Marriages are settled in heaven, and they are performed on earth. Happy couples are all alike, every unhappy couple is unhappy in its own way. That unhappiness often finds its painful way into a courtroom.

Whether and where a marriage can be dissolved is a matter in the domain of the earthly law governing the spouses, but the matrimonial laws are not common everywhere in the world and they differ from country to country. The problem arises when the parties have their domicile in one country and one of them obtains matrimonial relief in a foreign country.

The moot question posed is whether the foreign court can pass a valid decree of Divorce, when the matrimonial chord between the parties is governed by the provisions of Hindu Marriage Act,1955 & ancillary to this is whether the decree passed by a foreign court can be recognized by the Court in India, as being conclusive.

It is further pointed out that many foreign decrees in matrimonial cases is becoming the order of the day and therefore, a time has come to ensure certainty in the recognition of the foreign judgments in these matters. In the absence of any legislation, the Supreme Court of India has taken initiative and ventured to lay down the minimum rules of guidance for securing the certainty in the matters of recognition of foreign judgments as according to it beginning has to be made as best as one can.

To fully understand the issues, it is necessary to go through various provisions of enactments, the interpretation of various enactments by the Supreme Court of India and other High Courts of States.

It would be apt to reproduce the relevant provisions of Code of civil procedure, Indian Evidence Act, Hindu Marriage Act,1955, Hindu Adoption and maintenance Act,1956 and governing the issues involved: -

Code of Civil Procedure
Section 13. When foreign judgment not conclusive:
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except:

1. where it has not been pronounced by a Court of competent jurisdiction;
2. where it has not been given on the merits of the case;
3. 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;
4. where the proceedings in which the judgment was obtained are opposed to natural justice;
5. where it has been obtained by fraud;
6. where it sustains a claim founded on a breach of any law in force in [India].

Section 14. Presumption as to foreign judgments:
The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

Indian Evidence Act:
Section 41. Relevancy of certain judgments in probate, etc., jurisdiction.-A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof:
That any legal character, which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, [order or decree] declares it to have accrued to that person; [order or decree] declares it to have accrued to that person;" that any legal character which it takes away from any such person ceased at the time from which such judgment, 1[order or decree] declared that it had ceased or should cease; [order or decree] declared that it had ceased or should cease;" and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, 1[order or decree] declares that it had been or should be his property. [order or decree] declares that it had been or should be his property.

Hindu Marriage Act,1955
Section 1. Short title and extent:

1. This Act may be called the Hindu Marriage Act, 1955.
2. It extends to the whole of India except the State of Jammu and Kashmir and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.
3. Definitions:
   
   1. In this Act, unless the context otherwise requires:
   2. "district court" means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act.

Section 10. Judicial separation:

1. Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]
2. Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Section 11. Void marriages. -Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

Section 12. Voidable marriages:

1. Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:
   
   1. that the marriage has not been consummated owing to the impotence of the respondent; or
   2. that the marriage is in contravention of the condition specified in clause (ii) of section 5; or
   3. that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 4 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent]; or
   4. that the respondent was at the time of the marriage pregnant by some person other than the petitioner.
       
2. Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage:
   
   1. on the ground specified in clause (c) of sub-section (1) shall be entertained if:
      
      1. the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
      2. the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered;
   2. on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied:
      
      1. that the petitioner was at the time of the marriage ignorant of the facts alleged;
      2. that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and
      3. that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 6 [the said ground].

13. Divorce:

1. Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party:
   
   1. has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
      (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
      (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
   2. has ceased to be a Hindu by conversion to another religion; or
   3. has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
   Explanation: In this clause:
   
   1. the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
   2. the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or]
    been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) 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 it, had that party been alive; *** * * * * * * [Explanation.-In this sub-section, the expression "desertion" means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]
   
   [(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
    
2. A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground:
   
   1. in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or
       
   2. that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 1 [bestiality; or]
       
   3. that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
       
   4. that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
      Explanation-This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]
       

13A. Alternate relief in divorce proceedings:
In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

13B. Divorce by mutual consent:

1. Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
    
2. On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

14. No petition for divorce to be presented within one year of marriage:

1. Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, [unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage: Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the 1 [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after 2 [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
    
2. In disposing of any application under this section for leave to present a petition for divorce before the [expiration of one year] from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the [said one year].

