Paul Tushar Biswas vs Addl. Dist. Judge And Anr. on 21 November, 2005

    Paul Tushar Biswas vs Addl. Dist. Judge And Anr. on 21/11/2005

JUDGMENT

   Amitava Roy, J.

   1. The matrimonial alliance between the parties though conclusively
determined by a decree of divorce, the issue pertaining to maintenance of their
minor son has kept them belligerently engaged in Courts of law. The instant
application witnesses a challenge by the petitioner/husband to the judgment and
order dated 9.4.2003 passed by the learned District Judge, Shillong, in (Civil)
Miscellaneous Application 7(H)/2002 arising out of matrimonial case No. 6(H)/
2000 under Section 43 of the Indian Divorce Act, 1869 (hereafter referred to as
the Divorce Act), rejecting his application to allow him to provide child
maintenance to the offspring, Timothy Biswas.

   2. I have heard Ms. A. Paul, Advocate assisted by Mr. K. Paul, Advocate for
the petitioner and Ms. P.D.B. Baruah, Advocate for the respondent No. 2.

   3. The prefatory facts building up the factual edifice would be essential.
The petitioner claims to be an Indian National presently residing at California
in the United States of America and is serving the Sheriffs Department of the
County of Fresno, California. The petition before this Court is through his
legally constituted attorney. The parties who profess Christian faith were
married on 4.10.1990 at All Saints Church, Shillong, under the Christian
Marriage Act, 1872 (hereafter referred to as the Marriage Act). The child, a son
named hereinabove was born to them. He is a minor and is presently residing with
the mother, respondent No. 2. The petitioner in the year 1999 filed an
application under Section 10 of the Divorce Act in the Court of the District
Judge at Alipore, West Bengal, praying inter alia for a decree for divorce which
was registered as Matrimonial Suit No. 388/1999. While the summons in the said
proceedings were yet to be served on the respondent No. 2, she also filed an
application under Section 10 of the Divorce Act before the learned Additional
District Judge, Shillong, seeking dissolution of the marriage. It was amongst
others alleged therein that the petitioner had deserted her from the year 1994
and had been living in adultery since February, 1993. The divorce proceeding
initiated by the respondent No. 2, registered as Matrimonial Case No. 6(H)/2000,
was eventually disposed of by the judgment and order dated 5.7.2002 granting the
relief prayed for. The decree of divorce was sanctioned. The petitioner,
however, failed to contest the proceedings. While the petition for divorce was
pending before the learned Court below at Shillong, on the initiative of the
respondent No. 2, a proceeding for child support for the maintenance of the
minor son was commenced before the Superior Court of California, County of
Fresno being Case No. 01CEFS03419 of 2002, County of Fresno/Petitioner v. Paul
Tushar Biswas/Respondent, wherein by an order dated 4.2.2002, the Fresno County
Superior Court directed the petitioner to pay a monthly support amount of $ 500
payable w.e.f. 1.2.2002 in favour of the minor child.

   4. The Court of the District Judge at Alipore in the meantime, on an
application filed by the petitioner in Matrimonial Suit No. 388/99 (renumbered
as Matrimonial Suit No. 27/2001 of the Court of the 5th Additional District
Judge, Alipore) by order dated 13.2.2001 allowed his prayer for visitation
rights to meet the minor child subject to the conditions set out therein. The
respondent No. 2 thereafter filed an application for vacating the said order.
She also filed an application under Order 7 Rule 11, Code of Civil Procedure for
rejection of the plaint. The learned 5th Additional District Judge (to whose
file the case was in the meantime transferred) finally by order dated 16.1.2002
rejected the plaint in the Matrimonial Suit 27/01 and vacated all interim orders
passed. In doing so, the learned Court took note of a letter written by the
petitioner to the Officer-in-Charge, Park Street Police Station mentioning inter
alia that he had already obtained a decree of divorce from a Court in the United
States of America. It was held that the petitioner in view of the above was
guilty of suppression of material facts. Besides, it observed that in view of
the admission of annulment of the marriage by a decree of divorce of foreign
Court, the matrimonial suit was per se not maintainable.

   5. As the matter rested at that, the petitioner, on 2.11.2002, submitted an
application under Section 43 of the Divorce Act in the Court of the Additional
District Judge at Shillong in Matrimonial Case No. 6(H)/2000 to assess the
amount of child maintenance to be paid by him for the sustenance and education
of the minor son. He also prayed for an interim order to permit him to pay a sum
of Rs. 5,000 per month pending final adjudication of the issue. In the
application sworn by the Attorney of the petitioner, it was stated on oath that
he had been residing in the United States of America and that being deeply
concerned about the welfare of his son and to ensure that his requirements,
educational and otherwise, are well taken care of, he wished to make adequate
provision therefor by providing maintenance to him till he attained majority. It
was alleged that the petitioner's efforts to meet the child and arrange for the
maintenance having otherwise failed in spite of his best endeavours,
intervention of the Court was warranted.

   6. The learned Court below fixed 25.11.2002 directing service of notice of
the proceedings on the respondent No. 2 in the meantime. On the next date, an
interim order was passed permitting the petitioner to deposit a sum of Rs. 5,000
as maintenance allowance for the child pending final orders. Leave was granted
to the respondent No. 2 to file her written objection.

   7. In the show cause submitted by the respondent No. 2, she, amongst others,
questioned the jurisdiction of the learned Court below to entertain and decide
the prayer for maintenance contending that the application was barred by the
principles of res judicata, waiver, acquiescence and estoppel. Apart from the
fact that the respondent No. 2 and her son were residing in Calcutta since
January, 1997, and were thus beyond the territorial jurisdiction of the learned
Court at Shillong, it was asserted that in view of the order dated 16.1.2002,
passed by the learned 5th Additional District Judge, Alipore, rejecting the
plaint of Matrimonial Suit No. 27/ 2001 and vacating all interim orders passed
therein, the application was not maintainable in law, the order dated 16.1.2002
as above being unchallenged having become final and binding on the parties. The
respondent No. 2 further pointed out the pendency of the child support case
before the Superior Court of California, United States of America and the order
for monthly maintenance passed therein. It was asserted that the petitioner was
a citizen of the United States of America and in absence of reciprocity between
India and the State of California, USA, within the meaning of Section 44A, CPC,
any order passed by the learned Court below would not be enforceable in the
State of California and a fortiori against the petitioner, a resident thereof. A
copy of the proceedings of the Superior Court of California was also produced.

