IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 27.4.2005 Coram The Hon'ble Mr.Justice S.SARDAR ZACKRIA HUSSAIN Civil Revision Petition (PD)No.2746 of 2003 and C.M.P.No.20747 of 2003 and V.C.M.P.No.1221 of 2004 T.Siva Raman ... Petitioner vs. P.Renganayaki ... Respondent Civil Revision Petition filed under Article 227 of Constitution of India against the order dated 30.9.2003 and made in I.A.No.870 of 2003 in F.C.O.P.No.1195 of 2002 on the file of the Second Additional Family Court, Chennai. For petitioner : Prof.S.Krishnaswamy. For respondent : Mr.C.Ravichandran ----- O R D E R The revision is preferred by the husband against the order of the petition in I.A.No.870 of 2003 for dismissing the Original Petition No.1195 of 2002 filed by the wife for restitution of conjugal rights. The Family Court dismissed the Petition I.A.No.870 of 2003 as per order dated 30.9.2003. 2. The facts of the case are that the revision petitioner married the respondent on 16.3.2000 as per Hindu Rites and Customs in Vijaya Raju Kalyana Mandapam, Adyar, Chennai and the marriage is an arranged marriage and after marriage, the respondent stayed in the matrimonial home at B-2, Flat No.26, C.V.Koil Street, Alwar Thirunagar, Chennai-600 087 only for five days and thereafter, she left India to the United States of America on 30.3.2000 and who was employed in Arizona as Software Consultant. The revision petitioner got a job in Los Angeles in California State in the United States of America as a Post Graduate – MCA in Computer Application and has joined as Software Consultant on 12.6.2000 at Rapidigm in Los Angeles. When the revision petitioner met the respondent on 30.6.2000, 21.7.2000, 4.8.2000, 18.8.2000, 8.9.2000 https://hcservices.ecourts.gov.in/hcservices/ and 29.9.2000 in United States of America, the respondent refused to accommodate so as to co-habitate with the revision petitioner. The revision petitioner lastly met her when she lived in California State in the United States of America and later she disappeared and despite the sincere efforts through U.S. Search Com. the revision petitioner could not search her. During the visit of the revision petitioner in India, on 13.8.2001, the revision petitioner caused lawyer notice to the respondent to her last known address in California State in the U.S. marking a copy to her father in his address at Thiruvanmiyur, Chennai-600 041 and the respondent replied with false averments on 15.10.2001. The revision petitioner sent rejoinder on 27.11.2001. After reply by the respondent nothing was heard about her. On return to U.S. On 18.9.2001 and after waiting for long time, the revision petitioner tried for marital settlement agreement as per the American Law for mutual divorce. There was no response from the respondent. Thereafter the revision petitioner filed a petition for dissolution of marriage in the Superior Court of California State, Country of Los Angeles in the U.S. in Case No.VDO 49409 on 23.4.2002 where the respondent lastly met the revision petitioner at California State and within the jurisdiction of California Superior Court. The respondent filed counter objecting the jurisdiction of the said Court to which the revision petitioner filed a reply. When the case was posted in Superior Court of California Country of Las Angeles on 5.8.2002 for the appearance of the respondent, she had run away from U.S.A. and came to India. But, however, filed petition in O.P.No.1195 of 2002 under Section 9 of the Hindu Marriage Act for restitution of conjugal rights in July 2002. The Superior Court of California granted decree of dissolution of marriage in the Case No.VDO 49409, between the revision petitioner and the respondent effective from 10.2.2003 and the decree is dated 9.1.2003. The Family Court has no jurisdiction to continue the trial in O.P.No.1195 of 2002 and the judgment of the California Court is binding on the Family Court under Section 41 of Indian Evidence Act. Therefore, the petition O.P.No.1195 of 2002 for restitution of conjugal rights by the respondent is not maintainable. Hence, the revision petitioner has filed the petition I.A.No.870 of 2003 to dismiss the O.P.No.1195 of 2002 filed by the respondent for restitution of conjugal rights. 3. The petition I.A.No.870 of 2003 was opposed in the counter filed by the respondent that the petition subject matter of this revision has been filed to drag the proceedings in O.P.No.1195 of 2002 filed for restitution of conjugal rights. It is further stated that the revision petitioner has obtained the alleged decree of divorce by playing fraud upon the Superior Court, Los Angeles Country, California and in any event the said Court is not having competent jurisdiction to try matrimonial cause between the revision petitioner and the respondent which was consummated in https://hcservices.ecourts.gov.in/hcservices/ Chennai, India and as such, it is only the Family Court, which has got jurisdiction. The alleged decree of dissolution of marriage obtained by the revision petitioner is only an ex parte decree. The respondent never submitted to the jurisdiction of Superior Court Los Angeles Country, California and also