DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

CASE COMMENT ON Y. NARASIMHA RAO V. Y.

VENKATALAKSHMI

PRIVATE INTERNATIONAL LAW

KALIDHASS

G. NAGA LAHARI

ROLL NO: 2013048

IX SEMESTER
 ACKNOWLEDGEMENT

I consider myself lucky that I got the chance to do a work on this topic that was to
case comment on Y. Narasimha Rao v. Y. Venkatalakshmi.

I thank the subject teacher, Mr. Kalidhass, for letting me choose the topic.
 TABLE OF CONTENTS

TITLE PAGE NO

1. INTRODUCTION 05

1.1. REVIEW OF LITERATURE 05

1.2. Definition, rationale& scope 05

1.3. Research Questions 06

1.4. Hypothesis 06

06
1.5. Research Methodology

2. RECOGNITION OF FOREIGN DIVORCES 06

IN INDIA

3. FACTS OF THE CASE

07

4. ISSUES INVOLVED 08

5. ARGUMENTS OF THE PARTIES 10

6. DECISION OF THE COURT 12

7. CRITIQUE 15

BIBLIOGRAPHY 16
 LIST OF CASES

1. Marggarate v. Chacko, AIR 1971 Ker 1.

2. Teja Singh v. Smt. Satya, (1970) 72 P.L.R. 235

3. Le Mesurier v. Le Mesurie, (1895) A.C. 517

4. RupakRathi v. Anita Chaudhary, CR-3132013(O&M) (Punjab & Haryana

High Court, April, 2014).
5. Y. NarasimhaRao v. Y. Venkata Lakshmi, (1991) 3 SCC 451
 1. INTRODUCTION

In India even after nearly seven decades of independence, there is still not a special
statutory enactment addressing conflict of laws involved in marriage and matrimonial
reliefs. Due to this legislative inertia, it has fallen upon the Indian Judiciary to evolve
principles governing such cases. Divorce is a particularly complex subject in this
regard due to its far-reaching implications involving right to remarry, custody of child
etc. Furthermore, in India different personal laws provide for divorce on the grounds
specified therein which has been a cause of conflict not only from the point of view of
private international law, but from the point of view of conflict between the
interpersonal laws as well; but a study of such conflict of interpersonal laws in India
would be beyond the scope of the present article. The article focuses on the judicial
approach in India towards divorce in cases involving an international element. The
article aims to understand the challenges posed before the courts, the view taken by
the courts and the way ahead for divorces in the international context when they come
up before Indian courts.

Due to the advancements made worldwide and the increased connectivity of

India with the rest of the world, there has been a dramatic increase in the number of
marriages and consequently, divorces, having an international element. Today, a
population of over one billion Indians lives in twenty-nine states and seven union
territories within India. In addition, about twenty five million Indians called non-
resident Indians, reside in foreign jurisdictions. It is important to see here that the
personal law of an individual in India is governed or determined by his membership
of a community and not by his domicile. The courts have adopted multiple criteria in
settling disputes arising out of divorces where there is at least one Indian party or in
cases of marriages between non-Indian parties, which were solemnized in India.

1.1. Review of Literature:

The existing literature on this research work mainly revolves around the published
works of foreign as well as Indian authors pertaining to the subject matter, well
decided cases cited in Indian Journals and cases cited from other countries and the
articles published in websites.
1.2. Definition, Rationale and Scope:

The rationale and scope behind the paper is to analyze the issues and also relate with
the present judicial decisions and also the guide lines laid down by the court.

1.3. Research Questions:

1. To what extent, the decree passed by the foreign court related to divorce or
any matrimonial proceedings is valid before the Indian Courts?

2. Whether the foreign can pass a decree on divorce petitions?

3. What are the rules to be noted to pass a decree of divorce proceedings by the
foreign courts?

1.4. Hypothesis:
To analyze the issues concerned with the matrimonial disputes in the subject of the
element involving international law.

1.5. Research Methodology:

The research is doctrinal method.

