“Goa Is Part Of India”: Bombay High Court Says Orders Of Indian Courts Not 'Foreign Judgments' Under Portuguese Civil Code

Observing that 'State of Goa' is a part of India and is government by the Constitution of our country, the Bombay High Court made it clear that the Registrars of Marriage in the State are bound by orders passed by any civil court across India and that s/he cannot term such orders to be passed by 'foreign courts' by invoking provisions of the Portuguese Civil Code (PCC) of 1867 and the Portuguese Code of Civil Procedure (PCCP) of 1939.A division bench of Justice Valmiki Menezes and Justice Amit Jamsandekar ordered the Registrar and Sub-Registrars across Goa not to treat orders passed by civil courts in India as 'foreign court orders.' "The Portuguese Civil Code, 1867 is not a foreign law but it is an Indian law. The State of Goa is part of India and is governed by the Constitution of India. Therefore, by applying the same principle, even the Portuguese Code of Civil Procedure, 1939, is also an Indian law. Therefore, the definitions of 'foreign judgment' and 'foreign court' as provided in the Code of Civil Procedure, 1908, will be the binding definitions even for the purpose of the Portuguese Civil Code, 1867 and the Portuguese Code of Civil Procedure, 1939," the judges held in the order pronounced on April 29.By virtue of this, the bench clarified that all the references of and to the words 'foreign' or 'foreigner', 'from another country' and 'foreign Court', etc., in the Portuguese Civil Code, 1867 and the Portuguese Code of Civil Procedure, 1939 by necessary implications stand repealed and/or amended in view of the applicability of the Code of Civil Procedure, 1908. "Therefore, the Registrar cannot treat any judgment and decree passed by a Civil Court within India as a foreign judgment. If the decree is passed by any Civil Court in India, then the provisions of Articles 1100, 1101 and 1102 of the Portuguese Code of Civil Procedure, 1939 are not applicable. A decree passed by any Civil Court having jurisdiction is not required to be reviewed and confirmed by the High Court under Articles 1101 and 1102 of the Portuguese Code of Civil Procedure, 1939. The decree passed by a Civil Court established in India is binding on the Registrar, and the Registrar is bound to abide by the same," the judges held.With this finding, the bench quashed and set aside the opinion of a Registrar of Marriages in Margao, Salcete, who refused to cancel a marriage certificate issued to Blinston Savio Fernandes and his ex-wife Leandra Marie Fernandes, as ordered by a Family Court in Karnataka. According to Fernandes, he married Leandra, however, due to marital discord, the couple decided to part ways. He then applied for divorce before a Family Court in Bangalore, Karnataka, which after mediation, dissolved the marriage by an order passed on January 4, 2022. In pursuance to the divorce decree, Fernandes urged the Registrar of Marriages to cancel the marriage certificate, which was issued to the former couple on January 3, 2007. However, the Registrar by invoking Articles 1101 and 1102 of the PCC refused to cancel the order stating that since the order is passed by a court in Bangalore, the same is beyond the jurisdiction of Goa and thus is a 'foreign court's order' and therefore, suggested the petitioner to approach the High Court. The bench recorded in the order that this is not the first time when an order of a court within India is termed to be foreign decree and that often litigants have to move the HC seeking a clarification over the issue. The judges, therefore, traced the history of the enactment of the PCC and also the PCCP and the formation of Goa and then the applicability of the Code of Civil Procedure etc. In terms of the provisions of the PCC, it is clear that the word 'foreigner' means 'one who is not a Portuguese citizen'. Accordingly, for the purpose of the PCC as well as PCCP, the word 'foreign' is to be construed as referring to legal institutes or institutions which are not Portuguese. "After liberalisation, an Ordinance, being the Goa, Daman and Diu (Administration) Ordinance, was promulgated on March 5, 1962. Thereafter, the Goa, Daman and Diu (Administration) Act, 1962 was enacted. Both the Ordinance as well as the 1962 Act provided that the laws applicable in Goa prior to the appointed date, i.e. 20th December 1961, would continue to be in force until amended or repealed by the competent legislature or authority," the judges pointed out. By virtue of the Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration) Act, 1965, the provisions, inter alia, of the Code of Civil Procedure, 1908 came to be extended to the Union territories of Goa, Daman & Diu with effect from September 27, 1965."The provisions of the Code of Civil Procedure, 1908, are made applicable in the State of Goa in its entirety. Therefore, after The Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration) Act, 1965, these Articles of the Portuguese Civil Code, 1867 as well as the Portuguese Code...

“Goa Is Part Of India”: Bombay High Court Says Orders Of Indian Courts Not 'Foreign Judgments' Under Portuguese Civil Code

Narsi Benwal

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