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Report No. 65

Recognition of Foreign Divorces

Chapter I Introduction
I. Scope of the Report
II. Legislative Device to be Adopted
III. General Approach
IV. Nature of Rules as to Conflict of Laws
V. Problem of Recognition of Foreign Judgments
VI. Some Aspects of Recognition
VII. Nature of Proceedings and Theories of Recognition
VIII. History
IX. Connected Matters
Chapter 2 Heads of Recognition Domicile-Nationality-Residence
I. Introductory
II. Domicile-The General Concept
III. Domicile and Matrimonial Jurisdiction
IV. Nationality
V. Nationality-History
VI. Residence
VII. Ordinary Residence
VIII. Habitual Residence
Chapter 3 Law Applied by Courts
I. Introductory
II. Choice of Law-General Aspects
III. Indian Law
VI. English Law
V. Position in U.S.A.
VI. Other Systems
VII. Hague Convention
VIII. Rationale
IX. Conclusion
Chapter 4 Indian Law as to Recognition of Foreign Judgments
I. Introductory
II. Section 13, Code of Civil Procedure, 1908
III. Evidence Act
IV. Matrimonial Legislation
V. Rules Applied by Courts
Chapter 5 Indian Law as to Jurisdiction under Enactments other than' the Indian Divorce Act
I. Introductory
II. Parsi Marriage Act
III. Special Marriage Act
IV. Hindu Marriage Act
Chapter 6 Jurisdiction under Indian Divorce Act, 1869
I. Introductory
II. Position Before 1926
III. Position After 1926
IV. Meaning of 'Domicile' Under The Divorce Act
Chapter 7 English Common Law as to Recognition
Scope of the Chapter
Chronological developments-Domicile
Lolley's case and subsequent decisions upto Shaw v. Gould
Niboyet v. Niboyet (test of actual residence)
Le Mesurier v. Le Mesurier
Factors not affecting validity of decree
Decree recognisables by court of domicile
Ground of jurisdiction immaterial
Result summary
Real and substantial connection
Restrictions on recognition
Chapter 8 Extra-Judicial Divorces
I. Introductory
II. Classes of Extra-Judicial Divorces
III. English Law Before 1971
IV. Act of 1971
V. 1973 Act
VI. Uncertainty Under 1971 Act
VII. Recommendation
Chapter 9 The Hague Convention
Obligation to recognize-habitual residence and nationality
Chapter 10 English Act of 1971 as to Recognition
I. Introductory
II. Main Provisions
III. Existing Grounds-Domicile
IV. Miscellaneous
Chapter 11 English Law as to Jurisdiction and the Act of 1973
Scope of the Chapter
The era before Le Mesurier
The doctrine of Le Mesurier
The case of Niboyet
Domicile test traced to American law
Developments after Le Mesurier-Act of 1937-Deserted wives
Act of 1944-War marriages
Position before 1973-summed up
Act of 1973
Old grounds abolished
Chapter 12 Reciprocity
I. Introductory
II. Reciprocity-first Meaning
III. Reciprocity-Second Meaning
Chapter 13 Recommendations as to Existing Grounds for Recognition
Divorce granted in country of domicile
Recognition as valid in the country in the country of domicile
Recognition by virtue of any other enactmen
Non-recognition by a third country not a bar to divorce
Chapter 14 Recommendations as to New Grounds of Recognition
I. Introductory
II. Domicile-defects
III. Habitual Residence
IV. Nationality
V. Whether both Parties Should Satisfy the Test
VI. Recommendation
Chapter 15 Domicile and Nationality of the wife
I. Domicile
II. Nationality-general Discussions
III. Nationality-English Law
IV. Nationality-Indian Law
V. Recommendation
Chapter 16 Exceptions to Recognition-Notice and Opportunity
Grounds of attack on judgment
Cases where exception needed
No subsisting marriage
Certain special situations illustrating the absence of a valid marriage after divorce valid under proposed Act
Breach of natural justice
Chapter 17 Public Policy
I. Introductory
II. American Cases on Public Policy in Conflict of Laws
III. Conflict of Laws-Public Policy on the Continent
IV. French Law
V. Common Law
VI. Statutory Provision in England
VII. Conclusion
Chapter 18 Fraud
I. Introductory
II. Indian Law
III. English Law
IV. Fraud, Public Policy and Natural Justice
V. Conclusion
Chapter 19 Ancillary Orders
I. Introductory
II. Provision in English Act as to Non-Recognition of Ancillary Order
III. American Decisions
IV. Divisible Divorce
V. Need for Provision for Ancillary Orders
VI. Provisions in Various Acts as to Maintenance and Custody
VII. English Case of Torok
VIII. Recommendations
Chapter 20 Orders for Custody Variation by the Matrimonial Court
I. Introductory
II. Present Law
III. Variety of Disputes
IV. Powers of The Matrimonial Court
V. Conclusion
Chapter 21 Modification of Section 13, Code of Civil Procedure and Section 41, Evidence Act
Chapter 22 Recommendations
Appendix I The Recognition of Divorces and Legal Separation Bill, 1976
1. Short title, extent and commencement
2. Definition
3. Recognition of foreign divorces and legal separations
4. Grounds of recognition
5,6. Cross-proceedings and separation converted into divorce
7. Recognition of the ground of domicile
8. Re-marriage
9,10. No subsisting marriage
11. Modification of application of certain provisions in relation to certain decrees
12. Ancillary orders
13. Domicile and nationality of wife
Appendix 2 Letter from the Minister of Law, Justice and Company Affairs

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