her counsel. The alleged decree of dissolution of marriage delivered by Superior Court Los Angeles Country, California is not valid in law, since it is passed without jurisdiction and as such, Section 41 of the Indian Evidence Act is not applicable. The grounds raised in the matrimonial proceedings in Superior Court Los Angeles Country, California are not the grounds covered under the Hindu Marriage Act. It is denied that the respondent remained in U.S.A. as an independent unmarried woman and that the respondent has no contact with the revision petitioner except for five days after marriage. There is no desertion even as per American Law and no ground for desertion as per Hindu Law. The desertion mentioned in the judgment for dissolution of marriage does not confirm the requirements of desertion as per the provision of Hindu Marriage Act. It is denied that the respondent deserted the revision petitioner committing lot of cruelty against him and against his parents. It is also denied that the respondent never cohabited with the revision petitioner except for five days immediately after the marriage at Alwarthirunagar. The respondent lived with the revision petitioner after marriage till 30.3.2000 and the revision petitioner refused to live with the respondent when he came to U.S.A. in June, 2000 at the instigation of his parents. The respondent left U.S.A. in June, 2002 under the instruction of the revision petitioner so that they can rejoin in India, since the revision petitioner had planned to come to India in December, 2002 to settle down. Thereafter, the respondent did not go to U.S.A. and submitted to the jurisdiction of the Superior Court Los Angeles Country, California. 4. The Second Additional Family Court, Chennai, in refusing to accept the case of the revision petitioner/husband dismissed the petition I.A.No.870 of 2003 filed to dismiss the O.P.No.1195 of 2002 filed by the respondent/wife for restitution of conjugal rights, as per order dated 30.9.2003. The correctness of the order is challenged in this revision. 5. Heard Prof.S.Krishnaswamy, learned counsel appearing for the revision petitioner/husband and Mr.C.Ravichandran, learned counsel appearing for the respondent/wife. 6. The respondent filed O.P.No.1195 of 2002 in the Family Court, Chennai against her husband, the revision petitioner for restitution of conjugal rights. The Original Petition was filed in July, 2002. In the Original Petition, the circumstances that led to the marriage between the revision petitioner and the respondent https://hcservices.ecourts.gov.in/hcservices/ on 16.3.2000 is stated. It is further stated that the respondent stayed in her matrimonial home till 30.3.2000 at Alwarthirunagar, Chennai and she left India on that date to U.S.A. and also arranged job for the revision petitioner in Los Angeles, California. It is also stated in the Original Petition that the revision petitioner and the respondent met at weekends, since the revision petitioner was employed at Arizona and the respondent was employed at Los Angeles. Both the revision petitioner and the respondent celebrated Deepavali at Sanfransisco for 4 days. They celebrated their wedding anniversary on 16.3.2001. The revision petitioner told the respondent to accept a job offer in Virginia in March, 2001 and the revision petitioner also promised that he will get a job and both can live together. The respondent joined the job in April 2001, but the respondent did not keep up his words. The revision petitioner alone went to India without informing the respondent and when the respondent called him over phone in India, the revision petitioner's parents told her to give bank balance or agree for mutual divorce. Though the respondent informed that she wants to live with her husband, the revision petitioner, he refused to live with her and caused a lawyer notice dated 8.9.2001, to which a reply was sent on 15.10.2001. The revision petitioner sent rejoinder. The respondent is willing to live with her husband, the revision petitioner, in separate house and she has left her job in U.S.A. and settled down in India for the purpose of rejoining with her husband, the revision petitioner. 7. The said petition filed for restitution of conjugal rights is resisted in the counter filed by the revision petitioner on 24.2.2003 raising the very same averments as raised in the affidavit filed in support of the petition I.A.No.870 of 2003, which was also filed on the same day i.e. on 24.2.2003, subject matter of this revision. 