RECOGNITION OF EXTRA JUDICIAL DIVORCE Subject: PRIVATE INTERNATIONAL INTERNATIONAL LAW
Submitted to: Dr. P.P.Rao Faculty of Law Submitted by: Kumar Saurabh Roll No: 7549 9th Semester
ACKNOWLEDGEMENT I am very thankful to everyone who all supported me, for I have completed my project effectively and moreover on time. I am equally grateful to my subject teacher Dr. P.P.Rao. P.P.Rao. He gave me moral support and guided me in different matters regarding this topic. He has been very kind and patient while suggesting me the outlines of this project and correcting my doubts. I thank him for his overall support. Last but not the least, I would like to thank my parents who helped me a lot in gathering different information, collecting data and guiding me. I also thank my friends who were there with their suggestions and comments for my project.
THANKING YOU
Kumar Saurabh
CONTENT RESEARCH METHODOLOGY.................................................................................................... 4 Method of Research: ................................................................................................................... 4 Aims and Objectives: .................................................................................................................. 4 Scope and Limitations: ................................................................................................................ 4 Sources of Data: .......................................................................................................................... 4 Method of Writing:...................................................................................................................... 4 MARRIAGE AND DIVORCE IN INDIA: A CONCEPTUAL OVERVIEW .............................. 5 RECOGNITION OF DIVORCE .................................................................................................... 8 Grounds of Divorce ................................................ ..................................................................... 8 FACTORS DECIDING JURISDICTION .................................................................................... 10 English Courts ............................................... ............................................................................ 10 Domicile ................................................................................................................................ 10 Habitual Residence ................................................................................................................ 11 Jurisdiction of Indian court ....................................................................................................... 11 Residence ................................................... ............................................................................ 13 CHOICE OF LAW RULE ................................................... ......................................................... 15 English Court............................................................................................................................. 15 Indian Court............................................................................................................................... 16 When Foreign Divorces need not be recognized ...................................................................... 17 Natural Justice ....................................................................................................................... 17 Public Policy .............................................. ............................................................................ 18 CONCLUSION ................................................. ............................................................................ 19
RESEARCH METHODOLOGY Method of Research: For the purpose of research, the researcher has used the Doctrinal Method of Research. The
Research is entirely a Library-based Research, where the researcher has made use of books, law journals, magazines, law reports, legislations, internet websites, etc., for the purpose of research. Aims and Objectives: By doing this project the researcher aims to critically analyze the recognition extra judicial
divorce and how such principles are modified and applied in case of conflict of laws. Scope and Limitations: Though the study of the case Recognition of Extra Judicial Divorce is an immense project ‘
’
and pages can be written over the topic but due to certain restrictions and limitations I was not able to deal with the topic in great detail. The points on which special emphasis has been given in this research are:
Its impact under different laws in India.
Comparative Study with that of England.
Sources of Data: Both primary and secondary sources are used for collection of the relevant data:
Books
Internet
Articles
Method of Writing: The method of writing followed in the course of this research paper is primarily analytical.
CHAPTER 1
MARRIAGE AND DIVORCE IN INDIA: A CONCEPTUAL OVERVIEW The fundamental concept of marriage as a union between man and woman has been accepted by the legal system of all the countries in the world. But they differ as to the nature of that union. In western countries, except among the Roman Catholics, marriage is considered to be a contract, while the Roman Catholic Church regards marriage as a sacrament and indissoluble union. Amongst the early Hindus marriage was regarded not a matter of contract between the parties but a sacrament. The sanctity of marriage was held to be so great that it was regarded to have some divine origin, and was thought to be predetermined. Therefore the early Hindu marriage law did not admit of divorce or dissolution of marriage. Even the minority of the bride or bridegroom and the polygamy in the system were not regarded as vitiating factors.1 In India marriage is a personal affair and it is governed by the law of each personal community following