2. RECOGNITION OF FOREIGN DIVORCES IN INDIA

An important domain, which remains once a foreign court, has granted a decree of
divorce is its recognition. In India since there is no separate legal enactment regarding
recognition of foreign divorces, generally the principles given in section 13 of the
Code of Civil Procedure1 and section 41 of the Indian Evidence Act2 operate in this
regard. A foreign divorce is also recognized on the basis of existence of a real and
substantial connection between the parties and the court, which exercised the divorce
jurisdiction 3 . The approach taken by Indian judiciary regarding the recognition of
foreign divorce decrees has been varied and not uniform in its application.

An interesting instance of an Indian court applying age old principles of English law
is Teja Singh v. Smt. Satya4, where the court gave an observation that: it now seems

1
Section 13 of the Civil Procedure Code, 1908.
2
Section 41 of the Indian Evidence Act, 1872.
3
Marggarate v. Chacko, AIR 1971 Ker 1.
4
(1970) 72 P.L.R. 235
to be beyond all dispute that the domicile of the husband at the time of the suit for
divorce is the sole test for the purpose of giving jurisdiction to the matrimonial court.
Whatever doubts existed had long been laid to rest by the decision of the Privy
Council in Le Mesurier v. Le Mesurie5 The court on this basis held that a decree of
divorce pronounced by the court of domicile will be accorded recognition universally
and would be recognized in India. Here, the court not only failed to take in
consideration the changes in common law over nearly a century since Le Mesurier
was delivered but also failed to take any steps in developing Indian jurisprudence on
the topic.

Although this decision was reversed by the Supreme Court on the finding of fact that
husband was not actually domiciled in the foreign country and also on the ground that
the foreign judgment is vitiated by fraud in relation to jurisdictional facts 6 , the
concerns of not having a separate enactment dealing with recognition and
enforcement of foreign divorces were widely felt and the Law Commission was set up
which delivered its recommendations on the recognition of foreign divorces in its 65 th
report. But unfortunately, despite more than forty years having elapsed, no law along
the lines of the recommendation of the Law Commission has been enacted yet and
thus, it has been left to the judiciary to evolve principles governing the recognition of
foreign divorces in India.

3.FACTS OF THE CASE

The 1st Appellant and the Respondent were married at Tirupati on February 27, 1975.
They separated in July 1978. The 1st appellant filed a petition for dissolution of
marriage in the Circuit Court of St. Louis County Missouri, USA. The respondent
sent her reply from here under protest. The Circuit Court passed a decree for
dissolution of marriage on February 19, 1980 in the absence of the respondent.

The 1st appellant had earlier filed a petition for dissolution of marriage in the sub-
Court of Tirupati. In that petition, the 1st appellant filed an application for dismissing
the same as not pressed in view of the decree passed by the Missouri Court. On
August 14, 1991 the learned sub-Judge of Tirupati dismissed the petition.

On 2nd November 1981, the 1st appellant married the 2nd appellant in Yadgirignita.
5
(1895) A.C. 517
6
Satya v. Teja Singh, 1975 S.C. 105
Hence, the respondent filed a criminal complaint against the appellants for the offence
of bigamy. It is not necessary to refer to the details of the proceedings in the said
complaint. Suffice it to say that in that complaint, the appellants filed an application
for their discharge in view of the decree for dissolution of marriage passed by the
Missouri Court. By this judgment of October 21, 1986, the learned Magistrate
discharged the appellants holding that the complainant, i.e., the respondent had failed
to make out prima facie case against the appellants. Against the said decision, the
respondent preferred a Criminal Revision Petition to the High Court and the High
Court by the impugned decision of April 18, 1987 set aside the order of the
Magistrate holding that a photocopy of the judgment of the Missouri Court was not
admissible in evidence to prove the dissolution of marriage. The Court further held
that since the learned Magistrate acted on the photostat copy, he was in error is
discharging the accused and directed the Magistrate to dispose of the petition filed by
the accused, i.e., appellants herein for their discharge, afresh in accordance with law.
It is aggrieved by this describe that the present appeal is filed.