   8. The learned Court below after hearing the parties and on a consideration
of the pleadings on record concluded that the California Court had already
passed an order directing payment of monthly child maintenance or child support
to the tune of $ 500 and that the petitioner had also made some payments on
6.12.2002, 20.12.2002 and 3.1.2003 of $ 230.77 on each occasion. The learned
lower Court held the view that there was no reciprocity between India and the
State of California and, therefore, in terms of Sections 44A and 45 of the CPC,
any order passed by it would not be enforceable in the State of California.
Recording that the welfare of the child, having regard to the issue involved,
was a paramount importance, the learned Court below opined, in the attending
facts and circumstances, that the petitioner's application was only an endeavour
to avoid the maintenance payable under the orders of the California Court. The
application was thus rejected.

   9. Ms. Paul has assiduously argued that the dissolution of the marriage
between the parties having been applied for and granted by the learned Court
below under the Divorce Act, it is the only Court to adjudicate upon the claim
for maintenance of the minor child in view of Section 43 thereof and, therefore,
the learned lower Court failed to exercise its jurisdiction under the above
provision of the Act in rejecting the petitioner's application. She contended
that the respondent No. 2 being fully aware of the Divorce Act under which she
had pursued her remedy for dissolution of marriage, she was guilty of
misrepresentation of facts in asserting absence of any law empowering the Indian
Courts to grant child support/maintenance and in that view of the matter, the
proceedings before the California Court being in ignorance or disregard of the
relevant law in force in India is non est and thus cannot be a bar for
entertainment of the petitioner's request for providing maintenance to his minor
son. She urged without prejudice to the above that the support order passed by
the California Court directing payment of monthly allowance by the petitioner
being temporary in nature and subject to the adjudication by a competent Indian
Court, the learned Court below acted against the fundamental principles of law
in passing the impugned order warranting interference by this Court under
Article 227 of the Constitution of India. The proceedings before the California
Court being based on incorrect and misguided facts, any order passed therein is
not binding on the parties and for that matter any Indian Court. Relying on the
proviso to Section 10, CPC. Ms. Paul argued that having regard to the interim
nature of the support order passed by the Superior Court of the State of
California, there was no interdiction for the learned Court below to entertain
the petitioner's application on merits. Further, according to her, in terms of
Section 13, CPC as well, the support order of the California Court was not
conclusive and the learned Court below in refusing to adjudicate upon the issue
of child maintenance raised by the petitioner before it failed to exercise a
jurisdiction vested in law. She maintained that not only the California Court in
the attending facts and circumstances lacked jurisdiction in initiating a
proceeding for child support at the instance of the respondent No. 2, it also
omitted to recognize the relevant Indian law having a bearing thereon. Further
the proceedings before the California Court were also opposed to natural justice
and being structured on misrepresentation of facts was afflicted by fraud as
well.

   The learned Counsel questioned the bona fide of the respondent No. 2
asserting that the only purpose of approaching a foreign Court in preference to
the Indian Courts was to vest higher amount of maintenance at the cost of the
petitioner by projecting distorted facts. She maintained that the instant
application before the learned Court below was not conceived of to avoid the
support order of the California Court as alleged, the petitioner having earlier
approached the Court of the District Judge at Alipore, Calcutta, (subsequently
5th Additional District Judge, Alipore) praying for visitation rights and
custody of his minor son. The application for divorce filed by the petitioner
before the Calcutta Court not having been dismissed on merits, the order dated
16.1.2002 would not attract the bar of res judicata to the application filed
before the Shillong Court, she urged. Ms. Paul placed reliance on the decision
of the Apex Court in Y. Narasimha Rao and Ors. v. Y. Venkatalakshmi and Anr. .

   10. Ms. Barua in reply, firstly questioned the maintainability of the
petitioner contending that the petitioner's attorney was not authorized to file
the same before the Shillong Court. Further, as all the pages of the petition
did not contain the signature of the attorney, the same was liable to be
rejected in limine being in contravention of the procedure prescribed. According
to her, the petitioner being a citizen of the United States of America and a
permanent resident of California, the Superior Court of California, County of
Fresno, had the jurisdiction to initiate and conduct the proceedings of child
support registered on the request of the respondent No. 2. Further as the
petitioner participated in the said proceeding without any demur, it was not
open for him at this stage to insist on the plea of lack of jurisdiction of that
Court. She submitted that though at the first instance challenge was made by the
petitioner to the proceedings before the California Court based on the doctrine
of Forum Non Conveniens, the objection was over ruled by the said Court upon
hearing the parties. The petitioner also did not question the said order or the
support order passed by the California Court before any higher forum.

   11. Ms. Barua maintained that as none of the clauses enumerated in Section
13, CPC was attracted in the facts of the instant case, the support order was
conclusive and, therefore, the petitioner's application before the Shillong
Court was neither sustainable nor bona fide. The learned Counsel also referred
to Section 14, CPC raising presumption of jurisdiction of a foreign Court to
buttress the above plea. Drawing the attention of this Court to Sections 44A and
45, CPC, the learned Counsel urged that as there was no reciprocity between
India and the State of California, any order passed by an Indian Court was
neither enforceable nor executable in the State of California and, therefore,
the learned Court below was justified in declining to entertain the petitioner's
application for child maintenance. Referring to the pleadings of the parties,
the learned Counsel contended that the petitioner's sudden concern for the
child's well-being and his urge to provide maintenance for his adequate
upbringing plainly lack bona fide, he having maintained a slightist indifference
towards the respondent No. 2 and the minor child for all these years. The
endeavour before the Shillong Court was clearly to avoid the support order of
the California Court, she contended. The learned Counsel submitted that there
being no discenible error on fundamental principles of law or procedure, the
impugned order does not merit any interference of this Court. Ms. Barua rested
her submission on the following decisions. Said-ul-Hamid v. F.I. Assur Co. AIR
1951 SC 255; Mohammed Abdulla v. P.M. Abdul Rahim .

