Case BriefsHigh Courts

Kerala High Court: P. Somarajan, J. allowed the second appeal in a matter related to the redemption of mortgage, against the order of dismissal by the trial court and the first appellate court.

In the present case, the dispute centred around the nature of an ‘Ottikuzhikanam Deed’ (deed) that was executed by the original owner of the property in favour of his nephew and niece. But according to the appellants, it was a mortgage whereas respondents asserted it as a lease arrangement. The trial court referred the matter to the Land Tribunal under Section 125 of the Kerala Land Reforms Act, 1963 (the Act). The Land Tribunal held that the deed was a lease arrangement and passed an order, granting fixity of tenure in favour of respondents. Both the trial court and the first appellate court accepted this finding of the Tribunal and held that ‘Ottikuzhikanam Deed’ was a lease deed and the relief of redemption of the mortgage was rejected concurrently. As a result, a second appeal was filed.

The Court noted that definition given to the expression ‘Ottikuzhikanam’ under Section 2 (39A) of the Act excluded a mortgage within the meaning of Transfer of Property Act. It observed that “A mere clause enabling the beneficiary under a deed to enjoy the property and to make improvements therein included as part of normal terms and conditions, would not bring the matter within the sweep of ‘Ottikuzhikanam’ as defined under Section 2(39A) of the Act, but it must be the essential term of the contract and for that essential term and purpose, the contract must be entered into, otherwise, it cannot be brought under the purview of ‘Ottikuzhikanam’, a lease as defined under Section 2(39A) of the Act.” Reliance was placed on the decision in Velayudhan Vivekanandan v. Ayyappan Sadasivan, 1975 KLT 1, where a document which is styled as ‘Ottikuzhikanam’ appended to the judgment found to be a mortgage and not a lease. 

The Court found, “The mortgage amount involved in the instant case comes to Rs 5,000 in the year 1962 and the property mortgaged comes to only 1 Acre 2 cents which is another indication of nature of Ext.A4 as a mortgage rather than a lease.” Thus, the decree and judgment of the trial court and the first appellate court was set aside, and order was passed for a decree of redemption of mortgage on payment of amount of Rs 5000 with interest at 12 per cent per annum from the date of suit till the date of judgment and thereafter at 6 per cent per annum to the principal sum of Rs 5000 and also the cost of defendants in the first appeal and in the second appeal, together with the improvements over the property which could be ascertained at the time of passing of the final decree.[C. Vijaya Thulasi v. D. Sudarsanan, 2019 SCC OnLine Ker 1411, decided on 02-04-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Amit Rawal J., dismissed the second appeal petition on the ground that there was no substantial question for determination.

The regular second appeal was preferred at the instance of the appellant/defendant against the decretal suit against the injunction order to her to not to interfere in the subject land.

The respondent-plaintiff alleged that plaintiff and defendant had joint land which was purchased by the plaintiff for Rs 1 lakh for the purpose of passage. The defendants were extending threats for construction on the land including 1 biswa and perpetually requested but resulted into celandra under Section 107(151) of Code of Criminal Procedure, 1973.

Sanjiv Gupta, counsel for the appellant/defendant submitted that suit for the injunction prima facie as per the record of local commissioner reflecting the possession of 1 biswa more than her ownership, was not maintainable. In the absence of relief of mandatory injunction, decree qua relief of possession could not be moulded under the provisions of Order 7 Rule 7 of Code of Civil Procedure, 1908.

The defendant opposed the suit and denied the averments and stated that she was the owner of the land measuring six biswa as per the registered sale deed.

Court opined that “litigants are required to exercise the due diligence in the pursuing the remedy particularly when the appellant had assailed the judgment and decree of the trial Court before the Lower Appellate Court. There is no equity on the person who has been found to be in alleged encroachment” Thus, the petition was dismissed.[Sabri v. Gulzar Ahmed, 2019 SCC OnLine P&H 708, decided on 24-05-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Amit Rawal, J. dismissed an appeal against the decree of the suit for specific performance of the agreement to sell.

Factual matrix of the case was, respondent-plaintiff alleged that appellant-defendant after mutual decision extended the date for the performance of the agreement, but on the date decided to perform the defendant did not come forward. Subsequently, plaintiff sent a legal notice and filed a suit when the defendant failed to reply to notice. Contention of the appellant was he never entered into an agreement with the plaintiff.

Deepender Ahlawat, learned counsel for the appellant submitted that readiness and willingness on behalf of the respondent-plaintiff was conspicuously wanting. No documents in this regard were placed on record. Even if the agreement to sell was denied, extensions were also the testimony of the same.

Learned counsel for the respondent, submitted various pieces of evidence and witnesses to prove his case that the appellant had entered into alleged agreement to sell and a copy of the impugned notice was also presented before the Court.

