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Amritpal Kaur vs Rajinder Singh Gill And Anr on 5 September, 2018

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

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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

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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

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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

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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

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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

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