Satya Vs. Teja Singh  INSC 191
(1 October 1974)
KHANNA, HANS RAJ
CITATION: 1975 AIR 105 1975 SCR (2) 97 1975
SCC (1) 120
Code of Civil Procedure (Act 5 of 1908) s. 13
and Indian Evidence Act (1 of 1872) s. 41-Indians married in IndiaJudgment of
American State Court granting divorce to husband--When may be recognised by
Section 13(a), Civil Procedure Code, 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;' and s. 41, Indian Evidence Act, 1872, provides that a final
judgment of a competent Court in the exercise of matrimonial jurisdiction is
conclusive proof that the legal character which it confers or takes away
accrued or ceased at the time, declared in the judgment for that purpose.
The appellant and respondent, who were Indian
citizens were married in India in 1955. The respondent left for the U.S.
in 1959 and from 1960 to 1964 was living in Utah for sometime as a student and thereafter in employment. Since 1965 he had been in Canada. He filed a petition for divorce in November 1964 in Nevada, and obtained a decree
against the appellant in December 1964. The appellant did not appear in the
Nevada Court, was unrepresented and did not submit to its jurisdiction.
In 1965, the appellant moved an application
for maintenance under s. 488, Criminal Procedure Court, 1898, and the
respondent relied upon the divorce decree of the Nevada Court as a complete
answer to the appellant's claim. The trial court held in favour of the
appellant and the order was confirmed in revision. In further revision, the
High Court held in favour of the respondent on the basis that 'at the crucial
time of the commencement of the proceedings for divorce the petitioner was
domiciled' in Nevada, that during marriage the domicile of the wife follows the
domicile of the husband, that it was decided in Le Mesurier v. Le Mesurier
 A.C. 517 that 'according to international law, the domicil for the time
being of the married pair affords the only test of jurisdiction to dissolve
their marriage, and that therefore, the Nevada Court had jurisdiction to pass
the decree of divorce.
Allowing the appeal to this Court.
HELD : The decree of divorce passed by the
Nevada Court in U.S.A. could not be recognised in India. [212F] (1) The
question as regards the recognition to be accorded to the Nevada decree depends
on the rules of Indian Private International Law. Our notions of a genuine
divorce and of substantial justice and the distinctive principles of our public
policy must determine the rules of our Private International Law. But awareness
of foreign law in a parallel jurisdiction would be a useful guideline in
determining these rules. [200 F-G; 211 A-B] Shorn of confusing refinements, a
foreign decree of divorce is denied recognition in American Courts if the
judgment is without jurisdiction or is procured by fraud or if treating it as
valid would offend against public policy. The English law on the subject, prior
to the passing of the Recognition of Divorces and Legal Separation Act, 1971,
has grown out of a maze of domiciliary wilderness but English Courts have; by
and large, adopted the same criteria as the American Courts for denying
validity to foreign decrees of divorce. (206p;207 A-B] (2) 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 s. 13, 198 C.P.C. It is beside the
point that the validity of that judgment is questioned in a Criminal Court in
India. if the Judgment falls under any of the clauses (a) to (e) of s.13, it
will cease to be conclusive as to any matter thereby adjudicated upon. The
Judgment will be open to collateral attack on the _grounds mentioned in the
five clauses of s.13. (213 C-E] (3) Under s. 13(e), the foreign Judgment is
open to challenge 'where it has been obtained by fraud.' Fraud as to the merits
of the case may be ignored, but fraud as to the jurisdiction of the Nevada
Court is a vital consideration in the recognition of the decree passed by that
Court. Though it is not permissible to allege that the Court is taken by it is
permissible to allege that the Court was 'misled'.
The essential distinction is between
'mistake, and 'trickery'. [213 E-H] The Duchess of Kingston's Case, Smith's
Leading Cases, (13th Ed) Vol. II, 644 at p. 651, referred to.
(4) Domicil being a jurisdictional fact, the
Nevada decree is open to the collateral attack that the respondent was not a
bona fide resident of Nevada, much less was he domiciled in Nevada. The recital
in the judgment of the Nevada Court is not conclusive and can be contradicted
by satisfactory proof. [211 D-F] (5) The facts of the present case establish
that the respondent went to Nevada as a bird of passage, resorted to the Court
there solely to found jurisdiction and procured a decree of divorce on a
misrepresentation that he was domiciled in Nevada. Prior to the institution of
the divorce proceedings, he might have stayed but he never lived, in Nevada.
Having secured a divorce decree he left Nevada immediately thereafter rendering
false his statement in the petition for divorce that he had 'the intent to make
the State of Nevada his home for an indefinite period,' The concept of domicil
is not uniform in all jurisdictions and just as long residence does not by itself
establish domicil, brief residence may not negative it. But residence for a
particular purpose fails to satisfy the qualitative test, for, the purpose
being accomplished the residence would cease. The two elements of factum et
animus must concur.
Thus, the decree of the Nevada Court lacks
jurisdiction and cannot receive recognition in Indian Courts. [212 D-F] (6) The
judgment to operate as conclusive proof under s.41, Evidence Act, has to be of
a 'Competent Court', that is, a Court having jurisdiction over the parties and
the subject matter. Even a judgment in rem is open to attack on the ground that
the Court had no jurisdiction, and s. 44 of the Evidence Act gives the right to
a party to show that a judgment under s. 41 was delivered by a Court. not
competent to deliver it, or was obtained by fraud or collusion.
Fraud, in any case bearing on jurisdictional
facts, vitiates all judicial acts whether in rem or in personam; and no rule of
private international law could compel a wife to submit to a decree procured by
the husband by trickery. [213H-214 D, G] R. Viswanathan v. Rukn-vl Mulk, 
3 S.C.R. 22, 42, followed.
(7) The High Court wrongly assumed that the
respondent was domiciled in Nevada; and in this view, the Le Mesurier doctrine
on which the High Court relied, loses its relevance. (212 F-G]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 187 of 1970.
