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Saturday, January 28, 2012

whether this Court should direct the respondents including the Medical Council of India (for short `MCI’), the University of Calicut and the Mahatma Gandhi University, Kottayam to permit the appellants to continue and complete the MBBS course to which they were admitted in the different Private Unaided Medical Colleges in Kerala in the academic year 2007-08, though they were not eligible for such admissions as per the Regulations of the MCI, but had satisfied all the eligibility criteria stipulated in the “Prospectus for MBBS Admission, 2007″ issued by the respondent-Medical Colleges. The appellants are stated to be victims of a mistake or omission crept in the Prospectus as regards the eligibility criteria for admission.=Since the mistake or omission occurred even before the applications were invited, it is not possible to attribute any malafides on the part of the respondent-Colleges as it does not appear to be a deliberate act to violate the MCI Regulations and since the irregular admissions have not resulted in any pecuniary gain for the management. Even if the appellants were not admitted, the Colleges could have admitted equal number of other candidates from the management quota and collected from them the very same fees applicable to management quota students. There was also no attempt to favour the appellants, as the Colleges could not have anticipated that the appellants would apply and fail to secure 50% marks in the CEE. Moreover the respondent-Colleges inspite of bonafide lapse are adequately punished as we have directed them to surrender equal number of seats from the management quota in the coming years. As a result of such surrender of management quota seats, there will be considerable reduction in the income of the Colleges from the fees of the students, because, the fees to be paid by a student admitted in the management quota are admittedly much higher than the fees to be 2 paid by the student admitted in the Government quota. Hence in the facts and circumstances of this case, we are not persuaded to accept the suggestion of the learned counsel for the MCI to impose a penalty on the Colleges.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1015 OF 2012 [arising out of SLP (C) No. 27551 of 2010] Deepa Thomas & Ors. ... Appellants versus Medical Council of India & Ors. ... Respondents with CIVIL APPEAL NOS. 1016-1017 OF 2012 [Arising out of SLP (C) No. 27950-27951 of 2010) Anu Rubina Ansar & Ors. Etc. ... Appellants Versus Medical Council of India & Ors. ... Respondents CIVIL APPEAL NO. 1018 OF 2012 [arising out of SLP (C) No. 28474 of 2010] Anjana Babu & Ors. ... Appellants versus Medical Council of India & Ors. ... Respondents CIVIL APPEAL NO. 1027 OF 2012 [arising out of SLP (C) No. 28611 of 2010] Abhay Babu & Ors. ... Appellants versus Medical Council of India & Ors. ... Respondents J U D G M E N T CYRIAC JOSEPH, J. 1. Leave granted. 2 2. The short question that arises for consideration in these Civil Appeals is whether this Court should direct the respondents including the Medical Council of India (for short `MCI'), the University of Calicut and the Mahatma Gandhi University, Kottayam to permit the appellants to continue and complete the MBBS course to which they were admitted in the different Private Unaided Medical Colleges in Kerala in the academic year 2007-08, though they were not eligible for such admissions as per the Regulations of the MCI, but had satisfied all the eligibility criteria stipulated in the "Prospectus for MBBS Admission, 2007" issued by the respondent-Medical Colleges. The appellants are stated to be victims of a mistake or omission crept in the Prospectus as regards the eligibility criteria for admission. When the MCI Regulations insist on a minimum of 50% marks both in the qualifying examination and in the Competitive Entrance Examination (for short `CEE') separately, the Prospectus did not specify that separate 50% marks were required in the CEE also. Though the appellants had secured more than 50% marks in the qualifying examination, they could secure only less than 50% marks in the CEE. Without noticing and without being aware of the difference between the MCI Regulations and the Prospectus in respect of the eligibility criteria, the appellants took admission in the medical colleges. Immediately after the admission the colleges sent the list of admitted students and their marks to the MCI. There was no objection from the MCI and the appellants continued their studies. However, several 3 months thereafter, MCI directed the colleges concerned to discharge the appellants on the ground that they were not eligible for admission as they had secured only less than 50% marks in the CEE. Though the appellants and the colleges represented to the MCI and requested to reconsider its decision, the MCI refused to change its stand. Hence, the appellants were constrained to approach the High Court of Kerala for redressal of their grievance and on the basis of interim orders passed by the High Court in the writ petitions filed by them, the appellants continued their studies and appeared in the examinations conducted by the University. However, the writ petitions filed by the appellants were ultimately dismissed by the High Court on 16th September, 2010. Faced with the threat of discharge from the colleges, the appellants have filed these appeals by special leave. On the strength of the interim orders passed by this Court, the appellants continued their studies and appeared in the examinations and they are now in the fourth year of the MBBS course. The appellants claim that they are innocent victims of an inadvertent and bona fide mistake or omission crept in the Prospectus as regards the eligibility criteria for admission. They contend that even if there was some discrepancy between the eligibility criteria mentioned in the Prospectus and the eligibility criteria mentioned in the MCI Regulations, they were not in any way responsible for such discrepancy and they may not be penalised for no fault of theirs. The appellants seek intervention of this Court to save their career and future. 