4. ISSUES INVOLVED

The main issues involved in the case are:

(a) The foreign court that grants divorce must be acceptable under Hindu law; and

(b) The foreign court should grant divorce only on the grounds, which are
permissible under Hindu Law
It is not uncommon to hear about cases either the husband or the wife filed for divorce
in a foreign court, while the spouse did not attend the proceedings either due to notice
not being served or due to some other reason. In such a situation, the case of Y
Narasimha Rao is relevant.

Y. Narsimha Rao and Y. Venkata Lakshmi were married in Tirupati, India as per
Hindu customs in 1975. They separated in July 1978. Mr. Rao filed a petition for
dissolution of marriage in the Circuit Court of St. Louis County Missouri, USA. Mrs.
Lakshmi sent her reply from India under protest. The Circuit Court passed a decree
for dissolution of marriage on February 19, 1980 in the absence of Mrs. Lakshmi. Mr.
Rao had earlier filed a petition for dissolution of marriage in the sub-Court of
Tirupati. Later, he filed an application for dismissing the petition in view of the
decree passed by the Missouri Court.

On 2 November 1981, Mr. Rao married another woman. Hence, Mrs. Lakshmi filed a
criminal complaint against Mr. Rao for the offence of bigamy. The Supreme Court
refused to accept the divorce decree granted by the court at Missouri, USA. While
deciding the case the Supreme Court laid down the law for foreign matrimonial
judgments in this country. The relevant extract from the judgment is as follows:

The jurisdiction assumed by the foreign court as well as the ground 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 habitually and permanently resides and the relief is granted on a
ground available in the matrimonial law under which the parties are
married;
(ii) where the respondent voluntarily and effectively submits to the jurisdiction
of the forum as discussed above and contests the claim which is based on a
ground available under the matrimonial law under which the parties are
married;
(iii) where the respondent consents to the grant of the relief although the
jurisdiction of the forum is not in accordance with the provisions of the
matrimonial law of the parties.

The key rule laid by the Supreme Court can be summed up as follows: If a couple is
married under Hindu law, (a) the foreign court that grants divorce must be acceptable
under Hindu law; and (b) the foreign court should grant divorce only on the grounds
which are permissible under Hindu Law. The two conditions make it almost
impossible for a Hindu couple married in India to get a legally valid divorce from a
foreign court since no foreign court is an acceptable one under Hindu Marriage Act
and also because no foreign court is likely to consider the provisions of Hindu
Marriage Act before granting divorce.

The exceptions that Supreme Court has permitted to the above rule laid by it are as
follows in a case where husband has filed for divorce in a foreign land:
 The wife must be domiciled and permanently resident of that foreign land
AND the foreign court should decide the case based on Hindu Marriage Act.

The wife voluntarily and effectively attends the court proceedings and contests
the claim on grounds of divorce as permitted under Hindu Marriage Act.
The wife consents to grant of divorce

Exception A seems almost impossible. Exception B is examined in the next section.

Exception C means that the divorce is obtained by mutual consent and therefore the
courts of India do not want to interfere with it.

In a recent case (March 2012), Sunder and Shyamala tied the knot in Vellore district
in 1999, Sunder went to the USA within a year and did not communicate with
Shyamala after that. In 2000, she received summons from Superior Court of
California, which subsequently granted divorce despite the wifes defence statement.
Madras High Court held that the Superior Court of California was not a court of
competent jurisdiction to decide the matrimonial dispute in this case.