Section 19. Court to which petition shall be presented:
Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction:

1. the marriage was solemnized, or
2. the respondent, at the time of the presentation of the petition, resides, or
3. the parties to the marriage last resided together, or
   (iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition;
4. the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this 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.

Section 24. Maintenance pendente lite and expenses of proceedings:
Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner's own income and the income of the respondent, it may seem to the court to be reasonable.

2 [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]

Section 25. Permanent alimony and maintenance:

1. Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall 3 * * * pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent's own income and other property, if any, the income and other property of the applicant 4 [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
    
2. If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify, or rescind any such order in such manner as the court may deem just.
    
3. If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, 5 [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].

Section 27. Disposal of property:
In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

Hindu Adoptions and Maintenance Act, 1956
Section 18 Maintenance of wife

1. Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.
2. A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance:
   
   1. If he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her;
   2. If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
   3. If he is suffering from a virulent form of leprosy;
   4. If he has any other wife living;
   5. If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
   6. if he has ceased to be a Hindu by conversion to another religion;
   7. if there is any other cause justifying her living separately;
3. A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Concept of Domicile
Before adverting to the issue, it is necessary to discuss the concept of domicile adopted by the courts in interpreting the word residence occurring in section 19 of Hindu Marriage Act,1955.

The plain dictionary meaning of the term 'domicile' is one's legally recognized place of residence. Domicile has been described in Halsbury's Laws of England, 4th edition, Volume 8, Paragraph 42 1) as the legal relationship between individual and a territory with a distinctive legal system which invokes that system as his personal law. Such residence must be coupled with the intention to make it a permanent home.

A mere sojourn or temporary residence does not constitute domicile. Domicile is the condition in virtue whereof is ascribed to an individual the character of a citizen of some country on the basis of which the personal rights of the party that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy must depend. The object of ascertaining domicile is to determine which municipal law is applicable for regulating the rights and obligations of the parties. Thus, domicile signifies connection with a single system of territorial law.

There are some general rules regarding domicile, and they are that:

1. nobody is without domicile,
2. a person cannot have two domiciles,
3. there is a presumption in favour of continuance of an existing domicile.

There are two main classes of domicile; the domicile of origin which is communicated by operation of law to each person by birth i.e., domicile of his father or mother and domicile of choice which every person of full age is free to acquire in substitution for that which he at present possesses. The domicile of origin is received by operation of law at birth and for acquisition of a domicile of choice, one of the necessary conditions is the intention to remain there permanently.

The domicile of origin is retained and cannot be divested until the acquisition of the domicile of choice. By merely leaving his country, even permanently, one will not, in the eye of law, lose one's (his) domicile until he acquires a new one. So far married woman is concerned, the domicile of her husband is communicated to her immediately on marriage and it is necessarily and inevitably retained by her for the duration of her marriage.

This means that she is incapable of acquiring a domicile of her choice during the subsistence of her marriage and that her domicile follows that of her husband's domicile. It is thus a domicile of dependence or a matrimonial domicile. Thus, domicile is a test for determining personal law. (Louis De Readt v. Union of India, 1991(3) S.C.C. 554.

To confer jurisdiction on the ground of plaintiff's residence and entitle the decree to extraterritorial recognition, the residence must be actual and genuine and accompanied by an intent to make the State his home. A mere sojourn or temporary residence as distinguished from legal domicile is not sufficient.

In Central Bank of India, v. Ram Narain, [1955] 1 SCR 697, wherein it was pointed out that if a person leaves the country of his origin with undoubted intention of never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country. Thus, the proposition that the domicile of origin is retained until the acquisition of a domicile of choice is well established and does not admit of any exception.

"Domiciles are of three kinds, viz. domicile of origin, the domicile by operation of law and the domicile of choice. In the present case, we are concerned only with the domicile of origin and domicile of choice. Domicile of origin is not necessarily the place of birth. The birth of a child at a place during temporary absence of the parents from their domicile will not make the place of birth as the domicile of the child.

In domicile of choice, one is abandoned, and another domicile is acquired but for that, the acquisition of another domicile is not sufficient. Domicile of origin prevails until not only another domicile is acquired but it must manifest intention of abandoning the domicile of origin. when we consider Section 1(2) of the Act, it is evident that the Act extends to the Hindus of whole of India except the State of Jammu and Kashmir and also applies to Hindus domiciled in India who are outside the said territory. In short, the Act, in our opinion, will apply to Hindus domiciled in India even if they reside outside India.