4 3. The appellants are students of Jubilee Medical Mission College and Research Institute, Thrissur, M.E.S. Medical College, Perinthalmanna, Malankara Orthodox Syrian Church Medical College, Kolenchery and Pushapagiri Institute of Medical Sciences & Research Centre, Thiruvalla. Admittedly all these medical colleges are members of the Kerala Private Medical College Management Association (for short, `Management Association') and the Prospectus for admission to MBBS course, 2007 issued by the Management Association was followed by these medical colleges except the M.E.S. Medical College. The prospectus issued by the M.E.S. Medical College also contained identical provisions relating to eligibility criteria for admission. 4. As per Clause 1.1 of the Prospectus, it was made clear that the Management Association had decided to introduce a separate selection procedure for admission to MBBS course, 2007-2008 in the member colleges of the Management Association as per the directions of the Supreme Court in the matter. As per Clause 2.2(i), the academic qualification required for admission was "Pass in Higher Secondary Examination of the Board of Higher Secondary Education of Kerala or examination recognised equivalent thereto with 60% marks in Biology separately and 60% marks in Physics, Chemistry and Biology put together or equivalent grade". Clause 4.1 of the Prospectus provided as follows: 5 "Preparation of Merit List and Allotment of Candidates: Admission will be on the basis of marks obtained in the entrance examination and marks obtained for Physics, Chemistry and Biology in the qualifying examination. The marks will be apportioned in the ratio of 50:50. After the entrance test, the marks obtained for the Physics, Chemistry and Biology at the qualifying examination will be added to the marks obtained at the entrance test and a combined merit list will be published. Separate merit list also will be published for categories for which seats are reserved. Allotment to colleges and admission will be on the basis of centralized counselling." As per the above provisions in the Prospectus, even though a candidate was required to pass the Higher Secondary Examination of the Board of Higher Secondary Education of Kerala or examination recognised equivalent thereto with 60% marks in Biology separately and 60% marks in Physics, Chemistry and Biology put together, there was no requirement of any minimum marks in the entrance examination. 5. It cannot be disputed that admissions to MBBS Course in the respondent-Medical Colleges are governed by the MCI Regulations on Graduate Medical Education, 1997 (for short `MCI Regulations'). 6. According to Regulation 4(2) of the MCI Regulations, no candidate shall be allowed to be admitted to the MBBS course until he/she has passed one of the qualifying examinations mentioned therein. According to Regulation 5(2) of the MCI Regulations, in States having more than one University/Board/Examination Body conducting the qualifying examination or where there is more than one medical 6 college under the administrative control of one authority, a competitive entrance examination should be held so as to achieve a uniform evaluation as there may be variation of standards of qualifying examinations conducted by the different agencies. Clause 5(ii) of Regulation 5 reads as follows: "5. Procedure for selection to MBBS course shall be as follows: (i) xxx xxxx xxx (ii) In case of admission on the basis of competitive entrance examination under clause (2) to (4) of this regulation, a candidate must have passed in the subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% of marks taken together in Physics Chemistry and Biology at the qualifying examination as mentioned in clause (2) of regulation 4 and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less then 50% marks in Physics, Chemistry and Biology taken together competitive examination. In respect of candidates belonging to Schedule Caste, Schedule Tribes or other Backward Classes the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above: Provided that a candidate who has appeared in the qualifying examination the result of which has not been declared, he may be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the MBBS course, he shall not be admitted to that course until he fulfils the eligibility criteria under regulation 4." Thus, as per the MCI Regulations, in the case of admission on the basis of competitive entrance examination, a candidate must have obtained a minimum of 50% marks taken together in Physics, Chemistry and 7 Biology at the qualifying examination and in addition, must have secured not less than 50% marks in Physics, Chemistry and Biology taken together in the competitive examination. However such a requirement of minimum 50% marks in Physics, Chemistry and Biology taken together in the competitive examination was not mentioned in the Prospectus issued by the colleges. 7. Admittedly the appellants were eligible for admission as per the criteria laid down in the Prospectus, but they were not eligible for admission as per the criteria laid down in the MCI Regulations, as they secured only less than 50% marks in Physics, Chemistry and Biology taken together in the competitive examination. 