The Bombay High Court recently set aside an order dated February 22, 2016, of the family court of Bandra which dismissed a petition for divorce filed by one Shilpa Sachdev, stating that the same was barred by principles of res judicata as a Dubai court had already granted divorce on the ground of desertion.
A bench of Justice AS Oka and Justice Anuja Prabhudessai set aside the family court’s order, restored the petition filed by Shilpa and directed both parties to remain present before the family court on September 18.
The marriage between Shilpa and Anand Sachdev took place on March 9, 2000. After this, the couple moved to Dubai where they had two children - a son and a daughter.
Within 6 months of her daughter’s birth, Shilpa returned to Mumbai with her two children on June 21, 2008.
Consequently, in 2012, Anand Sachdev filed a petition for divorce in Dubai. According to Anand, his wife had been served with summons from Dubai court, but chose not to respond. Thus, in an ex parte judg ment, divorce was granted on November 1, 2012, on the ground of desertion by the wife.
Shilpa Sachdev then filed a petition for divorce on November 12, 2014, on grounds of cruelty and sought maintenance and accommodation for herself and her children.
This was opposed by the respondent husband in an application dated January 16, 2015, wherein he questioned the maintainability of this petition.
It was contended in the application that the petitioner wife came to Mumbai with a return ticket to Dubai but decided to stay back and all efforts by the husband to get his wife back were rendered futile.
Also, the issue of dissolution of marriage had already been adjudicated on merits by the Dubai Court since the petitioner as well as the respondent last cohabited in Dubai, within the territorial jurisdiction of Dubai court. Therefore, Dubai court’s judgment is conclusive and the issue of dissolution of marriage having already been adjudicated on merits, the same cannot be re-adjudicated by filing petition under Section 13 of the Hindu Marriage Act. Hence, the petition filed by the petitioner before the family court in Bandra is barred by the principles of res-judicata, the application said.
While Mrunalini Deshmukh appeared for the petitioner (wife), Ashish Kamat appeared for the respondent husband.
The court noted that the validity of a foreign judgment in civil proceedings is governed by the provisions of section 13 of the Code of Civil Procedure and after a plain reading of the provisions stated:“From a plain reading of these provisions, it is clear that a foreign judgment is conclusive between the parties as to any matter directly adjudicated upon, unless it is marred by any of the disqualifications under clauses (a) to (f) of Section 13 of the Code of Civil Procedure,1908.”
Referring to the exceptions carved out by the apex court in Y Narashimha Rao & Ors vs Y Venkata Lakshmi & Anr, the court further noted that the law is well settled that a decree of a foreign court, in respect of matrimonial proceedings, is conclusive in India only when it is passed by a court of competent jurisdiction and it is in accordance with the law that governs the matrimonial matters between the parties.
“Any other Court would be without jurisdiction, unless the case is covered by any of the three exceptions carved out by the Apex Court in para 20 of Y. Narasimha Rao (supra).”
The three exceptions to this are:
(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 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. Furthermore, the decree should not be affected by any of the circumstances enumerated in Clauses (a) to (f) of Section 13 CPC.
The court then observed that since both parties are Indian nationals and their marriage is governed by provisions of the Hindu Marriage Act, 1955, the petition for divorce could not have been filed before any other forum except the one specified in Section 19 of the said Act.
The court said: “There can be no dispute that the Court in Dubai would have no jurisdiction to entertain the petition in accordance with the provisions of the Hindu Marriage Act, 1955 unless the case was covered by any of the three exceptions carved out by the Apex Court in Y. Narasimha Rao.”
It was further noted that the wife was not domiciled in Dubai anymore, she had been residing in India since 2008. This is not reflected in the Dubai court judgment. Furthermore, it was noted that the Dubai court failed to consider the aspect of animus deserendi before granting divorce on the ground of desertion.
Finally relying on the judgment of the Supreme Court in Sondur Gopal vs Sondur Rajani, it was held that the parties being Hindus and Indian domiciles are governed by the provisions of the Hindu Marriage Act. The family court of Bandra has jurisdiction to try the divorce petition.
“Consequently, the marriage petition filed by the petitioner before the family court could not have been dismissed on the basis of the judgment of Dubai Court, which is not binding and enforceable in India.”