If the requirement of domicile in India is omitted altogether, the Act shall have no nexus with India which shall render the Act vulnerable on the ground that extra-territorial operation has no nexus with India. In our opinion, this extra-territorial operation of law is saved not because of nexus with Hindus but Hindus domiciled in India. Sondur Gopal v. Sondur Rajini, 2013(7) SCC 426, Mandeep Kaur v. Dharam Lingam, (Punjab and Haryana) (DB),2017(2) PLR 376

Irretrievable breakdown of Marriage
It would also be necessary to consider, as to whether Irretrievable breakdown of Marriage can be considered as a valid ground for divorce for considering would satisfy the requirement of section 13 of Code of Civil Procedure, when such ground for grant of decree of divorce is alien and not provided under Hindu Marriage Act,1955.The reason is obvious because the divorce is mainly granted by the foreign courts because of Irretrievable or simply breakdown of Marriage.

The answer is no, in view of pronouncement by Supreme Court of India. . irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under section 13 and granting divorce on this ground alone would amount to adding a clause therein by a judicial verdict which would amount to legislation by Court. V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC 337 Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379, Neelam Kumar v. Dayarani AIR 2011 Supreme Court 193.

Concept of Matrimonial Property
There is no concept of matrimonial property under the provisions of Indian laws. A woman can claim maintenance under Hindu Marriage Act,1955, Hindu Adoption and maintenance Act,1956, The Protection of Women from Domestic Violence Act 2005, as also under Section 125 of Code of Criminal procedure. However, the maintenance awarded under different enactments cannot be claimed consecutively, she would be entitled to the highest amount under any of the enactments.

She can claim permanent alimony/maintenance at the time of passing any decree or at any time subsequent thereto under Hindu Marriage Act,1955. She can claim right to reside in the matrimonial home in which she resides under the Protection of Women from Domestic Violence Act 2005.The property in the name of each of spouse is their personal property. None of the spouse can claim the division or ownership of property owned and possessed by either of spouse.

Even if one spouse purchases the property in the name of other spouse, still, it is the ownership, which is the deciding factor, as, whosoever is the title holder of property retains the same, because of the Prohibition of Benami Property Transactions Act, 1988.Section 4 of the Act,1988 explicitly prohibits the right to recover a property held benami, however there is exception to section 4 of the Act,1988 by virtue of Section 27 of Hindu Marriage Act,1950 provides for that in any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. A Division Bench of Punjab & Haryana High Court in Bhai Sher Jang Singh v. Smt. Virender Kaur, 1978 Hindu LR 703: observed as follows: --

"Section 27 of the Hindu Marriage Act empowers a Court while deciding a matrimonial dispute to also pass a decree in respect of property which money jointly belong to both the husband and the wife. This section at best provides a civil remedy to an aggrieved wife and does not in any way take away her right to file a criminal complaint if the property belonging to her is criminally misappropriated by her husband.

Further The Punjab & Haryana High Court, Chandigarh in the case of Surinder Kaur vs Madan Gopal Singh, AIR 1980 Pb & Hry 334 explained the true import of Section 27 of the Act,1950 as:- "It would seem that the object of studding this section in the fabric of the Hindu Marriage Act,1950 is intended to pass consequential orders in relation to certain properties between the parties while dealing with any proceedings under the Act and to make provision of that nature In the decree to be passed in those proceedings.

Obviously, an application for the purpose must be made before the proceedings terminate and the order can be made at the time of the passing of the decree. The sequence in which the said section appears in the statute is after the provision for the passage of decree in Section 23 of the Act and then to provide remedially as well in the terms of granting permanent alimony and maintenance under Section 25, deciding the custody of the children under Section 26, and to dis se of property jointly belonging to both the husband and the wife under Section 27, so as to ameliorate the lot of the spouse or spouses left bruised by a broken or a shattered marriage.

It would also seem that Section 27 goes not envisage deciding any question as to the title of the prop involved therein or extending to all the properties of the spouses. It is couched in such a language so as to narrow its ambit within a small aphere.

Analytically, the section pours out the following principles:

1. It must be a matrimonial proceeding pending under the Act before the Court and an application for disposal of property must be made before the decision of the Proceeding.
2. it is not incumbent on the Court to make provision in the decree with regard to disposal of property and it is left to its judicial discretion.
3. the provision so made it any, must be just and proper as the Court deems having regard to the adjustment of the equities between the parties and all surrounding material circumstances:
4. the order would envelope only that property which was presented at or about the time of the marriage, which means not only presented at the marriage but also at a time either prior to or after the marriage. That must be in close proximity of the time of the marriage and not to those made outside the extending limit of that time.
5. the property so presented may either be to the wife or the husband or both; and
6. at the time the Court is required to exercise its discretion, the property may belong jointly to both the husband and the wife.

