Holding

A foreign divorce decree is not enforceable in India when the foreign court lacked jurisdiction and the decree is based on a ground not recognised under the applicable personal law, and a photostat copy of the judgment is inadmissible without a certificate under Section 86 of the Evidence Act.

Summary

The first appellant, married under Hindu law, obtained a divorce decree from a Missouri court on the ground of "irretrievable breakdown" after claiming a 90‑day residence in Missouri, while the parties had actually last lived together in Louisiana. The respondent contested the decree, arguing lack of jurisdiction and that the ground was not recognised under the Hindu Marriage Act. The Supreme Court examined whether the foreign decree could be enforced in India, applying Section 13 of the CPC, Section 19 of the Hindu Marriage Act, and the Indian Evidence Act. It held that the Missouri court lacked jurisdiction because neither the marriage, the last co‑residence, nor the respondent were within its territorial reach, and the ground of irretrievable breakdown is not a statutory ground under the Act. Consequently, the foreign decree is unenforceable. The Court also ruled that a photostat copy of the foreign judgment is inadmissible without a certificate under Section 86 of the Evidence Act. The appeal was dismissed and the magistrate was directed to dispose of the bigamy charge afresh.

Issues considered

The foreign divorce decree's enforceability under the Hindu Marriage Act, 1955.
Whether the Missouri court had jurisdiction under Section 19 of the Hindu Marriage Act.
Whether the ground of "irretrievable breakdown" is a permissible ground for divorce under the Act.
Whether a foreign judgment is conclusive under Section 13 of the CPC when jurisdiction or ground is improper.
Admissibility of a photostat copy of a foreign judgment under the Indian Evidence Act, particularly Sections 63, 65, 74, 76, 77 and 86.

Legislation cited

Code of Civil Procedures. 14
Code of Civil Procedure, 1908s. 13
Hindu Marriage Act, 1955s. 19
Indian Evidence Act, 1872s. 41, s. 63(1)(2), s. 65(e)(f), s. 74(1)(iii), s. 76, s. 77, s. 86

Subjects

foreign judgment recognitionHindu Marriage Actjurisdictionirretrievable breakdownprivate international lawevidence admissibilityphotostat copybigamySection 13 CPCSection 86 Evidence Act

Judgment

Y. NARASIMHA RAO AND ORS. A
v.
Y. VENKATA LAKSHMI AND ANR.

JULY 9, 1991

[RANGANATH MISRA, CJ AND P.B. SAWANT, JJ.) B

Hindu Marriage Act, 1955: Section 19. Dissolution of marriage
-Court .to which petition should be presented-Parties marrying in
India under Hindu Law-Husband's petition for dissolution of mar-
riage in Foreign Court--Fraud-Incorrect representation of jurisdic-
tional facts-Husband neither domiciled nor had intention to make the C
foreign state his home but only technically satisfying the requirement of
residence of 90 days for the purpose of obtaining divorce-Divorce
decree by foregin court on a ground not available under the 1955 Act-
Enforceability of.

Civil Procedure Code, 1908: Section 13. Matrimonial dispute- D
Foreign judgment-When not conclusive.

Clause (a)-"Court of competent jurisdiction ..-Which is.

Clause (b )-Ju_dgment on merits-What is.
E
Clause (c)-Judgment founded on a ground not recognised by
Law of India-Effect of.

Clause (d)-Judgment obtained in proceedings opposed to princi-
'r pies of natural justice-Effect of-Principles of natural justice-Scope
ef F

Clause (e)-'Fraud'-Scope of-Judgment obtained by fraud-
Effectof.

Clause (/)-Judgment founded on a breach of law in force in
India-Effect of. G

Section 14--Presumption as to foreign judgments-Expression
"Certified copy of a foreign judgment"-Should be read consistent with
requirement of Section 86 of Indian Evidence Act.

Indian Evidence Act, 1872. Section 41-"Competent court"- H
Which i_s.
821
822 SUPREME COURT REPORTS [1991] 2 S.C.R.

A Section, 63( 1)(2), 65(e)(f), 74(J)(iii), 76, 77 and 86. Foreign
judgment-Photostat copy-Admissibility of.

Private International Law-Matrimonial dispute-RecognitiOIJ of
foreign ju.dgment-Rules for recognition of foreign matrimonial judg-
ment laid down-Hague convention of 1968 on the recognition of
B divorce and legal separations-Article JO-Judgment Convention of the
European Community.

Words and phrases "Residence-Meaning of'.