8. In the impugned judgment, the High Court has held that the regulations framed by the MCI are mandatory in nature. For this purpose, the High Court relied on the judgment dated 14 th July, 2008 of the High Court of Madhya Pradesh in Writ Petition No. 13379 of 2007 and connected cases. In the said judgment, the High Court of Madhya Pradesh held that the Regulations framed by the MCI are mandatory in nature. In the order dated 4th September, 2008 passed in Civil Appeal Nos. 5518-5519 of 2008 (Monika Ranka & Ors. v Medical Council of India & Ors.) and Civil Appeal Nos.5520-5521 of 2008, this Court upheld the principle laid down by the High Court of Madhya Pradesh, though the appellants therein were granted personal relief treating it as a special case. Learned counsel for the appellants in 8 these appeals did not seriously contest the proposition that the MCI regulations are mandatory in nature. They only pleaded that the indulgence shown to the students by this Court in the above-mentioned Monika Ranka's case may be extended to the appellants, as their case is better than the case of the students in Monika Ranka's case. Learned counsel for the appellants also did not dispute that the appellants had secured only less than 50% marks in the CEE. Therefore, the High Court was right in holding that the admission of the appellants was irregular and the MCI was justified in directing the colleges to discharge the appellants. 9. Therefore, the only question to be considered in these appeals is whether, having regard to the facts and circumstances of these cases, the appellants should be allowed to continue and complete the MBBS course as was done by this Court in Monika Ranka's case. We may now refer to some of the aspects which are relevant for answering the above question. 10. The appellants had applied for admission in response to the Prospectus for admission to MBBS 2007 issued by the colleges. It was not disputed that the Prospectus was approved by the Admission Supervisory Committee constituted by the Government of Kerala under the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non exploitative Fee and Other Measures to Ensure Equity and Excellence in 9 Professional Education) Act 19 of 2006. The CEE was conducted and the merit list was prepared under the supervision of the said Committee. 11. However, there was a minor discrepancy between the eligibility criteria for admission prescribed by the MCI Regulations and the eligibility criteria mentioned in the Prospectus. The requirement of securing not less than 50% marks in the CEE was not mentioned in the Prospectus. According to the appellants and the colleges, it was only an inadvertent and bona fide mistake or omission while preparing the Prospectus. It was contended that Regulation 5(5)(ii) is clumsily worded, with the words "taken together" appearing in several places giving an impression that minimum 50% is required when the marks of qualifying examination and the marks of the CEE are taken together. It was also contended that such an omission or mistake occurred due to lack of sufficient clarity in Regulation 5(5)(ii). There is some substance in the contention. 12. It was pointed out that, when the MCI Regulations require only minimum 50% marks in the qualifying examination, the Prospectus issued by the Management Association stipulated a higher standard of minimum 60% marks in the qualifying examination and the appellants did satisfy the said requirement by securing 60% to 99% in the qualifying examination. Hence, it cannot be said that the appellants were not meritorious candidates, though unfortunately they could 1 secure only less than 50% marks in the CEE. The Prospectus however did not mention the requirement of minimum 50% marks in the CEE separately. The Prospectus was submitted to the Admission Supervisory Committee constituted under Act 19 of 2006 but the Committee did not raise any objection to the eligibility criteria mentioned in the Prospectus. Possibly, the Admission Supervisory Committee also failed to notice the omission. 13. It was specifically averred by the appellants that the marks obtained in the CEE were not communicated to the candidates and consequently the appellants were not aware that they had secured only less than 50% marks in the CEE. Hence it cannot be said that the appellants took admission knowing that they were not eligible for admission. The CEE was conducted under the supervision of the Admission Supervisory Committee which scrutinized and approved the merit list. It was also averred that though the list of selected candidates was submitted by the colleges to the Admission Supervisory Committee, no objection was raised by the Committee to the admission of the appellants for a very long time. In this context, it may be remembered that Section 4(6) of Act 19 of 2006 provides as hereunder: "The Admission Supervisory Committee shall supervise and guide the entire process of admission of students to the unaided professional colleges or institutions with a view to ensure that the process is fair, transparent, merit based and non exploitative under the provisions of the Act". 1 In such circumstances, the appellants had no reason to suspect that they were ineligible for admission. The list of admitted candidates, along with the marks obtained by them in the qualifying examination and the CEE, was submitted by the colleges to the MCI immediately after the admissions. It was from the list of admitted candidates and their marks that the MCI found that the appellants had secured only less than 50% marks in the CEE. Possibly, in view of the delay in conducting the scrutiny, the above irregularity was brought to the notice of the colleges by the MCI long after they were admitted to the course. Having realised the mistake or omission in the Prospectus for the year 2007, the colleges rectified the mistake/omission in the prospectus for the subsequent years. 14. The appellants have secured 60% to 99% marks in the qualifying examination as against the 50% required under the MCI Regulations. They have also secured more than 50% of the aggregate marks, if the marks of the qualifying examination and the CEE are taken together. 15. The High Court has noticed in the impugned judgment that the appellants in Writ Petition (C) Nos. 13810, 13817, 13818, 13819 and 21534 of 2010 contended that though they had not obtained 50% in the CEE, they had obtained more than 50% marks in other Competitive Entrance Examinations like the Entrance Test conducted 1 by Christian Medical College, Ludhiana, the Karnataka Common Entrance Examination for Private Colleges and the Common Entrance Examination conducted by the Commissioner for Entrance Examinations, Government of Kerala. Some of the appellants claimed that in view of their admission in the respondent-Colleges, they gave up admissions offered to them in medical colleges outside Kerala. 