5. ARGUMENTS OF THE PARTIES

It is necessary to note certain facts relating to the decree of dissolution of marriage
passed by the Circuit Court of St. Louis County Missouri, USA. In the first instance,
the Court assumed jurisdiction over the matter on the ground that the 1st appellant
had been a resident of the State of Missouri for 90 days next preceding the
commencement of the action and that petition in that Court. Secondly the decree has
been passed on the only ground that there remains no reasonable likelihood that the
marriage between the parties can be preserved, and that the marriage is, therefore,
irretrievably broken". Thirdly, the 1st respondent had not submitted to the jurisdiction
of the Court. From the record, it appears that to the petition she had filed two replies
of the same date. Both are identical in nature except that one of the replies begins with
an additional averment follows: "without prejudice to the contention that this
respondent is sub-milting to the jurisdiction of this hon'ble court, this respondent
submits as follows". She had also stated in the replies, among other things, that (i) the
petition was not maintainable, (ii) she was not aware if the first appellant had been
living in the State of Missouri for more than 90 days and that he was entitled to file
the petition before the Court, (iii) the parties were Hindus and governed by Hindu
Law and they were married at Tirupati in India according to Hindu Law, (iv) she was
an Indian citizen and was not governed by laws in force in the State of Missouri and,
therefore, the Court had no jurisdiction to entertain the petition, (v) the dissolution of
the marriage between the parties was governed by the Hindu Marriage Act and that it
could not be dissolved in any other way except as provided under the said Act, (vi)
the Court had no jurisdiction to enforce the foreign laws and none of the grounds
pleaded in the petition was sufficient to grant any divorce under the Hindu Marriage
Act.

Fourthly, it is not disputed that the respondent was neither present nor represented in
the Court and the Court passed the decree in her absence. In fact, the Court has in
terms observed that it had no jurisdiction "in personam" over the respondent or minor
child which was born out of the wed-lock and both of them had domiciled in India.
Fifthly, in the petition which was filed by the Ist appellant in that Court on October 6,
1980, besides alleging that he had been a resident of the State of Missouri for 90 days
or more immediately preceding the filing of the petition and he was then residing at
23rd Timber View Road, Kukwapood, in the County of St. Louis, Missouri, he had
also alleged that the respondent had deserted him for one year or more next preceding
the filing of the petition by refusal to continue to live with the appellant in the United
States and particularly in the State of Missouri. On the other hand, the averments
made by him in his petition filed in the court of the Subordinate Judge, Tirupati in
1978 shows that he was a resident of Apartment No. 414, 6440, South Claiborne
Avenue, New Orleans, Louisiana, United States and that he was a citizen of India, He
had given for the service of all notices and processes in the petition, the address of his
counsel Shri PR Ramachandra Rao, Advocate, 16-11- 1/3, Malakpet, Hyderabad-500
036. Even according to his averments in the said petition, the respondent had resided
with him at Kuppanapudi for about 4 to 5 months after the marriage. Thereafter she
had gone to her parental house at Relangi, Tanuka Taluk, and West Godavari District.
He was, thereafter, sponsored by his friend Prasad for a placement in the medical
service in the United States and had first obtained employment in Chicago and
thereafter in Oak Forest and Greenville Springs and ultimately in the Charity Hospital
in Louisiana at New Orleans where he continued to be employed. Again according to
the averments in the said petition, when the respondent joined him in the United
States, both of them had stayed together as husband and wife at New Orleans. The 1st
respondent left his residence in New Orleans and went first to Jackson, Texas and,
thereafter, to Chicago to stay at the residence of his friend, Prasad. Thereafter she left
Chicago for India. Thus it is obvious from these averments in the petition that both
the 1st respondent and the 1st petitioner had last resided together at New Orleans,
Louisiana and never within the jurisdiction of the Circuit Court of St. Louis County in
the State of Missouri. The averments to that effect in the petition filed before the St.
Louis Court are obviously incorrect.

