Criminal Appeal No 385 of 1991
From the Judgment and Order dated 1841988 of the Andhra Pradesh High Court in Crl
Revision Petition No 41 of 1987
MC Bhandare and Ms CK Sucharita for the Appellants
CN Sreekumar and G Prabhakar for the State for the Respondents
The Judgment of the Court was delivered by SAWANT J
Leave is granted
Appeal is taken oj board for final hearing by consent of parties
The 1st appellant and the 1st respondent were married ar Tirupati on February 27 1975
They separated in July 1978
The 1st appellant filed a petition for dissolution of marriage in the Circuit of St Louis Country Missouri USA
The 1st respondent sent her reply from here under protest
The Circuit Court passed a decree for dissolution of marriage on February 19 1980 in the absence of the 1st respondent
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The 1st appellant had earlier filed a petition for dissolution of marriage in the Sub Court of Tirupati being OP No 8786
In that petition the 1st appellant filed an application for dismissing the same as not pressed in view of the decree passed by the Missouri Court
On August 14 1991 the learned sub Judge of Tirupati dismissed the petition
On November 2 1981 the 1st appellant married the 2nd appellant in Yadgirigutta 1st respondent filed a criminal complaint against the appellants for the offence of bigamy
It is not necessary to refer to the details of the proceedings in the said complaint
Suffice it to say that in that complaint the appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by Missouri Court
By this judgment of October 21 1986 the learned Magistrate discharged the appellants holding that the complainant ie the 1st respondent had failed to make out a prima facie case against the appellants
Against the said decision the 1st respondent preferred a Criminal Revision Petition to the High Court and the High Court by the impugned decision of April 18 1987 set aside the order of the magistrate holding that a photostat copy of the judgment of the Missouri Court was not admissible in evidence to prove the dissolution of marriage
The Court further held that since the learned Magistrate acted on the photostat copy he was in error in discharging the accused and directed the Magistrate to dispose of the petition filed by the accused ie appellants herein for their discharge afresh in accordance with law
It is aggrieved by this decision that the present appeal is filed
It is necessary to note certain facts relating to the decree of dissolution of marriage passed by the Circuit Court of St Louis Country Missouri USA
In the first instance the Court assumed jurisdiction over the matter on the ground that the 1st appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action and that petition in that Court
Secondly the decree has been passed on the only ground that there remains no reasonable likelihood that the marriage between the parties can be preserved and that the marriage is therefore irretrievably broken  
Thirdly the 1st respondent had not submitted to the jurisdiction of the Court
From the record it appears that to the petition she had filed two replies of the same date
Both are identical in nature except that one of the replies begins with an additional averment as follows without prejudice to the contention that this respondent is not submitting to the jurisdiction of this hon ble court this respondent sub 827 mits as follows  
She had also stated in the replies among other things that i the petition was not maintainable ii she was not aware if the first appellant had been living in the State of Missouri for more than 90 days and that he was entitled to file the petition before the Court iii the parties were Hindus and governed by Hindu Law iv she was an Indian citizen and was not governed by laws in force in the State of Missouri and  therefore the Court had no jurisdiction to entertain the petition v the dissolution of the marriage between the parties was governed by the and that it could not be dissolved in any other way except as provided under the said Act vi the Court had no jurisdiction to enforce the foreign laws and none of the grounds pleaded in the petition was sufficient to grant any divorce under the 
Fourthly it is not disputed that the 1st respondent was neither present nor represented in the Court passed the decree in her absence
In fact the Court has in terms observed that it had no jurisdiction in personam   over the respondent or minor child which was born out of the wed lock and both of them had domiciled in India
Fifthly in the petition which was filed by the 1st appellant in that Court on October 6 1980 besides alleging that he had been a resident of the State of Missouri for 90 days or more immediately preceding the filing of the petition and he was then residing at 23rd Timber View Road Kukwapood in the Country of St Louis Missouri he had also alleged that the 1st respondent had deserted him for one year or more next preceding the filing of the petition by refusal to continue to live with the appellant in the United States and particularly in the State of Missouri
On the other hand the averments made by him in his petition filed in the court of the Subordinate Judge Tirupati in 1978 shows that he was a resident of Apartment No 414 6440 South Claiborn Avenue New Orleans Louisiana United States and that he was a citizen of India
He had given for the service of all notices and processes in the petition the address of his counsel Shri PR Ramachandra Rao Advocate 16 11 13 Malakpet Hyderabad 500 036
Even according to his averments in the said petition the 1st respondent had resided with him at Kuppanapudi for about 4 to 5 months after th marriage
Thereafter she had gone to her parental house at Relangi Tanuka Taluk West Godawari District
He was thereafter sponsored by his friend Prasad for a placement in the medical service in the United States and had first obtained employment in Chicago and thereafter in Oak Forest and Greenville Springs and ultimately in the Charity Hospital in Louisiana at New Orleans where he continued to be emp 828 loyed
Again according to the averments in the said petition when the 1st respondent joined him in the United States both of them had stayed together as husband and wife at New Orleans
The 1st respondent left his residence in New Orleans and went first to Jackson Texas and thereafter to Chicago to stay at the residence of his friend Prasad