The Court observed that such arguments were not sustained for the simple reason that if a person who has denied the agreement to sell cannot be permitted to take the plea of readiness and willingness particularly when extensions and earnest money had been proved on record. The Court held, “As an upshot of my findings, there is no illegality and perversity in the concurrent findings of fact and law to form a different opinion than the one arrived at by the Courts below.” Hence, there were no merits in the appeal found by the Court.[Balwan Singh Raghav v. Dalip Kumar, 2019 SCC OnLine P&H 709, decided on 24-05-2019]

Case BriefsHigh Courts

Calcutta High Court: Tapabrata Chakraborty, J. dismissed a writ petition filed by the petitioner, Dr Kashninath Ghosh Hazra, under Article 226 of the Constitution of India.

The petitioner claimed to be the owner of an un-partitioned land at plot nos. 4933, 4934, 4935 and 4936 of Mouza Sadpur, Block- Kandi, Khatian No. 714, P.O. & P.S. Kandi, Pin 742 137, District- Murshidabad, West Bengal. On 10-02-2019 the petitioner came to learn that the private respondents were demolishing the structures existing on the said property. The petitioner maintained that without taking steps towards the partition of the said property and without obtaining any appropriate sanction plan from the municipal authorities, the private respondents had started raising unauthorized construction including a boundary wall. Aggrieved thereby, this petition was filed.

The Court had passed an interim order on 26-02-2019 restraining the private respondent’s 14 to 20 from demolishing any structure existing on the said property and from raising any fresh construction till the end of April, 2019 or until further orders.

Respondent 14 by filing an affidavit-in-opposition and a vacating application stated that a partition suit pertaining to the said property, being T.S. No. 38 of 2003, was initially filed by Amala Bala Ghosh impleading the petitioner herein. The final decree was passed on 17-01-2014. The said decree was executed and the 3 parties obtained possession of the decretal property in the year 2014. Thereafter, the names of the respondent’s 14 and 15 were mutated and some portions of the said property had also been sold to third parties.

In reply, the petitioner submitted that he had no knowledge about the institution of the said partition suit and the preliminary decree and the final decree were passed ex parte.

The Court, in view of the arguments made by the parties, held that the said property had already been partitioned and hence no direction could be passed in the present writ petition. The Court observed that the grievance of the petitioner was that he was not given appropriate notice for which he could not appear and contest the partition suit. It was opined that such grievance ought to have been ventilated by the petitioner before the competent civil forum. But without taking such steps the petitioner had preferred the present writ petition involving the municipal authorities. In view thereof, the petition was dismissed.[Dr Kashinath Ghosh Hazra v. State of West Bengal, An application under Article 226 of the Constitution of India filed on 19-02-2019, In re, 2019 SCC OnLine Cal 655, decided on 15-05-2019]

Case BriefsHigh Courts

Madhya Pradesh High Court: This second appeal was filed before the Bench of Vivek Rusia, J., by appellant against the judgment and decree passed by 11th Additional District Judge, Indore whereby appeal was partly allowed while affirming the judgment and decree passed under Section 12 (1)(a) of M.P. Accommodation Control Act, 1961 and setting aside the Judgment and decree passed by 12th Civil Judge, Class-II Indore in respect of Section 12(1)(f) of the Act.

Petitioner submitted that in this case, there was no written tenancy agreement between the plaintiff and defendant. According to the plaintiff, he had given the suit accommodation to the defendant in the year 1978 only for two months for a temporary purpose, but after two months, he failed to vacate it. Plaintiff had filed the suit in the year 1981 and no rent receipts on record were present. Hence, the trial Court fixed the provisional rent at Rs 100  per month. Thus, plaintiff pleaded the suit to be maintainable. Whereas respondent contended that due to the defect in the notice, the suit was not maintainable and the decree was not sustainable in the eye of law. The issue before the Court was whether the decree under Section 12(1)(a) of the Act of 1961 is sustainable.

High Court viewed that this petition was maintainable in the lights of the conclusion drawn that once the non-payment of rent is established, then the Court has no option but to pass a decree on the ground contemplated under Section 12(1)(a) of the Act of 1961 but since no substantial question of law was found this appeal was dismissed. [Vasudev v. Bhagwanti Bai, 2019 SCC OnLine MP 687, decided on 11-04-2019]

Case BriefsHigh Courts

Bombay High Court at Goa: C.V. Bhadang, J., discharged the petitioner (proprietor of the defendant Company) of the notice served upon him in an execution case.

The respondent filed a civil suit against one Harshad Trading Company a company incorporated under the Companies Act. As per the suit title, the Company was not shown to be represented by any person. The suit was decreed ex-parte against the defendant company. Thereafter, the respondent filed an application for execution of the decree pursuant to which a notice was served on the petitioner. He filed for discharge on the ground that he was neither a Director nor an employee of the Company. It was contended that he was the proprietor of the Company, which are two separate entities. However, Executing Court dismissed the petitioner’s application.