its particular religion like Hinduism, Islam, Christianity, Zoroastrianism, and Jainism. There is no territorial law governing personal matters of all these religious communities. That is why the personal law of a citizen of India is not determined by his domicile or nationality as is done in the case of western countries. For instance personal law or status of a person residing in England is determined by his domicile while that of a person residing in France or Germany is decided by his nationality in contrast in personal or family matters in India the Hindus are governed by Hindu Law, Muslim by Mohammdan law, Christians by Christian law, and the Parsis and Jains by Parsi and Jain law respectively.2 In England, before 1857, the jurisdiction over matrimonial causes was exercised by the ecclesiastical courts. Then divorce was unknown. In those days actions in matrimonial causes did not involve any problem of conflict of laws as the jurisdiction of the ecclesiastical courts extended to all Christians. The church was not concerned with the domicile or nationality of the parties.3 The basis of the exercise of jurisdiction by the ecclesiastical courts was the residence of
1
Desai S. T., “Mulla‟s Principles of Hindu Law”, 13thedn. N. M. Tripathi, Bombay, 1966, p.632. Chavan R. S., “Indian Private International Law” 1982, p.70. 3 Niboyet v.Niboyet, (1878) 4P.D. 1. 2
the parties within the jurisdiction.4 The jurisdiction was available to those marriages alone which fell within the definition of the Christian marriage.5 In the rapidly advancing English society of eighteenth and nineteenth centuries the need for divorce was so pressing that its recognition became imperative. All the ingenuity of the Church failed to avert its reception in English law. In 1857 the first Matrimonial Causes. Act was passed which not, only repudiated the doctrine of indissolubility of marriage, but also transferred the entire jurisdiction in „matrimonial causes from ecclesiastical courts to civil court. 6 Subsequently, bit by bit, many reforms were made. The same have now been consolidated in the Matrimonial Causes Act, 1973, and which has been supplemented by the Domicile and Matrimonial Proceedings Act, 1973.7 In 1869, the Indian divorce Act was passed which for the first time introduced matrimonial actions of divorce, nullity of marriage, judicial separation and restitution of conjugal rights8 and ancillary reliefs of alimony and custody, etc. of children, but then the Act applies to very limited persons to Christians alone.9 The Indian legal system is basically based on British Law system. The Indian Parliament has enacted the various family laws which are applicable to the religious communities defined in the respective enactments themselves. A brief description of each of these separate enactments is given as below. The principal marriage legislation in India applicable to the majority population, constituted of Hindus, is known as The Hindu Marriage Act, 1955, which is an Act to amend and codify the 4
Ross-Smith v. Ross-Smith, (1963) A.C. 280. It is interesting to note the development of law of nullity in the ecclesiastical courts. At the ecclesiastical law consent and Coitus were essential for the validity of the marriage; absence of either rendered the marriage void. The former was called impedimentumdirimens which rendered the marriage void ab initio, and the latter was called Impedimeniumimpeditivum which rendered the marriage voidable. The ecclesiastical courts showed such ingenuity in adapting these to individual cases that they served the same need which divorce could have served. However, soon the doctrine of indissolubility proved too irksome to people, and demand divorce was voiced more loudly. Initially the sovereignty of Parliament was also used to persuade parliament to pass an Act of divorce in individual cases. But this was an expensive and complicated remedy which only rich could afford. 6 The Act also set „up a court of “divorce and matrimonial causes” - this later on became the divorce division of the High Court and now has been renamed as the Family Division. 7 See Reports “Putting As under” and of the Law Commission. 8 The remedy of restitution of conjugal rights was made available to all people in India i.e. to members of all the Indian communities under the general law. 9 Section 2 under the Act the court has jurisdiction if one of the parties is Christian; Mary Geraldin Rooke v. John William Rooke, 1934 Bom. 230; Sasivaranam v. Gnanasundari, 1954 Mad 1018; Dalal v. Dalal 1930 Bom 385. 5
law relating to marriage among Hindus.10 Ceremonial marriage is essential under this Act 11 and registration is optional.12 The Act also applies to Hindus who reside outside the territory of India. Nothing contained in the Act shall be deemed to affect any right recognized by custom or conferred by any special enactment. Likewise, in other personal law matters, Hindus are governed by the Hindu Succession Act, 1956, which is an Act to amend and codify the law relating to intestate succession among Hindus. The Hindu Minority and Guardianship Act, 1956 is an Act to amend and codify certain parts of the law relating to minority and guardianship among Hindus and the Hindu Adoptions and Maintenance Act, 1956 is an Act to amend and codify the law relating to adoptions and maintenance among Hindus. For enforcement and adjudication of all matrimonial and other related disputes of any person in any of the different religious or non-religious communities under the respective legislations mentioned above, the designated judicial forum or court where such petition is to be lodged is prescribed in the respective enactments themselves. There is an organized system of designated civil and criminal judicial courts within every state in India which works under the overall jurisdiction of the respective high court in the state. It is in the hierarchy of these courts that all family and matrimonial causes are lodged and decided.