Now it is well understood that the word "belong" necessarily does not reflect title to the property in the sense of ownership. It only denotes connection with property and is a term connecting a person with his possessions. It appears to me that the property thus presented to the spouses within the afore-explained time limit, may fall jointly to belong to bath the husband and the wife, irrespective of the title in those properties to be vesting in one or the other or both.

To give an earthly example, a saree presented by the husband or anyone else to the wife, may or may not involve transfer of title to the saree to the wife, but will belong to her exclusively and not jointly to both the husband and the wife, as the very nature of the garment so suggests Similarly, a suit presented to the husband in the same fashion would be exclusively belonging to the husband.

Properties and articles presented from any source and to any one of them which by the very nature of the present, or by intention of the donor or by tacit agreement of spouses, has come to be jointly in use by both the husband and the wife, can well be said to belong jointly to both of them. An earthly example of such incident can be that of a set of dining table and chairs for joint user in the matrimonial home irrespective of the fact as to which spouse received it as a present within that allocated time. The said dining table and chairs would obviously be joint belong of both the husband and the wife and capable of being subjected to orders under Section 27 of the Act.

If any parity is permissible, it can be drawn with the principle underlying Section 25 of the Act. Each spouse's earning capacity and other property, despite title thereto, is taken into account while equitably apportioning the income of both the spouses in such s manner so as to keep the less provided one adequately maintained at the cost of the other having regard to their post-marital-social status.

In the same way Section 27 of the Act provides-for sharing of that property which the spouses received individually or collectively as presents, at or about the time of the marriage and which had come to be, as a way of life, in their joint use in their day to day living and thus `belongings' for the purpose. If matrimony is disrupted, such jointly belonging articles would require the attention of the Court to be apportioned between the spouses as a measure of remedial relief.

In India, when Hindu marriage is by and large arranged by others than the spouses themselves, its breakage causes ripples in members of the society. It is one of the reasons why most of the judgments rendered by matrimonial Courts which fall squirrel within Section 41 of the Indian Evidence Act, are judgments in rem affecting the world at large.

If a contested issue of disposal of property were to engage the attention of the matrimonial Court predominating other proceedings regarding which decree is sought, then the decision cannot be rendered with promptitude. The disposal of property as envisaged under Section 27 can only become part of the decree subject to other conditions fulfilling, if, it is capable of being settled without consuming much time so as not to entail delay in the passage of the decree.

But if the Court finds itself confronted with regular contest from the tenor of pleadings the divergence of views and the anticipated quantity of evidence, it would well be within its right to refuse passing orders regarding disposal of property as a part of the decree. The disposal of property matter cannot outweigh the main proceedings before the Court regarding which it is required to pass a decree in the first place, the Court has to discern as to whether the presents received by either of the spouses from whatever source were in fact received end within the time earmarked in the section. Then in the second place the Court has to see as to which of the present or presents belong jointly to the spouses.

The Supreme Court of India in Balkrishna Ramchandra Kadam vs Sangeeta Balkrishna Kadam decided on September 4, 1997, while dealing section 27 of The Hindu Marriage Act,1950 held as:
"On a plain reading of the section. it becomes obvious the Matrimonial Court trying any proceedings under the Hindu Marriage Act, 1955, has the jurisdiction to make such provision in the decree as it deems just and proper with respect to nay property presented "at or bout the time of marriage" which may belong jointly to both the husband and wife. This section provides an alternate remedy to the wife so that she can recover the property, which is covered by the Section, by including it in the decree in the matrimonial proceedings, without having to take resources to the filling of a separate Civil Suit and avoid further litigation".

Further Punjab & Haryana High court, Chandigarh in Deepak vs Rajni, Civil Revision No.7127 of 2018, decided on December 13, 2018 held as: Firstly, Section 27 of the Act is only an enabling provision where by the Court in any proceedings under the Act may make any provision in the decree with regard to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. It does not specifically oust the jurisdiction of the Civil Court in that regard.