The High Court noted that the decree was passed against  Harshada Trading Company alone. It was well settled:  “where the decree is against the Company, which is an independent entity, the decree cannot be executed against any individual, being a Director or a person responsible for the conduct of the business of the Company.”

On the factual score, the Court said, “It was for the respondent to point out as to what are the assets of the Company, against which the decree can be executed. Such details can be obtained by the decree-holder from the office of the Registrar of Companies (RoC). Without doing any such exercise, the respondent is trying to execute the decree against an individual and that too, without showing that the petitioner is in anyway related to the Company-Harshada Trading Company.”

In such view of the matter, the impugned order of the Executing Court was set aside and the petitioner was discharged. [Belarmina Gowda v. Ranjith Nath, 2019 SCC OnLine Bom 588, Order dated 04-04-2019]

Case BriefsForeign Courts

Supreme Court of Pakistan: The Three-Judge Bench of Mian Saqib Nisar, CJ and SH. Azmat Saeed and Ijaz-Ul-Ahsan, JJ. dismissed the appeal filed by a husband challenging the amount awarded to his wife after the dissolution of their marriage.

Appellant (husband) and Respondent 3 (wife) filed a suit for dissolution of marriage vide which their marriage was dissolved. A suit for return of dowry articles was also filed which was decreed by the learned Family Court for an amount of Rs 25,000. The decretal amount was enhanced to Rs 4 lakhs by the First Appellate Court in an appeal filed by Respondent 3. Appellant filed a writ petition in Lahore High Court assailing the order of appellate authority. The petition was partly accepted and amount in lieu of dowry articles was reduced to Rs 3 lakhs. Being still aggrieved, the appellant preferred the instant appeal before this Court.

Learned counsel for the appellant Mr Sarfraz Khan Gondal submitted that the Family Court had granted a decree for a sum of Rs 25,000 with regards to claim for dowry. Hence, in view of Section 14(2) of the Family Courts Act, 1964, no appeal was maintainable against the said Judgment. Therefore, the Judgment and decree of the First Appellate Court were wholly without jurisdiction. Consequently, the impugned order of Lahore High Court partly affirming the same was also liable to be set aside.

Learned counsel for Respondent 3 Mr Mian Shah Abbas contended that the embargo placed on the right of appeal applied only to the husband and not to a wife dissatisfied with the quantum or denial of relief.

The Court noted that Family Courts are a special forum for adjudication of family disputes in accordance with the special procedure set forth in the 1964 Act, purpose whereof is expeditious settlement and disposal of disputes relating to marriage and family affairs.

It was opined that the purpose of curtailing the Right of Appeal under Section 14 of the Act was to avoid the benefits of the decree being tied up in an appeal before a higher forum. However, the said provision could not be interpreted so as to exclude a right of appeal to a wife whose claim of dower or dowry has been partially or entirely declined as it would defeat the purpose and object of the Act and frustrate its beneficial nature. In view thereof, the appeal was dismissed for being devoid of merit.[Saif-ur-Rehman v. Addl. District Judge, Toba Tek Singh, 2018 SCC OnLine Pak SC 19, decided on 17-04- 2018]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of G.S. Sistani and Jyoti Singh, JJ., directed a divorce decree sheet to be drawn up in favour of the appellant-wife in terms of Section 13(1)(i-a) of the Hindu Marriage Act, 1955.

The parties married to each-other in 2007. However, they were living separately since July 2014. The case set up by the wife was that the respondent-husband subjected her to various cruelties. The family court rejected her petition seeking a divorce, basing its judgment on the ground that only general and routine allegations were made which were not substantiated. Aggrieved thereby, the wife preferred the present appeal.

The wife, represented by Kavita Kapil, Advocate, deposed by way of an affidavit that the husband’s behaviour had become extremely arrogant he was a highly suspicious person who levelled false charges on her character. Also, during her pregnancy, he did not provide her medical treatment, nor gave her love or affection, and caused mental trauma.

On careful consideration of the evidence on record, the High Court was of the view that the wife was able to show that the husband treated her with cruelty. As far as specific instances were concerned, it was observed, ” the specific date and time has not been given for all the incidents averred, but has led evidence to prove specific instances of the cruelty, at the time of her pregnancy. It may be noted that since only one child was born out of the wedlock, it was not necessary to give the month, date or time when her husband inflicted cruelty upon her.” Noting that the husband took no steps to either resolve the dispute or contest the case, the Court allowed the appeal by the wife. [B v. R Y, 2019 SCC OnLine Del 7286, decided on 04-02-2019]

OP. ED.

Efficacy of Foreign Decree of Divorce

We are in some context or the other confronted with the question as to “how good is a decree of divorce granted by a foreign court with regard to a Hindu couple married in India?” This question is becoming a familiar question with all of us.