10
Section 2 of the Hindu Marriage Act, 1955 defines the word Hindu. Section 7 of the Hindu Marriage Act, 1955: Ceremonies for a Hindu marriage. 12 Section 8 of the Hindu Marriage Act, 1955: Registration of Hindu marriages. 11
CHAPTER 2
RECOGNITION OF DIVORCE The modern English law accords recognition to both the consent theory and the breakdown theory, though in its own way. Grounds of Divorce The modern English law recognizes only one ground of divorce, viz, the marriage has broken
down irretrievably.13 What constitutes such breakdown is laid down in sub-section (2) of Section 1, Matrimonial Causes Act, 1973; the following facts will con stitute such breakdown: a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent, b) that the respondent has behaved such a way that the petitioner cannot reasonably be expected to live with the respondent; c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consent to a decree being granted; e) that the parties to the continuous period of at preceding the presentation marriage have lived apart for a least five years of the petition. These grounds appear to be a fair blending of the three traditional fault grounds viz, adultery, cruelty, desertion, with the modern theories of consent and breakdown of marriage. In contrast to English law, the Indian Divorce Act, 1869 stands as a reminder of the 19th century English matrimonial law, while the Special Marriage Act, 1954 presents a spectacle where guilt grounds of divorce are put side by side with divorce by mutual consent and divorce on the ground of breakdown of marriage. In between they stand the Parsi Marriage and Divorce Act, 1936 which is though an outcome of the late nineteenth century outlook of English matrimonial law has some linings of modernity, and the Hindu Marriage Act, 1955 which is a remarkable blending of traditional Hindu conservatism with the modern and not-so-modern notions of matrimonial law.
13
Section 1(1) of the Matrimonial Causes Act, 1973.
The Indian Divorce Act, 1869 recognizes only one ground of divorce. A husband can seek divorce on the ground that his wife has been guilty of adultery a wife can seek divorce on the ground that her husband has converted to another religion and married a second wife, or has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another woman with adultery, or of rape, sodomy or bestiality or adultery coupled with such cruelty as without adultery would have entitled her to a divorce mensa et toro, or of adultery coupled with desertion, without any reasonable excuse for two years or upward.14 The Special Marriage Act, 1954 has the unique feature of enacting all the three theories of divorce side by side, in ss. 27 and 28. The eight fault grounds are: adultery; two years‟ desertion; seven years sentence of imprisonment; cruelty; incurable insanity or mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent; venereal diseases in a communicable form; leprosy; and presumption of death (i.e. seven years unheard absence). Two grounds on which the wife alone can sue for divorce are: (i) the respondent has been guilty of rape, sodomy and bestiality; and (ii) cohabitation between the parties has not taken place for one year or upwards after the passing of an order awarding maintenance in favour of the petitioner under section 125, Criminal Procedure Code, 1973, or section 18, Hindu Maintenance and Adoptions Act, 1956. The two breakdown grounds are: nonresumption of cohabitation for a period of one year or more after the passing of a decree for judicial separation, and non-compliance with the decree of restitution of conjugal rights for a period of one year or more give a right to either party (of the fact is to who is guilty) to present a petition for divorce.15 Section 28 allows the parties to present a petition for divorce on the basis of mutual consent of parties. The provision is hedged with adequate safeguards. Divorce under Muslim law is largely non judicial. This may be divided under two heads: (a) unilateral divorce by husband, and (b) divorce at the instance of the wife but with the consent of the husband. The former is called Talak. No particular form is required. It may be oral or in writing. The intention to divorce must be clear and unequivocal. The presence of the wife is not required nor need it be addressed to wife.
14
Section 10 of the Indian Divorce Act, 1869. Section 27(2).
15
CHAPTER 3
FACTORS DECIDING JURISDICTION English Courts
In respect of jurisdiction of English courts, some fundamental changes have been effected by the Domicile and Matrimonial Proceedings Act, 1973. Now English court can assume jurisdiction only on two grounds: domicile, and habitual residence of the parties.16 All other bases of jurisdiction have been abolished.17 Domicile as a basis of jurisdiction has to be understood in the light of s.1, Domicile and Matrimonial Proceedings Act, 1973 which abolishes wife‟s dependent domicile. Domicile : Since the Privy Council decision in Le Mesurier v. Le Mesurier ,18 which was