Thereafter she left Chicago for India
Thus it is obvious from these averments in the petition that both the 1st respondent and the 1st petitioner had last resided together at New Orleans Louisiana and never within the jurisdiction of the Circuit Court of St Louis Country in the State of Missouri
The averments to that effect in the petition filed before the St Louis Court are obviously incorrect
Under the provisions of the hereinafter referred to as the Act   only the District Court within the local limits of whose original civil jurisdiction i the marriage was solemnized or ii the respondent at the time of the presentation of the petition resides or iii the parties to the marriage last resided together or iv the petitioner is residing at the time of the presentation of the petition in a case where the respondent is at the time residing outside the territories to which the Act extends or has not been heard of as being alive for a period of seven years of more by those persons who would naturally have heard of him if he were alive has jurisdiction to entertain the petition
The Circuit Court of St Louis Country Missouri had therefore no jurisdiction to entertain the petition according to the Act under which admittedly the parties were married
Secondly irretrievable breakdown of marriage is not one of the grounds recognised by the Act for dissolution of marriage
Hence the decree of divorce passed by the foreign court was on a ground unavailable under the Act
Under Section 13 of the Code of Civil Procedure 1908 hereinafter referred to as the Code   a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if a it has not been pronounced by a Court of competent jurisdiction b it has not been given on the merits of the case c it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable d the proceedings are opposed to natural justice e it is obtained by fraud f it sustains a claim founded on a breach of any law in force in India
As pointed out above the present decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Act as neither the marriage was celebrated nor the parties last 829 resided together nor the respondent resided within the jurisdiction of that Court
The decree is also passed on a ground which is not available under the Act which is applicable to the marriage
What is further the decree has been obtained by the 1st appellant by stating that he was the resident of the Missouri State when the record shows that he was only a bird of passage there and was ordinarily a resident of the State of Louisiana
He had if at all only technically satisfied the requirement of residence of ninety days with the only purpose of obtaining the divorce
He was neither domiciled in that State nor had he an intention to make it his home
He had also no substantial connection with the forum
The 1st appellant has further brought no rules on record under which the St Louis Court could assume jurisdiction over the matter
On the contrary as pointed out earlier he has in his petition made a false averment that the 1st respondent had refused to continue to stay with him in the State of Missouri where she had never been
In the absence of the rules of jurisdiction of that court we are not aware whether the residence of the 1st respondent within the State of Missouri was necessary to confer jurisdiction on that court and if not of the reasons for making the said averment
Relying on a decision of this Court in Smt
Satya vs Teja Singh it is possible for us to dispose of this case on a narrow ground viz that the appellant played a fraud on the foreign court residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well
We remain from adopting that course in the present case because there is nothing on record to assure us that the Court of St Louis does not assume jurisdiction only on the basis of a mere temporary residence of the appellant for 90 days even is such residence is for the purpose of obtaining divorce
We would therefore presume that the foreign court by its own rules of jurisdiction had rightly entertained the dispute and granted a valid decree of divorce according to its law
The larger question that we would like to address ourselves to is whether even in such cases the Courts in this country should recognise the foreign divorce decrees
The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code the Contract Act the Indian Succession Act the Indian Divorce Act the Special Marriage Act etc
In addition some rules have also been evolved by judicial decisions
In matters of status or legal capacity of natural persons matrimonial disputes custody of 830 children adoption testamentary and intestate succession etc
the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens
The distinction between matters which concern personal and family affairs and those which concern commercial relationships civil wrongs etc
is well recognised in other countries and legal systems
The law in the former area tends to be primarily determined and influenced by social moral and religious considerations and public policy plays a special and important role in shaping it
Hence in almost all the countries the jurisdicational procedural and substantive rules which are applied to disputes arising in this area are significantly different from those applied to claims in other areas
That is as it ought to be
For no country can afford to sacrifice its internal unity stability and tranquility for the sake of uniformity of rules and comity of nations which considerations are important and appropriate to facilitate international trade commerce industry communication transport exchange of services technology manpower etc
This glaring fact of national life has been recognised both by the Hague Convention of 1968 on the Recognition of Divorce and Legal Seperations as well as by the Judgments Convention of the European Community of the same year
Article 10 of the Hague Convention expressly provides that the contracting States may refuse to recognise a divorce or legal separation if such recognition is manifestly incompatible with their public policy
The Judgments Convention of the European Community expressly excludes from its scope a status or legal capacity of natural persons b rights in property arising out of a matrimonial relationship c wills and succession d social security and e bankruptcy