The first appellant and the first respondent were married at
Tirupati on 27.2.1975 according to Hindu Law. They separated in July
C 1978. The appellant-husband filed a petition for dissolution of the mar-
riage in the Sub-Court of Tirupati stating that he was a resident of
South Claiborn Avenue, New Orleans, Louisiana, and that he was a
citizen of India and that he and his wife last resided together at New
Orleans, Louisiana. Subsequently he filed another petition for dissolu-
D tiou of marriage in the Circuit Court of St. Louis County, Missouri,
USA alleging that he has been a resident of the State of Missouri for 90 ~-

days or more immediately preceeding the filing of the petition and that
his wife had deserted him for one year or more next preceding the filing
of the petition by refusing to continue to live with the appellant in the
US and particularly in the State of Missouri. But from the averments
E made by him in the petition before the Sub-Judge, Tirupati it was
obvious that he and his wife had last resided together at New Orleans,
Louisiana and never within the jurisdiction of the Circuit Court of St.
Louis County in the State of Missouri.

The respondent-wife filed her reply raising her objections to the
F maintainability of the petition. She also clearly stated that her reply was
without prejudice to her contention that she was not submitting to the.
jurisdiction of the foreign court.

The Circuit Court Missouri assumed jurisdiction on the ground
that the 1st Appellant had been a resident of the State of Missouri for 90
G , ~ays next preceding the commencement of the action in the Court. In
the absence of the respondent-wife the Circuit Court, Missouri passed a
..decree for dissolution of marriage on the only ground that the marriage
has irretrievably broken down. Subsequent to the passing of the decree
by the Circuit Court, Missouri, the appellant filed an application for
l,lil!lissal of his earlier petition before the Sub-Court of Tirupati and the
H same was dismissed.
Y. NARASIMHA RAO v. Y. VENKATA LAKSHMI 823

On 2nd November 1981 the lst appellant married appellant No. 2. A
Thereafter, the 1st-respondent filed a criminal complaint against the
appellants for the offence of bigamy. The appellants filed an application
" for their discharge in view of the decree for dissolution of marriage
passed by tbe Circuit Court, Missouri. The Magistrate discharged the
appellants by holding that the complainant-wife had failed to make out
a prima facie case against the appellants. The respondent preferred a B
Criminal Revision Petition before the High Court which set aside the
order of the Magistrate by holding (i) that a photostat copy of the
judgment of Missouri Court was not admissible in evidence; (ii) since
,,, the Learned Magistrate acted on the photostat copy of the judgment, he
was in error in discharging the accused. Accordingly the High Court
directed the Magistrate to dispose of the petition filed by the appellants
for their discharge afresh in accordance with law. Aggrieved by the
c
decision of the High Court the appellants filed appeal in this Court.

Dismissing the appeal, this Court,

HELD: l. The decree dissolving the marriage passed by the D
·~ foreign court is without jurisdiction according to the Hindu Marriage
Act as neither the marriage was celebrated nor the parties last resided
•
together nor the respondent resided within the jurisdiction of that
Court. Further, irretrievable breakdown of marriage is not one of the
grounds recoginsed by the Act for dissolution of marriage. Hence, the
decree of divorce passed by the foreign court was on a ground unavail- E
able under the Act which is applicable to the marriage. Since with
regard to the jurisdiction of the forum as well as the ground on which it
)' is passed the foreign decree in the present case is not in accordance with
' the Act under which the parties were married, and the respondent had
not submitted to the jurisdiction of the court or consented to its passing,
it cannot be recognised by the courts in this country and is therefore, F
unenforceable. [828H, 829A, 828E, 834H, 835A]

2. Residence does not mean a temporary residence for the
purpose of obtaining a divorce but habitual residence or residence
_., which is intended to be permanent for future as well. [829E]
G
Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971, referred to.

3. The rules of Private International Law in this country are not
codified and are scattered in different enactments such as the Civil
Procedure Code, the Contract Act, the Indian Succession Act, the
Indian Divorce Act, the Special Marriage Act etc. In addition, some H
824 SUPREME COURT REPORTS [1991] 2 S.C.R.