confirmed by the House of Lords in Indyka v. Indyka19 it has been the settled proposition of English law that the English court has jurisdiction to entertain a petition for divorce if parties are domiciled in England at the time of commencement of the proceedings.20 The Domicile and the Matrimonial Proceedings Act, 1972 now lays down that the court will have jurisdiction to entertain a petition for divorce if either of the parties to the marriage is domiciled in England on the date when proceeding are begun.21 Now that the wife can have her own separate domicile, the Act effects a bask change inasmuch as it lays down that a petition can be filed for divorce if either the petitioner or the respondent is domiciled in England at the date when proceedings are commenced.22 Once the court has jurisdiction to entertain the petition its jurisdiction cannot be defeated by a subsequent change of husband‟s domicile.23 Under the Act, not only the petition already filed
16
Section 5(2). The section uses the words, “if (and only if)…” 18 (1895) AC. 511. 19 (1969) 1 AC. 33. 20 Before the Privy Council decision, the tendency was to base „jurisdiction on residence‟, probably a hangover of the ecclesiastical jurisdiction Niboyet v. Niboyet, (1878) 4 P.D. 1. At one time probably under the influence of „contractual theory‟ the lex loci celebrationis was also preached as a basis of jurisdiction: R v. Lackey, (1812) 2 Cl. &. F. 567: Tovey v. Lindsay, (1813) 1 Dow. 117. Then, the „penal theory‟ propagated the conferment of jurisdiction on the court of the place where the matrimonial offence was committed: Ginesi v. Ginesi, (1948) p. 179, but see Preston-Jones v Preston-Jones, (1351) A.C. 391. In Scotland it has some influence, though in England it did not make much of headway. 21 Section 5(2) of The Domicile and the Matrimonial Proceedings Act, 1972. 22 Paras Diwan & Peeyushi Diwan, “Private International Law Indian and English” 4thedn. 1998, p.282. 23 Leon v. Leon, (1966) 3 W.L.R. 1164. The English courts have rejected all other bases of Jurisdiction, such as nationality of parties, Uhling v. Uhling, (1916) 86 L.J.R. 90; their residence, Le Mesurier v. Le Mesurier, cited above; their submission to jurisdiction, Harriman v. Harriman, (1909) p. 123; commission of matrimonial offence in 17
will not be affected by the subsequent change of domicile by the party on the basis of whose domicile the petition was filed, but the court will retain jurisdiction to entertain any cross petition that may be filed subsequently for a different form of relief (suppose, the petition is filed for divorce, the respondent may cross petition for jud icial separation, or vice versa.24) Habitual Residence : With The Hague Conventions adopting “habitual residence” as a basis of
jurisdiction, the English law is now giving it full reception.25 The Domicile and Matrimonial Proceedings Act, 1973 adopts it as the second basis of jurisdiction if either party to the marriage was habitually resident in England throughout the period of one year ending on the date when the proceedings are begun, the En glish court has jurisdiction to entertain a petition for divorce. What is the meaning of “habitual residence” has, however, not been defined either statutorily or judicially. According to the Law Commission it can be proved, “by evidence of a course of conduct which tends to show substantial links between a person and his country of residence.”26 “The factual element” of habitual residence has been emphasized by the Council of Europe on Fundamental Legal Concepts thus: “In determining whether a residence is habitual, account is to be taken of the duration and the continuity of the residence as well as other factors of a personal or professional nature which point to durable ties between a person and his residence.”27 The term habitual residence has been judicially used in at least two cases.28 Probably it is the same thing as “ordinary residence” which term has been defined by Lord Denning in connection with ordinary residence of a minor child.29 It is submitted it means the same thing as “residence” means under Indian matrimonial law (see supra), though somewhat flexible meaning has been given to it in some English decisions.30 Jurisdiction of Indian court
Although the matrimonial law in India differs from community to community, the jurisdictional rules differ only slightly. The matrimonial laws of all communities, except the Muslim and the Country different from their domicile Wilson v. Wilson, (1872) 2 P & D. 435; their domicile at the time of marriage, Goulder v. Goulder (1892) p. 240 or place of marriage, Ratcliff v. Ratcliff (1859) 1 Sw. & Tr. 467. 24 Section 5(5). 25 For instance, see Administration of Justice Act, 1956, ss. 3(8), 4(1)(a); Wills Act, 1963, s. 1; Adoption Act, 1968, s. 11(1); Recognition of Divorces and Legal Separations Act 1971, s. 3(1)(a). 26 Report, para. 42. 27 “Current Law”, Statutes, 45/5. 28 Indyka v. Indyka, (1969) 1 AC. 33, at p. 68, per Lord Reid and Angelo v. Angelo, (1968) 1 W.L.R. 401 at p. 403 per Lord Reid. 29 See Matalon v. Matalon, (1952) p. 223; Sinclair v. Sinclair, (1868) p. 189. 30 See s. 19, Matrimonial Causes Act, 1973, sub-sections (2) and (5) of which have been repealed by the Domicile and Matrimonial proceedings Act, 1973.