From the Judgment and Order dated the 13th
November, 1969, of the Punjab and Haryana High Court in Criminal Revision No.
108 of 1968.
V. C. Mahajan, Urmila Kapur, Kamlesh Bansal
and Sobha Dikshit, for the Appellant.
199 B. P. Maheshwari, Suresh Sethi, R. K.
Maheshwari and Randhir Jain, for the Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, J. This appeal by special leave arises out of an application made
by the appellant under section 488, Code of Criminal Procedure, 1898. it raises
issues for beyond the normal compass of a summary maintenance proceeding
designed primarily to give quick relief to a neglected wife and children. Are
Indian courts bound to give recognition to divorce decrees granted by foreign
courts ? That, broadly, is the question for decision.
Satya, the appellant herein, married the
respondent Teja Singh on July 1, 1955 according to Hindu rites. Both were
Indian citizens and were domiciled in India at the time of their marriage. The
marriage was performed at Jullundur in the State of Punjab., Two children were
born of the marriage, a boy in 1956 and a girl in 1958. On January 23, 1959 the
respondent, who was working as a Forest Range Officer at Gurdaspur, left for
U.S.A. for higher studies in Forestry. He spent a year in a New York University
and then joined the Utah State University where he studied for about 4 years
for a Doctorate in Forestry. On the conclusion of his studies, he secured a job
in Utah on a salary of the equivalent of about 2500 rupees per month. During
these 5 years the appellant continued to live in India with her minor children.
She did not ever join the respondent in America as, so it seems, he promised to
return to India on completing his studies.
On January 21, 1965 the appellant moved an
application under section 488, criminal Procedure Code, alleging that the
respondent had neglected to maintain her and the two minor children. She prayed
that he should be directed to pay a sum of Rs. 1000/per month for their
Respondent appeared through a counsel and
demurred that his marriage with the appellant was dissolved on December 30,
1964 by a decree of divorce granted by the 'Second Judicial District Court of
the State of Nevada and for the County of Washoe, U.S.A.'. He contended that
the appellant had ceased to be his wife by virtue of that decree and,
therefore, he was not liable to maintain her any longer. He expressed his willingness
to take charge of the children and maintain them.
The Judicial Magistrate, First Class,
Jullundur held by her judgment dated December 17, 1966 that the decree of
divorce was not binding on the appellant as the respondent had not
"permanently settled" in the State of Nevada and that the marriage
between the appellant and the respondent could be dissolved only under the Hindu
Marriage Act, 1955. The learned Magistrate directed the respondent to pay a sum
of Rs. 300/per month for the maintenance of the appellant and Rs. 100/per month
for each child. This order was confirmed in revision by the Additional Session
Judge, Jullundur, on the ground that the marriage could be dissolved only under
the Hindu Marriage Act.
200 In the third round of litigation, the
husband succeeded. in a Revision Application filed by him in the High Court of
Punjab and Haryana. A learned single Judge of that Court found that "at
the crucial time of the commencement of the proceedings for divorce before the
Court in Nevada, the petitioner was domiciled within that State in United
States of America". This finding is the corner-stone of the judgment of
the High Court. Applying the old English rule that during marriage the domicil
of the wife, without exception, follows the domicil of the husband, the learned
Judge held that 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.
In coming to this conclusion the learned
Judge relied principally on the decisions of the Privy Council in (i) Le
Mesurier v. Le Mesurier,(1) and (ii) Attorney General for Alberta v. Cook;(2)
and of the House of Lords in (1) Lord Advocate v. Jaffray,(3) and (ii) Salvesen
or 'Von Lorang v.Administrator of Austrian Property. (4) In Le Mesurier's case
which is often referred to, though not rightly, as the "starting point",
it was held that "according to international law, the donmcil for the time
being of the married pair affords the only true test of jurisdiction to
dissolve their marriage".
The High Court framed the question for
consideration thus :
"whether a Hindu marriage solemnised
within this country can be validly annulled by a decree of divorce granted by a
foreign court". In one sense, this frame of the question narrows the
controversy by restricting the inquiry to Hindu marriages. In another, it broadens
the inquiry by opening up the larger question whether marriages solemnised in
this country can at all be dissolved by foreign courts. In any case, the High
Court did not answer the question and preferred to rest its decision on the Le
Mesurier doctrine that domicil of the spouses affords thee only true test of
jurisdiction. In order to bring out the real point in controversy, we would
prefer to frame the question for decision thus : Is the decree of divorce
passed by the Nevada Court in U.S.A., entitled to recognition in India ? The
question is a vexed one to decide and it raises issues that transcend the
immediate interest which the parties have in this litigation. Marriage and
divorce are matters of social significance.
The answer to the question as regards the
recognition to be accorded to the Nevada decree must depend principally on the
rules of our Private International Law. It is a wellrecognized principle that
"Private international law is not the same in all countries".(5)
There is no system of private international law which can claim universal
recognition and that explains why Cheshire, for example, says that his book is
concerned solely with that system 'which obtains in England, that is to say,
with the rules that guide an English court whenever it is seized of a case that
contains some foreign element. The same emphasis can be seen in the works of
other celebrated writers like Graveson, Dicey & Morris, and Martin Wolff.
Speaking of the "English (1)  A. C. 517. (2) 1926 A.C. 444.
(3)  1. A. C. 146. (4)  A.C. 641.