The foremost answer that would surface with us would be, that, the Hindu couple residing/working in a foreign land ought to be governed by the matrimonial laws in force at that place. As a corollary, the decree of divorce granted by the foreign court should be valid.

However, the pride of the place is taken by Section 1 of the Hindu Marriage Act, 1955 which reads thus:

  1. Short title and extent—(1) This Act may be called the Hindu Marriage Act, 1955.

      (2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

It is for this reason that Hindus married as per Hindu Rights in India, although settled abroad, are primarily required by law to process divorce proceedings only as per the said Act i.e. applying the Hindu Marriage Act, 1955.

The other emphasis of the Indian law is the mandate of Section 13 of the Hindu Marriage Act, 1955. The said Section mentions that divorce can be taken exclusively on the stated grounds. When the grounds have been specifically elucidated, it excludes the scope of granting divorce on any other ground. Few grounds mentioned in the said Act are as follows:

(i) petitioner has been treated with cruelty;

(ii) petitioner has been deserted;

(iii) respondent has ceased to be a Hindu; and

(iv) respondent has been of an incurable unsound mind.

To complete the narration of codified law on the subject, reference to Section 13 of the Code of Civil Procedure, 1908 is essential which reads as under:

  1. When foreign judgment not conclusive —A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except—

            (a) where it has not been pronounced by a court of competent jurisdiction;

             (b) where it has not been given on the merits of the case;

            (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

             (d) where the proceedings in which the judgment was obtained are opposed to natural justice;

             (e) where it has been obtained by fraud; and

             (f) where it sustains a claim founded on a breach of any law in force in India.

The above provisions were considered in detail by the Supreme Court of India in Y. Narasimha Rao v. Y. Venkata Lakshmi[1]. This Court ruled that:

(a) Court of competent jurisdiction would be the one which the law under which parties are married, recognises. Any other court would be court without jurisdiction, unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that Court.

(b) It was held that the decision must be given on the “merits” of the case i.e.:

           (i) The ground of divorce in the decision of the foreign court should be a ground available under the Hindu Marriage Act, 1955. For instance, if the ground of the foreign decree was cruelty on the applicant, this would be acceptable, as “cruelty” is a stated ground under the Hindu Marriage Act, 1955. But the same cannot be said for “irretrievable breakdown of marriage”, as this is not a ground under the Hindu Marriage Act, 1955.

          (ii) The decision should be a result of contest between the parties. The non-applicant should have unconditionally submitted to the jurisdiction of the foreign court and contested the claim or agreed to the passing of the decree. The concept of acquiescence to jurisdiction would not suffice.

(c) Refusal to recognise the law of India, is covered by saying that the ground for divorce in the foreign decree is a ground available under the Hindu Marriage Act, 1955.

(d) The foreign judgment was obtained as opposed to natural justice. The concept of natural justice is the provision of fair hearing; absence of bias of Judge and following the elementary principles of fair play. This is a larger concept but shortly can be stated as essential trappings in order to have a fair adjudication. Where for instance respondent was denied documents filed by the other side or where the respondent was denied the opportunity to cross-examine witnesses of the other side, without a justifiable cause, these would be opposed to the principles of natural justice.

(e) Where the foreign decree was obtained by fraud. Fraud at any stage vitiates legal proceedings. It is often said that law and fraud cannot co-exist.

In Satya v. Teja Singh[2], when the respondent had instituted a foreign court proceeding, in a court in whose jurisdiction the applicant has never lived, respondent had made a false representation that respondent was a bona fide resident of that State. It was held that the respondent had practised fraud on the foreign court by concealing this fact. Therefore, that foreign court had no territorial jurisdiction. That foreign court decree was declared invalid by the Supreme Court of India.

Law on this has hardly undergone any development in the last 27 years. Y. Narasimha Rao case[3] stands alone, so to say.

Briefly, the expression “where it has not been given on merits of the case” was commented upon by the Supreme Court of India in International Woollen Mills v. Standard Wool (UK) Ltd.[4] The view taken was when evidence was led by the plaintiff applicant in the foreign court, even though the opposite side may have been served but not appearing, the decision would be “on merits”. This Court concurred with the law laid down in another case which stated that:

A decision on the merits involves the application of the mind of the Court to the truth or falsity of the plaintiff’s case and therefore though a judgment passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex parte, a decision passed without evidence of any kind but passed only on his pleadings cannot be held to be a decision on the merits.

Situation before the Indian Courts

In the above background, Indian courts were confronted with situations wherein Hindu couples married in India as per Hindu Law, settled in a foreign land, develop matrimonial disputes and approach a foreign court. This situation demanded the Indian courts to determine whether the decrees passed by the foreign court as a consequence of the matrimonial disputes between the Hindu couples settled abroad, had any efficacy in India.