   12. Ms. Paul in her reply argued that the power of attorney produced before
the Court does not limit the authority of the attorney to file cases on behalf
of the petitioner and to take steps in connection therewith only before the
Courts in Calcutta and that there being no requirement under the Gauhati High
Court Rules of all the pages of the petition being signed by the petitioner's
attorney, the preliminary objections on the maintainbility are perse untenable.
She insisted that both the parties are citizens of India and though the
petitioner is presently a resident of California and the respondent No. 2 of
Canada, they are not governed by the laws of California. She reiterated that as
the divorce proceeding initiated by the respondent No. 2 before the learned
Court below under the Divorce Act was pending at the time of initiation of the
proceedings before the California Court the support order dated 4.2.2002 passed
by it in face of Section 43 of the Divorce Act was clearly unsustainable in law.

   13. I have lent my anxious consideration to the rival arguments. Before
dealing with the contentions appertaining to the proceedings of the California
Court and the support order passed by it and the tenability of the learned lower
Court's view on the aspect of reciprocity qua executability of its order in the
State of California, it would be appropriate to clear the deck of the other
fringe assertions referred to above.

   14. The special power of attorney executed by the petitioner on 16.8.2002 in
favour of Ms. Nimmi Karim reveals that the letter was authorized, amongst
others, to act, appear and defend and to take all necessary steps in the Court
of law on his behalf and under her signature. She was empowered to file, verify
and present documents, pleading, etc. in the Court. The recital in the deed
proceeding the aforementioned empowerment, however, discloses the willingness of
the petitioner to file cases in the Courts at Calcutta against the respondent
No. 2. The authorization was because of the petitioner's inability to do so
personally for his permanent residence in the United States of America. The plea
of want of authority of the attorney raised on behalf of the respondent No. 2 is
understandably based on the above recital. A reading of the contents of the
special power of attorney as a whole, however, in my view, does not lead to the
conclusion that the petitioner had limited his attorney's authority to act on
his behalf in the Court at Calcutta alone. Having regard to the nature and
extent of the powers conferred on the attorney, the objection to the contrary
does not commend acceptance.

   15. Chapter IV of the Gauhati High Court Rules outlines the general rules for
applications and affidavits to be filed before this Court. Clause 8 thereof
mandates that every application should be signed with the full name and date
either by the applicant or the declarant or his Advocate. Chapters VA and VB
dealing with rules governing applications under Articles 226 and 227 of the
Constitution of India also do not prescribe the requirement of signing each and
every page of the petition. In that view of the matter, omission to sign all the
pages of the instant petition cannot be held to be violative of the High Court
Rules. The affidavit annexed to the petition has been sworn and signed by the
attorney on being identified by the learned Counsel for the petitioner. The
affidavit is in prescribed form and the petitioner has stood by the statements
made in the petition. The underlying purpose of a verification and/or the
affidavit required by the law being to obviate the possibility of disownment of
the pleaded facts by the party concerned at his/her convenience, I am, in the
above factual premises, unable to uphold the plea of infraction of any
procedural directive in this regard. The preliminary objections raised on the
maintainability of the petition therefore fall.

   16. On the bar of res judicata, suffice it to mention that the application
filed by the petitioner "under Section 10 of the Divorce Act in the Court of the
District Judge at Alipore was for a decree for divorce. The interim application
by him was for custody and visitation rights to meet the minor child. No prayer
was made to provide maintenance. The suit was eventually dismissed acting on the
contents of the letter addressed by the petitioner to the Officer-in-Charge,
Park Street Police Station, Calcutta, indicating that a decree for divorce had
already been obtained by him from a Court in the United States. No issue as such
on the maintenance of the child was either framed or decided. The plaint was
rejected mainly on the ground of suppression of material facts. In the above
view of the matter, the bar of res judicata is obviously not attracted in the
facts of the instant case.

   17. The pleaded facts present conflicting versions with regard to the
citizenship of the petitioner. Though he has asserted in clear terms before this
Court that he is an Indian national but a resident of California, statements by
him in the application dated 6.12.2001 filed by him before the Superior Court of
California, County of Fresno praying for dismissal/abatement of the maintenance
proceedings reveal that he claimed himself to be a citizen of United States of
America. He, however, admitted therein that the respondent No. 2 was a citizen
of India. The same stand finds reflection in a subsequent application filed by
the petitioner on 21.7.2005 before a Canadian Court alleging abduction of the
minor child by his mother, respondent No. 2 and praying for an order to
apprehend the minor and deposit him in the petitioner's custody. In the
application filed by the petitioner before the Calcutta Court, he asserted that
he was a permanent resident of U.S.A. On the other hand, the respondent No. 2 in
her affidavit before this Court has stated on oath that the petitioner is a
citizen of the USA.

   18. Noticeably though the documents relatable to the California/Canada Court
proceedings as above were produced in course of the arguments, no objection
whatsoever was raised with regard to the authenticity thereof. These bear the
signature of the petitioner and/or his attorney. It further transpired in course
of the arguments that the petitioner is a permanent resident of California and
that the respondent No. 2 is currently residing at Canada. On a consideration of
the relevant facts on record on this fact of the lis, more particularly, in view
of the recorded plea of the petitioner, it would be permissible to proceed on
the basis that he is a citizen of United States of America. The ultimate
determination of the issues raised herein, however, is not contingent on the
citizenship of the petitioner.