16. Long before the MCI directed the colleges to discharge the appellants, admissions for the academic year 2007-2008 had been closed everywhere. 17. The respondent - Colleges or the MCI had not received any complaint against the admission of the appellants from any other candidate who sought admission to MBBS. 18. Realising that the admissions given to the appellants were irregular and that such irregularity occurred due to the inadvertent omission to include in the Prospectus the requirement of minimum 50% marks in the CEE, the respondent-Colleges except the M.E.S. College, through their counsel offered before the High Court to surrender equal number of seats from the management quota to the Government quota in the next year. Though the offer has been noted by the High Court in paragraph 13 of the impugned judgment, it was not accepted by the High Court. Learned counsel for all the respondent - Colleges including the M.E.S. College stated before this 1 Court that the said Colleges are willing to surrender from the management quota number of seats equal to the number of students sought to be discharged. However, learned counsel for the M.E.S. College further submitted that considering that the number of seats to be so surrendered by them is 27, the said college may be permitted to surrender them over a reasonable period. 19. The learned counsel for respondent-Colleges also submitted that the MCI has not been implementing the Regulations uniformly. For example, admissions to MBBS course in the State of Tamilnadu are allowed to be made without any entrance test and only based on the marks in the qualifying examination. This was not disputed by the learned counsel for the MCI. It was also alleged that in State of Kerala itself the MCI had regularized the irregular admissions in other Private Medical Colleges like the Gokulam Medical College, but the correctness of the allegation could not be verified by the learned counsel for MCI for want of time. 20. On the strength of the interim orders passed by the High Court and subsequently by this Court, the appellants have continued their studies for 4= years and have appeared in the University examinations. 21. In the light of the peculiar facts and circumstances stated above, we are of the view that it is quite unjust and unfair to 1 discharge the appellants at this stage. This is an eminently fit case for invoking this Court's powers under Article 142 of the Constitution of India to permit the appellants to continue and complete the MBBS course to which they were admitted in the year 2007. Such an order is necessary for doing complete justice in the matter. In taking such a view, we are supported by the precedent in the order dated 4th September, 2008 passed by a 3-Judge Bench of this Court in Civil Appeal Nos. 5518-5519 of 2008 (Monika Ranka & Ors. v. Medical Council of India & Ors.). In that case though the admission was held to be irregular, this Court showed indulgence to the students and permitted them to continue and complete the course on the ground that there was nothing on record to show that the students were informed of the marks secured by them in the entrance examination and the students had already completed one year of their MBBS course. In fact, the facts and circumstances pointed out in the earlier paragraphs show that the case of the appellants is much better than the case of the students in Monika Ranka's case. In Monika Ranka's case, there was no confusion regarding the eligibility criteria whereas in this case the Prospectus omitted to mention the requirement of securing minimum 50% marks for the CEE as provided in the MCI Regulations. The appellants in Monika Ranka's case had completed only one year of their course, whereas in this case the appellants are completing the 4th year of the MBBS course. As in Monika Ranka's case, the appellants herein also were not informed of the marks secured by them in the entrance examination. Though the appellants 1 had specifically pleaded so in the writ petitions and also in these appeals, there is nothing on record to show that the marks secured by them in the entrance examination were communicated to them. The High Court has noted in the impugned judgment that since there was nothing on record to show that the appellants in Monika Ranka's case were informed of the marks secured by them in the entrance examination, the Apex Court indulged to give them the personal relief of permitting them to continue with the course. Even though the case of the appellants herein also is similar, the High Court has not given any reason for not extending the same relief to the appellants. There is also no finding anywhere in the judgment that the marks of the CEE were communicated to the appellants. 22. We also notice that an almost identical situation arose in Chowdhury Navin Hemabhai and Others v. State of Gujarat and Others [(2011) 3 SCC 617]. In that case, the conflict was between the provisions in the MCI Regulations and the provisions in the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Payment of Fees) Rules, 2008 (for short, "State Rules"). Under the MCI Regulations, the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes were required to secure in the common entrance test a minimum of 40% marks in Physics, Chemistry and Biology taken together, but in the State Rules there was no such requirement. Thus, the State Rules had prescribed a qualification standard which was less than that of 1 the MCI. The appellants before this Court belonged to Scheduled Castes, Scheduled Tribes and Other Backward Classes and though they did not secure 40% marks in Physics, Chemistry and Biology taken together, they were given admission to the MBBS course. The High Court of Gujarat had struck down the provision