 Concept of “Comity of Courts”

This is a view taken by the courts, which is known as the concept of “comity of courts”. This means that courts in various countries grant probity to decrees of foreign courts. The understanding being, the courts all over the world adjudicate the rights of the parties and therefore, show mutual respect. This principle was first laid by the Court of England and subsequently approved by the Supreme Court of India in Elizabeth Dinshaw v. Arvand M. Dinshaw[5]. The Court recorded the observation that:

                9. … it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.

The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child.

The Supreme Court of India in another case Alcon Electronics (P) Ltd. v. Celem SA of FOS 34320 Roujan[6], recorded the following:

                19. The principles of comity of nation demand us to respect the order of English Court. Even in regard to an interlocutory order, Indian courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 CPC.…

These are the competing considerations before the Indian courts. That is the codified laws and the concept of “comity of courts”. These have to be reconciled by the Indian courts.

In a different context, namely, custody of child, in an inter-country dispute, Supreme Court of India had occasioned to opine in Ruchi Majoo v. Sanjeev Majoo[7]. It may be clarified that custody of child matter is to be viewed completely differently as against dissolution of marriage. This is for the reason that in custody of child matters, welfare of the child is of paramount consideration by the Court.

Supreme Court of India took the view that:

Recognition of decrees and orders passed by foreign courts remains an eternal dilemma inasmuch as whenever called upon to do so, courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 CPC. … Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. Judicial pronouncements on the subject are not on virgin ground. Since no system of private international law exists that can claim universal recognition on this issue, Indian courts have to decide the issue regarding the validity of the decree in accordance with the Indian law. Comity of courts simply demands consideration of any such order issued by foreign courts and not necessarily their enforcement.

In that context, Supreme Court of India in Prateek Gupta v. Shilpi Gupta[8], balanced the foreign court order on custody by holding that it is one of the relevant factors without getting fixated therewith. Court held that:

           32. … while examining the question on merits, would bear in mind the welfare of the child as of paramount and predominant importance while noting the pre-existing order of the foreign court, if any, as only one of the factors and not get fixated therewith.…

A different situation arose before the Delhi High Court in Harmeeta Singh v. Rajat Taneja[9]. Here the husband had filed proceedings in the foreign court. Wife has approached the Delhi High Court by way of a civil suit. High Court restrained the husband for continuing with the proceedings in the foreign court, as the wife had no spouse visa, she possibly could not defend the proceeding in the foreign court. Of course, there was no occasion for the wife to submit to jurisdiction of the foreign court.

Broadly Two Categories of Cases

Broadly speaking two categories of cases can be carved out on the basis whether the opposite party in the foreign court appeared and actively participated or not. Therefore, the subject can be easily stated under the following two heads:

(i) Did Not Attend Nor Actively Participated

The non-applicant always has an option not to attend nor actively participate in the foreign court proceedings. This would be taken as, the non-applicant did not submit to the jurisdiction of the foreign court. This, however, does not mean that the non-applicant is not even required to be served in the foreign court proceedings. Non-service would amount to denial of opportunity to be heard.

As the non-applicant did not submit to the jurisdiction, it is further said that this non-applicant did not chance a judgment in his/her favour. Challenge to the foreign court decree in such a situation may be entertained by the Indian courts. It cannot, therefore, be said that having participated, having submitted to the jurisdiction and having made submissions before the foreign court, now because the verdict of the foreign court is against the non-applicant, he is now challenging the same in the Indian court.

The non-applicant must be served with notice of the foreign court proceedings. Or else, the proceedings would be taken in law to be a nullity i.e. of no value in law. If this is a situation, Indian courts are likely to declare the entire foreign court proceedings as void.

(ii) Did Attend And Actively Participated

This question automatically answers itself, when contrasted with the above answer. Having attended and having participated, the non-applicant (respondent) in the foreign court cannot complain that he/she was not heard, if the respondent had voluntarily submitted to the jurisdiction of the foreign court. The respondent is free to make an alternative plea under the jurisdiction of the foreign court for grant of alimony or monthly maintenance. To adjudicate the same, the foreign court would be free to follow laws laid by its own land.

Another form of “attend and actively participate” is when the non-applicant consents to the passing of the decree of divorce.

Consequences of a Foreign Decree of Divorce Being Held as Invalid

Respondent cannot sit with the comfort that he/she has a decree for divorce from a foreign court. Consequences may appear soon thereafter or maybe years later. The other side may apply for its cancellation in the Indian court. In such an eventuality if:

       (i) The respondent remarries, he may be prosecuted for bigamy. Case in point is Y. Narasimha Rao v. Y. Venkata Lakshmi[10].

       (ii) Opposite party may file for maintenance.

       (iii) Issue of custody of children can be raised.

       (iv) Opposite party may claim share in the property of the respondent.

Executability of Foreign Court Decree

There is a provision in Indian law for execution of foreign court decrees. This is contained in Section 44-A CPC read with Section 13 CPC.