   19. Is the Court at Shillong, the only Forum competent in law to entertain
the prayer for child support/maintenance, in view of Section 43 of the Divorce
Act, so as to oust the jurisdiction of any other Court including the Superior
Court of the State of California as asserted on behalf of the petitioner? The
provision of the Divorce Act ex facie does not support the above plea. It is a
statute to amend the law relating to divorce of persons professing Christian
religion and to confer upon certain Courts, jurisdiction for matrimonial
matters. Court as defined in Section 3(4) means the High Court or the District
Court as the case may be. Section 43 thereof empowers the Court to make such
interim orders as it may deem proper with respect to the custody, maintenance
and education of the minor children in a suit for obtaining a dissolution of
marriage or a decree of nullity thereof and to direct proceedings to be taken
for placing such children under the protection of the Court. Where a decree of
dissolution or a nullity of marriage is passed, the District Court under Section
44 of the Act, may, upon application for the purpose, make from time-to-time
such orders and provision with respect to the custody, maintenance and education
of the minor children, the marriage of whose parents was subject of the decree.
Under the said provision, the District Court may also pass order for placing
such children under its protection. The statute does not contain any overriding
or exclusionary provision mandating ouster of jurisdiction of any other
competent Court of law to entertain and adjudicate upon any prayer inter alia
for support or maintenance of any minor child, marriage of whose parents was the
subject matter of controversy in a suit before a Court thereunder. In view of
the aforementioned scheme of the Divorce Act, it is, therefore, not possible to
hold that even if the legally recognized jurisdictional essentials stand
satisfied vis-a-vis any other judicial forum it would lack competence to
adjudicate upon any issue of child support or maintenance of a minor, the
marriage of whose parents was either dissolved by a proceeding under the Divorce
Act or was declared a nullity thereunder. The contention to the contrary,
therefore, does not appeal to this Court.

   20. The validity or otherwise of the proceedings of the California Court is
relevant primarily to judge the bona fide of the petitioner's concern to provide
maintenance to the minor child for his upbringing, the order of child support,
interim though, in the California proceedings, notwithstanding. The basic thrust
of the petitioner's case in this regard is that Section 43 of the Divorce Act
bars the jurisdiction of the said Court and that the Shillong Court having
granted the decree for dissolution of marriage, it is that Court alone which can
determine the issue of custody, maintenance and education of the minor child.

   21. The documents on record which include copies of the proceedings before
the California Court (authenticity whereof is not in dispute) disclose that the
child support case was registered at the instance of he respondent No. 2 in the
later part of 2001 being represented by the County of Fresno with the petitioner
as the respondent therein. Her contention in substance had been that the
petitioner had deserted her and the child in the year 1994 and had left for USA
and since then had not provided any financial support. In the letter dated
15.1.2002 addressed by her to Mr. George Gingo, Deputy District Attorney
appearing for her, she referred to the proceedings before Calcutta Court
initiated by the petitioner for the custody of the minor contending that the
said Court would not make a verdict on child maintenance principally as the
petitioner was a resident of another country.

   22. In the meantime, on 6.12.2001, the petitioner submitted an application
before the California Court describing him to be a citizen of USA and a resident
of Fresno, California. He contended inter aha that in the year 1994 he had filed
an application before the Calcutta Court for dissolution of his marriage with
the respondent No. 2 as well as custody of the minor child and visitation
rights. He pleaded that the Matrimonial Suit No. 388/1999 was pending under
Section 43 of the Divorce Act and that he had established a trust fund for the
support of the child besides transferring his computer operation business in
favour of the respondent No. 2 wherefrom she had been earning a handsome income.
According to him, notwithstanding the pendency of the above proceeding, the
California Court had the jurisdiction regarding the issue of child support, as
one of its parents was a resident in California in terms of the Family Code but
the case was dismissible on the doctrine of Forum Non Conveniens. As the mother
and the child were citizens of India and residents thereof and a proceeding
initiated by the petitioner is pending, any decision in the California case
might result in conflict of rulings. As there was no urgency warranting
intervention by the California Court, the proceeding before it was liable to be
dismissed more particularly when the Courts in India were competent to resolve
the same issue adequately and an appropriate arrangement for child support have
in the meantime been made by the petitioner in India.

   23. The application was resisted on behalf of the respondent No. 2 contending
that the cause of child support/maintenance had been taken up under the policy
enacted by the Fresno County Family Support Division under the US Department of
Health and Human Services, Administration for Children and Families, Office of
Child Support Enforcement, whereunder the necessary support services are to be
provided to any person who applies therefor, regardless of the place of
residence of the custodial parent and the child. It was maintained that in such
child support enforcement actions, the plea of Forum Non Conveniens is wholly
untenable.

   24. The California Court in its proceeding held on 24.1.2002 denied the
motion to dismiss the child support case. Subsequent thereto, on 4.2.2002, it
passed an order directing the petitioner to provide monthly support amount of $
500 to the minor child w.e.f. 1.2.2002 with the rider that the said arrangement
would continue until further orders of the Court unless terminated by operation
of law.

   25. In the proceeding next held on 22.7.2002 (Annexure 8 to the writ
petition), the California Court upon hearing the rival submissions on the
necessity of continuance of the proceedings before it observed that it had the
jurisdiction to make orders of child support in the facts and circumstances of
the case and expressed in categorical terms that it was not inclined to
eliminate the interim support order unless it was satisfied that the child was
being maintained by an order of the Indian Court. While noticing that the
endeavour to get the proceeding before it abated or dismissed on the ground of
Forum Non Conveniens was by a person residing within its jurisdiction and that
any order passed by it could be enforced there, the California Court made it
categorically clear that any consideration for abatement of the proceedings
before it would not arise unless there was an appropriate order of child support
in India. It held the view that any such order of the Indian Court
notwithstanding, it might not abate the proceedings before it. The California
Court, however, in view of the insistence on the part of the learned Counsel for
the petitioner to have the issue considered by an Indian Court, in the attending
factual premises adjourned the further hearing of the case till 25.11.2002. On
that date (Annexure 9 to the writ petition), the California Court while
continuing the child support order passed earlier fixed the case next on
8.7.2003 directing the parties to file updated income and expenditure
declarations. The respondent No. 2 was also ordered to provide her temporary
address in the United States.