Jews, are now statutory laws. The peculiar feature of all these statutes, except the Divorce Act, 1869, is that the domicile or nationality of either party is not relevant for the purpose of jurisdiction in any matrimonial cause. The outstanding feature of all statutes is that in all causes the jurisdictional basis is the same. 31 Under the Indian Divorce Act, 186932 a petition is in any matrimonial cause may be present to the District Court or the High Court,33 on the basis of the residence of the parties within the jurisdiction or that the parties last resided together within the jurisdiction of the court,34 or for dissolution of marriage, the parties are domiciled in India at the time of the presentation of the petition.35 A further jurisdictional requirement in a petition for nullity are that such a petition can be presented only if the marriage was solemnized in India, and further that the petitioner was resident in India at the time of the presentation of the petition. 36 In respect of a petition for judicial separation or restitution of conjugal rights, the additional requirement is that at the time of the presentation of the petition the petitioner must be residing in India.37 The Hindu Marriage Act, 1955 applies to all Hindus. It is also not necessary that they should be Indian nationals.38 The domicile has significance in respect of those Hindus who are outside India.39 Hindu Marriage Act, 1955 too makes no distinction from the jurisdictional point of view between any of the matrimonial causes. Under the Special Marriage Act, l954, domicile is important only in respect of‟ those Indian citizens who are outside India.40 Again, in the jurisdictional rules no difference is made between the matrimonial causes. The jurisdictional grounds under both the statutes are the same. 41 Under the Acts a petition for dissolution of marriage, nullity of marriage, judicial separation or restitution of conjugal rights may be presented to the District court within the local limits of whose jurisdiction(a) the marriage was solemnized,
31
For instance, see section 19, Hindu Marriage Act, 1955. Section 2. See also, Mary Geraldine Rooke v. John William Rooke, 1934 Born. 230; Sasivaranam v. Gnanasundari, 1954 Mad. 1018 (where one party atone was Christian) Dalal v. Dalal, 1930 Born. 385 (where the petitioner was a Russian lady of Christian faith). 33 See ss. 10, 18, 23 and 32 of the Indian Divorce Act, 1869. 34 Section 3(3). 35 Section 2, para. 2. 36 Section 2.para. 3; see also Taylor v. Wenkenbasch (1937) Cal, 417; Agnes v. Paul, 59 Mad. 509. 37 Section 2, para. 4. 38 Section 2, Hindu Marriage Act, 1955. 39 Section 1(2). 40 See s. 4 and Part III. 41 Section 19 of Hindu Marriage Act, 1955 and Section 31 of the Special Marr iage Act, 1954. 32
(b) the parties last resided together,42 (c) the respondent, at the time of presentation of petition resides, and (d) the petitioner is residing at the time of presentation of petition, in a case where the respondent is, at the time, residing outside the territories to which the Act extends has not been heard of being alive for seven years. Residence : Time and again courts have said that residence is a question of fact; whether or not a
person is residing at a particular place would depend upon the facts of each case.43 The word „residence‟ is obviously capable of a narrow as well as a broad meaning. In the former sense it usually means a permanent home or abode, in the latter sense it means any place where a person is living, permanently or temporarily. In its narrow meaning (or natural meaning, as it is sometimes said), the term means “the abiding or dwelling” in a place for some continuous time:44 it means the place where a son “eats, drinks and sleeps” or where “his family and servants eat, drink and sleep”.45 In short, in its natural and ordinary meaning (Which is called the narrow meaning), residence means “permanent abode or home” or a permanent place where a person lives, and does not include a temporary residence.46 It has also been expressed by saying, “to dwell permanently or for a considerable time”47 or “to have a settled abode for a time” or „to remain for a long time”. It seems to be obvious that if a person has a permanent abode or home and from here he goes out and lives at another place temporarily, on account of business, pleasure, health, and education or for any other reason, then the former would continue to be the place of residence and not the latter.48 Thus, in Robey v. Robey,49 a case under the Divorce Act, 1869, a husband was living in Delhi with his wife for a period of six years. Thereafter he went to Calcutta for launching criminal proceedings and stayed there for some time with his brother. He was a government servant liable to transfer.
42
Some of the cases under the Indian Divorce Act on „residing together‟ may be noted: Murphy v. Murphy, 1951 All. 180; Robey v. Robey, 1931 Cal. 121; Leaden v. Leaden, 1926 Oudh 319; Borgonah v. Borgonah, 22 Bom. L.R. 361: Henerjtta v. James, 47 P.R. 1911; Walsh v. Walsh, 29 Bom. L.R. 308. 43 Jagir Kaur v. Jaswant Singh, 1963 S.C. 1521. 44 Anilbala v. Dhirendra, (1921) 48 Cal. 577; Goswami v. Govardhanlalji, (1890) 14 Bom. 541. 45 Kumud Nath v. Jotindranath, (1911) 38 Cal. 394, per Mukerji and Teunion, JJ.while interpreting the term „residence‟ in Order 5, rules 9 and 17 of Inc Civil Procedure Code. 46 David v. Dennis 1954 Nag. 248; Robo v. Robo, 1931 Cal. 121; Kershaw v. Kershaw, 1930 Lah.916 (cases under the Indian Divorce Act); Panthaky v. Panthaky, 1941 Born.330 (case under the Parsi Marriage and Divorce Act, 1936); Saraswati v. Keshwan, 1961 Ker.L.J. 1247. 47 Anil Bala v. Dhirendra, (1921) 48 Cal 577. 48 Carol v. Carol, 1933 All. 39; Walsh v. Walsh, 1927 Bom. 230. 49 1931 Cal. 121.
