Document Fragment View

Matching Fragments

18.The learned Senior Counsel had further contended that Paragraph No.6 of the order of the Foreign Court clearly points out that though the wife has initiated restitution of conjugal rights proceedings in India, it has wrongly noted the said proceedings as proceedings for dissolution of marriage. Therefore, it is clear that the proceedings of the Indian Court was neither placed nor brought to the notice of the Foreign Court and under misunderstanding that the wife has also filed an application for divorce, the Foreign Court has proceeded to dissolve the marriage. Therefore, it is a case that falls within Section 13(e) of C.P.C that the divorce order has been obtained by fraud.

29.In view of the judgment of the Hon'ble Supreme Court, it is clear that unless the decision of the Foreign Court is delivered on a ground available under the laws under which the parties have married, the said Foreign judgment cannot be considered to have been delivered on merits of the case. Further, in the present case, the Foreign Court has granted a divorce decree on the ground of irretrievable breakdown of marriage which is not a ground available under the Divorce Act which governs the https://www.mhc.tn.gov.in/judis parties to the marriage. That apart, if a judgment is delivered on refusal to recognize the ground of divorce enumerated in the Divorce Act 1869, the judgment cannot be recognized by the Court in this Country. The divorce decree of the Foreign Court is founded on a ground not recognized by the Divorce Act and hence, it is a judgment clearly in violation of the law of India and therefore, it clearly falls under the mischief of Section 13(c) of C.P.C.

30. The wife had initiated only restitution proceedings in India by filing I.D.O.P No.170 of 2017. However, it has been projected before the Foreign Court by the husband that the wife has attempted to commence proceedings for dissolution of marriage in India. The Foreign Court was swayed away by the fact that the wife had also sought for divorce decree in India and hence, there may not be any legal impediment for granting divorce to the husband in the Foreign Court. Therefore, it is clear that the divorce decree that was granted in Foreign Court has been obtained by playing fraud which makes it as not a conclusive proof as contemplated under Section 13(e) of C.P.C.

https://www.mhc.tn.gov.in/judis

31.The I Additional District Judge, Tirunelveli has granted an order of interim injunction restraining the husband from proceedings with the divorce proceedings in U.S.A after referring to the case number and Court before which it was pending. The said order was passed on 30.10.2017. The said order was passed in the presence of the counsel for the husband and he had sought time to file counter. The wife had filed a sworn affidavit before the Foreign Court on 10.02.2018 and in Paragraph Nos. 8 and 9 of the said affidavit, the wife has pointed out about the pendency of the restitution proceedings and also anti-suit injunction granted by the Indian Court on 30.10.2017. In the said affidavit, the wife has also pointed out that the proceedings in U.S.A are without jurisdiction and not unenforceable in India. Ignoring the affidavit filed by the wife, the Foreign Court has proceeded with the divorce proceedings and passed an erroneous order that the wife had filed divorce proceedings in India. Therefore, it is clear that the affidavit filed by the wife challenging the jurisdiction of the Court and the right of the husband to proceed with the divorce proceedings has not at all been considered by the Foreign Court and the said Court has proceeded to pass the divorce decree. The non- consideration of the sworn affidavit filed by the wife pointing out the anti- https://www.mhc.tn.gov.in/judis suit injunction and passing a divorce decree is clearly opposed to the principles of natural justice. Therefore, the said judgment cannot be considered to be a conclusive proof in view of Section 13(d) of C.P.C. The divorce granted on a ground of irretrievable breakdown of marriage would clearly be an order based on breach of Divorce Act 1869. Therefore, as contemplated under Section 13(f) of I.P.C, the judgment becomes unenforceable in India.