Hence, it can be considered as an additional remedy available to the aggrieved. Secondly, Section 27 has been held to be applicable only to the property contemplated therein i.e., any property presented, at or about the time of marriage, which jointly belongs to both the husband and the wife. Istridhan being the absolute and exclusive ownership of the wife, it has been held that no order under Section 27 of the Act can be passed in regard thereto.

Interpretation of Section 13 of Code of Civil Procedure.
R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, (AIR 1963 Supreme Court 1, the Supreme Court pointed out that Section 13 of Code of Civil Procedure incorporates a branch of the principle of res judicata. However, the Supreme Court also clarified that though both rules are founded upon the principle of sanctity of judgments competently rendered, the rule of conclusiveness of a foreign judgment as enacted in Section 13 CPC is somewhat different in its operation from the rule of res judicata incorporated in Section 11 CPC. But the rule of conclusiveness of a foreign judgment applies only to matters directly adjudicated upon and hence, what is conclusive is the judgment.

While the competence of a Court, for the application of the rule of res judicata, is determined strictly by the Municipal Law, the competence of the foreign court is determined by the dual test of competence by the laws of the State, in which the court functions as well as in an international sense. To apply the rule of res judicata, the adjudication should have been in a former suit. But, for the application of rule of conclusiveness, it is not necessary that the judgment must have been delivered by the foreign court, before the institution of the suit in which the plea is set up. Again, what is conclusive in respect of a foreign judgment is only the final adjudication and not the reasons.

More importantly, the Supreme Court held in R. Viswanathan that in adjudging the competence of the foreign court, it would not be open to the Indian court to ignore the course of practice in that court, even if it be not strictly warranted by the procedural law of that State. Whether the procedure of the foreign court, which does not offend natural justice is valid or not, is for the foreign court to decide and not by the court in which the foreign judgment is pleaded as conclusive.

Smt.Satya v. Teja Singh, (SC),1975(1) SCC 120, In determining whether a divorce decree will be recognized in another jurisdiction as a matter of comity, public policy and good morals may be considered. No country is bound by comity to give effect in its courts to divorce laws of another country which are repugnant to its own laws and public policy.

Thus, where a "mail-order divorce" granted by a Mexican court was not based on jurisdictional finding of domicile, the decree was held to have no extraterritorial effect in New Jersey, State v. Najjar, 2 NJ 208. American courts generally abhor the collusive Mexican mail-order divorces and refuse to recognize them, Langner v. Langner, 39 NYS 2d 918. Mail-order divorces are obtained by correspondence by a spouse not domiciled in Mexico.

 Latey in his well-known book on divorce says that "The facilities afforded by the Mexican courts to grant divorces to all and sundry whatsoever their nationality or domicile have become even more notorious than those in Reno, Nevada". ("The Law and Practice in Divorce and Matrimonial Causes", 15th Ed. (1973) p. 461.) Recognition is denied to such decrees as a matter of public policy. Foreign decrees of divorce including decrees of sister States have been either accorded recognition or have been treated as invalid, depending on the circumstances of each particular case.

But if a decree of divorce is to be accorded full faith and credit in the courts of another jurisdiction it is necessary that the court granting the decree has jurisdiction over the proceedings. A decree of divorce is thus treated as a conclusive adjudication of all matters in controversy except the jurisdictional facts on which it is founded. Domicile is such a jurisdictional fact. A foreign divorce decree is therefore subject to collateral attack for lack of jurisdiction even where the decree contains the findings or recitals of jurisdictional facts.

Section 13(A)) of the Code of Civil Procedure, 1908 makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon except "where it has not been pronounced by a court of competent jurisdiction.

Surinder Kaur Sandhu v. Harbax Singh Sandhu, AIR 1984 Supreme Court 1224, The modern theory of Conflict of Laws recognizes and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. The jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstances as to when the child, whose custody is in issue, is brought or for the time being lodged.

To allow the assumption of jurisdiction by another State in such circumstances will only result encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offspring of marriage.

Y. Narasimha Rao v. Y. Venkata Lakshmi, (SC),1993(1) SCC 451, 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:

1. it has not been pronounced by a court of competent jurisdiction;
2. it has not been given on the merits of the case;
3. it is 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;
4. the proceedings are opposed to natural justice;
5. it is obtained by fraud;
6. it sustains a claim founded on a breach of any law in force in India.

The Supreme Court declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of Civil Procedure Code has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon.

The relevant portion of the judgment of the Supreme Court is reproduced as under:
We believe that the relevant provisions of Section 13 of the 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.

