to be dismissed on the ground of concealment of material facts that the plaintiff did not approach the court with clean hands and the present suit is based on false and frivolous grounds and that the present suit is not within the jurisdiction of this court and the court has no right to entertain the same. It is further stated that marriage of defendant no. 1 and plaintiff took place in Delhi and all the remaining contents were denied by the defendant no. 2 and 3. It is further admitted that defendant no. 1 made several complaints mentioned in the plaint against the plaintiff. It is further stated that after cancellation of the marriage done by the plaintiff on telephone and Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -8- its subsequent confirmation by his father and brother with the defendant in new Delhi the defendant no. 1 withdraw the immigration visa applications of the plaintiff as a result of which it was rejected by the Govt of USA and later on defendant no. 1 took exparte divorce from the plaintiff by following due legal procedure through the courts of USA.
6. After the institution of the suit the summons of the suit had been issued to the defendants and on 23.07.2011 defendant no. 2 and 3 that is the parents of the defendant no. 1 had appeared before the court. On behalf of the defendant no. 2 and 3 written statements were filed. Defendant no. 1 was not served with summons therefore again summons was issued to the defendant no. 1. The court heard detailed submissions on the issue of service of summons on the defendant no. 1 and vide order dated 19.12.2011 the court held that the defendant no. 1 had been duly served with summons and vide order dated the suit was proceeded exparte against all the defendants. The plaintiff has himself examined in support of his case, the examination in chief has been filed by the plaintiff by way of affidavit which is exhibit Ex. PW1/A, the affidavit of the plaintiff is substantially and materially same as the plaint of Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -9- the plaintiff in which the plaintiff has relied upon documents which have been exhibited from Ex. PW1/2 to Ex. PW1/13 and from Mark A to R. As the defendants were proceeded exparte, the evidence of the plaintiff has completely gone unrebutted. The substantial relief which has been sought by the plaintiff is the decree of declaration thereby pronouncing the exparte divorce decree dated 01.03.2006 passed by the Supreme Court of California, USA as null and void and inoperative.
7. I have heard the arguments and perused the record as well as the written submission of the counsel for the plaintiff.
8. Before proceeding further it may be noted that principle of comity of courts ensures that foreign judgments and orders are unconditionally conclusive of the matters in controversy, however the validity of foreign decrees and orders hinges upon of the provisions of section 13 of the Code of Civil Procedure which provides
13. When foreign judgment not conclusive .--A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -10- or between parties under whom they or any of them claim litigating under the same title except--
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of [India] in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.
The Hon'ble Supreme Court in Y. Narasimha Rao v. Y. Venkata Lakshmi 1991(3) SCC 451 with respect to the various provisions of section 13 observed:
15. Clause (a) of Section 13 states that a foreign judg ment shall not be recognised if it has not been pro nounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -11- that only that court will be a court of competent jurisdic tion which the Act or the law under which the parties are married recognises as a court of competent juris diction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally sub ject themselves to the jurisdiction of that court. The ex pression "competent court" in Section 41 of the Indian Evidence Act has also to be construed likewise.
16. Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judg ment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a re sult of the contest between the parties. The latter re quirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits him self/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the juris diction of the court, or an appearance in the court ei ther in person or through a representative for objecting to the jurisdiction of the court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -12- of the court which may be valid in other matters and ar eas should be ignored and deemed inappropriate.
17. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to rec ognize the law of this country in cases in which such law is applicable, the judgment will not be recognized by the courts in this country. The marriages which take place in this country can only be under either the cus tomary or the statutory law in force in this country.
Hence, the only law that can be applicable to the matri monial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognized by such law, it is a judgment which is in defiance of the law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforce able in this country. For the same reason, such a judg ment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.
18. Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the pro ceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilized system of justice rests. However, in matters concerning the family law such as the matrimo nial disputes, this principle has to be extended to mean something more than mere compliance with the techni cal rules of procedure. If the rule of audi alteram Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -13- partem has any meaning with reference to the pro ceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This require ment should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all neces sary provisions for the respondent to defend including the costs of travel, residence and litigation where nec essary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private Internation al Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident.
It is only in special cases which is called special juris diction where the claim has some real link with other forum that a judgment of such forum is recognized. This jurisdictional principle is also recognized by the Judgments Convention of the European Community. If, therefore, the courts in this country also insist as a mat ter of rule that foreign matrimonial judgment will be rec ognized only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -14- provisions of clause (d) may be held to have been sat isfied.
19. The provision of clause (e) of Section 13 of which requires that the courts in this country will not recog nize a foreign judgment if it has been obtained by fraud, is selfevident. However, in view of the decision of this Court in Smt Satya v. Teja Singh it must be un derstood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts.