Subsequently, he filed matrimonial proceedings in a Calcutta court. It was held that since he resided at Delhi and not Calcutta, the petition was not maintainable for want of jurisdiction.50 The words „reside‟ and „last resided‟ together have not only been used in the Indian matrimonial statutes, but s. 488 (s. 225 of the new Code) of the Criminal Procedure Code also uses these words. The latter provision came for interpretation before the Supreme Court in Jagir Kaur v. Jaswant Singh.51 Subba Rao, J. said that the word „residence‟ includes both permanent dwelling and temporary living at a place, but it does not include “a casual stay in, or a flying visit to, a particular place.” His Lordship ventured to define residence thus: “A person resides in-a place, if he through choice makes it his abode permanently or even temporarily, whether a person has chosen to make a particular place his abode depends upon the facts of each case.”52 Subba Rao, J. emphasizes that there must be an intention to stay for a period, the length of period depending upon particular circumstances of each case, but what is essential is that he must make the place his abode, though it need not be for enjoyment of marital relationship.53
50
Similar view was expressed in D‟Souza v. Lobo, 1940 Mad. 584; Dulari v. Narayan, 1959 Punj. 50 (case is under Hindu Marriage Act); Flowers v. Flowers, 32 All. 203. 51 1963 SC 1521. 52 His Lordships gave four examples to illustrate this definition. 53 Madhvi Sirothia v. N.M. Sirothia, 1974 All. 36.
CHAPTER 4
CHOICE OF LAW RULE English Court
Once English court decides that it has jurisdiction in the case, it has never felt any difficulty as to the choice of law. They have invariably applied the English domestic law. This is a typical corollary of the English attitude towards divorce decrees of foreign courts. Once English court has found that the foreign court has jurisdiction, it has never bothered to look at the ground on which the, foreign court pronounced the decree of divorce. Thus, it has been immaterial that the matrimonial offence or fault, i.e. the ground on the basis of which divorce was granted, was committed abroad in the country where the parties were domiciled or resident.54 It has been irrelevant that the matrimonial misconduct complained of does not constitute a ground for divorce in the country where it „was committed or in the country of domicile of parties. Wolff supporting this state of English law said that the question whether the marriage would be dissolved or not “touches fundamental English concept of morality, religion and public policy” and therefore is a matter which should be exclusively decided by English law.55 In Zanelli v. Zanelli56 an Italian national domiciled in England married an English woman. Subsequently, he was deported from England. On deportation he assumed his Italian domicile. The English court assumed jurisdiction on the basis of special statutory provision and granted divorce to the wife, by applying, English domestic law — by the law of domicile divorce was not permitted then. This rule was given statutory recognition.57 Although the special statutory jurisdiction has been abolished,58 the choice of law rule that in all those cases where the court has jurisdiction, it applies English domestic law is still valid. This follows from the status theory adopted by English courts. Thus, it seems clear that when an English court determines that it has jurisdiction to entertain the petition for divorce, and applies English law, then English law is applied not as the lex domicilii but as the lex fori. 59
54
Czepek v. Czepek, (1962) 3 All.E.R. 990. Private International Law, p. 374. 56 (1948) 64 T.L.R. 556. 57 Section 18(3) Matrimonial Causes Act, 1950. It was re-enacted in s. 40(2) of the Matrimonial Causes Act, 1965 and in s. 46(2), Matrimonial Causes Act, 1973. Now this has been repealed by the Domicile and Matrimonial Proceedings Act, 1973. 58 See the Domicile and Matrimonial Proceedings Act, 1973. 59 Graveson, p. 306; See also Graveson‟s article in 28 B.Y. 273 at pp. 278 -279. 55
Indian Court
Although there is not much authority, it seems clear that once the Indian court decides that it has jurisdiction to entertain the petition for divorce, then it will apply the personal law of the parties, i.e. the law of the community to which parties belong. In view of the codification and reform of English law of recognition of foreign divorces, a brief survey of the pre-1971 law would suffice. The rule that was laid down in early cases was that English courts would not recognize a foreign divorce decree unless pronounced by the courts of the country where the parties were domiciled at the time of the suit.60 This basis was extended by lying down that English courts would recognize a foreign decree of divorce (even though not pronounced by the court of domicile) if it is recognized as valid by the court of the domicile of parties.61 Then came the turning point Travers v. Holley62 laid down that if the foreign court exercised jurisdiction on a basis on which English courts would exercise jurisdiction (the reference was to the statutory jurisdiction where the court exercised jurisdiction on the basis of ordinary residence), then the English courts would recognize the foreign decree of divorce.63 Then came the most radical (or startling) decision of the House of Lords in Indyka v. Indyka.64 The Indyka test may be formulated thus: if there is a real and substantial connection between the party obtaining divorce and the country of the court which dissolved the marriage, then the foreign decree of divorce would be recognized in this case two persons domiciled in Czechoslovakia got married in 1938. In 1946 the husband acquired a domicile of choice in England. In 1949 the wife, who had remained in Czechoslovakia, and was resident there, obtained a decree of divorce from a Czech court.65 60
