CR No.1148 of 2018 (OM) 1
133
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.1148 of 2018 (OM)
Date of Decision: 05.09.2018
Amritpal Kaur ……Petitioner
Vs
Rajinder Singh Gill and Anr. ….Respondents
CORAM: HON’BLE MR. JUSTICE RAJ MOHAN SINGH
Present:Mr. Chouhan Satvinder Singh Sisodia, Advocate
for the petitioner.
Mr. Dinesh Nagar, Advocate
for respondent No.2.
****
RAJ MOHAN SINGH, J.
[1]. Petitioner has assailed the order dated 30.10.2017
passed by the District Judge-cum-Family Court, District
Shaheed Bhagat Singh Nagar, whereby the suit under Section
18 of Hindu Adoption and Maintenance Act (hereinafter to be
referred to as ‘the Act’) for grant of maintenance to the plaintiff
and for declaring the charge on the land/residential house was
dismissed.
[2]. Perusal of the impugned order shows that the same
was passed on the premise that under Section 18 of the Act, a
Hindu wife can claim maintenance from her husband during
1 of 6
03-10-2018 02:32:57 :::
CR No.1148 of 2018 (OM) 2
subsistence of marriage. The basic spirit of the Section is
sustaining and preserving the matrimonial status. If marriage is
subsisting, then wife is entitled to claim maintenance from her
husband under Section 18 of the Act. In case of divorce, the
relief can only be claimed under the provisions of Hindu
Marriage Act, 1955 as permanent alimony. The factum of
divorce by the foreign Court was noticed and it was held that in
the event of status of the petitioner being a divorcee, her
remedy to seek maintenance under Section 18 of the Act is not
maintainable and she can have recourse to the provision under
the Hindu Marriage Act, 1955.
[3]. In the present case, marriage was solemnized between
the parties on 10.03.2012 according to Anand Karaj at
Gurdwara Shaheedan Village Dansiwal, Tehsil Garshankar
District Hoshiarpur. The marriage was registered with the
Registrar of Marriages at Nawanshahr on 19.03.2012.
Thereafter marriage was consummated and both husband and
wife lived together and performed marital obligations towards
each other in village Majara-Nau-Abad, Tehsil Banga, District
Shaheed Bhagat Singh Nagar. No issue was born to the couple
out of this marriage.
[4]. Thereafter, respondent returned to America on
25.03.2012 and the petitioner started living at her in-law’s house
2 of 6
03-10-2018 02:32:57 :::
CR No.1148 of 2018 (OM) 3
with her mother-in-law. On being harassed, she left the
matrimonial house. There are allegations of harassment at the
instance of parents-in-law of the petitioner. After some time,
parents-in-law also returned to USA and came back in August
2012 and the petitioner again started residing with them.
Petitioner was again given ill-treatment
[5]. Thereafter respondent filed divorce petition in Superior
Court at California. Petitioner had to appoint her relative Baljit
Kaur as her Attorney to pursue the matter in the foreign Court.
Ultimately divorce was granted in favour of the respondent
according to the US Laws.
[6]. I have considered the submissions made by learned
counsel for the parties.
[7]. The sole point involved in the present case is whether
decree granted by the US Court will nullify the effect of marriage
under the Hindu Marriage Act for the purposes of grant of relief
under Section 18 of the Act. In Y. Narasimha Rao and others
vs. Y. Venkata Lakshmi and another, (1991) 3 Supreme
Court Cases 451, the effect of foreign judgment of matrimonial
dispute was adjudged by the Hon’ble Apex Court, wherein it was
held that where a judgment of the foreign Court is founded on
refusal to recognise the law of this country in cases in which
such law is applicable, the judgment will not be recognized by
3 of 6
::: Downloaded on – 03-10-2018 02:32:57 :::
CR No.1148 of 2018 (OM) 4
the courts in this country. The marriages which took place in this
country can only be under either the customary or the statutory
law in force in this country. Hence, the only law that can be
applicable to the matrimonial disputes is the one under which
the parties are married, and no other law. When, a foreign
judgment is founded on jurisdiction or on a ground not
recognized by such law, it is a judgment which is in defiance of
the law. Hence, it is not conclusive of the matters adjudicated
therein and, therefore, unenforceable in this country. Such a
judgment would be in breach of the matrimonial law in force in
this country. It was also held that mere filing of reply to the
claim under foreign law and without submitting to the jurisdiction
of that 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. The general rules of the acquiescence to the
jurisdiction of the Court may be valid in other cases and such
concept has to be ignored in the matrimonial cases.
[8]. Similar view was taken in Smt. Satya vs. Teja Singh,
1975 AIR (SC) 105 wherein it was held that the divorce decree
granted by the foreign courts is not binding and conclusive in
Indian Courts in civil and matrimonial proceedings. The validity
of foreign judgment rendered in civil proceedings must be
4 of 6
03-10-2018 02:32:57 :::
CR No.1148 of 2018 (OM) 5
determined in India on the terms of Section 13 CPC. Foreign
decree of divorce obtained by the husband in absentum of wife
without her submitting to its jurisdiction voluntarily will not be
valid and binding on the Court in India.
[9]. Mere filing of reply to the claim under protest in the
foreign Court cannot be construed to be voluntary and
unconditionally submitting to the jurisdiction of the Court,
therefore, the decree passed by the foreign Court cannot be
recognized in India for the purposes of debarring the petitioner
from claiming maintenance under Section 18 of the Act on the
alleged status of being a divorcee.
[10]. In Smt. Satya’s case (supra), the Hon’ble Apex Court
has also held that the judgment passed by the foreign Court
cannot debar the wife from claiming maintenance under Section
125 Cr.P.C.
[11]. Learned counsel for respondent No.2 argued that the
judgment passed by the foreign Court, even if taken to be a
nullity, the same has to be challenged in accordance with law
within limitation and further in view of presence of a foreign
judgment, a declaration has to be sought by the petitioner that
the same is not binding upon her in India. I do not subscribe the
aforesaid argument for the reason that the foreign judgment
cannot be enforced in India in the matrimonial cases of such like
5 of 6
::: Downloaded on – 03-10-2018 02:32:57 :::
CR No.1148 of 2018 (OM) 6
nature, wherein the petitioner never submitted herself voluntary
to the jurisdiction of the foreign Court. Mere filing of reply to the
claim made by husband does not amount to submitting herself
to the jurisdiction of the foreign Court in view of ratio laid down
in Y. Narasimha Rao and others’s case (supra). The
judgment passed by the foreign Court cannot create any such
embargo or impediment in claiming right under Section 18 of the
Act against the respondent.
[12]. In view of aforesaid, this revision petition is allowed.
The impugned order dated 30.10.2017 passed by the District
Judge-cum-Family Court, District Shaheed Bhagat Singh Nagar
is set aside. Normal consequences to follow.
September 05, 2018 (RAJ MOHAN SINGH)
Atik JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
6 of 6
03-10-2018 02:32:57 :::