A rules have also been evolved by judicial decisions. In matters of status
or legal capacity of natural persons, matrimonial disputes, custody of
children, adoption, testamentary and intestate succession etc. the pro-
blem in this country is complicated by the fact that there exist different
personal laws and no uniform rule can be laid down for all citizens.
Today more than ever in the past, the need for definitive rules for
B
recognition of foreign judgments in personal and family matters, and
particularly in matrimonial disputes has surged to the surface. A large
number of foreign decrees in matrimonial matters is becoming the
order of the day. A time has, therefore, come to ensure certainty in the
recognition of the foreign judgments in these matters. The minimum
rules of guidance for securing the certainty need not await legislative
c initiative. This Court can accomplish the modest job within the frame-
work of the present statutory provisions if · they are rationally
interpreted and extended to achieve the purpose. Though the proposed
rules of guidance in this area may prove inadequate or miss some aspects
which may not be present to us at this juncture, yet a beginning has to
be made as best as one can, the lacunae and the errors being left to be
0
filled in and corrected by future judgments. 't829H, 830A, 831C, F-H)

4. The relevant provisions of Section 13 of the CPC are capable of
being interpreted to secure the required certainty in the sphere of this
branch of law in conformity with public policy, justice, equity and good
E conscience, and the rules so evolved will protect the sanctity of the
institution of marriage and the unity of family which are the comer
stones of our societal life. [832A]

4.1 On an analysis and interpretation of Section 13 of CPC the
following rule can be deduced for recognising a foreign matrimonial
judgment in this country. The jurisdiction assumed by the foreign court
F as well as the grounds on which the relief is granted must be in accor-
dance with the matrimonial law under which the parties are married.
The exceptions to this rule may be as follows; (i) where the matrimonial
action is filed in the forum where the respondent is domiciled or habltu·
ally and permanently resides and the relief is granted on a ground
available in the matrimonial law under which the parties are married;
G (ii) where the respondent voluntarily and effectively submits to the
jurisdiction of the forum and contests the claim which is based on a
ground available under the matrimonial law under which the parties
are married; (iii) where the respondent consents to the grant of the
relief although the jurisdiction of the forum is not in accordance with
H the provisions of the matrimoniallaw of the parties. [834B-D]
Y. NARASIMHA RAO v. Y. VENKATA LAKSHMI [SAWANT, J.] 825

5. The High Court erred in setting aside the .order of the learned A
Magistrate only on the ground that the photostat copy of the decree was
not admissible in evidence. In the instant case photostat copies of the
judicial ·record of the Court of St. Louis is certified for the Circuit Clerk
by the Deputy clerk who is a public officer having the custody of the
document within the meaning of Section 76 of the Indian Evidence Act
B
also in the manner required by the provisions of the said section.
Hence the photostat copy per se is not inadmissible in evidence. It is
inadmissible because it has not further been certified by the representa-
tive of our Central Government in the United States as required by
Section 86 of the Act. Therefore the document is not admissible in
evidence for want of the certificate under Section 86 of the Act and
not because it is a photostat copy of the original as held by the High c
Court. [835B, E, F-G]

6. The Magistrate is directed to proceed with the matter pending
before him according to law as expeditiously as possible, preferably
within four months. (835G]
D
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 385 of 1991.

From the Judgment and Order dated 18.4.1988 of the Andhra
Pradesh High Court in Cr!. Revision Petition No. 41 of 1987.
E
M.C. Bhandare and Ms. C.K. Sucharita for the Appellants.

C.N. Sreekumar and G. Prabhakar (for the State) for the
Respondents.
F
The Judgment of the Court was delivered by

SAW ANT, J. Leave is granted. Appeal is taken on board for
final hearing by consent of parties.

The 1st appellant and the 1st respondent were married at Tiru- G
pati on February 27, 1975. They separated in July 1978. The 1st appel-
lant filed a petition for dissolution of marriage in the Circuit Court of
St. Louis County Missouri, USA. The 1st respondent sent her reply
from here under protest. The Circuit Court passed a decree for dis-
solution of marriage on February 19, 1980 in the absence of the Ist
respondent. H
826 SUPREME COURT REPORTS [19911 2 S.C.R.

A 2. The 1st appellant had earlier filed a petition for dissolution of
marriage in the sub-Court of Tirupati being O.P. No. 87/76. In that
petition, the 1st appellant filed an application for dismissing the same
as not pressed in view of the decree passed by the Missouri Court. On
August 14, 1991 the learned sub-Judge of Tirupati dismissed the
petitiO!l.
B
3. On November 2, 1981, the 1st appellant married the 2nd
appellant in Yadgirigutta. Hence, 1st respondent filed a criminal com-
plaint against the appellants for the offence of bigamy. It is not neces-
sary to refer to the details of the proceedings in the said complaint.
Suffice it to say that in that complaint, the appellants filed an applica-
tion for their discharge in view of the decree for dissolution of mar-
c riage passed by the Missouri Court. By his judgment of October 21,
1986, the learned Magistrate discharged the appellants holding that
the complainant, i.e., the 1st respondent had failed to make out a
prima facie case against the appellants. Against the said decision, the
!st respondent preferred a Criminal Revision Petition to the High
D Court and the High Court by the impugned decision of April 18, 1987
set aside the order of the Magistrate holding that a photostat copy of
the judgment of the Missouri Court was not admissible in evidence to
prove the dissolution of marriage. The Court further held that since
the learned Magistrate acted on the photostat copy, he was in error in
discharging the accused and directed the Magistrate to dispose of the
E petition filed by the accused, i.e., appellants herein for their dis-
charge, afresh in accordance with law. It is aggrieved by this decision
that the present appeal is filed.