Although Section 44-A CPC is couched in general phraseology and would seem to apply to the execution of foreign decrees in general. However, when it comes to specific laws i.e. the Hindu Marriage Act, 1955 or the issue of custody of the child, Section 44-A seems to have little application.

These specific Acts have an overbearing effect on Section 44-A CPC. This is clear from sub-section (3) of Section 44-A which makes it clear that this is subject to the decree falling in any of the exceptions contained in Section 13 CPC.

Conclusion

The above discussion only shows how complicated the position is regarding the validity of a foreign court decree of divorce. It can perhaps be stated that a Hindu couple married in India would be well advised to seek a divorce from an Indian court only.

There can be little comfort from the fact that the foreign court decree was passed and some time has elapsed or that there is inaction of the opposite side. Consequences may appear several years later.

A Probable Way Ahead

The process of simplification could begin for instance from a Hindu couple permanently settled abroad. If facts show that they were indeed permanently settled in the foreign land, then, such a couple could be said to have causal and most immediate territorial connection with the foreign land. It could be held that their court of competent jurisdiction could be foreign court and their proper law i.e. codified law would be the foreign law. This is stated on the strength of principles given by the Supreme Court of India in Surinder Kaur Sandhu v. Harbax Singh Sandhu[11]:

                     10. … The modern theory of conflict of laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case.… Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage.…

By adopting this approach a practical way may appear for couples settled abroad. They may not need to have recourse to Indian courts. The development of law could march in this direction.

——————————————————–

† Advocate, Supreme Court of India

[1]  (1991) 3 SCC 451

[2] (1975) 1 SCC 120

[3] (1991) 3 SCC 451

[4] (2001) 5 SCC 265

[5] (1987) 1 SCC 42, 47

[6] (2017) 2 SCC 253, 262

[7] (2011) 6 SCC 479

[8] (2018) 2 SCC 309, 330

[9] 2003 SCC OnLine Del 60 : (2003) 2 RCR (Civ) 197

[10] (1991) 3 SCC 451

Bail Application
Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Sandeep Sharma, J. hearing a revision petition against an order of District Judge, held that an executing Court cannot go beyond the judgment passed by a Court in appeal.

In the present case, respondent’s land was acquired for construction of a road and he was awarded compensation for the same in terms of a judgment of this Court (in RFA Nos. 282 of 2000 and 44 of 2002). He filed an execution petition in District Court for execution of the order awarding compensation. The State – petitioner herein – filed an objection against the execution of the said petition, but the same was not accepted and the execution petition was allowed. Aggrieved thereby, the State filed the instant revision petition praying to set aside the impugned order and to make a fresh calculation of compensation.

The Court held that there was no illegality or infirmity in the impugned order passed by the District Judge. The calculation of compensation to be awarded to the respondent was in terms of the judgment delivered in RFAs referred to above. Therefore, the District Court, sitting as an executing Court, could not have gone beyond the judgment or decree passed in RFA.

However, in order to bring more clarity, the Court directed District Judge to pass a fresh order which shall be a speaking order, detailing the calculations based upon the verdict rendered by this court in the aforesaid RFAs, to remove any ambiguity.

The petition was disposed of in terms of the aforesaid directions.[State of Himachal Pradesh v. Sewak Ram, 2018 SCC OnLine HP 1851, decided on 20-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of C.V. Bhadang, J. held that the petitioners in the present writ petition was liable to pay the amount decreed against the judgment-debtor who was since deceased.

The petitioners were legal representatives Eric Sequeira. He was Chairman of the petitioner company and a judgment debtor died after the decree was passed. Now the decree-holder sought to execute the decree against the petitioners. The Executing Court held that the since petitioners succeeded to assess left behind by Eric Sequeira, they are liable to satisfy the decree. C.A. Ferreira, Advocate for the petitioners contended that legal representatives could not be held responsible to satisfy the decree. On the other hand, Yogesh V. Nadkarni, Advocate for respondents supported the impugned order.

On hearing the parties, the High Court found no case to interfere in the impugned order. It was of the opinion that the Executing Court was right in holding that the petitioners were liable to satisfy the decree by which the Company and Eric Sequeira were jointly and severally held liable today the amount of decree. The Execution Court was directed to proceed having regard to the terms of Section 50 CPC. The petition was dismissed. [Goan Residential Resorts (P) Ltd. v. Raghbir Singh Panwar, 2018 SCC OnLine Bom 5756, Order dated 30-11-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: Petitioner preferred this civil revision before a Single Judge Bench of Rajeev Kumar Shrivastava, J., under Section 115 of Civil Procedure Code, against the order passed by 3rd Civil Judge, Class-II, whereby the objection raised by the petitioner under Section 47 read with Section 151 was rejected.