9. The counsel for the plaintiff has argued that all the provisions of the section 13 of Code of Civil Procedure get attracted in the case of the plaintiff. It was argued by the counsel for the plaintiff that the exparte order dated 01.03.2006 which had been passed by the Court of California, was without jurisdiction as at no point of time the plaintiff herein had submitted to the jurisdiction of the Court of Calirfornia, and further that the palitniff had not been domiciled in the State of California, for even a single day and therefore the Court of California Could not have assumed the jurisdiction. The counsel for the plaintiff also argued that the defendant had given the address of her parents in India in the court proceedings in the Court of California and it was a clearcut fraud committed by the defendant no.1 in securing the decree of exparte divorce.
Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -15- Because of the fraud committed by the defendant the plaintiff could not come to know about the court proceedings in California, USA because of which it could not be said that the Court in California gave the judgment on merit and because of the fraud committed by the defendant, the plaintiff was denied the right of right being heard and therefore the Order dated 01.03.2006 is manifestly opposed to natural justice. It has also been argued that the defendant had taken divorce on the ground of nullity of voidable marriage based on physical incapacity of the plaintiff herein which is not a ground for divorce in Indian and hence the judgment / decree of California Court is null and void.
10. Annexure P17 is the documents related to the judgment / decree dated 01.03.2006 whereby the defendant had taken divorce from the plaintiff in the Court of California. The Bare perusal of all the documents of annexure P17, shows that the defendant had given the address of the palitniff as, "Rahul Goyal, 73, Vikas Sheet Apt. 5, Sector - 13, Plot # 9, Rohini, New Delhi, India - 110085. The plaintiff had made the parents of the defendant also the defendants in the present suit and in the memo of parties the same address was given. Persuant to the summons the parents of the Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -16- defendant no. 1 had appeared before the court with counsel, therefore it is very much clear that the address which had been given by the defendant no. 1 in the divorce proceedings as the address of the plaintiff in Annexure P17, was indeed not the address of the plaintiff and further perusal of Order dated 12 th September 2005 of Court of California (Annexure p17) reveals that the defendant no. 1 had moved certain application for waiver of Court Fees and costs and also it was stated in the said order that the defendant no. 1 could not afford the cost of service of publication. It has been argued by the counsel for the plaintiff that the defendant no. 1 had in calculated manner had sought the exemption from the Court of California from publishing the summons so that the plaintiff was not able to know of the divorce proceedings before the Court in California USA. From the perusal of the documents and taking into consideration the arguments of the counsel for the plaintiff court is of categorical opinion that explicit fraud had been played by the defendant no. 1 in giving the address of her parents every where in the proceedings which had been initiated by the defendant no. 1 for taking divorce from the plaintiff in the Court of California USA and on this ground alone the Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -17- judgment / decree dated 01.03.2006 is liable to be held as not conclusive between the plaintiff and the defendant no.1. By the mechanization of the defendant no. 1 the plaintiff was effectively debarred from taking part in the proceedings before the Court in California USA, and the plaintiff being the husband of the defendant no. 1 had the right of hearing before the Court in California, USA could have dissolved the marriage between the plaintiff and the defendant. The ground which had been agitated by the defendant no. 1 for grant of divorce was 'nullity of voidable marriage based on physical incapacity and had the defendant would have got the opportunity of being heard (of which the plaintiff was effectively deprived of by the defendant no. 1 by giving the address of her parents instead of the address of the plaintiff of which the defenat no. 1 was aware) the plaintiff would have defended the suit filed by the Court in California, USA. On this ground also the judgment / order dated 01.03.2006 by the court was California, USA was not conclusive.
11. In view of the above discussion and keeping in view the facts of the case, arguments of the counsel for the plaintiff and the provisions of Section 13 of CPC, the suit of the plaintiff is decreed Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar -18- and it is hereby declared that the exparte divorce decree dated 01.03.2006 passed by the Supreme Court of California, USA is null, void and inoperative as the same had been obtained by the defendant no. 1 by playing fraud upon the Court in California, USA and also for the reason that the proceedings in which the judgment was obtained was opposed to natural justice as the plaintiff was deprived of the right of being heard beacasue of the fraud of the defendant no. 1.
12. The present suit is decreed in above terms. Decree sheet be prepared. No order as to costs. File be consigned to record room.
Announced in the open court
on 30.08.12 (V.K. Jha)
civil Judge /Rohini courts/Delhi
Sh. Rahul Goyal V/s Smt. Swati Kalgaonkar