· 4. It is necessary to note certain facts relating to the decree of
dissolution of marriage passed by the Circuit Court of St. Louis
F County Missouri, USA. In the first instance, the Court assumed
jurisdiction over the matter on the ground that the 1st appellant had
been a resident of the State of Missouri for 90 days next preceding the
commencement of the action and that petition in that Court. Secondly,
the decree has been passed on the only ground that there remains no
reasonable likelihood that the marriage between the parties can be
G preserved, and that the marriage is, therefore, irretrievably broken".
Thirdly, the 1st respor.dent had not submitted to the jurisdiction of the
Court. From the record, it appears that to the petition she had filed
two replies of the same date. Both are indentical in nature except that
one of the replies begins with an additional averment as follows:
"without prejudice to the contention that this respondent is not sub-
H mitting to the jurisdiction of this hon'ble court, this respondent sub-
{
\
Y. NARASIMHA RAO v. Y. VENKATA LAKSHMI [SAWANT, J.] 827

mits as follows". She had also stated in the replies, among· other
things, that (i) the petition was not maintainable, (ii) she was not A
aware if the first appellant had been living in the State of Missouri for
more than 90 days and that he was entitled to file the petition before
the Court, (iii) the parties were Hindus and governed by Hindu Law
and they were married at Tirupati in India according to Hindu Law,
(iv) she was an Indian citizen and was not governed by laws in force in B
the State of Missouri and, therefore, the Court had no jurisdiction to
entertain the petition, (v) the dissolution of the marriage between the
parties was governed by the Hindu Marriage Act and that it could not
be dissolved in any other way except as provided under the said Act,
(vi) the Court had no jurisdiction to enforce the foreign laws and none
of the grounds pleaded in the petition was sufficient to grant any
divorce under the Hindu Marriage Act. c

Fourthly, ii is not disputed that the Ist respondent was neither
present nor represented in the Court and the Court passed the decree
in her absence. In fact, the Court has in terms observed that it had no
jurisdiction· "in personam" over the respondent or minor child which D
was born out of the wed-lock and both of them had domiciled in India.
Fifthly, in the petition which was filed by the Ist appellant in that
Court on October 6, 1980, besides alleging that he had been a resident
of the State of Missouri for 90 days or more immediately preceding the
filing of the petition and he was then residing at 23rd Timber View
Road, Kukwapood, in the County of St. Louis, Missouri, he had also E
alleged that the Ist respondent had deserted him for one year or more
next preceding the filing of the petition by refusal to continue to live
with the appellant in the United States and particularly in the State of
Missouri. On the other hand, the averments made by him in his peti-
tion filed in the court of the Subordinate Judge, Tirupati in 1978 shows
that he was a resident of Apartment No. 414, 6440, South Claiborn F
Avenue, New Orleans, Louisiana, United States and that he was-a
citizen of India. He had given for the service of all notices and pro-
cesses in the petition, the address of his counsel Shri PR Ramachandra
Rao, Advocate, 16-11-1/3, Malakpet, Hyderabad-500 036. Even
according to his averments in the said petition, the Ist respondent had
resided with him at Kuppanapudi for about 4 to 5 months after the G
marriage. Thereafter she had gone to her parental house at Relangi,
Tanuka Taluk, West Godavari District. He was, thereafter, sponsored by his
friend Prasad for a placement in the medical service in the United
States and had first obtained employment in Chicago arid thereafter in
Oak Forest and Greenville Springs and ultimately in the Charity
Hospital in Louisiana at New Orleans where he continued to be emp- H
828 SUPREME COURT REPORTS [1991] 2 S.C.R.

