Report No. 65
II. Reciprocity-first Meaning
12.2. Two senses of the expression of 'reciprocity'.-
This naturally brings to the forefront the aspect of "reciprocity". Now, we would like to make it clear that the expression 'reciprocity' could be used in two senses. In the first sense, it means that the same criteria of recognition should, as far as possible, be adopted, by our law in relation to the recognition of foreign decrees in matrimonial causes, as are laid down by law in respect of the exercise of matrimonial jurisdiction by our own courts.
This aspect is better described as the theory of "equivalence"1. Reciprocity, in this sense, is not concerned with the test adopted by foreign, courts in recognising our decrees, but with the test adopted by Indian courts in exercising their own jurisdiction2. This aspect, that is, the aspect of equivalence as explained above, is certainly relevant to the subject of recognition as a whole3. Our own view on the subject is that reciprocity in this sense can be legitimately taken into consideration.
1. Cf. Von Mehren and Trautman, (1968), Recognition of Foreign Divorces in 81 Harvard Law Review 1600.
2. See para. 6.4, supra.
3. See also Chapter 1, supra.
12.3. Dean Griswold's view.-
This approach was adopted in, and is illustrated by, the English case of Travers v. Holley, (1953) 2 All ER 794. Even before that decision, the approach had its supporters-e.g. Dean Griswold.1-2
For example, if the decree of the foreign Court was one dissolving the marriage between parties domiciled in the foreign country, Indian courts should recognise the dissolution as effected by the decree, irrespective of the question whether or not, the foreign court would itself recognise a decree of divorce granted in India on the basis of domicile.
1. Griswold Recognition of Foreign Divorces, (1952) 65 Harvard Law Review 193 (227).
2. For his later comment, see Griswold in (1954) 67 Harvard Law Review.
12.4. This aspect could be better described by using the terra "equivalence" as already stated1. Ordinarily, it is undesirable that recognition should be denied where the forum in which recognition is sought, itself employs a jurisdictional basis equivalent to that employed by the rendering court. The word "equivalence" is convenient in this context to connote this aspect.
1. Para. 12.2, supra.
In this sense, the principles on which our courts exercise jurisdiction, and the principles on which our courts recognise jurisdiction exercised by a foreign court, should, in justice, tally with each other, wherever practicable,-although it is not necessarily implied that at a particular moment of time the two should be identical in all respects with each other. One need not over-simplify the problem by assuming that the two policies-the policy under lying the standards for assuming jurisding and the policy underlying the standards for recognition-are identical. The policies that underlie the choice of standards for assuming jurisdiction, however, do furnish a useful starting point for recognition also.
12.6. English practice.-
One writer has pointed out1 that many British States now claim jurisdiction and purport to exercise it on substantially wider grounds than the territorial list concepts embodied in the international jurisdictional rules which are basis of the enforcement and recognition of foreign judgments at common law. It was, thus, not unnatural that some attempts were made to enforce and recognise foreign judgments rendered by courts which though not internationally competent, had, purported to exercise a jurisdiction basis which corresponded to a ground which the forum claimed. Such an extension was made in the area of recognition of foreign divorce decrees2.
1. Pryles Recognition of Foreign Judgment in (1972) 12 IJIL 30 (31, 36).
2. (a) Travers v. Holley, (1953) Probate 346; (b) Mropcines Ltt. (in re:), (1960) 1 WLR 1973.