A separate convention was contemplated for the last of the subjects
We are in the present case concerned only with the matrimonial law and what we state here will apply strictly to matters arising out of and ancillary to matrimonial disputes
The Courts in this country have so far tried to follow in these matters the English rules of Private International Law whether common law rules or statutory rules
The dependence on English Law even in matters which are purely personal has however time and again been regretted
But nothing much has been done to remedy the situation
The labours of the Law Commission poured in its 65th Report on this very subject have not fructified since April 1976 when the Report was submitted
Even the British were circumspect and hesitant to apply their rules of law in such matters during their governance of this country and had left the family law to be governed by the customary rules of the diffe 831 rent communities
It is only where was a void that they had stepped in by enactments such as the Special Marriage Act Indian Divorce Act Indian Succession Act etc
In spite however of more than 43 years of independence we find that the legislature has not thought it fit to enact rules of Private International Law in this area and in the absence of such initiative from the legislature the courts in this country their inspiration as stated earlier from the English rules
Even in doing so they have not been uniform in practice with the result that we have some conflicting decisions in the area
We cannot also lose sight of the fact that today more than ever in the past the need for definitive rules for recognition of foreign judgments in personal and family matters and particularly in matrimonial disputes has surged to the surface
Many a man and woman of this land with different personal laws have migrated and are migrating to different countries either to make their permanent abode there or for temporary residence
Likewise there is also immigration of the nationals of other countries
The advancement in communication and transportation has also made it easier for individuals to hop from one country to another
It is also not unusual to come across cases where citizens of this country have been contracting marriages either in this country or abroad with nationals of the other countries or among themselves or having married here either both or one of them migrate to other countries
There are also cases where parties having married here have been either domiciled or residing separately in different foreign countries
This migration temporary or permanent has also been giving rise to various kinds of matrimonial disputes destroying in its turn the family and its peace
A large number of foreign decrees in matrimonial matters is becoming the order of the recognition of the foreign judgments in these matters
The minimum rules of guidance for securing the certainty need not await legislative initiative
This Court can accomplish the modest job within the framework of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose
It is with this intention that we are undertaking this venture
We aware that unaided and left solely to our resources the rules of guidance which we propose to lay down in this area may prove inadequate or miss some aspects which may not be present to us at this juncture
But a begining has to be made as best as one can the lacunae and the errors being left to be filled in and corrected by future judgments
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We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy justice equity and good conscience and the rules so evolved will protect th sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life
Clause a of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction
We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute
Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court
The expression competent court   in Section 41 of the has also to be construed likewise
Clause b of Section 13 states that if a foreign has not been given on the merits of the case the courts in this country will not recognise such judgment
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 result of the contest between the parties
The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himselfherself 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 jurisdiction of the court or an appearance in the Court either 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 of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate
The second part of clause c of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable the judgment will not be recognised by the courts in this country
The marriages which take place in this country can only be under either the customary or the statutory law in force in this country
Hence the only law that can be applicable 833 to the matrimonial 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 ground not recognised 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 unenforceable in this country
For the same reason such a judgment 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
Clause d of Section 13 which makes a foreign judgment unenforceable on th ground that the proceedings in which it is obtained are opposed to natural justice states no more than an elementary principle on which any civilised system of justice rests
However in matters concerning the family law such as the matrimonial disputes this principle has to b extended to mean something more than mere compliance with the technical rules of procedure
If the rule of audi alteram partem has any meaning with reference to the proceedings 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 himselfherself and contest effectively the said proceedings
This requirement should apply equally to the appellate proceedings if and when they are file by either party
If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel residence and litigation where necessary 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 International 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 jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised
This jurisdiction principle is also recognised by the Judgments Convention of this European Community 