Thus, the Supreme Court of India interpreted the various clauses of Section 13 of Code of Civil Procedure as: Clause (a) of Section 13 states that a foreign judgment shall not be recognized 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 recognizes as a court of competent jurisdiction to entertain the matrimonial dispute.

Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression "competent court" in section 41 of the Indian Evidence Act has also to be construed likewise. Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognize such judgment.

This clause should be interpreted to mean:

1. that the decision of the foreign court should be on a ground available under the law under which the parties are married, and
2.  that 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 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 acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate. The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognize the law of this country in cases in which such law is applicable, the judgment will not be recognized by the courts in this country. The marriages which take 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 cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a 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.

For the same reason, such a judgment will also be unenforceable under Clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country .Clause (d) of Section 13 which makes a foreign judgment unenforceable 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 civilized system of justice rests.

However, in 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 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 effectively the said proceedings.

This requirement 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 contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation 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 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 recognized.

This jurisdiction principle is also recognized by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognized only if it is of the forum where the respondent is domiciled or habitually and permanently 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 courts in this country will nor recognize a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision 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.

From the aforesaid discussion the following rule can be deduced for recognizing 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:

1. 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:
2. 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.;
3. 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.

Furthermore, the decree should not be affected by any of the circumstances enumerated in Clauses (a) to (f) of Section 13 CPC 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 parties do and ought to know their rights and obligations when they marry under a particular law.

They cannot be heard to make a grievance 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 of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and 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 do allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever 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 domiciliary law which determines the jurisdiction and judges the merits of the case.

Deepalakshmi v. K. Murugesh (Madras), 2010(4) RCR 956, once the parties have selected H.M. Act [Hindu Marriage Act] as their personal law, they cannot abdicate the same at their free will or as per exigencies of situation or according to their whims and fancies. The time at which the domicile is to be determined is when the parties tie nuptial knot under the Hindu Marriage Act and not the date when an application is made for matrimonial reliefs.

As a natural corollary thereof, even if a party to the matrimonial petition establishes that after marriage he acquired domicile of some other country, it would not take away the jurisdiction of the Court in India if on the date of the marriage he was domiciled in India.

Smt.Hemavathi Shivashankar v. Dr. Tumkur S. Shivashankar (Karnataka),2014(12) RCR 844, It was present to the mind of the foreign court that there was a personal law which governed the parties, and the foreign court could not have assumed jurisdiction in the light of Section 19 of the 1955 Act. The court below was clearly wrong in holding that the petition for divorce could have been filed before the foreign court.

If further proceedings had stopped at that stage, it was clearly a case where the decree of divorce granted by the foreign court could have been held not binding on the appellant. Therefore, the foreign court did lack jurisdiction as the parties were clearly governed by the provisions of the 1955 Act and therefore, the marriage, to which the 1955 Act applied, could not have been dissolved by a court without jurisdiction, notwithstanding the local law under which the proceedings may have been instituted.

The judgment of the foreign court was also violative of clause (a) of Section 13 of the Civil Procedure Code, as the foreign court cannot be considered as a court of competent jurisdiction, since the law under which the parties were married could not recognize it as a competent jurisdictional court to entertain the matrimonial dispute in terms of clause (a) of 13 of the Civil Procedure Code.

Conclusion:
Once the parties are Hindus & their marriage was solemnized according to the Hindu rites. Their matrimonial dispute or relationship is, therefore, governable by the provisions of Hindu Marriage Act,1955. Once the parties or either of the party did not submit to the jurisdiction of the Foreign Court either voluntarily or unconditionally and neither did consent for the grant of divorce in the Foreign Court, the foreign court has no jurisdiction to entertain and try the divorce petition and is neither recognizable nor enforceable in India.

The foreign court can pass a valid decree of Divorce, when the matrimonial chord between the parties is governed by the provisions of Hindu Marriage Act,1955 & the decree passed by a foreign court is recognized by the Court in India, as being conclusive, however, subject to fulfilment of rigor of section 13 of Code of Civil procedure, as interpreted by the Supreme Court of India in Y. Narasimha Rao v. Y. Venkata Lakshmi.

There is no concept of matrimonial property in India except right of maintenance, right to reside in matrimonial home and to claim in the proceeding under Hindu Marriage Act,1950 from the court to make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

Written By: Rajinder Goyal, Advocate - Former Addl. Advocate General, Punjab
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