Facts of the case were such that respondent had purchased a shop which is in question, from a person Khusro who is the power of attorney holder of late Jahan. It was alleged that petitioner occupied the shop and failed to pay rent to respondent to whom the shop actually belong by virtue of a sale deed. Petitioner had submitted that they have no relation with the respondent and all the construction done on the shop had been done by them. Trial Court affirmed eviction of petitioner from the shop in question. Later an execution case was filed which was objected under Section 47 read with Section 151 praying for stay of the execution proceedings but the same was denied. Hence, this revision. Petitioner contended that the executing Court should have allowed petitioner to give evidence in order to substantiate and prove his objection, therefore, the impugned order was bad in law and should be set aside.

High Court was of the view that this revision petition should be dismissed. On the basis of facts and circumstances of the case, it was found that decree of eviction was affirmed by the first appellate Court and second appellate Court. The objection raised were not sustainable due to the well-settled principle that Executing Court cannot go beyond the decree. Therefore, this revision petition was dismissed. [Mohasin Ulla Khan v. Nabila Rahil, 2018 SCC OnLine MP 949, Order dated 13-12-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: This appeal was preferred before a 2-Judge Bench of Rakesh Kumar and  Anupinder Singh, JJ., against the judgment and decree passed by the Additional District Judge by which petition filed under Sections 11 and 12 of the Hindu Marriage Act, 1955 by the respondent-husband for annulment of marriage with the appellant-wife was allowed.

During the pendency of this appeal, the appellant filed an application for maintenance pendente lite under Section 24 of the Act. The above application was allowed and thereby the respondent was supposed to pay Rs. 5,000 per month towards maintenance pendente lite. But since respondent failed to do so he was directed to pay entire arrears of maintenance pendente elite. The only contention made by respondent for non-payment of maintenance was that he did not have any money to give. High Court struck off respondent’s only defence leaving with the issue that if the respondent has no defence can the judgment and decree passed by the trial Court sustain or is to be set aside.

High Court struck off the defence of respondent on the ground of non-payment of maintenance, that he wanted annulment of marriage on the ground that appellant had already married twice and marriage with respondent was her third marriage with previous marriage subsisting. Thus, there remained no defence on record for annulment of marriage. Therefore, this appeal was allowed and judgment and decree passed by trial court was set aside. [Sonia v. Deepak, 2018 SCC OnLine P&H 2024, decided on 04-12-2018]

Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. allowed an appeal against the judgment of Family Court for the said court’s failure in conducting a proper enquiry and for failure in recording satisfaction based on such an enquiry conducted.

The appellant and respondent had jointly filed a petition for dissolution of their marriage by mutual consent Section 10A of the Divorce Act, 1869. The petition was allowed and respondent was granted permanent custody of their minor children. The appellant-wife challenged the said decree on the ground of court’s non-compliance to the mandatory procedural formality of interregnum waiting period.

The primary question for the determination of the court was as to whether a decree granting divorce by mutual consent can be challenged in an appeal filed under Section 19 of the Family Courts Act, 1984.

The Court observed that a decree under Section 13 B of the Hindu Marriage Act, 1955 is passed on the Court being satisfied that certain circumstances exist and certain conditions are fulfilled. Such a decree is not a decree passed merely on consent, but on the court being satisfied with the existence of those conditions. Relying on the decision of Gujarat High Court in Jyoti v. Darshan Nirmal Jain, 2012 SCC OnLine Guj 6283 it was held that in the present case since the lower court had failed to record its satisfaction under Section 10A(2) of the Divorce Act and not even followed the mandatory procedure of six months waiting period, therefore bar under Section 19 (2) of the Family Courts Act would not apply and the instant appeal would be maintainable.[Tiji Daniel v. Roy Panamkoodan,2018 SCC OnLine Ker 4145, decided on 17-09-2018] 

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench at Goa comprising of C.V. Bhadang, J., confirmed the decree of dissolution of marriage between the parties passed by Court of Queen’s Bench of Alberta, Calgary, Canada.

An application under Article 1102 of the  Portuguese Civil Code was filed seeking the confirmation of the abovesaid decree of the abovementioned Court. A perusal of the Certificate of Divorce issued by the competent court showed that the marriage between the parties was dissolved. It was evident from the Separation Agreement that the dissolution was by consent of parties.

The High Court reiterated the requirements for confirmation  of such a decree, which included:

  • Authenticity of the judgment as well as the correctness of the reasoning;
  • Judgment of foreign court having become res judicata according to the law of the country;
  • Judgment being delivered by a court of competent jurisdiction;
  • Dispute between the parties not being subject to defences of lis pendens or res judicata.
  • Defendant having been duly summoned;
  • Judgment not going against the Portuguese public order; and
  • Judgment having been delivered not in violation of any of the Portuguese Private Law.

