Vous êtes sur la page 1sur 8





Under the Indian law there are two ways of getting a foreign judgment enforced. The first
method is by filing an Execution Petition under Section 44A of the CPC (in case the conditions
specified therein are fulfilled) or the second method is by filing a suit upon the foreign judgment.
Under S. 44A of the CPC, a decree of any of the Superior Courts of any reciprocating territory
are executable as a decree passed by the domestic Court. Therefore in case the decree does not
pertain to a reciprocating territory or a superior Court of a reciprocating territory, as notified by
the Central Government in the Official Gazette, the decree is not directly executable in India.
However in cases where a decree pertained to a country which is not a reciprocating territory, a
fresh suit will have to be filed in India on the basis of such a decree or judgment, which may be
construed as a cause of action for the said suit. In the fresh suit, the said decree will be treated as
another piece of evidence against the defendant. This procedure is dealt with under section 14 of
This case covers a lot of areas concerning private international law and the jurisdiction of the
foreign decree passed by the courts.
The wife here is claiming for her as well as her children maintenance of Rs1000/ also as per
Section 488, criminal Procedure Code, alleging that the respondent had neglected to maintain her
and the two minor children.

Are Indian courts bound to give recognition to divorce decrees granted by foreign
Is the decree of divorce passed by the Nevada Court in U.S.A., entitled to
recognition in India?
Foreign judgment obtained by fraud.
Concept of domicile
Wifes claims for maintenance.

1. Recognition to the foreign decree

The judgment of a foreign court is enforced on the principle that where a court of
competent jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy
that claim. The rules of private international law of each State must in the very nature of
things differ, but by the comity of nations certain rules are recognized as common to
civilized jurisdictions.

Jurisdiction to foreign courts

The following circumstances would give jurisdiction to foreign courts:
1. Where the person is a subject of the foreign country in which the judgment has been
2. Where he was a resident in the foreign country when the action was commenced and
the summons was served on him;
3. Where the person in the character of plaintiff selects the foreign court as the forum for
taking action in which forum he issued later;
4. Where the party on summons voluntarily appeared; and
5. Where by an agreement, a person has contracted to submit himself to the forum in
which the judgment is obtained.
Foreign judgments when not binding: circumstances: sec. 13
In the following six cases, a foreign judgment shall not be conclusive:
In the following six cases, a foreign judgment shall not be conclusive:
1. Foreign not by a competent court.
2. Foreign judgment not on merits.
3. Foreign judgment against international or Indian law.
4. Foreign judgment opposed to natural justice.
5. Foreign judgment obtained by fraud.
6. Foreign judgment founded on a breach of Indian law.

However in the present case the foreign judgment does not apply because the decree is obtained
by fraud in the court of Nevada. Even though a judgment would be res judicata and not
impeachable from within, it might be impeachable from without. In other words, though it is not
permissible to show that the court was mistaken, it might be shown that it was misled. There
is an essential distinction between mistake and trickery. The clear implication of the distinction
is that an action to set aside a judgment cannot be brought on the ground that it has been wrongly
decided, namely, that on the merits, the decision was one which should not have been rendered,
but it can be set aside if the court was imposed upon or tricked into giving the judgment. Hence
the decree given in here would not be recognized by the Indian courts.

2. Concept of domicile

The judgment given by the high court in India regarding determination of the domicile of
Mr. Satya Singh was on the basis of the principle laid down in the English Case of Le
Mesurier v. Le Mesurier and Attorney General for Alberta v. Cook applied the old English
rule that English rule that during marriage the domicile of the wife, without exception,
follows the domicile of the husband so since the respondent was domiciled in Nevada so
was the appellant in the eye of law. The Nevada court had, therefore, jurisdiction to pass
the decree of divorce. However the main question was that whether a Hindu marriage
solemnized within this country can be validly annulled by a decree of divorce granted by
a foreign court. The answer to this question depends upon private international law and
since private international law is different in all countries it becomes more difficult to
give it universal recognition. We cannot adopt Private International Law evolved by other
countries. The problem here is of limping marriagea principle governing matters within
the divorce jurisdiction are so conflicting in the different countries that not un often a
man and a woman are husband and wife in one jurisdiction but treated as divorced in
another jurisdiction.
In determining whether a divorce decree will be recognised in another jurisdiction as a
matter of comity, public policy and good morals may be considered. No country is bound
by comity to give effect in its courts to divorce laws of another country which are
repugnant to its own laws and public policy. A foreign divorce decree is subject to
collateral attack for lack of jurisdiction even where the decree contains the, findings or
recitals of jurisdiction facts. To confer jurisdiction on the ground of plaintiff's residence
and entitle the decree to extraterritorial recognition, the residence must be actual and
genuine with intent to make the State his home. However in this case the husband never
intended to reside there he was there for a time period which is minimum requirement of
obtaining domicile is six weeks and as soon as he acquired the domicile he applied for
divorce and after a decree was passed in his favour he left Nevada.