Under the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the
"Act") only the District Court within the local limits of whose original civil
jurisdiction (i) the marriage was solemnized, or (ii) the respondent, at the time of the
presentation of the petition resides, or (iii) the parties to the marriage last resided
together, or (iv) the petitioner is residing at the time of the presentation of the petition,
in a case where the respondent is, at the time, residing outside the territories to which
the 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, has
jurisdiction to entertain the petition. The Circuit Court of St. Louis County, Missouri
had, therefore, no jurisdiction to entertain the petition according to the Act under
which admittedly the parties were married. Secondly, irretrievable breakdown of
marriage is not one of the grounds recognized by the Act for dissolution of marriage.
Hence, the decree of divorce passed by the foreign court was on a ground unavailable
under the Act.

6. DECISION OF THE COURT

Having obtained the divorce decree from the Missouri court, the appellant had a
second marriage in India. The respondent-wife soon thereafter filed a criminal
complaint for the offence of bigamy against the appellant-husband. If the Supreme
Court recognized the foreign divorce decree, the appellant's second marriage would
become valid in India. If not, the appellant-husband would be liable for bigamy under
the Indian penal laws for having contracted a second marriage during the subsistence
of his first marriage. Further, in effect, the appellant and the respondent would be
considered as legally wedded in India, while they are treated as divorced under the
Missouri laws in United States.

The Apex Court unequivocally held that Indian courts will not recognize a foreign
judgment if it had been obtained by fraud, which need not be only in relation to the
merits of the matter but may also be in relation to jurisdictional facts. The court also
held that a divorce obtained from a foreign court was invalid in India unless the basis
was in accordance with provisions of the Indian divorce laws. The court also went on
to observe that we cannot lose sight of the fact that today more than even in the past,
the need for definitive rules for recognition of foreign judgments in personal and
family matters, and particularly in matrimonial disputes, has surged to the surface. A
large number of foreign decrees in matrimonial matters is becoming order of the day.
A time has, therefore, come to ensure certainty in the recognition of the foreign
judgments in these matters.

In RupakRathi v. Anita Chaudhary7, the Punjab and Haryana High Court has ruled
that any judgment passed by a court of another country in a matrimonial dispute
would not be considered conclusive in relation to the same matrimonial dispute
pending before an Indian court.

The Supreme Court in Y. NarasimhaRao v. Y. Venkata Lakshmi has made attempts to

give guiding principles as to how Section 13 is to be interpreted in cases of
recognition foreign divorce decrees in India.

1. The court interpreted section 13(a) of CPC, dealing with the competence of
the foreign court's jurisdiction to pronounce the judgment that was sought to
be recognized by the Indian court, to mean that only that court will be 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. Further, 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.
2. The court interpreted section 13(b) of C.P.C. to mean (a) that the decision of
the foreign court should be on a ground available under the law under which
the parties are married, and (b) that the decision should be a result of the
contest between the parties. Furthermore, the latter requirement for the
purpose of considering a judgment on merit will be fulfilled only when the
respondent is duly served and voluntarily and unconditionally submits to the

7
CR-3132013(O&M) (Punjab & Haryana High Court, April, 2014)
 jurisdiction of the foreign court and contests the claim, or agrees to the passing
of the decree with or without the appearance. Furthermore, 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 for objecting to the jurisdiction of the
court should not be considered as a decision on the merits of the case.
3. The court interpreted the only law that could be applicable to the matrimonial
disputes as the one under which the parties are married, and no other law
under section 13(c). The court pointed out that when 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 India. 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 India.
4. Referring to section 13(d) dealing with recognition of the foreign decree
based on the compliance of principles of natural justice by the foreign court,
the Supreme Court gave consideration to their actual practice particularly in
family law matters. The court pointed out that these principles should be
applied at all stages of the litigation including the appellate proceedings. The
court also called upon the foreign courts to ascertain and ensure such
effective contest by requiring the petitioner to make all the necessary
provisions for the respondent to defend including the cost of travel, residence
and litigation where necessary.
5. The court stated that Section 13(e), which requires that the courts in this
country will not recognize a foreign judgment if it has been obtained by fraud,
is self-evident. The court in this regard reiterated the position in Smt. Satya v.
Teja Singhto be included in the definition of fraud.