A toyed. Again according to the averments in the said petition, when the
Ist respondent joined him in the United States, both of them had
stayed together as husband and wife at New Orleans. The Ist respon-
dent left his residence in New Orleans and went first to Jackson, Texas
and, thereafter, to Chicago to stay at the residence of his friend,
Prasad. Thereafter she left Chicago for India. Thus it is obvious from
B these averments in the petition that both the !st respondent and the Ist
petitioner had last resided together at New Orleans, Louisiana and
never within the jurisdiction of the Circuit Court of St. Louis County
in the State of Missouri. The averments to that effect in the petition
filed before the St. Louis Court are obviously incorrect.

5. Under the provisions of the Hindu Marriage Act, 1955
C (hereinafter referred to as the "Act") only the District Court within
the local limits of whose original civil jurisdiction (i) the marriage was
solemnized, or (ii) the respondent, at the time of the presentation of
the petition resides,. or (iii) the parties to the marriage last resided
together, or (iv) the petitioner is residing at the time of the presenta-
D tion of the petition, in a case where the respondent is, at the time,
residing outside the territories to which the Act extends, or has not
been heard of as being alive for a period of seven years or more by
those persons who would naturally have heard of him if he were alive,
has jurisdiction to entertain the petition. The Circuit Court of St.
Louis County, Missouri had, therefore, no jurisdiction to entertain the
E petition according to the Act under which admittedly the parties were
married. Secondly, irretrievable breakdown of marriage is not one of
the grounds recognised by the Act for dissolution of marriage. Hence,
the decree of divorce passed by the foreign court was on a ground
unavailable under the Act. '"{

F 6. Under Section 13 of the Code of Civil Procedure 1908
(hereinafter referred to as the "Code"), a foreign judgment is not
conclusive as to any matter thereby directly adjudicated upon between
the parties if (a) it has not been pronounced by a Court of competent
jurisdiction; (b) it has not been given on the merits of the case; (c) it is
founded on an incorrect view of international law or a refusal to recog-
G. nize the law of India in cases in which such law is applicable; (d) the
proceedings are opposed to natural justice, (e) it is obtained by fraud,
(f) it sustains a claim founded on a breach of any law in force in India.

7. As pointed out above, the present decree dissolving the mar-
riage passed by the foreign court is without jurisdiction according to
H the Act as neither the marriage was celebrated nor the parties last
Y. NARASIMHA RAO v. Y. VENKATA LAKSHMI [SAWANT, J.] 829

resided together nor the respondent resided within the jurisdiction of
A
that Court. The decree is also passed on a ground which is not avail-
able under the Act which is applicable to the marriage. What is
further, the decree has been obtained by the Ist appellant by stating
that he was the resident of the Missouri State when the record shows
that he was only a bird of passage there and was ordinarily a resident of
the State of Lousiana. He had, if at all, only technically satisfied the B
requirement of residence of ninety days with the only purpose of ob-
taining the divorce. He was neither domiciled in that State nor had he
an intention to make it his home. He had also no substantial connec-
tion with the forum. The lst appellant has further brought no rules on
record under which the St. Louis Court could assume jurisdiction over
the matter. On the contrary, as pointed out earlier, he has in his
petition made a false averment that the Ist respondent had refused to
c
continue to stay with him in the State of Missouri where she had never
been. In the absence of the rules of jurisdiction of that court, we are
not aware whether the residence of the Ist respondent within the State
of Missouri was necessary to confer jurisdiction on that court, and if
not, of the reasons for making the said averment. D

8. Relying on a decision of this Court in Smt. Satya v. Teja
Singh, [ 1975] 2 SCR 197 l it is possible for us to dispose of this case on a
narrow ground, viz., that the appellant played a fraud on the foreign
court representing to it incorrect jurisdiction facts. For, as held in that
case, residence does not mean a temporary residence for the purpose E
of obtaining a divorce but habitual residence or residence which is
intended to be permanent for future as well. We refrain from adopting
that course in the present case because there is nothing on record to
assure us that the Court of St. Louis does not assume jurisdiction only
on the basis of a mere temporary residence of the appellant for 90 days
even if such residence is for the purpose of obtaining divorce. We F
would, therefore, presume that the foreign court by its own rules of
jurisdiction had rightly entertained the dispute and granted a valid
decree of divorce according to its law. The larger question that we
would like to address ourselves to is whether even in such cases, the
Courts in this country should recognise the foreign divorce decrees.
G
9_. The rules of Private International Law in this country are not
codified and are scattered in different enactments such as the Civil
Procedure Code, the Contract Act, the Indian Succession Act, the
Indian Divorce Act, the Special Marriage Act etc. In addition, some
rules have also been evolved by judicial decisions. In matters of.status
or legal capacity of natural persons, matrimonial disputes, custody of H
830 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