8. The learned counsel for the revision petitioner vehemently argued narrating the facts and circumstances which led to the filing of the divorce petition in Superior Court of California and immediately the respondent engaged a counsel and since she did not appear for the final hearing, decree of divorce has been granted by the said Court and as such, O.P.No.1195 of 2002 filed by the respondent for restitution of conjugal rights is not maintainable. According to the learned counsel that both the parties, viz., the revision petitioner and the respondent belong to Hindu Community and their marriage was solemnised on 16.3.2000 as per Hindu Rites and Customs, inasmuch as both the revision petitioner and the respondent, who were in America during the relevant time and within the jurisdiction of the Superior Court of California, the divorce granted by that Court as per American Laws is very much in force. In this regard, the learned counsel also submitted that after the summons have been duly served on the respondent from the Superior https://hcservices.ecourts.gov.in/hcservices/ Court of California in which she also entered appearance through counsel, but not appeared for the final hearing, in which day it was posted for consideration of divorce petition filed by the revision petitioner. For her non-appearance, divorce has been granted. Inasmuch as the petition for divorce was filed by the revision petitioner, in which summons was served upon the respondent and to escape from the divorce proceedings, the respondent had left California to Chennai, India and has filed O.P.No.1195 of 2002 for restitution of conjugal rights in July, 2002. Therefore, according to the learned counsel, since the revision petitioner and his wife having separated by the decree of divorce granted by the Superior Court of California, the O.P.No.1195 of 2002 filed by the respondent/wife in the Family Court at Chennai is very much not maintainable. In support of such contentions, the learned counsel has relied on the following decisions:- (1) Ishri Prasad – vs. - Sri Ram reported in A.I.R. 1927 Allahabad 510, in which it is held that burden of proving want of jurisdiction in foreign court is on defendant. It is further held thus:- "It is well settled rule of international law that Courts cannot, by their judgments, bind absent foreigners who have not submitted to their jurisdiction, and can only exercise jurisdiction over persons who are within the territorial limits of their jurisdiction, and, therefore, a judgment of a foreign Court obtained against a defendant cannot be enforced in British India where the defendant at the time of the commencement of the suit was not a subject of, nor resident in, the country in which the judgment was obtained. Therefore in a suit based on a foreign judgment, one of the questions that arises for consideration is, was the defendant at the time of the commencement of the suit in the foreign Court residing within the territorial limits of the jurisdiction of the State in which the suit was brought. But on the production of a certified copy of a foreign judgment the Court is bound to presume that the judgment was pronounced by a Court of competent jurisdiction and therefore it devolves on the defendant by his pleading and evidence to deny and disprove every fact and circumstance which negative the jurisdiction of the foreign Court." https://hcservices.ecourts.gov.in/hcservices/ (2) Sankaran Govindan – vs. - Lakshmi Bharathi and others reported in A.I.R. 1974 Supreme Court 1764, in which, the Hon'ble Supreme Court has held thus:- "Unless a foreign Court has jurisdiction in the international sense, a judgment delivered by that Court would not be recognised or enforceable in India. The true basis of enforcement of a foreign judgment is that the judgment imposes an obligation upon the defendant and, therefore, there must be a connection between him and the forum sufficiently close to make it his duty to perform that obligation." (3) Nirmala Balagopal – vs. - Venkatesulu Balagopal reported in 2003(4) C.T.C. 451, in which, this Court has held thus:- "Contract Act, 1872, Section 70. Fraud. Wife filed proceedings for separation in Court of State of Connecticut, united States of America. Wife and Husband entered in Post Marital Agreement during pendency of proceedings in USA, whereby husband agreed not to institute any legal action for divorce or legal separation against wife in India irrespective of whether or not husband resides in India. Subsequently both husband and wife came to Coimbatore and lived in rental flat. Husband filed petition for divorce before Family Court. Action of husband consists of two parts namely (a) Entering into Post Marital Agreement (b) Filing of petitions for dissolution of marriage in India by violating clause of Post Marital Agreement. Filing of petition is not fraud. Entering into an agreement without intending to act in terms of agreement could amount to fraud if wife could prove that mental condition of husband at time of agreement was polluted one containing fraudulent ideas. Wife did not furnish any material to establish fraud and husband is not guilty of fraud." (4) Commissioner of Customs, Kandla – vs. - M/s.Essar Oil Ltd., & others reported in 2004(8) Supreme Court 304, in which the Hon'ble Supreme Court has held:- "By "fraud" is meant an intention to https://hcservices.ecourts.gov.in/hcservices/ deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression "fraud" involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non- pecuniary loss. A benefit or advantage to the deceiver, will almost always call loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to be deceiver, but not corresponding loss to the deceived, the second condition is