   26. In the mean time, on 22.11.2002, the petitioner filed an application
before the Shillong Court under Section 43 of the Divorce Act, which got
rejected by the order impugned in the present petition. Noticeably before
22.7.2002 as above, the application for dissolution of marriage, custody and
visitation rights filed by the petitioner before the Calcutta Court had been
rejected on 16.1.2002 and the marriage between the parties had been dissolved by
the Shillong Court on 5.7.2002. Admittedly, therefore, on 22.7.2002, no
application by either of the parties was pending before any Indian Court for
child support/maintenance.

   27. Assertive submissions having been made for and against the validity of
the California Court proceedings based on Section 13. CPC, expedient it would be
to deal with the authorities on this facet of the controversy as cited at the
bar and otherwise.

   28. In Y. Narusima Rao and Ors. v. Y. Venkatalakshmi and Anr. (supra), the
appellant No. 1 and the respondent No. 1 were married in India at Triupati in
the year 1975 according to Hindu law but got separated in the year 1978. The
appellant prayed for dissolution of marriage in the Sub-Court of Tirupati
averring that he Was a resident of New Orleans, Lousiana, USA and a citizen of
India. In the year 1980, he filed another petition for dissolution of marriage
in the Circuit Court of St. Louis County. Missouri, USA, contending that he had
been a resident of Missouri for 90 days or more. He alleged desertion by the
respondent No. 1 for one year or more, preceding the filing of the petition by
refusing to live with him in the United States. The averments made in the
petition before the Sub-Court of Tirupati, however, reveal that the petitioner
No. 1 and the respondent No. 1 lived at New Orleans and not within the
jurisdiction of the St. Louis Court in the district of Missouri.

   29. The respondent No. 1 in her reply while questioning the jurisdiction of
the foreign Court, without prejudice to the above stand, contested the case on
merits. The Circuit Court assumed jurisdiction in the matter on the ground that
the appellant No. 1 had been a resident of the State of Missouri for a period of
90 days before the Commencement of action and passed a decree for dissolution of
marriage in absence of the respondent No. 1 on the ground that the marriage was
irretrievably broken. The petition before the Sub-Court of Tirupati was not
pressed and the appellant No. 1 then married appellant No. 2 in 1981.

   The respondent No. 1 then filed a criminal complaint against the appellants
for the offence of bigamy. The appellants were granted discharge by the learned
Magistrate examining the complaint had accepting the defence of dissolution of
marriage by the Missouri Court. On revision, however, the jurisdictional High
Court set aside the order of the Magistrate on the ground that the photostat
copy of the judgment of the Missouri Court was not admissible in support of the
assertion of the dissolution of marriage. The Apex Court in the above factual
premises held the decree of dissolution of marriage passed by the Circuit Court
of St. Louis County, Missouri, USA, a Foreign Court, to be without jurisdiction
according to the Hindu Marriage Act, 1955, on the considerations as hereinbelow:

     As pointed out above, the present decree dissolving the marriage passed by
the foreign Court is without jurisdiction according to the Act as neither the
marriage was celebrated nor the parties last resided together nor the respondent
resided within the jurisdiction of that Court. The decree is also passed on a
ground, which is not available under the Act, which is applicable to be
marriage. What is further, the decree has been obtained by appellant No. 1 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 requirement
of residence of 90 days with the only purpose of obtaining the divorce. He was
neither domiciled in the State nor had he an intention to make it his home. He
had also no substantial connection with the forum. Appellant No. 1 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 respondent No. 1 has refused to 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 respondent No. 1 within the State of Missouri was necessary to
confer jurisdiction on that Court, and if not of the reasons for making the said
averment.

   30. Dwelling on the elemental rules of Private International Law and noticing
the absence of any enacted rules therefor in the country, the Apex Court, to
ensure certainty in the matter of recognition of foreign judgment in India, laid
down the guidelines for elucidation of Section 13, CPC. It held the view that
the principles of interpretation so evolved were called for to secure the
required certainty in the sphere of this branch of law in conformity with public
policy, justice, equity and good conscience as well as to protect the sanctity
of the institution of marriage and the unity of family, the cornerstones of our
social life.

   31. Dilating on the various clauses of Section 13, CPC, the Apex Court held
that Clause (a) thereof which appertains to the jurisdiction of a foreign Court,
should be interpreted to mean that the Court of competent jurisdiction would be
one which the Act or the Law under which the parties are married is recognized
to entertain the matrimonial dispute. It further held that any other Court would
be without jurisdiction unless both the parties voluntarily and unconditionally
subject themselves to its jurisdiction. The Apex Court held Clause (b) to convey
that the decision of the foreign Court should be on the ground available in law
under which the parties are married and the decision should be a result of the
contest between the parties. It was of the view that a mere filing of the reply
to the claim under protest 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 cannot be considered to be a decision
on the merits of the case.

   32. It was held with reference to Clause (c) that when a foreign judgment is
founded on a jurisdiction or on a ground not recognized by the law under which
the parties are married it would be one in defiance thereof and consequently not
conclusive of the matters adjudicated therein and, therefore, unenforceable in
the country. Observing that Clause (d) of Section 13 states no more than an
elementary principle on which the civilized system of justice rests, it held
that the requirement of the principles of natural justice should be interpreted
to mean more than mere compliance of the technical rules or procedures. It
observed that mere service of the process of the Court on the respondent should
not be deemed to be sufficient but it ought to be ascertained whether the
respondent was in a position to present himself/her self and contest effectively
the proceedings. The Apex Court added a rider that the mandate of Clause (d)
could be held to be satisfied if as a matter of rule the foreign matrimonial
judgment is recognized only if it is of the forum where the respondent is
domiciled and habitually or permanently resides. The Apex Court reiterated its
view in Smt. Sutya v. Teju Singh refusing to

   recognize a foreign judgment obtained by fraud in terms of Clause (e) of
Section 13, CPC. It added that fraud for the said purpose need not be only in
relation to the merits of the matter but also regarding jurisdictional facts.
The Apex Court summarized its view on the principles of interpretation of a
foreign matrimonial judgment in India in paragraph 20.

     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: (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 aground
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.