in the State Rules which provided that a candidate who appeared in the common entrance test was eligible for admission to the MBBS course even if he obtained less than 40% marks in Physics, Chemistry and Biology taken together in the common entrance test and also upheld the directions given by the MCI to discharge the appellants from the college. This Court upheld the decision of the High Court observing that the qualification requirements prescribed by the State cannot be lower than those prescribed by the MCI. However, this Court also found that the admissions of the appellant-students took place due to the fault of the rule-making authority in not making the State Rules in conformity with the MCI Regulations and that if the appellants are discharged from the MBBS course for the fault of the rule-making authority, they will suffer grave injustice. This Court further found that the appellants were not to be blamed for having secured admission in the MBBS course and that the fault was entirely on the rule-making authority in making the State Rules. Even though the appellants were not eligible for admission under the MCI Regulations, considering that the appellants had gone through the pains of appearing in the common entrance test and had been selected on the basis of their merit and admitted into the MBBS course in accordance 1 with the State Rules and had pursued their studies for a year, this Court, for the purpose of doing complete justice in the matter, directed that the admissions of the appellants should not be disturbed. Though this Court observed that the said direction was not to be treated as a precedent, we find sufficient justification for giving a similar direction in the case of the appellants before us. 23. In Supreme Court Bar Association v. Union of India and Another [(1998) 4 SCC 409] (in para 48), a Constitution Bench of this Court held: "The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice "between the parties in any cause or matter pending before it". The very nature of the power must lead the Court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by "ironing out the creases" in a cause or matter before it. Indeed this Court is not a court of restricted jurisdiction of only dispute-settling. " Having regard to the special facts and circumstances of this case and the extra-ordinary situation arising in the case, we do not in any way feel inhibited to invoke our jurisdiction under Article 142 of the Constitution of India for doing complete justice in the matter before us. 1 24. For the reasons stated above, we although agree with the view of the MCI and the High Court that the admissions of the appellants were irregular as they did not satisfy the requirement of securing not less than 50% marks in the CEE as prescribed in the MCI Regulations, we are inclined to take a considerate view in the special facts and circumstances mentioned in the earlier paragraphs and hence we direct that, as a special case, the appellants shall be allowed to continue and complete their MBBS course and also permit them to appear in the University examinations as if they had been regularly admitted to the course. 25. Since irregular admissions were made by the respondent -Colleges in violation of the MCI Regulations, though due to the mistake or omission in the Prospectus issued by the respondent colleges, they should be directed to surrender from the management quota, number of seats equal to the number of such irregular admissions. Such surrenders shall be made in a phased manner starting with the admissions of the year 2012. However, any of the respondent-Colleges shall not be required to surrender more than eight (8) seats in one academic year. 26. Learned counsel for the MCI strongly pleaded that as a deterrent against irregular admissions in future a penalty or fine should be imposed on the respondent-Colleges and for the said 1 purpose he suggested that the respondent-Colleges may be directed to deposit with the Legal Services Authority the entire amount of fees collected by the colleges from the appellant-students. Having regard to the facts and circumstances of the case, we do not find sufficient justification for such a harsh treatment, as in our view, the irregularity in the admissions occurred due to an inadvertent and bona fide mistake or omission on the part of the Colleges while issuing the Prospectus. Since the mistake or omission occurred even before the applications were invited, it is not possible to attribute any malafides on the part of the respondent-Colleges as it does not appear to be a deliberate act to violate the MCI Regulations and since the irregular admissions have not resulted in any pecuniary gain for the management. Even if the appellants were not admitted, the Colleges could have admitted equal number of other candidates from the management quota and collected from them the very same fees applicable to management quota students. There was also no attempt to favour the appellants, as the Colleges could not have anticipated that the appellants would apply and fail to secure 50% marks in the CEE. Moreover the respondent-Colleges inspite of bonafide lapse are adequately punished as we have directed them to surrender equal number of seats from the management quota in the coming years. As a result of such surrender of management quota seats, there will be considerable reduction in the income of the Colleges from the fees of the students, because, the fees to be paid by a student admitted in the management quota are admittedly much higher than the fees to be 2 paid by the student admitted in the Government quota. Hence in the facts and circumstances of this case, we are not persuaded to accept the suggestion of the learned counsel for the MCI to impose a penalty on the Colleges. 27. The appeals are disposed of in the above terms. There will be no order as to costs. ........................................J. (CYRIAC JOSEPH) .......................................J. (GYAN SUDHA MISRA) New Delhi; January 25, 2012.

