Foreign Courts Mutual divorce is Accepted As Conclusive In India?

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

FRIDAY, THE 23RD DAY OF SEPTEMBER 2016/1ST ASWINA, 1938

WP(C).No. 26008 of 2016 (A)

PETITIONER(S) :

AUGUSTINE KALATHIL MATHEW,
AGED 31 YEARS, S/O. KALATHIL MATHEW,
KALATHIL HOUSE, NEAR THATTUKADAVU BRIDGE,
NORTH PARAVUR, ERNAKULAM-683 513.

 

BY ADVS. SRI.A.SHAMSUDEEN,
SRI.K.SHAJ,
SRI.SAJJU.S,
SRI.RENJIT GEORGE,

RESPONDENT(S) :

THE MARRIAGE OFFICER (SUB REGISTRAR),
NORTH PARAVUR SUB-DISTRICT, NORTH PARAVUR,
PATHANAMTHITTADISTRICT, PIN -683 513.

 

BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30-08-2016, THE COURT ON 23-09-2016 DELIVERED THE FOLLOWING:

Msd.

APPENDIX

PETITIONER(S)’ EXHIBITS :

EXHIBIT-P1 TRUE COPY OF FEDERAL LAW NO.28 OF THE YEAR 2005 REGARDING PERSONAL STATUS, UAE.

EXHIBIT-P2 TRUE COPY OF MEMORANDUM OF UNDERSTANDING FOR DIVORCE SUBMITTED BY THE PETITIONER AND ANOTHER ON 08.10.2015 BEFORE THE DUBAI PERSONAL STATUS COURT IN ARABIC WITH ENGLISH TRANSLATION.

EXHIBIT-P3 TRUE COPY OF SANCTION AND ATTESTATION OF AGREEMENT NO.2045/2015 OF THE DUBAI PERSONAL STATUS COURT DATED 27.10.2015 IS PRODUCED HEREWITH IN ARABIC WITH ENGLISH TRANSLATION.

EXHIBIT-P4 TRUE COPY OF DIVORCE CERTIFICATION NO.1626/M/2015 DATED 28.10.2015 BY DUBAI PERSONAL STATUS COURT CERTIFYING THE DIVORCE BETWEEN THE PETITIONER AND DAYANA IN ARABIC WITH ENGLISH TRANSLATION.

EXHIBIT-P5 TRUE COPY OF LETTER NO. XN DIS/2016 DATED 14.06.2016 ISSUED BY THE RESPONDENT TO THE PETITIONER.

EXHIBIT-P6 TRUE COPY OF AGREEMENT DATED 25.10.1999 ENTERED INTO BETWEEN THE REPUBLIC OF INDIA AND THE UNITED ARAB EMIRATES ON JURIDICAL AND JUDICIAL COOPERATION IN CIVIL AND COMMERCIAL MATTERS, FOR THE SERVICE OF SUMMONS, JUDICIAL DOCUMENTS, COMMISSIONS, EXECUTION OF JUDGMENTS AND ARBITRAL AWARDS.

RESPONDENT(S)’ EXHIBITS :

NIL

//TRUE COPY//

 

P.S.TOJUDGE.

Msd.

C.R.

P.B.SURESH KUMAR, J.

W.P.(C)No.26008 of 2016-A

 

Dated this the 23rd day of September, 2016

 

JUDGMENT
Ext.P5 communication issued by the respondent is under challenge in this writ petition.

2. The petitioner was married to one Dayana Cheeran Chakunny. Both of them were working in United Arab Emirates (UAE). The case of the petitioner is that he obtained divorce from his wife by mutual consent from the UAE Personal Status Court. Ext.P2 is the Memorandum of Understanding entered into by the petitioner with his divorced wife in this connection and Ext.P3 is the agreement entered into by them to subject themselves to the UAE personal status law No.28/2005 for claiming divorce in terms of Ext.P2 Memorandum of Understanding. Ext.P4 is the divorce certification granted by the UAE Personal Status Court to the petitioner. On the strength of Ext.P4 divorce certification, the petitioner gave notice to the Marriage Officer in India under the Special Marriage Act, 1954 to marry another lady. In response to the said notice, the petitioner was informed by the Marriage Officer that Ext.P4 divorce certification can be acted upon for solemnizing the proposed marriage only if it is confirmed by an Indian Court. Ext.P5 is the communication issued by the Marriage Officer to the petitioner in this connection. According to the petitioner, the Marriage Officer under the said statute is bound by law to act upon Ext.P4 divorce certification issued by the UAE Personal Status Court. He, therefore, seeks orders to quash Ext.P5 communication and direct the Marriage Officer to solemnize the marriage for which notice was given by him.

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3. A statement has been filed in this matter by the Marriage Officer. It is contended by the Marriage Officer in the said statement that the petitioner and his divorced wife are Christians; that UAE Personal Status Court from which the petitioner obtained divorce does not recognize the law of India applicable to the parties; that divorce obtained by the petitioner is in accordance with Muslim Personal Law and that therefore, an Indian court cannot accept the said divorce in the light of Section 13 of the Code of Civil Procedure.

4. Heard the learned Counsel for the petitioner and the learned State Attorney for the respondent.

5. The petitioner and his divorced wife are citizens of India belonging to Christian religion. Since they were married in accordance with the Christian religious rites, it is beyond dispute that they could obtain divorce only in accordance with the Indian Divorce Act, 1869. The fact that UAE Personal Status Court does not recognize the said law applicable to the parties is also not in dispute. Section 13 of the Code of Civil Procedure provides that a foreign judgment shall not be conclusive where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable. The question, therefore, is whether Ext.P4 divorce certification issued by the UAE Personal Status Court can be accepted as conclusive for the purpose of granting the relief sought by the petitioner in this writ petition.

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6. Having regard to the need of the hour to have definite rules for recognition of foreign judgments in personal and family matters, particularly in matrimonial disputes, in Y. Narasimha Rao v. Y. Venkata Lakshmi, (1991) 3 SCC 451, the Apex Court has interpreted Section 13 of the Code of Civil Procedure as follows:

“20. From the aforesaid discussion the following rule can be deduced for recognising a 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 respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent 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 married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.”
It is thus evident that though the general rule is that a foreign matrimonial judgment can be recognized in India only if the jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted are in accordance with the matrimonial law under which the parties are married, such judgments can be accepted as conclusive in India where the respondent voluntarily and effectively submits to the jurisdiction of the forum and consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. As stated above, the materials on record indicate beyond doubt that the petitioner and his divorced wife have voluntarily and effectively submitted to the jurisdiction of the UAE Personal Status Court and consented to grant divorce to each other, although the jurisdiction of the said forum is not in accordance with the provisions of the matrimonial law applicable to them. In the circumstances, I am of the view that the courts in India have to recognise Ext.P4 divorce certification.

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7. In the result, the writ petition is allowed. Ext.P5 communication is quashed and the respondent is directed to solemnize the marriage, for which notice has been issued by the petitioner under the Special Marriage Act, in accordance with the provisions contained in the said Act.

Sd/-

P.B.SURESH KUMAR, JUDGE.

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