   33. On the touchstone of the above rules of interpretation of Section 13,
CPC, the decree of dissolution of marriage by the Circuit Court of St. Louis
County in the State of Missouri was held to be unenforceable in India as the
jurisdiction of the forum as well as the ground on which the same was passed was
not in terms of the Hindu Marriage Act, 1955, under which the parties were
married and further the respondent had not submitted to the jurisdiction of that
Court or had consented to the passing of the said judgment.

   34. Noticeably in the summary of deductions made in the above extract, the
Apex Court had carved out some exceptions to the rule that the jurisdiction of
the foreign Court and the grounds on which relief is granted in any matrimonial
proceeding has to be essentially in accordance with the law under which the
parties are married, these being when 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 or 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 or if the respondent consents to the grant of relief.

   35. Rarlier in point of time, the Apex Court in Viswanathan v. Abdul Wajid ,
while elaborating on the essence of Section

   13. CPC held that the judgment of a foreign Court to be conclusive between
the parties must be one of a Court of competent jurisdiction in a international
sense and not merely by the law of the foreign State in which the Court
delivering the judgment functions. It observes that private international law is
not one governing relations between independent States but is simply a branch of
a civil law of the State evolved to do justice between litigating parties in
respect of transactions or personal status involving a foreign element. The
rules of private international law of each State must, therefore, in the very
nature of things differ but by the comity of nations certain rules are regarded
as common to the rules of civilized jurisdictions. It held the view that though
in the judicial system of each State these common rules have been adopted to
adjudicate upon disputes involving a foreign element and to effectuate judgments
of foreign Courts in certain matters or as a result of international
conventions. While underlining that Section 13, CPC in essence enacts a branch
of the rule of res judicata in its relation to foreign judgments, the Apex Court
ruled that a foreign judgment to be conclusive it must be by a Court competent
both by law of the State which has constituted it and in an international sense
and it must have directly adjudicated upon a matter which is pleaded is res
judicata. On the requirement of Clause (d), Section 13, CPC, the Apex Court
ruled that the essence of a judgment of a Court being due observance of the
judicial process, the Court rendering the judgment must observe the minimum
requirement of natural justice namely it must be composed of impartial persons
acting fairly without bias and in good faith and provide reasonable notice to
the parties and offer each one of them reasonable opportunity to present his
case.

   36. In the same vein, the Apex Court in Sankaran Govindan v. Lakshmi Bhurathi
and Ors. . observed that the true basis of

   enforcement of a foreign judgment is that it imposes an obligation upon the
defendant and. therefore, there must be a connection between him and the forum
sufficiently close to make it his duty to perform that obligation. This, the
Apex Court highlighted in the context of the essentiality of a foreign Court's
jurisdiction in the international sense. On the precept of natural justice
incorporated in Clause (d) of Section 13, CPC. the Apex Court while underlining
that the wholesome maxim audi alteram partem is deemed to be universal and not
merely of domestic application emphasized the substantial compliance with the
prevailing notion of fair play in conducting the proceedings to ensure that the
defendant is not deprived of an opportunity to present his case would be
sufficient.

   37. In Sntt. Satya v. Teja Singh , the parties were

   married according to the Hindu rites. They were Indian citizens and domiciled
in India at the time of their marriage. Later the respondent moved to USA for
higher studies. For the next five years, the appellant continued to live in
India with her minor children and did not join the respondent in America. The
appellant subsequent thereto moved an application before the Indian Court
seeking maintenance alleging that the respondent had neglected to maintain her
and the minor children. The respondent pleaded dissolution of marriage by a
decree of divorce granted by the Second Judicial District Court of the State of
Nevada, etc. The respondent though unsuccessful before the lower judicial tiers
succeeded before the jurisdictional High Court which returned a finding that at
the time of commencement of the proceedings for divorce before the Nevada Court,
he was domiciled within that State in the USA and. therefore, the domicile of
the wife followed his. The challenge was taken before the Apex Court by the
aggrieved wife. It was held that in determining whether a divorce decree would
be recognized in another jurisdiction as a matter of comity, public policy and
good morals may be considered, however, no country is bound by comity to give
effect in its Courts the divorce laws of another country which are repugnant to
its own laws and public policy. It reiterated that 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. The Apex Court, therefore, was of the view that a foreign divorce
decree is subject to collateral attack for lack of jurisdiction even where the
decree contains the findings or recitals of jurisdictional facts besides being
open to challenge on the ground of fraud. Observing that domicile is a
jurisdictional fact, the Apex Court in the facts of the case, determined that
prior to the institution of the divorce proceedings before the Nevada Court, the
respondent might have stayed within its jurisdiction but had no domicile as
required. It concluded that the respondent had gone to Nevada as a bird of
passage and resorted to the Court there solely to procure a decree of divorce on
misrepresentation and left the place even before the ink on his domiciliary
assertion was dried. Referring to Section 13 of the CPC and Clause (e) thereof
in particular, the Apex Court held that fraud as to the jurisdiction of the
Nevada Court on false representation of domicile brought the judgment of the
Nevada Court within the coils of Section 13(e), CPC which was thus not
recognizable in India.

   38. In Rai Rajendra Sardar Moloji Nar Singh Rao Shitole v. Shankar Saran and
Ors. , the exparte decree passed by the

   Gwalior Court on 15.5.1947 and transferred to the Court at Allahabad in UP
for execution on 14.9.1951 was under challenge being a foreign decree and thus a
nullity. The respondents against whom the suit was filed at the time of its
institution were residents of UP and beyond the jurisdiction of the Gwalior
Court. In gterms of Section 2(5), IPC, Gwalior Court was a foreign Court and its
judgment, therefore, had to be enforced in the manner like a foreign judgment.
The Apex Court in the above factual backdrop and on a consideration of the
contemporaneous law ruled against the extra territorial validity of the judgment
of the Gwalior Court on the following considerations.

     1. The respondents were not subjects of Gwalior and did not owe any
allegiance to the Ruler of Gwalior and were under no obligation to accept the
judgments of the Courts of the State.

     2. They were not residents of that State when the suit was instituted.

     3. They were not temporarily present in the State when the process was
served on them.

     4. They did not in their character as plaintiffs in the foreign action
select the forum where the judgment was given against them.