(5) Cheshire's Private International Law,
Eighth Ed., (1970) p. 10, 201 conflict of laws" Graveson says :
"Almost every country in the modern world has not only its own system of
municipal law differing materially from those of its neighbours, but also its
own system of conflict of, laws,. . . ."(1) According to Dicey &
Morris. "The conflict of. laws exists because there are different systems
of domestic law. But systems of the conflict of laws also differ".(2)
Martin Wolf advocates the same point of view thus : "Today undoubtedly
Private International Law is National law. There exists an English private
international law as distinct from a French, a German, an Italian private
international law. The rules on the conflict of laws in the various countries
differ nearly as much from each other as do those on internal (municipal)
law".(1) It is thus a truism to say that whether it is a problem of
municipal law or of Conflict of decided in accordance with Indian law. it is another
matter that the Indian conflict of laws may require that the law of a foreign
country ought to be applied in a given situation for deciding a case which
contains a foreign element. Such a recognition is accorded not as an act of
courtesy but on considerations of justice. (4) It is implicit in that process,
that the foreign law must not offend against our public policy.
We cannot therefore adopt mechanically the
rules of Private International Law evolved by other countries. These principles
vary greatly and are moulded by the distinctive social, political and economic
conditions obtaining in these countries. Questions relating to the personal
status of a party depend in England and North America upon the law of his
domicil, but in France, Italy, Spain and most of the other European countries
upon the law of his nationality.
Principles governing matters within the
divorce jurisdiction are so conflicting in the different countries that not
unoften a man and a woman are husband and wife in one jurisdiction but treated
as divorced in another jurisdiction. We have before us the problem of such a
The respondent petitioned for divorce in the
Nevada court on November 9, 1964. Paragraph 1 of the petition which has a
material bearing on the matter before us reads thus :
"That for more than six weeks preceding
the commencement of this action plaintiff has been, and now is, a bona fide
resident of and domiciled in the County of Washoe, State of Nevada, with the
intent to make the State of Nevada his home for an indefinite period of time.
and that he has been actually, physically and corporeally present in said
County and State for more than six weeks." By Para IV, the respondent
"That plaintiff is a student who has not
yet completed his education, that by defendant's choice she and the minor (1)
The Conflict of Laws, R. H. Graveson, Sixth Ed., (1969) pp. 3, 5, 6.
(2) "The Conflict of Laws", Dicey
& Morris, Eighth Ed., (1967) p. 10.
(3) "Private International Law",
Martin Wolff Second Ed., (1950) p. 11.
(4) See G. Melville Bigelow's Note to Story's
"Commentaries on the Conflict of Laws" Eighth Ed. (1883) p. 38.
202 children the issue of the marriage reside
with her parents and are supported by her parents;
that at the place in India where defendant and
the minor children reside, seven and 50/100 (7.50) Dollars per month per child
is more than adequate to support. maintain and educate a child in the best
style; and that plaintiff should be ordered to pay to defendant the sum of 7.50
per month per child for the support, maintenance and education of the aforesaid
two minor children The cause of action is stated in Para VI of the petition in
these words "That plaintiff alleges for his cause of action against
defendant that he and defendant have lived separate and apart for more than
three (3) consecutive years without cohabitation; and that there is no
possibility of a reconciliation." The relief asked for by the respondent is:
"That the bonds of matrimony now and
heretofore existing between plaintiff and defendant be forever and completely
dissolved, and that each party hereto be freed and released from all of the
responsibilities and obligations thereof and restored to the status of an
unmarried person." The judgment of the Nevada court consists of four parts
(i) The preliminary recitals; (ii)
"Findings of Fact"; (iii) "Conclusions of Law"; and (iv)
The operative portion, the Decree of Divorce" The preliminary recitals
show that the respondent appeared personally and through his attorney, that the
appellant "failed to appear or to file her answer or other responsive
pleadings within the time required by law after having been duly and regularly
served with process by publication And mailing as required by law", that
the case came on for trial on December 30, 1964 and that evidence was submitted
to the court for its decision.
The next part of the judgment, "Findings
of Fact", consists of five paragraphs which, with minor modifications, are
a verbatim reproduction of the averments contained in the respondent's petition
for divorce. The relevant portion of that petition is extracted above. The
first paragraph of this part may usefully be reproduced:
"That for more than six weeks preceding
the commencement of this action, the plaintiff was, and nowis, a bona fide
resident of and domiciled in the County of Washoe, State of Nevada with the
intent to make the State of Nevada his '-home for an indefinite period of time,
and that he has been actually, physically and corporeally present in said
county and State for more than six weeks.
The second paragraph of the part refers to
the factum of marriage between the appellant and the respondent, the third
contains the finding that 7.50 Dollars per month for each of the two minor
children was a "reasonable sum for plaintiff to pay to defendant as and
for the support, care, maintenance and education of the said minor
children", 203 the fourth recites that there was no community property to
be adjudicated by the Court and the fifth contains the findings :
"That the plaintiff and defendant have
lived separate and apart for more than three (3) consecutive years without cohabitation,
and that there is no possibility of a reconciliation between them." The
part of the Judgment headed "Conclusions of Law" consists of two
paragraphs. The first paragraph states :
"That this Court has jurisdiction over
the plaintiff and over the subject matter of this section." The second
paragraph says :
"That the plaintiff is entitled to the
relief hereinafter granted." The operative portion of the Judgment,
"Decree of Divorce" says by its first paragraph :
"That plaintiff, Teja Singh, be and he
hereby is, given and granted a final and absolute divorce from defendant, Satya
Singh on the ground of their having lived separate and apart for more than three
(3) consecutive years without cohabitation. there being no possibility of
reconciliation between them........
The second paragraph contains the provision
for the payment of maintenance to the minor children.
it is clear from the key recitals of the petition
and the judgment that the Nevada Court derived jurisdiction to entertain and
hear the divorce petition because it was alleged and held that the respondent
was "a bona fide resident of and domiciled in the County of Washoe, State
of Nevada, with the intent to make the State of Nevada his home for an
indefinite period of time".