children, adoption, testamentary and intestate succession etc. the
A
problem in this country is complicated by the fact that there exist
different personal laws and no uniform rule can be laid down for all
citizens. The distinction between matters which concern personal and
family affairs and those which concern commercial relationships, civil
wrongs etc. is well recognised in other countries and legal systems. The
B law in the former area tends to be primarily determined and influenced
by social, moral and religious considerations, and public policy plays a
special and important role in shaping it. Hence, in almost all the
countries the judsdictional, procedural and substantive rules which are
applied to disputes arising in this area are significantly different from
those applied to claims in other areas. That is as it ought to be. For, no
country can afford to sacrifice its internal unity, stability and tranqui-
c lity for the sake of uniformity of rules and comity of nations which
considerations are important and appropriate to facilitate interna-
tional trade, commerce, industry, communication, transport, ex-
change of services, technology, manpower etc. This glaring fact of
national life has been recognised both by the Hague Convention of
D 1968 on the Recognition of Divorce and Legal Separations as well as
by the Judgments Convention of the European Community of the
same year. Article 10 of the Hague Convention expressly provides that
the contracting States may refuse to recognise a divorce or legal
separation if such recognition is manifestly incompatible with their
public policy. The Judgments Convention of the European Commu-
E nity expressly excludes from its scope (a) status or legal capacity of
natural persons, (b) rights in property arising out of a matrimonial
relationship, (c) wills and succession, (d) social security and (e) bank-
ruptcy. A separate convention was contemplated for the last of the
subjects.

f 10. We are in the present case concerned only with the matri-
monial law and what we state here will apply strictly to matters arising
out of and ancillary to matrimonial disputes. The Courts in this ~
country have so far tried to follow in these matters the English rules of
Private International Law whether common law rules or statutory
rules. The dependence on English Law even in matters which are
G purely personal, has however time and again been regretted. But ;..
nothing much has been done to remedy the situation. The labours of
the Law Commission poured in its 65th Report on this very subject
have not fructified since April 1976, when the Report was submitted.
Even the British were circumspect and hesitant to apply their rules of
law in such matters during their governance of this country and had
H left the family law to be governed by the customary rules of the diffe-
Y. NARASIMHA RAO v. Y. VENKATA LAKSHMI [SAWANT, J.] 831

rent communities. It is only where there was a void that they had A
stepped in by enactments such as the Special Marriage Act, Indian
Divorce Act, Indian Succession Act etc. In spite, however, of more
~ than 43 years of independence we find that the legislature has not
thought it fit to enact rules of Private International Law in this area
and in the absence of such initiative from the legislature the courts in B
this country have been forced to fall back upon precedents which have
taken their inspiration, as stated earlier, from the English rules. Even
in doing so they have not been uniform in practice with the result that
we have some conflicting decisions in the area .
....
11. We cannot also lose sight of the fact that today more than
ever in the past, the need for definitive rules for recognition of foreign c
judgments in personal and family matters, and particularly in matri-
monial disputes has surged to the surface. Many a man and woman of
this land with different personal laws have migrated and are migrating
to different countries either to make their permanent abode there or
for temporary residence. Likewise there is also immigration of the
D
nationals of other countries. The advancement in communication and
transportation has also made it easier for individuals to hop from one
country to another. It is also not unusual to come across cases where
citizens of this country have been contracting marriages either in this
country or abroad with nationals of the other countries or among
themselves, or having married here, either both or one of them E
migrate to other countries. There are also cases where parties having
married here have been either domiciled or residing separately in dif-
ferent foreign countries. This migration, temporary or permanent, has
also been giving rise to various kinds of matrimonial disputes destroy-
t- ing in its turn the family and its peace. A large number of foreign
decrees in matrimonial matters is becoming the order of the day. A
F
time has, therefore, come to ensure certainty in the recognition of the
foreign judgments in these matters. The minimum rules of guidance
for securing the certainty need not await legislative initiative. This
Court can accompolish the modest job within the framework of the
present statutory provisions if they are rationally interpreted and
extended to achieve the purpose. It is with this intention that we are
..' undertaking this venture. We are aware that unaided and left solely to
G
our resources the rules of guidance which we propose tcrlay down in
this area may prove inadequate or miss some aspects which may not be
present to us at this juncture. But a beginning has to be made as best as
one can, the lacunae and the errors being left to be filled in and
corrected by future judgments. H
832 SUPREME COURT REPORTS [1991] 2 S.C.R.