The Court held that the requirements as listed above were satisfied in the instant case. The application was, thus, allowed. [Joaquim Cardozo v. Fanny Margaret Mascarenhas E. Cardozo, 2018 SCC OnLine Bom 1830, dated 26-07-2018]

Case BriefsHigh Courts

Bombay High Court at Goa: A Single Judge Bench comprising of C.V. Bhadang, J., dismissed an appeal filed against the concurrent findings of the courts below that resulted in decreeing the suit of the respondents.

The matter related to the validity of the Will in question. The respondents had filed a regular civil suit against the appellant, contending that the said Will was obtained by undue influence exercised by the appellants over the testator. The trial court framed as many as eight issues. And after appreciation of evidence, decreed the suit of the respondents. Appellant preferred an appeal before the district judge. However, the same got dismissed. Aggrieved thus, the appellant approached the High Court. It was submitted that the Appellate Court did not frame proper points which violated Order 41 Rule 31 CPC.

The High Court, on a careful consideration of rival submissions made on behalf of the parties, was of the view that appeal did not raise any substantial question of law. The Court observed that when an appeal is heard on merits, the High Court has to examine whether the failure of the first Appellate Court to formulate the questions as required by Order 41 Rule 31 has resulted in miscarriage of justice. The Court was of the opinion that the points framed by the Appellate Court showed that all the necessary issues were covered. Further, the Court observed that Section 99 of CPC inter alia provides that no decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any error not affecting the merits of the case or the jurisdiction of the court. The Court held that in the instant case there was no such miscarriage of justice that affected the merits of the case. The Court did not find it a fit case to interfere with the impugned judgment. Therefore, the appeal was dismissed. [Shablo Govind Gaude v. Kashinath Govind Gaude,2018 SCC OnLine Bom 1239, dated 14-6-2018]

Case BriefsHigh Courts

Allahabad High Court: An appeal filed by the wife against the decree of divorce by mutual consent, was allowed by a Division Bench comprising of Pankaj Mithal and Rajiv Joshi, JJ.

A decree was passed by the family court under Section 13-B of Hindu Marriage Act (HMA), 1955 for dissolution of the marriage of the appellant-wife and her husband by mutual consent. The wife preferred the appeal under Section 28 HMA read with Section 19 of Family Courts Act 1984, against the said decree contending that her consent was obtained by undue influence. The question before the Court was ‘whether an appeal under Section 19 of Family Courts Act would lie against a decree passed under Section 13-B HMA?’

The Court perused Section 13-B and held that a decree of divorce by mutual consent could be passed by the Court only if all the conditions mentioned under the said Section are complied with. The Court referred to Section 23(1) (bb) and relying on Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, held that before passing a decree under Section 13-B, the Court must satisfy itself that the consent of the parties was not obtained by coercion, fraud or undue influence. Further, Section 28 HMA did not place any rider on appeals against a consent decree under the Act. In light of the discussion as mentioned herein, the Court admitted the appeal and directed the issuing of notice to the respondent. [Pooja v. Vijay Chaitanya,  2018 SCC OnLine All 513, dated 06-04-2018]

Supreme Court

Supreme Court: In a matter before the Court as to whether the validity of a decree passed on a compromise can be challenged in a separate suit, a bench comprising of T.S. Thakur and R. Banumathi JJ., upheld the decision of the Additional City Civil Judge that a separate suit was not maintainable and that the only remedy available to the aggrieved party is to approach the Court which had passed the compromise decree.

In the instant case, the dispute arose as to the validity of a compromise between the parties with respect to alienation of property as a gift. The trial Court held that the suit holding the gift-deed in question is null and void and not binding on the plaintiff. Aggrieved with the decree of the trial Court, the respondent moved to the High Court which set aside the judgment and decree of the trial Court on the basis that a compromise had taken place between the parties. The aggrieved appellant appeared before the Additional City Civil Judge where the plaint filed by the plaintiff-appellant was rejected in the light of the proviso to Order 23 Rule 3 of CPC. The appellant then filed a miscellaneous application taking plea that no compromise had taken place nor was any compromise petition ever signed between the parties. The High Court declined to consider the prayer made by the appellant and held that the appellant may seek redressal in a separate suit against any such order of rejection.

The question which arose before this Court was whether the High Court was right in directing the appellant to seek redress in separate suit. The Court observed that as soon as a question relating to the lawfulness of the agreement/ compromise is raised before the Court that passed the decree on the basis of any such agreement or compromise, it is that Court and that Court alone who can examine and determine that question.

The Court concluded that the High Court in the process remained oblivious of the provisions of the Order 23 of Rule 3 and 3 A of CPC, as it cannot direct the parties to file a separate suit on the subject for which no such suit will lie in view of the provision of Order 23 Rule 3 A of CPC.. The Court allowed the appeal and set aside the Order of the High Court and remitted the matter back to the High Court for disposal in accordance with the law. R. Rajanna v. S.R. Ventakaswamy2014 SCC OnLine SC 920, decided on November 20, 2014.