Report No. 65

Recognition of Foreign Divorces

Chapter 1

Introductory

I. Scope of the Report

1.1. Introductory.-

This Report deals with the question of recognition by Indian courts of divorces and judicial separations obtained in foreign countries. The subject has been taken up by the Law Commission on a reference made by the Union Government.1 The scope of the Report will be explained later.2

1. Letter of the Minister of Law, Justice and Company Affairs to the Chairman of the Law Commission, No. F. 7(6)/75, dated 13th March, 1975 (See Appendix).

2. Paras. 1.3 and 1.4, infra.

1.2. Procedure adopted.-

On receipt of 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 understand1 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 Commission-for inviting views or comments of interested persons and bodies.

1. Request made orally by the Ministry of Law.

1.3. Report not confined to persons of particular community.-

At the outset, it should be made dear that this Report is not confined to divorces or judicial separations obtained by persons of a particular community. Although the judgment of the Supreme Court in Satya's case,1 to which reference has been made in the letter received from the Government,2 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 question:-

"The High Court framed the question for consideration thus: "Whether a Hindu Marriage solemnised 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 solemnised in this country can at all be dissolveliby foreign courts. In any case, the High Court did not answer the question and preferred to rest its decision on the Le Mesurier doctrine that domicile of the spouses affords 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 is 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 reference3 by the Government indicates clearly that the Commission has been requested to consider the problem in all aspects, in the light of the suggestions made in Satya's case.

1. Satya v. Teja Singh, AIR 1975 SC 105 (107), para. 7 (para. 1.4, infra).

2. Para. 1.1, supra, and Appendix.

3. See Appendix to this Report.

1.4. Supreme Court's judgment in Satya v. Teja Singh.-

Before proceeding further, we would like to summarise the facts in Satya v. Teja Singh, AIR 1975 SC 105 (On appeal from AIR 1971 Punj 80) in order to indicate the nature of the question to be considered. In that case, the appellant-a Hindu married woman-filed a petition for maintenance under section 488 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, U.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

(i) 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 Mesurier, 1895 AC 517 (PC).

(ii) A.G. of Alberta v. Cooke, 1926 AC 444 (PC).

and of the House of Lords in-

(iii) Lord Advocate v. Jaggery, 1921 AC 146 (HL).

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 before 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.

1.5A. Reviewing the law on the subject, the Supreme Court noted1 that, according to private international law, as interpreted in Le Mesurier v. Le Mesurier, 1895 AC 517 (PC) the domicile for the time being of the This test, however, was subject to statutory modifications in England. These modifications were also discussed by the Supreme Court, but the discussion 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.2

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".3 American law on the subject of recognition was also discussed.

1. AIR 1975 SC 105 (107), para. 6.

2. AIR 1975 SC 105 (113), para. 32.

3. AIR 1975 SC 105 (109), para. 9.

1.6. Coming to the facts of the case, the Supreme Court noted that the judgment of the High Court was based on the assumption that the parties were domiciled in Nevada.1 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 bona fide residence,2 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 observed3 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 to the case.4

1. AIR 1975 SC 105 (116), para. 45.

2. AIR 1975 SC 105 (109), para. 15.

3. AIR 1975 SC 105 (116), para. 45.

4. AIR 1975 SC 105 (116), para. 46.

1.7. The Supreme Court also referred to section 13 of the Code of Civil Procedure, 1908, under which a foreign judgment is conclusive, subject to the exceptions mentioned in various clauses of the section. The Supreme Court, however, pointed out1 that under clause (a) 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 applicable 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. AIR 1975 SC 105 (117), para. 49.

1.8. The Supreme Court noted that the result of the decision would be that the parties would be reated as divorced in Nevada, but their bond of matrimony would remain unsnapped in India-the country of their domicile.1

The Supreme Court further observed2 that our legislature ought to find a solution to such "schizoid situations", as the British Parliament had, to a large extent, done by passing the Act of 1971. Perhaps, the Hague Convention of 1970, which contained a comprehensive scheme for relieving the confusion caused by different systems 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 bearing 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,2 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."3

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

1. AIR 1975 SC 105 (117, 118), para. 52.

2. AIR 1975 SC 105 (118), para. 53.

3. AIR 1975 SC 105 (118), para. 53.

1.9. Need for legislation.-

We shall later deal with the existing law as to recognition and connected matters, and the position in England. Before proceeding further, we would like to stress the relevance 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,1 but that fact is immaterial in a consideration of the broad question whether legislation is needed on the subject.

1. Information obtained from the External Affairs Ministry.

1.10. Code of Convention.-

We may incidentally mention here that the possibility of limping marriages 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 country having regard to its conditions.

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