12. We believe that the relevant provisions of Section 13 of the
A
Code are capable of being interpreted to secure the required certainty
in the sphere of this branch of law in conformity with public policy,
justice, equity and good conscience, and the rules so evolved will
protect the sanctity of the institution of marriage and the unity of
family which are the corner stones of our societal life.
B
Clause (a) of Section 13 states that a foreign judgment shall not
be recognised if it has not been pronounced by. a court of competent
jurisdiction. We are of the view that this clause should be interpreted
to mean that only that court will be a court of competent jurisdiction
which the Act or the law under which the parties are married recog-
nises as a court of competent jurisdiction to entertain the matrimonial
c dispute. Any other court should be held to be a court without jurisdic-
tion unless both parties voluntarily and unconditionally subject them-
selves to the jurisdiction of that court. The expression "competent
court" in Section 41 of the Indian Evidence Act has also to be con-
strued likewise.
D
Clause (b) of Section 13 states that if a foreign judgment has not
been giyen on the merits of the case, the courts in this country Will not
recognise such judgment. This clause should be interpreted to mean
(a) that the decision of the foreign court should be on a ground avail-
able under the law under which the parties are married, and (b) that
E the decision should be a result of the contest between the parties. The
latter requirement is fulfilled only when the respondent is duly served
and voluntarily and unconditionally submits himself/herself to the
jurisdiction of the court and contests the claim, or agrees to the passing
of the decree with or without appearance. A mere filing of the reply to
the claim under protest and without submitting to the jurisdiction of
F the court, or an appearance in the Court either in person or through a
representative for objecting to the jurisdiction of the Court, should not
be considered as a decision on the merits of the case. In this respect the
general rules of the acquiscence to the jurisdiction of the Court which
may be valid in other matters and areas should be ignored and deemed
inappropriate.
G
The second part of clause (c) of Section 13 states that where the
judgment is founded on a refusal to recognise the law of this country in
cases in which such law is applicable, the judgment will not be recog-
nised by the courts in this country. The marriages which take place in
this country can only be under either the customary or the statutory
H law in force in this country. Hence, the only law that can be applicable
Y. NARASIMHA RAO v. Y. VENKATA LAKSHMI [SAWANT, J.) S33

to the matrimonial disputes is the one under which the parties are
married, and no other law. When, therefore, a foreign judgment is A
founded on a jurisdiction or on a ground not recognised by such law, it
is a judgment which is in defiance of the Law. Hence, it is not conclu-
sive of the matters adjudicated therein and, therefore, unenforceable
in this country. For the same reason, such a judgment will also be
unenforceable under clause (f) of Section 13, since such a judgment B
would obviously be in breach of the matrimonial Jaw in force in this
country.

Clause (d) of Section 13 which makes a foreign judgment unen-
forceable on the ground that the proceedings in which it is obtained
are opposed to natural justice, states no more than an elementary
principle on which any civilised system of justice rests. However, in c
matters concerning the family law such as the matrimonial disputes.
this principle has to be extended to mean something more than mere
compliance with the technical rules of procedure. If the rule of audi
alteram partem has any meaning with reference to the proceedings in a
foreign court, for the purposes of the rule it should not be deemed 0
sufficient that the respondent has been duly served with the process of .
the court. It is necessary to ascertain whether the respondent was in a
position to present or represent himself/herself and contest effecti-
vely the .said proceedings. This reJluirement should apply equally to
the appellate proceedings if and when they are filed by either party. If
the foreign court has not ascertained and ensured such effective con- E
test by requiring the petitioner to make all necessary provisions for the
respondent to defend including the costs of travel, residence and litiga-
tion where necessary, it should be held that the proceedings are in
breach of the principles of natural justice. It is for this reason that we
find that the rules of Private International Law of some countries
insist, even in commercial matters, that the action should be filed in F
the forum where the defendant is either domiciled or is habitually
resident. It is only in special cases which is called special jurisdiction
where the claim has some real link with other forum that a judgment of
such forum is recognised. This jurisdiction principle is also recognised
by the Judgments Convention of this European Community. If, there-
fore, the courts in this country also insist as a matter of rule .that G
foreign matrimonial judgment will be recognised only if it is of the
forum where the respondent is domiciled or habitually and per-
manently resides, the provisions of clause (d) may be held to have
been satisfied.