It is evident that the Indian courts have evolved certain principles to guide the courts
in uniform application in case of recognition of foreign divorces but a special
statutory enactment would go a long way in solving the problems created in
recognition of foreign divorces in India. Justice Chandra chud has suggested that the
Hague Convention of 19708 which contains a comprehensive scheme for relieving the
confusion caused by differing systems of conflict of laws may serve as a model for
evolving a statutory enactment on the subject9.

This would clearly be helpful and Article 10 of the Hague Convention expressly
provides that the contracting States may refuse to recognize a divorce or legal
separation if such recognition is manifestly incompatible with their public policy, so
the considerations unique to the Indian context are also taken care of. But the
Convention has certain provisions like clause (a) of paragraph 2 of Article 6 which
provides for the recognition of a divorce or legal separation not being refused because
the internal law of the State in which such recognition is sought not allowing divorce
orlegal separation upon the same facts, which if implemented would result in
recognition of foreign divorces on grounds like irretrievable breakdown of marriage
which are still not recognized in India. But in RupakRathi v. Anita Chaudhary the
court has held that no decree of divorce obtained from a foreign court could be
sustained on ground of irretrievable break down of marriage. Hence, there is a cause
of understandable hesitation in enacting a law along the lines of the Convention.

Furthermore, clause (b) of paragraph 2 of Article 6 of the Convention provides that

the recognition of a divorce or legal separation not being refused because of
application of law other than that applicable under the rules of private international
law of that State, which is manifestly contrary to the ruling of the Supreme court of
India in Y. NarasimhaRao v. Y. Venkata Lakshmi. Therefore, there is a need of
enacting a law which takes into consideration the conditions peculiar to Indian
circumstances although the Hague Convention of 1970 may serve as a general model.

7. CRITIQUE
It has indeed been unfortunate that Indian courts have in some cases blindly followed
the age-old common law principles such as on the point of the unity of domicile of the
wife and husband. There is a need that the courts adjudge cases by evolving principles
more suited to the Indian scenario and with regard to considerations peculiar to the
Indian context.

A need for a special statutory enactment is especially felt to reconcile the views of
8
Hague Convention on the Recognition of Divorces and Legal Separations, 1970
9
Satya v. Teja Singh, 1975 S.C. 105.
different courts regarding issues involved in conflict of laws governing divorce as the
courts have not been consistent in their approach.

But in the meanwhile, until the legislature overcomes its legislative inertia in enacting
a statutory law on the subject; the Indian courts have, especially since the 1990s done
a proactive job in setting guidelines and evolving principles to develop jurisprudence
on conflict of laws of divorce which is more suited to Indian circumstances. This is
why that the future of development of Indian jurisprudence on conflict of laws of
matrimonial reliefs is in no way bleak and it is our hope that the Indian judiciary
would continue to maintain a balance in ensuring that divorces with an international
element do not become unnecessarily difficult while at the same time also
safeguarding the interests of innocent spouses abandoned by forum shopping.

8. REFERENCES
BOOKS

1. Cheshire & North, Private International Law, 13th ed,.

2. S.R.Myneni, Private International Law, 1st ed,.
3. Paras Diwan & Peeyushi Diwan, Private International Law 149 (2nd ed.,
1993).

E-BOOKS

1. Jaffey, Topics in Choice of Law (1996)

2. Cook, The Logic and Legal Bases of the Conflict of Laws (1942)
3. Davie, The Breaking Up of the Essential Validity of Marriage Choice of Law
Rules in English Conflict of Laws (1994)

ARTICLES

1. Gajendragadkar, P.B., et al, Recognition of Foreign Divorces, Sixty Fifth

Report of the Law Commission of India, 1976, Government of India Press,
Nasik at 14 (2.2).

WEBLIOGRAPHY

1.https://ipc498a.wordpress.com/2007/04/11/y-narasimha-rao-vs-venkata-lakshmi/

2. http://www.tcl-india.net/node/74
3. http://www.indialegalhelp.com/files/foreigndivorce.pdf