Friday, January 27, 2012

whether the sessions court can add a new person to the array of the accused in a case pending before it at a stage prior to collecting any evidence.=in the course of trial, on the basis of the evidence if it appears to the Sessions Judge that any person not being the accused in the trial has committed the offence and the case is made out for exercise of power under Section 319 of the Code for proceeding against such person, it will be open to the Sessions Judge to proceed accordingly and the present order will not come in the way in exercise of his power under Section 319 of the Code.

CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011) 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011 JILE SINGH Appellant(s) VERSUS STATE OF U.P.& ANR Respondent(s) O R D E R R.M. LODHA, J. Leave granted. 2. A certain Bharat Lal Sharma was done to death on October 26, 2008. His father (respondent No. 2 herein) informed the Police Station Kosikalan on the next day, i.e., October 27, 2008 at 8 a.m. that he received an information in the morning at about 7 a.m. that his son Bharat Lal Sharma had been murdered and his dead body was lying in the agricultural field of Ghure son of Gaisi, 'Jat' resident of Tumaura. On receipt of this information, he (respondent No. 2 herein ) went to the spot and found that the body of his son was lying in blood. His son was killed with some sharp edged weapon the previous night. He requested the police to register First Information Report CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011) 2 (FIR) against unknown accused persons and take appropriate action in the matter. On this information, an FIR was registered and investigation commenced. On conclusion of the investigation, the Investigating Officer submitted charge-sheet naming one Hari Singh as an accused having committed the murder of Bharat Lal Sharma. On the basis of the material collected by the Investigating Officer, no case was found out against the present appellant-Jile Singh and the Investigating Officer concluded that the appellant has been falsely named in the course of investigation. 3. On May 2, 2009, the Chief Judicial Magistrate, Mathura, committed the accused-Hari Singh to the Court of Sessions Judge, Mathura for trial. It was then that the complainant-respondent No. 2 herein filed a private complaint under Section 200 of the Code of Criminal Procedure, 1973 (for short, 'the Code') in the court of Judicial Magistrate, Mathura, against the present appellant and one Jayveer Singh for the murder of his son Bharat Lal Sharma. 4. The Chief Judicial Magistrate, Mathura, after recording the statements under Section 202 of the Code, issued summons to the appellant on January 3, 2011. Aggrieved by that order, the appellant filed Criminal Revision before the Allahabad High Court which came to be CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011) 3 dismissed on March 10, 2011. It is from this order that the present Appeal, by special leave, has arisen. 5. Mr. Manoj Saxena, learned counsel for the appellant, submitted that the issuance of summons by the Chief Judicial Magistrate, Mathura, on a private complaint made by the respondent No. 2 after committal of accused- Hari Singh for the murder of Bharat Lal Sharma to the Sessions Court, was without jurisdiction. He would submit that addition of a new person to the array of the accused in a case pending before the sessions court can only be done by that court in exercise of the power under Section 319 of the Code and in no other way. In this regard, he relied upon decisions of this Court in the cases of Ranjit Singh Vs. State of Punjab1 and Kishori Singh and Ors. Vs. State of Bihar and Anr.2 6. Mr. Ratnakar Dash, learned senior counsel for the respondent No. 1-State of Uttar Pradesh, and Mr. Vikram Patralekh, learned counsel for respondent No. 2- complainant, stoutly defended the impugned order. They submitted that the complaint filed by the complainant before the Magistrate was maintainable under Section 200 of the Code since the Investigating Officer on conclusion of the investigation did not name the appellant as accused 1 (1998) 7 SCC 149 2 (2004) 13 SCC 11 CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011) 4 although there was material to that effect in the course of investigation. The learned senior counsel and the learned counsel for the respondents submitted that if on receipt of a report, the police takes up the investigation of a case and on completion thereof submits a charge-sheet against few persons and leaves the other persons involved in the crime by stating in the report that no case has been made out against such person, it is open to the aggrieved complainant to file a complaint under Section 200 of the Code and the Magistrate is empowered to issue summons. In this regard, they relied upon a decision of this Court in Hareram Satpathy Vs. Tikaram Agarwala & Ors.3 Mr. Ratnakat Dash, learned senior counsel for the respondent No. 1, also referred to another decision of this Court in Kishan Lal Vs. Dharmendra Bafna & Anr.4 and submitted that if a right has been given to the complainant to be given notice of filing of the police report and to file protest petition, there is no impediment in the law for maintaining a complaint if persons involved in the crime have been left over by the police in the course of the investigation. 