Le Mesurier v. Le Mesurier. (1895) A.C. 517, where the court said: “The principle of recognizing the validity of a decree pronounced by the court of the domicile‟ has been long established and forms an essential part of the comity of nations.” See also Bater v. Bater, (1906), p. 209; Ogden v. Ogden, (1908) p. 46. 61 Armitage v. A.G. (1906), p. 135. 62 (1953), p. 246. 63 In this case Hodson, L.J. very pertinently said: “It must surely be that what entitled an English court to assume jurisdiction, must be equally effective in the case of a foreign court… it would be contrary to principle and inconsistent with comity if the courts of this country were to refuse to recognize a jurisdiction which mutatis mutandis they claim for themselves.” (p. 256). Its further extension was made in „Robinson-Scott v. Robin sonScott, (1958) p. 71. For the restrictive application of the rule, see Mountbatten v Mountbatten, (1959) p. 43. 64 (1967) 2 All E.R. 689. 65 This decision was followed in Angelo v. Angelo, (1967) 3 All E.R. 314; Welsby v. Welsby (1970) 2 All E.R. 467 and Munt v. Munt, (1970) 2 All E.R. 516 (in all the three cases the husband was domiciled in England). Indyka decision was not rightly followed in Peters v. Peters, (1967) 3 All ER. 318 as the only connection the petitioner had with the country which pronounced the divorce was that the marriage was solemnized there. It may be recalled that both under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 the courts of country where marriage was solemnized have jurisdiction.
When Foreign Divorces need not be recognized Before 1971, the English courts developed some criteria on the basis of which foreign divorces
pronounced by the courts of competent jurisdiction could be refused recognition in England. Broadly speaking, it was laid down that a foreign decree which was offensive to English notions of justice would not be recognized. In 1899, Lindley, M.R. observed that where substantial justice, according to English notions, is not offended, all that the English courts look to is the finality of the judgment and the jurisdiction of the court, in this sense and to this extent, namely, its competence to entertain the sort of case which it did and its competence to require the defendant to appear before it. If the foreign court has jurisdiction in this sense and to this extent, His Lordship said, this Country (England) never requires whether the jurisdiction has been properly or improperly exercised, provided always that no substantial injustice, according to English notions, has been committed.66 In Indyka v. Indyka67 Lord Pearce observed: “Our courts should reserve to themselves the right to refuse recognition of the decrees which offend our notion of genuine divorce. They have done so when decrees offend against substantial justice, and this, of course, includes a decree obtained by fraud. But I think it also includes, or should include, decree where a wife has gone abroad in order to obtain divorce and where divorce can be said not to be genuine.” In the same case, Lord Morris said: “Recognition should, however, always be subject to the proviso that foreign decree is not vitiated by fraud or is not contrary to natural justice.”68 The law has now been codified in s. 8, Recognition of Divorces and Legal Separations Act, 1971. The Act of 1971 lays down that foreign divorces will be refused recognition on any one of the following grounds (and for none else): (a) When there is violation of Principles of natural justice,69 or (b) When recognition would manifestly be contrary to public policy.70 Natural Justice : This is a very old head of English law on the basis of which foreign decrees
and judgments have been refused recognition. This has been formulated by the Recognition of Divorces and Legal Separations Act, 1971 thus: an English court may refuse to recognize a
66
Pemberton v. Hughes, (1899) 1 Ch. 781 at p. 790. (1969) 1 AC. 33. 68 Grave says that the concept of evasion propounded in Indyka decision is somewhat new, it represents an unheralded innovation: Graveson, p. 327. 69 Section 8(2)(a). 70 Section 8(2)(b). 67
foreign divorce if 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 reasonably have been given. Public Policy: This has been .a general head of English law under which English courts have