     5. They did not voluntarily appear in that Court.

     6. They had not contracted to submit to the jurisdiction of the foreign
Court.

   39. The Apex Court held that the Gwalior Court was, therefore, not a
competent Court of jurisdiction and the decree was a nullity beyond the United
State (Madhya Bharat) in which Gwalior was located. The plea that the decree was
valid under the Madhya Bharat Code of Civil Procedure and that the impediment to
its executability was removed as a consequence of subsequent constitutional
changes and amendments of the Indian Code was also negatived.

   40. The Apex Court in Renusagar Power Co. Ltd. v. General Electric Co. ,
noticed the disapproval of Courts to recognize a

   foreign judgment found to be contrary to the public policy of the country in
which it was sought to be invoked or enforced. It. however, observed that the
application of the doctrine of public policy in the field of conflict of laws is
more limited than that in the domestic law and that the Courts are slower to
invoke public policy in cases involving a foreign element than when a purely
municipal legal issue is involved.

   41. In this background of precedential law, the contextual facts may now be
marshalled. Section 13, CPC which embodies the principle of international law
and the elucidation thereof by the Apex Court in Y. Narasimha Rao and Ors.
(supra), in particular, pertaining to foreign matrimonial judgment, provides the
unassailable touchstone for the purpose. In terms thereof, a Court of competent
jurisdiction within the meaning of Clause (a) of the above provision of the Code
would be one recognized by the law under which the parties are married and
entitled to entertain the matrimonial dispute. Exception to this would be, if
both the parties voluntarily and unconditionally subject themselves to the
jurisdiction of any other Court and the respondent contests the claim, which is
based on the ground available under the matrimonial law governing parties or
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 the
ground available in the matrimonial law under which the parties are married or
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. Admittedly at all relevant times, the petitioner
was a permanent resident of the State of California. The action had been
initiated in the California Court or the failure on his part to provide
maintenance or support to the child he having deserted the respondent No. 2 and
the minor in the year 1994. The obviously is also a ground to" seek relief for
child maintenance under the matrimonial law applicable to the parties. No
objection had been taken by the petitioner questioning the jurisdiction of the
California Court founded on the bar of Section 43 of the Divorce Act. The
contest was only on the ground of the Forum Nan Convenient. No law, policy or
convention mandating ouster of the California Court's jurisdiction has been
brought to the notice of this Court. The interdiction of Clause (a), therefore,
is not attracted.

   42. The child support order, interim though, has been passed any/or
maintained thereafter upon hearing both the parties. The petitioner was
represented by his Counsel and the proceedings of the California Court disclose
a conscious consideration of the materials on record culminating in the support
order. Per se, therefore, it is not possible to conclude that the child support
order is not on the merits of the case. Admittedly on the date of the said
order, no other order by any other Court for the maintenance of the minor was in
existence. No proceeding before any Indian Court was also pending. Clause (b) of
Section 13, CPC as well does not come in the way.

   43. The proceeding of the California Court, available on records, do not
reveal that the action was founded on an incorrect view of international law.
Refusal to recognize any law in India relevant to the issue is also not
discernible. As held hereinabove. Section 43 of the Divorce Act does not exclude
the jurisdiction of any other Court of competent jurisdiction. Clause (c) of the
above provision of the Code also is not applicable.

   44. Admittedly the petitioner had appeared before the California Court being
noticed of the child support case and in addition to filing his pleadings,
contested the issue by duly participating in the proceedings being represented
by his lawyer. No plea of want of any reasonable opportunity or breach of the
judicial process had ever been raised. No misrepresentation on jurisdictional
facts or otherwise have also been pointed out to indicate any fraud perpetrated
by the respondent No. 2 in the matter of assumption of jurisdiction by the
California Court. True it is that at the time of initiation of the action before
the California Court, the application of the petitioner before the Calcutta
Court for dissolution of marriage, for custody of the child and visitation
rights as well as proceedings for dissolution of marriage before the Shillong
Court instituted by the respondent No. 2 were pending. But in none of these
cases, the issue of maintenance was subjudice. The proceedings before the
California Court and the support order passed by it cannot thus be denounced on
the ground of fraud.

   45. The petitioner being the father of the minor under the Indian law
governing the parties, he is obliged to maintain him. Except the child support
order passed by the California Court, there is no order by any Indian Court to
the said effect requiring the petitioner to provide maintenance to the child.
The consideration which weighed with the California in passing the maintenance
order was the interest and welfare of the child and the lack of adequate means
of the mother to independently rear him up in a way befitting to the status of
the family tc which he belonged. The factor prompting the California Court to
entertain the proceedings and render the support order embodies a common
principle of general application for adjudicating issues on child maintenance.
The California Court, therefore, cannot be said to have sustained a claim
founded on any breach of law in force in India. Clause (f) is not attracted
either.

   46. The contention that the child support passed by that California Court was
for all practical purposes, intended to be subjects to fresh proceedings before
the competent Indian Court and orders to be passed by it, is also not borne out
by the proceedings in the foreign Court. The observations of the California
Court in its proceedings of 22.7.2002 do not admit those to be so interpreted.
The observations were clearly generated by its concern for the child and to
ensure adequate maintenance by a legal forum. By no means, the California Court
intended that the proceedings before it and the child support order passed
therein would get effected proprio vigore with the initiation of an action
before an Indian Court on the issue and orders passed in it. Noticing, however,
the eagerness expressed by the petitioner's Counsel to have the issue examined
by an Indian Court on the ground of Forum Non Conveniens, the California Court
adjourned the proceedings so as to enable the petitioner, if so advised, to act
in terms of the representation made before it. The child support case before the
California Court, therefore, on this Court as well, cannot be held to be
incompetent or lacking in jurisdiction.

   47. From the materials available on record, it transpires that the Family
Support Division in the State of California functions under the Child Support
Enforcement Programme established in the year 1975 to provide amongst others
child support services as comprehended under the Title IV-D of the Social
Security Act. The office of the Child Support Enforcement functions under the US
Department of Health and Human Services. The documents furnished to this Court
in course of the hearing reveal that Section 454(4)(A)(ii) of the Social Service
Act, imposes an obligation on the State agencies to provide Title IV-A services
to anyone who had applied therefor. It appears further that Section 454(6)(A) of
the said legislation requires that services under the plan shall be made
available to residents of other States on the same terms as to residents of the
State. No residency or citizenship requirement as a pre-condition for availing
Title IV-D services has been insisted upon.