If therefore the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only it it is of the forum where the respondent is domiciled or habitually and permanently resides the provisions of clause d may be held to have been satisfied
The provision of clause e of Section 13 which requires that the 834 courts in this country will not recognise a foreign judgment if it has been obtained by fraud is self evident
However in view of the decision of this Court in Smt
Satya vs Teja Singh supra it must be understood that the fraud need not be only in relation to the merits of the mater but may also be in relation to jurisdictional facts
From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country
The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married
The exceptions to this rule may be as follows i where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married ii where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married iii where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties
The aforesaid rule with its stated exceptions has the merit of being just and equitable
It does no injustice to any of the parties
The parties do and ought to know their rights and obligations when they marry under a particular law
They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case
The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile nationality residence permanent or temporary or ad hoc forum proper law etc
and ensuring certainty in the most vital field of national life and conformity with public policy
The rule further takes account of the needs of modern life and makes due allowance to accommodate them
Above all it gives protection to women the most vulnerable section of our society whatever the strata to which they may belong
In particular it frees them from the bondage of the tyrannical and servile rule that wife s domicile follows that of her husband and that it is the husband s domicilliary law which determines the jurisdiction and judges the merits of the case
Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case 835 is not in accordance with the Act under which the parties were married and the respondent had not submitted to the jurisdiction of the court or consented to its passing it cannot be recognised by the courts in this country and is therefore unenforceable
The High Court as stated earlier set aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence
The High Court is not correct in its reasoning
Under Section 741iii of the Hereinater referred to as the Act documents forming the acts or records of the acts of public judicial officers of a foreign country are public documents
Under Section 76 read with Section 77 of the Act certified copies of such documents may be produced in proof of their contents
However under Section 86 of the Act there is presumption with regard to the genuineness and accuracy of such certified copy only if it is also certified by the representative of our Central Government in or for that country that the manner in which it has been certified is commonly in use in that country for such certification
Section 631 and 2 read with Section 65e and f of the Act permits certified copies and copies made from the original by mechanical process to be tendered as secondary evidence
A photostat copy is prepared by a mechanical process which in itself ensures the accuracy of the original
The present photostat copies of the judicial record of the Court of St Louis is certified for the Circuit Clerk by the Deputy Clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Act and also in the manner required by the provisions of the said section
Hence the Photostat copy per se is not inadmissible in evidence
It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act
The expression certified copy of a foreign judgment in Section 14 of the Code has to be read consistent with the requirement of Section 86 of the Act
While therefore holding that the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court we uphold the order of the High Court also on a more substantial and larger ground as stated in paragraph 14 above
Accordingly we dismiss the appeal and direct the learned Magistrate to proceed with the matter pending before him according to law as expenditiously as possible preferably within four months from now as the prosecution is already a decade old
TNA Appeal dismissed


Summary:
The appellants were Taluqdars owning taluqdari villages in District Ahmedabad State of Bombay
In 1922 23 there was a revision settlement of land revenue and the aggregate sum of land revenue payable by each taluqdari estate was fixed
In 1925 26 in exercise of the powers conferred by section 22 of the Gujrat Taluqdars Act 1888 Bom
VI of 1888 the Government of Bombay ascertained and declared the jama payable by each taluq which was much less than the amount of land revenue and the said declaration was to remain in force for thirty years
With the passing in 1949 of the Bombay Taluqdari Abolition Act 1949 the taluqdari estates of the appellants were abolished and they became occupants of the lands and after the expiry of the thirty years were called upon to pay the full land revenue assessment in respect of the lands
It was contended on behalf of the appellants that by reason of section II7R of the Bombay Land Revenue Code i879 the declaration made by the Governor in council fixing the amount of jama for a period of thirty years would continue to be in force even after the expiry of that period till a revision settlement was made and the Government was precluded from demanding the higher amount of revenue till then
Held that the contention must fail
The jama payable by the Taluqdars under section 22 Of the Gujrat Taluqdars Act 1888 was distinct from the revenue assessment of land comprised in the taluqdari estate and they could not be equated
The declaration under section 22 or the fixation of the jama under section 231 of the Act was in the nature of a settlement entered into between the Government on the one hand and the Taluqdar on the other but that was no settlement of land revenue within the meaning of section II7R of the Bombay Land Revenue Code 1879
As section 52 b of the Bombay Taluqdari Tenure Abolition Act 1949 expressly saved the settlement made under section 23 and the 912 declaration under section 22 of the Gujrat Taluqdars Act the appellants were liable to pay the entire land revenue after the expiry Of 30 years ie from the year 1955 56