Since we are concerned with recognition of a
divorce decree granted by an American court, a look at the American law in a
similar jurisdiction would be useful. It will serve a two-fold purpose: a
perception of principles on which foreign decrees of divorce are accorded
recognition in America and a brief acquaintance with the divorce jurisdiction
The United States of America has its own
peculiar problems of the conflict of laws arising from the co-existence of 50
States each with its own autonomous legal system. The domestic relations of
husband and wife constitute a subject reserved to the individual States and
does not belong to the United States under the American Constitution. Article
IV, section 1, of that Constitution requires that "Full Faith and Credit
shall be given in each State to the public Acts, Records, and judicial
Proceedings of every other State".
The Validity of a divorce decree passed by a
State court is in other States tested at if it were a decree granted by foreign
court. In general, a foreign decree 204 of divorce is recognised in any other
jurisdiction either on the ground, in the case of a decree of a sister State,
that the decree is entitled to full faith and credit under Article IV, Section
1, or in the case of a decree of a foreign court and in some instances a decree
of a State court, on, the ground of 'comity'.(1) The phrase "comity of
nations" which owes its origin to the theory of a Dutch jurist, John Voet,
has, however, been widely criticised as "granting to the ear, when it
proceeds from a court of justice". (2) Comity, as said by Livermore is a
matter for sovereigns, not for Judges required to decide a case according to
the rights of parties.
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. Thus, where a "mail-order divorce" granted by
a Mexican court was not based on jurisdictional finding of domicile, the decree
was held to have no extraterritorial effect in New Jersey.(1) American courts
generally abhor the collusive Mexican mail-order divorces and refuse to
recognise them.(4) Mail order divorces are obtained by correspondence by a
spouse not domiciled in Mexico. Lately, in his well-known book on divorce says
that "The facilities afforded by the Mexican courts to grant divorces to
all and sundry whatsoever their nationality or domicile have become even more
notorious than those in Reno, Nevada"(5) Recognition is denied to such
decrees as a matter of public policy.
Foreign, decrees of divorce including decrees
of sister States save been, either accorded recognition or have been treated as
invalid, depending on the circumstances of each particular case. But if a
decree of divorce is to be accorded full faith and credit in the courts of another
jurisdiction it is necessary that the court granting the decree has
jurisdiction over the proceedings. A decree of divorce is thus treated as a
conclusive adjudication of all matters in controversy except the jurisdictional
facts on which it is founded. Domicil is such a jurisdictional fact.
A. foreign divorce decree is therefore
subject to collateral attack for lack of jurisdiction even where the decree
contains the, findings or recitals of jurisdiction facts.(6) To confer
jurisdiction on the ground of plaintiff's residence and entitle the decree to
extraterritorial recognition, the residence must be actual and genuine, and
accompained by an intent to make the State his home. A mere sojourn or
temporary residence as distinguished from legal domicile is not sufficient.(7)
In Untermann v.
(1) Corpus Juris Secundum, Vol. 27B,
Paragraph 326. pp.
(2) De Nova (1964), 8 American Journal of
Legal History pp.
136, citing the American author, Livermore,
(3) State vs. Najjar, 2 N. J. 208.
(4) Langner vs. Langner, 39 N. Y. S. 2d. 9181
(5) Latey : "The Law and Practice in Divorce and Matrimonial Causes"
15th Ed. (1973) p. 461.
(6) Corpus Juris Secundum, Vol. 27B.
paragraph 335, pp.
(7) Harrison vs. Harrison, 99 L. Ed. 704.
205 Untermann,(1) a divorce decree obtained
by a husband in Mexico, after one day's residence therein, was held invalid.
A foreign decree of divorce is subject to
collateral attack for fraud or for want of jurisdiction either of the, subject
matter or of the parties provided that the attacking party is not estopped from
doing So.(2) A foreign decree of divorce, obtained by fraud is void. Fraudulent
simulation of domicile is impermissible. A spouse who goes to a State or
country other than that of the matrimonial domicile for the sole purpose of
obtaining a divorce perpetrates a found, and the judgment is not binding on the
courts of other States.(3) In regard to the divorce law in force in Nevada it
is only necessary to State that though the plaintiff in a divorce action is
required to "reside" in the State for more than six weeks immediately
preceding the petition, the requirement of residence is construed in the sense
of domicil.(4) In Lane v. Lane(5) it was held that under the Nevada law, intent
to make Nevada plaintiff's home is a necessary jurisdictional fact without
which the decreeing court is powerless to act in divorce action. Accordingly, a
husband who did not become a bona fide resident of Nevada, who continued lease
of his New Jersey apartment, who failed to transfer his accounts, who continued
his business activities in New York City, and who departed from Nevada almost
immediately after entry of divorce decree, was held never to have intended to
estabilish a fixed and permanent residence in Nevada, and, therefore any proof,
which he submitted to Nevada court in his divorce action, and on which such
finding by court of bona fide residence was based was held to constitute a
fraud on such court.(1) A survey of American law in this jurisdiction would be
incomplete without reference to a decision rendered by the American Supreme
Court in Williams v. State of North Carolina(7) the second Williams case. Mr.
Williams and Mrs.
Hendrix who were long-time residents of North
Carolina went to Nevada, stayed in an tuto court for transients, filed suits
for divorce against their respective spouses immediately after a six weeks'
stay, married one another as soon as the divorces were obtained and promptly
returned to North Carolina. They were prosecuted for bigamous cohabitation
under section 14-183 of the General Statutes of North Carolina (1943). Their
defence to the charge of bigamy was that at the time of their marriage they
were each lawfully divorced from the bond of their respective first marriages.