satisfied." "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata." https://hcservices.ecourts.gov.in/hcservices/ 9. Learned counsel for the respondent strenuously argued that inasmuch as the revision petitioner and the belongs to Hindu Community and the marriage was celebrated as per Hindu Rites and Customs in Chennai, the divorce granted by the Superior Court of California on the application by the revision petitioner is improper and invalid. The learned counsel further submitted that inasmuch as the respondent was not submitted to the jurisdiction of the Superior Court of California, the divorce granted by that Court is not enforceable and as such, it is invalid. The learned counsel further contended that by playing fraud, the divorce has been obtained by the revision petitioner against the respondent in the foreign court may be Superior Court of California and suppressing the material facts and therefore, according to the learned counsel, inasmuch as the divorce granted by foreign court, viz., Superior Court of California being invalid, the O.P.No.1195 of 2002 filed by the respondent herein for restitution of conjugal rights is very much maintainable. The learned counsel also submitted that inasmuch as the revision is filed under Article 227 of the Constitution of India, it is not maintainable. The learned counsel has relied on the judgment in Y.Narasimha Rao – vs. - Y.Venkata Lakshmi reported in (1991)3 Supreme Court Cases 451, in which the Hon'ble Supreme Court has held thus:- "The decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Hindu Marriage Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that 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. The decree had been obtained by appellant 1 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 90 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. Appellant 1 had further brought no rules on record under which the St. Louis Court could assume jurisdiction over the matter. On the contrary, he had in his petition made a false averment that respondent https://hcservices.ecourts.gov.in/hcservices/ 1 had refused to continue to stay with him in the State of Missouri where she had never been. Therefore, the case can be disposed of on the narrow ground that the appellant played a fraud on the foreign court representing to it incorrect jurisdiction facts. However, even presuming 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, it must be held that since with regard to the jurisdiction of the forum as well as the ground on which it was passed the foreign decree in the present case 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 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 the sanctity of the institution of marriage and the unity of family which are the cornerstones of our societal life. Today 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. Though the rules of guidance may prove inadequate or miss some aspects but a beginning 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." "On an interpretation of Section 13 CPC the following rule can be deducted for recognising a 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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." 10. The learned counsel for the revision petitioner argued that the revision filed under Article 227 of the Constitution of India is very much maintainable. In support of such a view, the learned counsel relied on the decision in Surya Dev Rai – vs. - Ram Chander Rai and others reported in A.I.R. 2003 Supreme Court 3044, in which the Hon'ble Supreme Court has held thus:- "Amendment by Act No.46 of 1999 with effect from 1.7.2002 in Section 115 C.P.C. cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the C.P.C. Amendment Act No.46 of 1999 are nevertheless open to challenge in, and continue to be subject to certiorari and supervisory jurisdiction of the High Court." "The curtailment of revisional jurisdiction of the High Court does not take away and could not have taken away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a Civil Court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the C.P.C. and is available to be exercised subject to rules of self- discipline and practice which are well settled." https://hcservices.ecourts.gov.in/hcservices/ 11. It is admitted that the revision petitioner married the respondent on 16.3.2000 at Adayar, Chennai as per Hindu Rites and Customs and after the marriage, the respondent stayed in the matrimonial home at Alwarthirunagar, Chennai for 5 days. The respondent left India to United States of America on 30.3.2000 and the revision petitioner went to United States of America on 11.6.2000 and met his wife, the respondent on 30.6.2000 at Arizona, United States of America, where the respondent was working. The case of the revision petitioner that the respondent refused to resume matrimonial relation is denied by the respondent. Further, according to the revision petitioner, he was deserted by the respondent and therefore, after causing lawyer notice dated 13.8.2001, which was replied by the respondent on 15.10.2001, to which the revision petitioner sent rejoinder on 27.11.2001, the revision petitioner filed petition for