Report No. 65
So far, we have discussed the question of recognition of the principal adjudication as to divorce or legal separation. It is well-known that, in almost every country, when a court orders the dissolution of marriage under a legislative enactment, the enactment contains provisions empowering the court to pass orders for maintenance, custody of children, alimony and similar matters. For the sake of convenience, we may refer to these orders as 'ancillary orders'-an expression frequently used1 in the literature on the subject. In this Chapter, we shall discuss the question, how far ancillary orders passed in matrimonial proceedings by foreign courts should be recognised.
1. E.g., see para. 19.2, infra.
The jurisdiction to pass ancillary orders in matrimonial causes has an interesting history, According to common law, the spouses were bound to live together, but, in certain circumstances, a decree of divorce a mensa at thoro could be passed by ecclesiastical courts. A learned writer has stated1 the position in these words-
"Where the decree was pronounced at the suit of the wife, the mere permission to live separate would not give her adequate relief. By the mere fact of the marriage the whole of her property passed under the control of her husband, and she could not live apart from him unless provided with the means to live. The court, therefore, would pronounce in her favour a decree for alimony as ancillary to the decree for separation."
1. J.L. Barton Enforcement of Financial Provisions, in Graveson (Ed)-A Century of Family Law, pp. 352, 353.
19.3. Question to be considered.-
This is the germ from which modern jurisdiction to pass ancillary orders is derived. The precise question to be considered on the subject is, whether such orders passed by foreign courts should be recognised in India. For reasons which we shall indicate in detail later1, we are of the view that there should be no automatic recognition of ancillary orders passed by a foreign court, even where the grant of divorce, in consequence of which the ancillary order is passed, is required to be recognised under the proposed law.
1. Paras. 19.10 and 19.11, infra.
19.3A. Findings of fault.-
Findings of fault also need not be recognised. The finding of a court regarding fault is, of course, different from an ancillary order. But, apart from certain other aspects which will be mentioned later1, it may be stated that there is no real illogicality in not recognising such finding, because non-recognition of the finding does not affect recognition of the divorce or legal separation. It may also be stated that if the finding of fault is made conclusive, injustice may sometimes arise-for example, where the proceedings in the foreign court were ex parte.
Apart from this consideration, the theoretical justification for not recognising the finding of fault is that what the law should recognise is the effect of the determination by the foreign court on status, it being the general policy of the law that in the absence of certain special circumstances, persons who are divorced in one country should not be regarded as married in another country. This policy of the law is satisfied by recognising the decree in so far as it dissolves the marriage, and there is no compelling necessity further to recognise the finding of fault also.
1. Paras. 19.4 and 19.11, infra.