The question which arose on this defence was whether they were "lawfully
divorced", that is, whether the decrees of divorce passed by the Nevada
court were lawful.
Those decrees would not be lawful (1) 19 N.
(2) Cohen vs. Randall, 88 L. Ed. 480.
(3) Corpus Juris Secundum, Vol. 27B, Paragraph
361, p. 847.
(4) Cohen vs. Cohen 319 Mass. 31; Corpus
Juris Secundum, Vol. 27B, p. 799 -Footnote 29 : 'Residence', 'domicil' (5) 68
N. Y. S. 2d. 712.
(6) Idleman vs. Edelman, 161 N. Y. S. 2d 717.
(7) 89 L. Ed. 1577.
206 unless the Nevada court had jurisdiction
to pass them. The jurisdiction of the Nevada court depended on whether Mr. Williams
and Mrs. Hendrix were domiciled in Nevada at the time of the divorce
proceedings. The existence of domicil in Nevada thus became the decisive issue.
While upholding the conviction recorded in
North Carolina, Frankfurter J., speaking for the majority, said, (i) a judgment
in one State is conclusive upon the merits in every other State, only if the
court of the first State had jurisdiction to render the judgment; (ii) a decree
of divorce passed in one State can be impeached collaterally in another State
on proof that the court had no jurisdiction even when the record purports to
show that it had jurisdiction; (iii) under the American system of law.
judicial power of jurisdiction to grant. a
divorce is founded on domicile; and (iv) domicile implies a nexus between
person and place of such permanence as to control the creation of legal
relations and responsibilities of the utmost significance. The learned Judge
observed: "We conclude that North Carolina was not required to yield her
State policy because a Nevada court found that petitioners were domiciled in
Nevada when it granted them decrees of divorce. North Carolina was entitled to
find, as she did, that they did not acquire domiciles in Nevada and that the
Nevada court was therefore without power to liberate the petitioners from
amenability to the laws of North Carolina governing domestic relations."
Murphy J. in his concurring judgment said: "No justifiable purpose is
served by imparting constitutional sanctity to the efforts of petitioners to
establish a false and fictitious domicile in Nevada.... And Nevada has no
interest that we can respect in issuing divorce, decrees with extraterritorial
effect to those who are domiciled elsewhere and who secure sham domicils in
Nevada solely for divorce purposes." Those then are the principles on
which American courts grant or refuse to grant recognition to divorce decrees
passed by foreign courts which includes the courts of sister States.
Shorn of confusing refinements, a foreign
decree of divorce is denied recognition in American courts if the judgment is
without _jurisdiction or is procured by fraud or if treating it as valid would
offend against public policy. Except where the issue of jurisdiction was
litigated in the foreign action or the defendant appeared and had an
opportunity to contest it, a foreign divorce may be collaterally attacked for
lack of jurisdiction, even though jurisdictional facts are recited in the judgment.
Such recitals are not conclusive and may be contradicted by satisfactory proof.
Domicil is a jurisdictional fact. Therefore,
a foreign divorce decree may be attacked, and its invalidity shown, by proof
that plaintiff did not have, or that neither party had, a domicil or bona fide
residence in the State or country where the decree was rendered. In order to
render a foreign decree subject to a collateral attack on the ground of fraud,
the fraud in procurement of the judgment must go to the jurisdiction of the
court. It is necessary and sufficient that there was a fraudulent
representation designed and intended to mislead and resulting in damaging
deception. In America, in most of the States, the wife can have a separate
domicil for divorce and it is easy enough for anyone, man or woman, to acquire
a domicil of choice in another State.
207 The English law on the subject has grown
out of a maze of domiciliary wilderness but English courts have, by and large,
come to adopt the same criteria as the American courts for denying validity to
foreign decrees of divorce.
Recent legislative changes have weakened the
authority of some of the archaic rules of English law like the one by which the
wife's domicil follows that of the husband; a rule described by Lord Denning M.
R. in Formosa v. Formosa(1) as "the last barbarous relic of a wife's
servitude". The High Court has leaned on that rule heavily but in the view
which we are disposed to take, the rule will have riot relevance.
The wife's choice of a domicil may be fettered
by the husband's domicil but that means by a real, not a feigned domicil.
From Lolleys case(2) which is the true
starting point of the controversy, to Indyka v. Indyka(3) which is treated as
the cause celebre, the law has gone through many phases.
The period of over a century and half is
marked by a variety of views showing how true it is that there is scarcely a
doctrine of law which as regards a formal and exact statement is in a more
uncertain condition than that which relates to the question as to what effect
should be given by courts of one nation to the judgments rendered by the courts
of another nation.
Lolley's case was for long considered as
having decided that a foreign decree of divorce could not ever dissolve a
marriage celebrated in England. "Its ghost stalked the pages of the law
reports for much of the remainder of the nineteenth century before it was
finally laid.(4)" in Dolhpin v. Robbins(5) and Shaw v. Gould,(1) the House
of Lords declined to grant validity to Scots divorces as in the former case
parties were not bona fide domiciled in Scotland and in the latter, residence
in Scotland did not involve the acquisition of a Scots domicil. These were
cases of "migratory" divorces and the court applied the universalist
doctrine that questions of personal status depended, as a matter of
"universal jurisprudence", on the law of domicil.
In this climate, the decision of the Court of
Appeal in Niboyet V. Niboyet(7) came as a surprise. The majority took the view
that if the spouses actually resided in England and were not merely present
there casually or as travellers, the English courts were competent to dissolve
their marriage even though they were not actually domiciled in England.
Several Christian European Countries had by
this time adopted the test of nationality in preference to that of domicil in
matters of personal status. The dissenting Judge, Brett L. J. preferred in
Niboyet's case to stick to the domiciliary test but he perceived how a strict
application of the test would result in hardship to the deserted wife :
Le Mesurier v. Mesurier,(8) on which the
judgment of the High Court rests, is a decision of the Privy Council in an
appeal from Ceylon (1)  (3) A. E. R. 419.
