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Report No. 65

Chapter 18


I. Introductory

18.1. Introductory.-

Fraud as a ground of non-recognition of decrees of divorce and legal separation appears to be a topic having an importance of its own. The importance of a consideration of the matter in the context of recognition of foreign decrees of divorce is obvious. On the one hand, confidence must be placed in the judicial process of other countries, and too frequent a departure from the general rule could mean creating limping marriages. On the other hand, there are special circumstances which should be taken note of. That is the broad consideration which underlies the exception for fraud.

18.2. Two types of fraud.-

We may mention that there are two categories of fraud-(i) fraud as to the merits of the case, and (ii) fraud as to the jurisdiction of the Court. In general, fraud of the first category is not taken into account by the courts in India when exercising the power preserved by specific statutory provision1 in relation to questioning the validity of a foreign judgment in particular, or judgments in general. In the field of matrimonial law also, the cases more frequently relate to the second category of fraud.

In the U.S.A., it is stated that courts will consider only that fraud which deprives a court of jurisdiction, such as service of process obtained by fraud. Fraud, which may give rise to equitable relief (often called extrinsic fraud) does not deprive a court of jurisdiction. It is, therefore, stated2 that the real basis for the attack on a judgment is want of jurisdiction, the fraud only being a cause therefore. We need not express an opinion on this view. In any case, if this view is correct, it reinforces the need for recognising fraud as a ground of attack.

1. Section 13, Code of Civil Procedure and section 41, Evidence Act.

2. See (a) Note Foreign Judgments and res judicata" (1928) 41 Harvard Law Review 1955, and (b) "Developments-res judicata" (1952) 65 Harvard Law Review 818 (851).

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