The provision of clause (e) of Section 13 which requires that the H
834 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

courts in this country will not recognise a foreign judgment if it has
A
been obtained by fraud, is self-evident. However, in view of the deci-
sion of this Court in Smt. Satya v. Teja Singh, (supra) it must be ;...
understood that the fraud need not be only in relation to the merits of
the matter but may also be in 'relation to jurisdictional facts.

B 13. From the aforesaid discussion the following rule can be
deduced for recognising foreign matrimonial judgment in this country.
The jurisdiction assumed by the foreign court as well as the grounds on
which the relief is granted must be in accordance with the matrimonial
law under which the parties are married. The exceptions to this rule ....
may be as follows: (i) where the matrimonial action is filed in the
forum where the repondent is domiciled or habitually and permanently
c resides and the relief is granted on a ground available in the matri-
mania! law under which the parties are married; (ii) where the respon-
dent voluntarily and effectively submits to the jurisdiction of the forum
as discussed above and contests the claim which is based on a ground
available under the matrimonial law under which the parties are mar-
D ried; (iii) where the respondent consents to the grant of the relief
although the jurisdiction of the forum is not in accordance with the 'r

provisions of the matrimonial law of the parties.

The aforesaid rule with its stated exceptions has the merit of
being just and equitable. It does no injustice to any of the parties. The
E parties do and ought to know their rights and obligations when they
marry under a particular law. They cannot be heard to make a grie-
vance about it later or allowed to bypass it by subterfuges as in the
present case. The rule also has an advantage of rescuing the institution i
of marriage from the uncertain maze of the rules of the Private Inter-
national Law of the different countries with regard to jurisdiction and
F merits based variously on domicile, nationality, residence-permanent
or temporary or ad hoc forum, proper law etc. and ensuring certainty
in the most vital field of national life and conformity with public
policy. The rule further takes account of the needs of modern life and
makes due allowance to accommodate them. Above all, it gives pro-
tection to women, the most vulnerable section of our society, whatever
G the strata to which they may belong. In particular it frees them from '
the bondage of the tyrannical and servile rule that wife's domicile
follows that of her husband and that it is the husband's domicilliary law
which determines the jurisdiction and judges the merits of the case.

14. Since with regard to the jurisdiction of the forum as well as
H the ground on which it is passed the foreign decree in the present case

1
Y. NARASIMHA RAO v. Y. VENKATA LAKSHMI [SAWANT, J.] 835

is not in accordance with the Act under which the parties were mar-
A
ried, and the respondent had not submitted to the jurisdiction of the
court or consented to its passing, it cannot be recognised by the courts
in this country and is, therefore, unenforceable.
15. The High Court, as stated earlier, set aside the order of the
learned Magistrate only on the ground that the photostat copy of the
decree was not admissible in evidence. The High Court is not correct B
in its reasoning. Under Section 74(1)(iii) of the Indian Evidence Act
(hereinater referred to as the "Act") documents forming the acts or
records of the acts of public judicial officers of a foreign country are
public documents. Under Section 76 read with Section 77 of the Act,
certified copies of such documents may be produced in proof of their
contents. However, under Section 86 of the Act there is a presumption c
with regard to the genuineness and accuracy of such certified copy only
if it is also certified by the representative of our Central Government
in or for that country that the manner in which it has been certified is
commonly in use in that country for such certification.
Section 63(1) and (2) read with Section 65(e) and (f) of the Act D
permits certified copies and copies made from the original by mechani-
cal process to be tendered as secondary evidence. A photostat copy is
prepared by a mechanical process which in itself ensures the accuracy
of the original. The present photostat copies of the judicial record of
the Court of St. Louis is certified for the Circuit Clerk by the Deputy
Clerk who is a public officer having the custody of the document within E
the meaning of Section 76 of the Act and also in the manner required
by the provisions of the said section. Hence the photostat copy per se is
not inadmissible in evidence. It is inadmissible because it has not.
further been cerified by the reprsentative of our Central Government
in the United States as required by Section 86 of the Act. The expres-
sion "certified copy" of a foreign judgment in Section 14 of the Code F
has to be read consistant with the requirement of Section 86 of the Act.
16. While, therefore, holding that the document is not admissi-
ble in evidence for want of the certificate under Section 86 of the Act
and not because it is a photostat copy of the original as held by the
High Court, we uphold the order of the High Court also on a more
substantial and larger ground as stated in paragraph 14 above. Accord- G
ingly, we dismiss the appeal and direct the learned Magistrate to
proceed with the matter pending before him according to law as
expeditiously as possible; preferably within four months from now as
the prosecution is already a decade old.
T.N.A. Appeal dismissed.