(3)  (2) A. 'P. R. 689.
(2) R. vs. Lolley (1 812) 2 Cl. F. 567 n.
(4) "The Old Order Changeth-Travers vs.
Holley Reinterpreted"by P. R. B. Webb, International & ComparativeLaw
Quarterly, 1967 (Vol16), pp. 997, 1000.
(5) (1859) 7 H. L. Cas. 390.
(7) (1878) 4 P. D. 1.
(6) (1868) L. R. 3.H. L. 55.
(8)  A.C. 517 208 but it was always
treated as laying down the law for England. Observing that there was an
"obvious fallacy" in the reasoning in Niboyet's case, the Privy
Council held that although the matrimonial home of the petitioning husband was
in Ceylone, the courts of that country were disentitled from entertaining his
divorce petition because he was not, in the strict sense, domiciled there. Lord
Watson, who delivered the opinion of the Board said : "Their Lordships
have **** come to the conclusion that, according to international law, the
domicil for the time being of the married pair affords the only true test of
jurisdiction to dissolve their marriage." Later cases like the decision of
the House of Lords in Lord Advocate v. Jaffrey(1) and of the Privy Council in
Att. Gen. for Alberta v. Cook,(2) show faith in the dominance of the domicil
principle. Under the former decision the wife was incapable of acquiring a
domicil separate from her husband even if he had afforded her grounds for
divorce, while under the latter even a judicially separated wife could not
acquire a separate domicil.
These decisions caused great hardship to
deserted wives for they had to seek the husband in his domicil to obtain
against him a decree of divorce recognizable in England.
During something like a game of chess between
the judiciary and the legislature, the rigour of the rule regarding the
dominance of domicil was reduced by frequent legislative interventions.
By section 1 of the Law Reforms
(Miscellaneous Provisions) Act, 1949, English courts were given jurisdiction to
entertain proceedings for divorce by a wife even if the husband was not
domiciled in England, provided that the wife had resided in England for a
period of three years immediately preceding the commencement of the
In Travers v. Holley(3) the Court of Appeal,
drawing on this provision, accepted as valid a decree of divorce granted to the
wife by an Australian Court though the husband after acquiring a domicil in New
South Wales had reverted to his English domicil at the time of the wife's
petition. This was put on the ground that "what entitles an English court
to assume jurisdiction must be equally effective in the case of a foreign
court". Section 40(1) (a) and (b) of the Matrimonial Causes Act, 1965
confer upon a wife the right, in some circumstances, to sue for divorce in
England even if the husband is not domiciled there the time of the proceedings.
The decision in Travers v. Holley(3) was
accepted as correct by the House of Lords in Indyka V. Indyka. (4) The husband,
a Czech national married his first wife, also a Czech national, in
Czechoslovakia. He acquired an English domicil in 1946 but his wife who was
continuously residing in Czechoslovakia obtained in 1949 a decree of divorce in
that country in 1949 the husband married his second wife in England who
petitioned for divorce on the ground of cruelty.
The husband cross-petitioned for nullity
alleging that the Czech divorce would not be recognised in England since
England was the country of common (1) A. C. 146. (2)  A. C. 444.
(3)  (2) All. E. R. 794. (4)  (2) All. E. R 689.
209 domicil and the decree of the Czech Court
was therefore without jurisdiction. The House of Lords upheld the.
validity of the Czech divorce. Though the
decision in Indyka broadened the prevalent rules for recognition of foreign
decree and though a new look at the Le Mesurier doctrine was imperative in a
changed world, it is not easy on a reading of the five judgments in the Indyka
case to lay down a definitive act of rules as to when an English court will or
will not recognise a foreign decree of divorce.
Cheshire says : "One cannot turn from
Indyka v. Indyka without expressing grave concern at decisions of the House of
Lords which, though unanimous., epitomize the adage "tot hominess, quest
sententiao' Graveson observes : "Although each of the five judgments in
this case differs from the other four, none is dessenting; ....... (2) The
English Law Commission opined that "in any case a complete overhaul of the
relevant law is urgently needed since recent decisions have left it in a state
of considerable uncertainty."(3) Very recently, the extended rule in
Indyka was applied in Nessina vs. Smith(4) where a Nevada decree of divorce
obtained by the wife was granted recognition in England.
The wife was resident in the United States
for a period of six years but the domicil of the spouses, in the strict sense,
was in England. The Nevada decree was accepted as valid on the ground that the
wife had a sufficient connection with the court granting the decree and that if
the Nevada decree could be recognised as valid by the other States in America
under Article IV, Section 1 of the American Constitution, there was no
justification for the English courts to deny recognition to that decree.
English courts have thus been attempting to free the law of divorce from the
stronglehold of the Council rule.
The Recognition of Divorces and Legal
Separations Act, 1971 which came into force on January 1, 1972 has brought
about important changes in the law of England and Scotland relating to the
recognition of divorces and legal separations in the British Isles and abroad.
The Act results from the Hague Convention agreed to by most countries in 1970,
and ratifies that Convention in accordance with the terms set out in the Act.
Section 2 provides for the recognition in
Great Britain of overseas divorces and legal separations obtained or judicial
or other proceedings in any country outside the British Isles which are
effective according to the law of that country. Section 3 provides for the
validity of an overseas divorce or legal separation to be recognised if, at the
date of institution of proceedings in the country in which it was obtained,
either spouse was habitually resident in that country or either spouse was a
national of that country. In a country comprising territories in which
different systems of law are in force in matters of divorce or (1) Cheshire's
Private international Law, 8th Ed.. p. 368.