7. The present case, in our view, is squarely covered by the law laid down by this Court in the case of 3 1978 (4) SCC 58 4 2009 (7) SCC 685 CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011) 5 Ranjit Singh (supra) and the subsequent decision in the case of Kishori Singh (supra) reiterating the same legal position. In Ranjit Singh (supra), this Court was concerned with the issue whether the sessions court can add a new person to the array of the accused in a case pending before it at a stage prior to collecting any evidence. The three Judge Bench that considered the above issue referred to various provisions of the Code, namely, Sections 204, 207, 208, 209, 225, 226, 227, 228, 229, 230 and 319 and held as under : "19. So from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 of the Code, that court can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused. 20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers." CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011) 6 8. The above legal position has been reiterated by this Court in a subsequent decision in the case of Kishori Singh (supra). The two Judge Bench in Kishori Singh (supra) considered some of the provisions of the Code and earlier decision of this Court in Ranjit Singh (supra) and two other decisions, namely, Raj Kishore Prasad Vs. State of Bihar 5 and India Carat (P) Ltd. Vs. State of Karnataka6, and held as under :- "9. After going through the provisions of the Code of the Criminal Procedure and the aforesaid two judgments and on examining the order dated 10-6-1997 passed by the Magistrate, we have no hesitation to come to the conclusion that the Magistrate could not have issued process against those persons who may have been named in the FIR as accused persons, but not charge-sheeted in the charge-sheet that was filed by the police under Section 173 CrPC. 10. So far as those persons against whom charge- sheet has not been filed, they can be arrayed as "accused persons" in exercise of powers under Section 319 CrPC when some evidence or materials are brought on record in course of trial or they could also be arrayed as "accused persons" only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials, comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge-sheet, as has been explained in the latter three-Judge Bench decision. Neither of the contingencies has arisen in the case in hand." 5 (1996) 4 SCC 495 6 (1989) 2 SCC 132 CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011) 7 9. In the present case, if the order passed by the Chief Judicial Magistrate, Mathura, in issuing summons against the appellant on the complaint filed by the respondent No. 2-complainant, which has been confirmed by the High Court, is allowed to stand, it would mean addition of the appellant to the array of the accused in a pending case before the Sessions Judge at a stage prior to collecting any evidence by that court. This course is absolutely impermissible in view of the law laid down by a three Judge Bench of this court in the case of Ranjit Singh (supra). The stage of Section 209 of the Code having reached in the case, it was not open to the Chief Judicial Magistrate, Mathura to exercise the power under Section 204(1)(b) of the Code and issue summons to the appellant. The order of the Chief Judicial Magistrate, Mathura is totally without jurisdiction. The High Court was clearly in error in not keeping in view the law laid by this Court in the case of Ranjit Singh (supra) followed by a subsequent decision in the case of Kishori Singh (supra) and in upholding the illegal order of the Chief Judicial Magistrate, Mathura. 10. The two decisions, namely, Hareram Satpathy (supra)and Kishan Lal (supra) relied upon by the learned CRIMINAL APPEAL NO. 121 OF 2012 (arising out of S.L.P. (Criminal) No. 3592 of 2011) 8 senior counsel and counsel for the respondents have no application at all to the case in hand. 11. We, accordingly, allow this Appeal and set aside the order of the High Court dated March 10, 2011 impugned in this present Appeal and the order of the Chief Judicial Magistrate, Mathura, dated January 3, 2011. 12. Needless to say that in the course of trial, on the basis of the evidence if it appears to the Sessions Judge that any person not being the accused in the trial has committed the offence and the case is made out for exercise of power under Section 319 of the Code for proceeding against such person, it will be open to the Sessions Judge to proceed accordingly and the present order will not come in the way in exercise of his power under Section 319 of the Code. ........................J. (R.M. LODHA) NEW DELHI; ........................J. JANUARY 12, 2012 (H.L. GOKHALE)

when police failed to investigate properly, the complainant is not left with no remedy – very important citation=every citizen of this country has a right to get his or her complaint properly investigated. The legal framework of investigation provided under our laws cannot be made selectively available only to some persons and denied to others. This is a question of equal protection of laws and is covered by the guarantee under Article 14 of the Constitution. The issue is akin to ensuring an equal access to justice. A fair and proper investigation is always conducive to the ends of justice and for establishing rule of law and maintaining proper balance in law and order. These are very vital issues in a democratic set up which must be taken care of by the Courts.