refused to recognize foreign judgments.71 However, as Dicey and Morris observe: “There is no case in which foreign divorce granted by a court of the parties domicile has been denied recognition in England on the ground that to recognize it would be contrary to public policy.”72 This Statement is no longer true; the English Courts have refused to recognize a foreign divorce on this basis.73 Section 13 of the Indian Code of Civil Procedure74(CPC) which is the general provision of law relating to conclusiveness of judgments by foreign courts. The provisions of Section 13 CPC are fully applicable to matrimonial matters decided by foreign courts. In such a situation, the precedents giving instances of such reported matters are therefore available only in the shape of judicial pronouncements of Indian courts who have from time to time rendered a laudable service in interpreting foreign court orders in the best interests of human relationships rather than executing them simpliciter in letter and spirit. The Indian judiciary in such a pivotal role is extremely humane and considerate in family matters by implementing the foreign court orders in a practical way rather than a mechanical execution of the Order or judgment of the overseas court. Perhaps this openness and fluidity is possible since the Indian Courts are not strictly bound by a foreign court order in family matters but when asked to implement or enforce the same, the Indian courts apply principles of good conscience, natural justice, equity and fair play thereby rendering substantial justice to parties in litigation. This can be best seen in decisions of some Indian courts which have resulted by the Court being asked to implement or execute a court order or judgment arising from a foreign jurisdiction. 71
Diwan, Paras, Private International law (Indian and English) (1998) Deep & Deep. Dicey and Morris, p. 317. However, some of the borderline cases may be noted: Re Meyer, (1971) 2 W.L.R. 401; Szechter v. Szechter, (1970) 3 All E.R. 905; Macalpine v. Macalpine, (cited above); Igra v. Igra, (1951) p.404. 73 New March v. New March, (1978) Fam. 79; Joyce v. Joyce, (1979) Fam, 79; Choudhary v. Choudhary, (1985) 2 W.L.R. 350 74 The code of civil procedure, 1908 (5 of 1908): An Act to consolidate and amend the laws relating to the procedure of the courts of civil judicature. 72
CHAPTER 5
CONCLUSION A detailed analysis of the various propositions and viewpoints discussed above drives home the ideal solution that for Indians there is needed one indigenous Indian law applicable to all its communities which coexist democratically. Analytically speaking, the answers to the social issues discussed above are within the system. Codification of a unified civil code may be the ultimate solution. Other measures will only tide over time. Judicial verdicts will keep the momentum going. Accommodating personal laws of all religions under such a code is an uphill task. It may take time. The legislature will ultimately have to perform this onerous duty of drafting the Code. Religion will have to keep pace with law. Unity in India exists in its diversity. Times have moved ahead, but personal laws have not kept pace. The courts in India perform a Herculean task in carving out solutions on a case to case basis. The executive and the legislature arms of the government in India however now need to contribute to provide the much needed solutions. In the E-age today, the path to progress must be chartered with harmony at home. As the largest democracy in the world, India has an opportunity to be a role model in various aspects of family laws. Maybe, with further changes and amendments in some aspects, a better role model to emulate may emerge in the Indian sub-continent. It is submitted that the Indian courts will still have ample opportunities to develop the law of recognition of foreign divorces and, without the aid of any legislation; the Indian court can develop the law on the modern lines. Already in the domestic Indian matrimonial law, residence is a basis of jurisdiction. If the Indian courts assume jurisdiction on the basis of residence, there is no reason why they should refuse to recognize foreign divorces based on the same jurisdictional rules Thus, it is sub mitted that there is ample scope for our courts to develop law on the lines of the Hague Convention on the Recognition of Divorces and Legal Separations. Apart from the general provisions contained in section 13, Civil Procedure Code, the Indian law of recognition of foreign divorces is still not well developed. Whatever little case law that exists in India there is a clear tendenc y to follow English law.
BIBLIOGRAPHY Books Referred:
i.
Cheshire, North and Fawcett, Private International Law (Oxford University Press 14th Edition 2008).
ii.
Dicey & Morris, The Conflict of laws, (8th Edition).
iii.
Paras Diwan & Peeyushi Diwan, Private International Law:Indian and English (Deep & Deep Publications 4th Edition 1977).
iv.
Anatha Krishna Bhat .P, International Relations, (1st (Ed), Mangalore Publication, Mangalore), 2001.
v.
Antonio Cassese, International Law, (2nd (Ed), Oxford University Press, London), 2005.
vi.
Chabra, H. R., Relations of Nations, (Subject Publications, Delhi), 1999.
vii.
Charles G. Fenwick, International Law, (1st (Ed), Allied Pacific Pvt. Ltd., Bombay) 1962.
viii.
D J Harris, Cases and Materials on International Law, (5th (Ed), Sweet & Maxwell: London), 1998.
ix.
D P O’Connell, International Law, (Vol.2, 2nd (Ed), Stevens & Sons: London), 1970.