(2) "The Conflict of Laws" by
Graveson. 6th Fd., p. 324.
(3) Third Annual Report 1967-68 (Law Com. No.
15), para 57.
(4) (1971) (2) All. E. R. 1046.
5-L251Sup-CI/75 210 legal separation (e.g.
United States or Canada), the provisions of section 3 have effect as if each
territory were a separate country. Where the concept of domicil as a ground of
jurisdiction for divorce or legal separation supplies, this is to have effect
as if reference to habitual residence included a reference to domicile Under
section 5, any finding of fact made in proceedings by which a decree was
obtained and on the basis of which jurisdiction was assumed is conclusive
evidence of the fact found if both spouses took part in such proceedings, and
in any other case is sufficient proof of that fact unless the contrary is
shown. Section 6 provides that certain existing rules of recognition are, to
continue in force, so that decree obtained in the country of the spouses'
domicil or obtained elsewhere but recognised. as valid in that country or by
virtue of any Act will be recognised; "but save as aforesaid no such
divorce or legal separation shall be recognised as valid in Great Britain
except as provided in this Act".
According to the English Law Commission, the
effect of this provision would seem to preclude any further development of
judge-made rules of recognition of divorces and legal separations and further
the principles laid down in Traders vs. Halley and Indyka vs. Indyka would be
excluded By section 8(2), recognition of an overseas divorce or legal separation
may be refused if a spouse obtained it without notice of the proceedings to the
other spouse or if the "recognition would manifestly be contrary to public
We have treated the development of the
English Law of divorce prior to the passing of the Act of 1971 as we have in
India on corresponding enactment. Besides, the judgment of the High Court is
wholly founded on English decisions and the respondent's counsel also based his
argument on these decisions.
Turning to proof of fraud as a vitiating
factor, if the foreign decree was obtained by the fraud of the petitioner, then
fraud as to the merits of the petition was ignored in England, but fraud as to
the jurisdiction of the foreign court, i.e. where the petitioner had
successfully invoked the jurisdiction by misleading the foreign court as to the
jurisdictional facts, used to provide grounds for not recognizing the decree.
In Middleton vs. Middleton,(1) the husband domiciled and resident in Indiana
petitioned for divorce in Illinois. He alleged that he had been resident in
Illinois for over a year before taking the proceedings and he alleged further
that his wife had deserted him. Both of these allegations, unknown to the
Illinois court, were false. The decree was granted and when the wife petitioned
in England for a declaration as to the validity of the Illinois divorce,
evidence was given that, notwithstanding the fraud, that decree was a lawful
decree and would be recognised by the let domiciling, Indiana, Chairns, J. held
that the husband's false and fraudulent evidence as to the matrimonial offence
was not a ground for refusal to recognise the Illinois decree, but that his
fraud as to the jurisdiction of the Illinois court did justify a refusal to
recognize the decree. According to Cheshire : "it is firmly established
that a foreign judgment is impeachable for fraud in the sense (1)  1 All.
E. R., 168.
211 that upon proof of fraud it cannot be
enforced by action, in England."(1) As we have stated at the outset, these
principles of the American and English conflict of laws are not to be adopted
blindly by Indian courts. Our notions of a genuine divorce and of substantial
justice and the distinctive principles of our public policy must determine the
rules of our Private International Law. But an awareness of foreign law in a
parallel jurisdiction would be a useful guideline in determining these rules.
We are sovereign with our territory but "it is no derogation of
sovereignty to take amount of foreign law" and as said by Cardozo J. "We
are not so provincial as to say that every solution of a problem is wrong
because we deal with it otherwise at home"; and we shall not brush aside
foreign judicial processes unless doing so "would violate some fundamental
principle of justice, some prevalent conception of good morals, some deep
rooted tradition of the common weal." ( 2 ) The decree of divorce obtained
by the respondent from the Nevada court is, prima facie, a complete answer to
the appellant's claim for maintenance under section 488, Code of Criminal Procedure.
If that decree is valid the appellant's claim for maintenance, though not her
childrens' must fail, 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.
The Nevada court assumed and exercised
jurisdiction to pass the divorce decree on the basis that the respondent was a
bona fide resident of and was domiciled in Nevada. Domicil being a
jurisdictional fact, the decree is open to the collateral attack that the
respondent was not a bona fide resident of Nevada, much less was he domiciled
The recital is the judgment of the Nevada
court that the respondent was a bona fide resident of and was domiciled in
Nevada is not conclusive and can be contradicted by satisfactory proof. The
appellant did not appear in the Nevada court, was unrepresented and did not
submit to the jurisdiction of that court.
The record of the present proceeding
establishes certain important facts : The respondent left India for the United
States of America 'On January 23, 1959. He spent a year in a New York
University. He then joined the Utah State University where he studied for his
doctorate for 4 years.
In 1964, on the conclusion of his studies he
secured a job in Utah. On August 17, 1964 he wrote a letter (Ex. RW 7/1) to his
father Gian Singh from "791 North, 6 East Logan, Utah",, U.S.A.
The respondent filed his petition for divorce
in the Nevada court on November 9, 1964 and obtained a decree on December 30,
Prior to the institution of the divorce
proceedings the rest) respondent might have stayed, but never lived. in Nevada.
He made a false representation to the Nevada court that he was a, bona fide
resident of (1) Cheshire (Supra) P. 652.
(2) Loucks v. Standard Oil Co, of New York
(1918) 224 N.Y. 99 at p. 111.
212 Nevada. Having secured the divorce
decree, he left Nevada almost immediately thereafter rendering it false again
that he had "the intent to make the State of Nevada his home for an
indefinite period of time'.
The appellant filed the maintenance petition
on January 21, 1965. On November 4, 1965 the respondent applied exemption from
personal appearance in those proceedings mentioning his address as "791
North, 6 East Logan, Utah, 228, 4th, U. S.
