Report No. 65
IX. Connected Matters
1.35. Recognition of foreign decree and jurisdiction of foreign courts.-
It may, in this context, be of importance to point out that the problem of recognition of foreign judgments is, to some extent, connected with the problem of the jurisdiction of foreign courts. In order that the forum in India may recognise the foreign judgment, it is relevant to consider the question whether the foreign judgment was pronounced by a court having jurisdiction in the international sense-to borrow the words of Wright, J.1-"in such a sense that in conformity with general jurisprudence and ordinary international law and usage the courts of other States will regard its judgments as binding."
1. Turnball v. Walker, (1912) 69 Times Law Reports 767 (Wright, J.).
1.35A. Aspect of reciprocity.-
There is another aspect of the matter. If our courts insist that the foreign judgment should be in conformity with general jurisprudence and ordinary international law and usage in order that we may regard the foreign judgment as leading our own courts should, broadly speaking, also exercise jurisdiction on a ground in conformity with general jurisprudence and ordinary international law. We shall revert to this aspect later .1
1. See Chapter 12, infra (Reciprocity).
1.36. Relevance of discussion of principle on which Indian courts exercise jurisdiction.-
These comments are made at this stage, in order to show how it is not irrelevant to discuss the principles on which, under Indian legislation, Indian courts are regarded as competent to exercise jurisdiction in respect of the grant of divorce or judicial separation. Though the rules belonging to the domain of conflict of laws originate in municipal law, their function is international.
1.37. Expression "legal separation"-why used.-
We may, before closing this Chapter, make it clear that though the expression used in Indian legislation dealing with matrimonial relief is "judicial separation", we are using the expression "legal separation" in this Report, first, because that expression is frequently used outside India, and secondly, because "legal separation" is a term which will cover separation by mutual agreement also.