3. Wifes claims for maintenance

Now in deciding for the claim of the wife for maintenance for her and her children if that
decree is valid the appellant's claim for maintenance, as section 488 enables a "wife" and
children to apply for maintenance. But was the decree of divorce procured by fraud and if
so, is it entitled to recognition here. That is the essence of the matter. It must be noted
that decree of divorce was obtained on a misrepresentation that he was domiciled in
Nevada. It is correct that the concept of domicile is not uniform throughout the world and
just as long residence does not by itself establish domicile brief residence may not violate
it. But residence for a particular purpose fails to answer the qualitative test for, the
purpose being accomplished the residence would cease. Hence the claim of the husband
that decree passed by the Nevada Court shall imply and the fact that they both were not
cohabiting for 4 years and she was no longer his wife and therefore shall not be
considered for getting any sort of maintenance from him shall not be entertained as the
whole foreign decree contention is quashed as it was obtained by fraud.

4. Competent jurisdiction

Section 13(a) of the Code of Civil Procedure, 1908 makes a foreign judgment conclusive
as to any matter thereby directly adjudicated upon except "where it has not been
pronounced by a court of competent jurisdiction".
The respondent urged that this provision occurring in the, Civil Procedure, Code cannot
govern criminal proceedings and therefore the want of jurisdiction in the Nevada court to
pass the decree of divorce can be no answer to an application for maintenance under
section 488, Criminal Procedure Code. This argument is misconceived. The judgment of
the Nevada court was rendered in a civil proceeding and therefore its validity in India
must be determined on the terms of section 13. It is beside the point that the validity of
that judgment is questioned in a criminal court and not in a civil court. If the judgment
falls under any of the clauses (a) to (e) of section 13, it will cease to be conclusive as to
any matter thereby adjudicated upon. The judgment will then be open to a collateral
attack on the grounds mentioned in the five clauses of section 13.
Under section 13(e), Civil Procedure Code, the foreign judgment is open to challenge
where it has been obtained by fraud. Fraud as to the merits of the respondent's case may
be ignored and his allegation that he and his wife have lived separate and apart for more
than, three consecutive years without cohabitation and that there is no possibility of a
reconciliation may be assumed to be true. But fraud as to the jurisdiction of the Nevada
court is a vital consideration in the recognition of the decree passed by that court. It is
therefore relevant that the respondent successfully invoked the jurisdiction of the Nevada
court by lying to it on jurisdictional facts.
A judgment of a foreign court to be conclusive between the parties must be a judgment
pronounced by a court of competent jurisdiction and competence contemplated by section
13 of the Code of Civil Procedure is in an international sense and not merely by the law
of foreign State in which the Court delivering judgment functions.
The marriage between the appellant and respondent has to limp. They will be treated as
divorced in Nevada but their bond of matrimony will remain unsnapped in India, the
country of their domicile. According to me she is entitled for maintenance under the
domestic laws.
A foreign judgment may operate as res judicata except in the six cases specified in the section 13
and subject to the other conditions mentioned in Sec. 11 of C.P.C. The rules laid down in this
section are rules of substantive law and not merely of procedure. The fact that the foreign
judgment may fail to show that every separate issue, such as, the status of the contracting parties,
or the measure of damages, was separately framed and decided, is irrelevant unless it can be
shown that failure brings the case within the purview of one of the exceptions to Section 13.