A.". The letter dated December 13, 1965
from the Under Secretary, Ministry of External Affairs, Government of India to
one Lakhi Singh Chaudhuri, a Member of the Punjab Vidhan Sabha, shows that by
then the respondent had taken a job as Research Officer in the Department of
Forestry, Alberta, Canada. The trial court decided the maintenance proceeding
against the respondent on December 17, 1966. Early in 1967, the respondent
filed a revision application in the Sessions Court, Jullundur mentioning his
then address as "Deptt. of Forestry, Public Building, Calgary, Alberta
(Canada)". The revision was dismissed on June 15, 1968. The respondent
filed a further revision application in the High Court of Punjab & Haryana
and gave the same Canada address.
Thus, from 1960 to 1964 the respondent was
living in Utah and since 1965 he has been in Canada. It requires no great
persuasion to hold that the respondent went to Nevada as a bird-of-pasage,
resorted to the court there solely to found jurisdiction and procured a decree
of divorce on a misrepresentation that he was domiciled in Nevada. True, that
the concept of domicil is not uniform throughout the world and just as long
residence does not by itself establish domicile brief residence may not
negative it. But residence for a particular purpose fails to answer the
qualitative test for, the purpose being accomplished the residence would cease.
The residence must answer "a qualitative as well as a quantitative
test", that is, the two elements of factum et animus must concur. The
respondent went to Nevada forum-hunting, found a convenient jurisdiction which
would easily purvey a divorce to him and left it even before the, ink on his
domiciliary assertion was dry. Thus, the decree of the Nevada court lacks
jurisdiction. It can receive no recognition in our courts.
In this view, the Le Mesurier doctrine on
which the High Court drew loses its relevance. The Privy Council held in that
case that "the domicile for the time being of the married pair affords the
only true test of jurisdiction to dissolve their marriage". The High Court
assumed that the respondent was domiciled in Nevada. It then applied the old
English rule that the wife's domicile in all events, follows the domicil of the
Deducing that the appellant must also be
deemed to have been domiciled in Nevada, the High Court concluded that the
Nevada court had jurisdiction to pass the decree of divorce.
To an extent, the appellant is to blame for
her failure to put the plea of fraud in the forefront. If the fact-, referred
to by us were pointed out to the High Court, it would probably have seen the
futility 213 of relying on the rule in Le Mesurier and then in applying the
principle that the wife takes the domicil of the husband. But facts on which we
have relied to show a lack of jurisdiction in the Nevada court are mostly facts
to be found in the pleadings and documents of the respondent himself. Those
incontrovertible facts establish that Nevada was not and could not be the home,
the permanent home of the respondent. If the High Court were invited to
consider the conduct and projects of the respondent it would have perceived
that the respondent had merely simulated a domicil in Nevada. In that event,
even applying the Le Mesurier doctrine the Nevada court would have had no
jurisdiction to pass the decree of divorce.
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". Learned counsel for 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 (3) 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. In the Duchess of Kingston's Case,(':) De Grey C.J. explained the nature
of fraud in this context in reference to the judgment of a spiritual court.
That judgment, said the learned Chief Justice, though yes judicature and not
impeachable from within, might be impeachable from without. In other words,
though it was not permissible to allege that the court was
"mistaken", it was permissible to allege that the court was
"misled". The essential distinction thus was between mistake and
trickery. The appellant's contention is not directed to showing that the Nevada
court was mistaken but to showing that it was imposed upon.
Learned counsel for the respondent argued
that judgments on status ire judgments in rem, that such is the character of
Nevada judgment (1) Smith's Leading cases, (13th Ed.), 1, 644 :at P. 651 214
and therefore that judgment is binding on the whole world.
Section 41 of the Indian Evidence Act
provides, to the extent material, that a. final judgment of a competent court
in the exercise of matrimonial jurisdiction is conclusive proof that the legal
character which it confers or takes away accrued or ceased at the time declared
in the judgment for that purpose. But the judgment has to be of a
"competent Court", that is, a court having jurisdiction over the
parties and the subject matter. Even a judgment in rem is therefore open to
attack on the ground that the court which gave it had no jurisdiction to do so.
In R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Majid(1) this Court held that
"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". In fact section 44 of the Evidence
Act gives to any party to a suit or preceding the right to show that the
judgment which is relevant under section 41 "was delivered by a court not
competent to deliver it, or was obtained by fraud or collusion". It is
therefore wrong to think that judgments in rem are inviolable. Fraud, in any
case bearing on jurisdictional facts, vitiates all judicial acts whether in rem
or in personam.
Unhappily, 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
domicil. This view, it is urged for the respondent, will lead to difficulties.
It may. But "these rules of private international law are made for men and
women-not the other way round-and a nice tidy logical perfection can never be achieved".(2)
Our legislature ought to find a solution to such schizoid situations as the
British Parliament has, to a large extent, done by passing the
"Recognition of Divorces and Legal Separations Act, 1971". Perhaps,
the International Hague Convention of 1970 which contains a comprehensive
scheme for relieving the confusion caused by differing. Systems of conflict of
laws may serve as a model. But any such law, shall have to provide for the
non-recognition of foreign decrees procured by fraud bearing on jurisdictional
facts as also for the non recognition of decrees, the recognition of which
would be contrary to our public policy. Until then the courts shall have to
exercise a residual discretion to avoid flagrant injustice for, no rule of
private international law could compel a wife to submit to a decree procured by
the husband by trickery. Such decrees offend against our notions of.
In the result we allow the appeal with costs
set aside the judgment of the High Court and restore that of the trial court.
(1)  3 S.C.R. 22 at 42.
(2) Per Denovan L.J., Formosa v. Formosa . 3 All E.R.