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Report No. 65

III. Reciprocity-Second Meaning

12.7. Reciprocity in the second sense.-

We shall now come to reciprocity in the second sense. We are not in favour of adopting that as a basis, but we may state that theoretically reciprocity in the second sense means that the ground of recognition by our courts and the grounds of recognition by foreign courts, should be identical, or, in other words, our law should not compel our courts to recognise a foreign decree granted on a particular jurisdictional basis, if that particular basis is not adopted by the foreign law as a test of recognition in relation to the decrees of our courts.

Though reciprocity, in this sense, is familiar in many field of law1, we are of the view that it should not be insisted upon in the context of decrees of divorce or legal separation. It should not be overlooked that private citizens are helpless individuals, and to make the recognition of matters affecting their status dependent on the course adopted by the authorities of a foreign country would lead to injustice.

The very object of the law relating to recognition, in the present context, is to "preclude the scandal which arises when a man and women are held to be husband and wile in one country and strangers in another."2 There could be other objections to pursuing this object too zealously, and there could be need for imposing various safeguards and conditions, but reciprocity is not one of them. We think that on principle there is no rational justification for insisting on reciprocity in the second sense. However, we shall briefly discuss the views prevailing on the subject.

1. E.g. section 44A, Code of Civil Procedure, 1908.

2. Wilson v. Wilson, Law Reports 2 Probate 435 (442).

12.8. Reciprocity in the U.S.A. and Germany.-

It would be convenient to oegin with the position in the U.S.A., since the doctrine seems to have found some favour there. In the U.S.A. the doctrine that recognition will be denied unless the rendering jurisdiction would recognise an analogous judgment by the requested forum, was announced by the Supreme Court of the U.S.A. in Hilton v. Guynot, (1895) 159 US 113 (228, 229, 234) which based its decision "upon the broad ground that international law is founded upon mutuality and reciprocity." Four justices, however, dissented, stating that res judicata doctrine should apply "on the same general ground of public policy that there should be an end of litigation", and that "it is for the government, and not for its courts, to adopt the principle of retorsion, if deemed under any circumstances desirable or necessary."

In that case, the lower court had enforced a French money judgment passed in France against a U.S. citizen. The majority opinion held that:

"The comity of our nations does not require us to give conclusive effect to the judgments of the courts of France" and this was "in view of want of reciprocity on the part of France, as to the effect to be given to the judgment, of this and other foreign countries."

The same rule seems to be adopted in German law for most classes of cases1.

1. See Von Mehren and Trautman Recognition of Foreign Divorce, (1968) Harvard Law Review 1600, 1660, 1661.

12.9. Criticism in U.S.A.-

In both countries (U.S.A. and Germany), however, there is considerable disagreement in academic circles about the extent of the rule1. Scholars in the U.S.A. in general oppose such a requirement, because-(i) it arbitrarily penalizes private individuals for positions taken by foreign governments, and because (ii) such a rule has little, if any, constructive effect, but tends, instead, to a general breakdown of recognition practice2.

1. See:

(a) Reese The Status in this Country of Judgments. Rendered Abroad, (1950) 50 Col. Law Review 783, 792 (rule applies only when the American party was the defendant abroad, and lost);

(b) Nadelmann Non-Recognition of American Money Judgments Abroad and What To Do About It, (1957) 42 Iowa. L. Rev. 236, 249-55,

2. (a) See, e.g, Ehrenzweig Conflict of Laws, (1952), pp. 46, 166;

(b) Nadelmann Reprisals Against American Judgments, (1952), 65 Harvard Law Review 1184, 1185-91;

(c) Goodrich Conflict of Laws, p. 392.

12.10. Doctrine not adopted in some States in U.S.A.-

In any case, the doctrine has not been followed in several American jurisdictions notably, New York1, Georgia2-3 and California4. Moreover, it is important to point out that even where it is followed, it is not applied to judgments in rem.

1. (a) Johnston v. Compaigne Generale Transarlanlique, (1926) 242 NY 331: 152 NS 121, cited by Von Mehren and Trautman Recognition etc., (1968) 81 Harvard Law Review 1600 (1660, 1661);

(b) Cowans v. Ticondertoge Pulp & Paper Co., (1927) 219 App Div 120: 219 NY Supp 284, Aff'd 246 NY 603: 159 NE 669.

2. (a) Truscon Steel Co. Ltd. v. Bieglar, (1948) NE 2d 623; (b) Goulborn v. Joseph, (1943) 195 Ga 725: 25 SE 2d 576.

3. See Pryles Recognition of foreign judgments etc., (1972), 12 IJIL 30 (31).

4. Ehrenzweig Conflict of Laws, (1962), p. 165, para. 46, and p. 163, footnote 25.

12.11. Position in England and France.-

It may also be stated that no reciprocity requirement is imposed in relation to the recognition of foreign divorces by-

(a) England1 or

(b) France2.

Even before the law was placed on a statutory footing by the English Act of 1971, the House of Lords, in the case of Indyka v. Indyka, 1967 All ER 689, stated that "considerations of policy" rather than the principle of "reciprocity" were relevant in this regard.

1. English Act of 1971.

2. Nadelmann Recognition of Foreign Money Judgments in France, (1956) 5 Am. J. Comp. L. 248 (251).

12.12. Conclusion.-

Having considered all aspects of the matter, we have come to the conclusion that reciprocity in the second sense1 should not be insisted upon in the present context. We are, accordingly, making our recommendations without any restriction or qualification in this regard, and our recommendations should apply whether the foreign country does or does not recognise our decrees on jurisdictional bases similar to those proposed in the law recommended by us.

1. Pam. 12.2, supra.

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