   48. Under Section 4000 of the California Family Code, if a parent has the
duty to provide for support of the child but wilfully fails to do so, the other
parent or the child by a guardian ad litem, may bring an action against the
parent to enforce the duty. Section 4002(a) empowers a County to proceed on
behalf of the child to enforce its right of support against the parent. The
primary jurisdictional foundation, in view of the above, is thus also available
for the California Court to deal with the issue.

   49. The respondent No. 2 invoked the child support mechanism available in the
State of California of which the petitioner was a permanent resident and thus
readily reachable within the jurisdiction of that Court. The petitioner, it is
noticeable, as such did not question the competence or jurisdiction of the
California Court on any ground other than an assumed statutory bar perceived by
him under Section 43 of the Divorce Act. His resistance somewhat otherwise had
been on the ground of Forum Non Conveniens. This, by itself, does not strip the
California Court of its jurisdiction in view of the other overwhelming materials
to the contrary. The learned Court below, as rightly contended on behalf of the
respondent No. 2, did not return a finding of lack of jurisdiction on its part
to entertain the application of child support made by the petitioner. It only
exercised its discretion against him expressing reservation on his bonafide in
view of the pendency of the California Court proceedings.

   50. The reciprocity aspect, having a bearing on the executability of an order
of an Indian Court in a foreign country next deserves attention. The relevant
provisions of the Civil Procedure Code again would be pertinent as under Section
55 of the Divorce Act, all decrees and orders made by the Court thereunder in
any suit or proceeding would be enforceable and appealed from, in the like
manner as decrees and orders thereof, in the exercise of its original civil
jurisdiction are enforced and appealed from, under the law, rules and orders for
the time being in force. Section 45 of the said Act prescribes that subject to
the provisions thereof, all proceedings thereunder would be regulated by the
Code of Civil Procedure.

   51. Sections 38 to 45 of the CPC deal with the Courts by which decrees may be
executed. Having regard to the issue under consideration, it would be
permissible to confine the attention to Sections 44A and 45 thereof. Section 44A
provides for execution of decrees passed by Courts in reciprocating territory.
Thereunder, if a certified copy of a decree of any of the superior Courts of any
reciprocating country is filed in a District Court, the decree may be executed
in India as if passed by the District Court. A reciprocating country has been
defined to mean a country or territory outside India which the Central
Government may, by notification in the Official Gazette, declare to be a
reciprocating territory for the purposes of the section. Similarly, Superior
Courts with reference to any such territory has been defined to mean such Courts
as may be specified in the said notification. The above provision of the Code,
therefore, exclusively deals with the execution of the decrees passed by a
foreign Court in a reciprocating territory within the meaning thereof.

   52. Section 45, CPC, however, appears to be more relevant for the present
purpose as it relates to execution of decrees outside India. It ordains in
essence that a Court in any Sate is empowered to send a decree for execution to
any Court established by the authority of the Central Government outside India
to which the State has by notification in the Official Gazette declared the said
section to apply. A plain reading of the above provision of the Code yields the
following features:

     (1) The decree to be executed is of an Indian Court for execution in a
foreign territory.

     (2) The transferee Court should be one established by Central Government in
such foreign territory.

     (3) The State Government, by notification, has declared this section to
apply to the said foreign Court.

   53. Section 45, therefore, prescribes the essential pre-conditions for
execution of a decree of an Indian Court outside the country. Having regard to
the unequivocal precepts of permissibility, the inevitable conclusion is that in
absence of either of these conditions, an Indian Court has no jurisdiction to
send its decree for execution to a Court not situated in India. No material,
whatsoever, has been produced on behalf of the petitioner to demonstrate that
the above statutorily prescribed essentials are satisfied. On the other hand,
Annexure F to the affidavit in opposition filed by the respondent No. 2 suggests
absence of reciprocity between India and the State of California. The conclusion
of the learned Court below in this regard, therefore, is unassailable. The
authorities cited at the Bar in SS Said-id Hamid (supra) and Md. Abdulla
(supra), being referable to the execution of judgments of foreign Courts in
India in the manner contemplated under Section 44A, CPC do not call for any
detailed discussion.

   54. Is the petitioner's conduct in resisting the California proceedings on
the plea of Forum Non Conveniens compatible with his concern to provide
maintenance to the child through an order of the Indian Court? Noticeably no
such endeavour had been made by his prior to the filing of the application on
22.11.2002 before the Shillong Court. Though he applied for dissolution of
marriage under the Divorce Act before the Calcutta Court and by an interim
application sought visitation rights, there was no offer to provide maintenance
to the child. It was only after the child support order passed by the California
Court on 4.2.2002 and rejection of his prayer for dismissal of the said
proceedings that he approached the Shillong Court presumably to fall in line
with the stand taken by him before the Court at California. The proceedings
initiated by the respondent No. 2 being for the maintenance of the child, the
resistance from the petitioner's side and his urge to obtain a separate order
from the Shillong Court is really intriguing. If the petitioner's reservation is
on the amount granted by the California Court, he has ample opportunity to
contest the issue on this Count by adducing relevant materials in support of his
stand. He enjoys the advantage of participating in the proceedings before the
California Court being a permanent resident of that place. The petitioner's
proclaimed dormancy over the need of his child's maintenance for all these years
and his sudden animation following the California Court's support order
constrains this Court to hold that the concern expressed before the Shillong
Court is ostentatious and not real. There appears to be no logic or rationale in
permitting parallel proceedings before the learned Court below on the same
issue. The impugned order does not suffer from any vitiating error on a
fundamental principle of law or procedure to merit invocation of the supervisory
jurisdiction of this Court under Article 227 of the Constitution of India.

   55. The petition, thus being without any merit, is dismissed. No costs.