1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 126 OF 2012 ARISING OUT OF Special Leave to Appeal (Crl) No(s).3486/2011 AZIJA BEGUM ... APPELLANT(S) VERSUS STATE OF MAHARASHTRA & ANR ... RESPONDENT(S) JUDGMENT GANGULY, J. 1. Heard learned counsel for the parties. 2. Leave granted. 3. The subject matter of challenge in this appeal is a rather cryptic order of the High court by which the High Court, with respect, disposed of a petition under Article 227 of the Constitution without adverting to the questions involved. 4. The material facts of the case which are necessary for us to consider for the purpose of disposal of the issues are that one Imran S/o Anwar Khan was found 2 murdered under mysterious circumstances. His dead body was found on 22nd February, 2009 at the entrance of the Government hospital. Prior to that Imran was found missing and the appellant herein went to the police station to lodge her First Information Report over that but the police sent the appellant back after recording a mere 'missing report'. Even though at that point of time, the appellant was said to have informed the police that Imran was allegedly kidnapped by one Ijani Khan, but, the police recorded a 'missing' report only. 5. After that as the appellant came to know that the dead body of Imran was lying near the entry of the Government hospital, she immediately went to the police station again and informed the police of this fact also. According to the appellant's version, the police, instead of recording her statement and registering an F.I.R. passed on the said information to one Ijani Khan. 6. Two days thereafter, the wife of the deceased lodged an F.I.R. and on that basis, investigation was undertaken and two sons of the appellant, namely, Jaffar Khan and Sherkhan, were arrested. 7. The appellant not being satisfied with the aforesaid state of investigation, filed a petition 3 before the learned Magistrate under Section 173(8) of Code of Criminal Procedure. The learned Magistrate, after considering the materials on record, passed a detailed order, the concluding part of which reads as under: "As the serious allegations have been made against police authorities as well as the present accused, in my opinion, further investigation is required because once police investigated the offence, then for the same offence separate crime as well as case number is not required. Therefore, in my opinion, further investigation is necessary. Hence I pass following order: ORDER P1 Jinsi is hereby directed to make the further investigation in the present offence and submit the report within time. 8. The main grievances of the appellant are that even though the Magistrate was not satisfied with the way in which the investigation was proceeded and wanted further investigation to be conducted, but strangely handed over the investigation to the same police authorities about whose investigation the Magistrate was not satisfied. 9. The appellant's contention is that once the Magistrate was prima facie satisfied that the matter was not properly investigated and required further investigation, the investigation should have been 4 handed over to some other investigating agency. 10. When the order of the Magistrate was challenged by the appellant before the High Court on the basis of a petition under Article 227 of the Constitution, the said petition came to be disposed of by the High Court by an unusually laconic order: "1. Heard. At the instance of the applicant, since he felt that statements of witnesses are not recorded, police officer has recorded statement of Shaikh Rafik Shaikh Daud, copy whereof is annexed to the report. If the complainant feels that few more witnesses are still left, he can bring such witnesses to the investigator and to ensure to facilitate recording of statement. 2. Purpose of the writ petition is achieved. Consequently nothing survives. Petition disposed of." 11. We are of the considered opinion that the order of the High Court is very cryptic and the High Court has not looked into the material facts of the case. It was expected of the High Court to look into the matter with greater care and caution as a very serious offence had taken place followed by an investigation in respect of which the Magistrate himself had expressed serious reservations but failed to give proper direction. 12. Learned counsel for the appellant submits before us that the appellant wanted the investigation to be 5 fairly conducted by an independent agency and urged before us for an order for the investigation to be conducted not by the same police authorities which had undertaken the investigation earlier but by any other independent investigating agency. 13. In the facts and circumstances of this case, we find that every citizen of this country has a right to get his or her complaint properly investigated. The legal framework of investigation provided under our laws cannot be made selectively available only to some persons and denied to others. This is a question of equal protection of laws and is covered by the guarantee under Article 14 of the Constitution. The issue is akin to ensuring an equal access to justice. A fair and proper investigation is always conducive to the ends of justice and for establishing rule of law and maintaining proper balance in law and order. These are very vital issues in a democratic set up which must be taken care of by the Courts. 14. Considering the aforesaid vital questions, we dispose of this appeal by directing the second respondent, the Additional Director General of Police, State CID, Pune Division, Pune, Maharashtra to order a proper investigation in the matter by deputing a senior 6 officer from his organization to undertake a thorough investigation and examine in detail the facts and circumstances of the case and then furnish a report to the trial Court within a period of three months from the date of taking charge of the investigation. The investigation is to be taken up within two weeks from the date of service of this order on the second respondent. The matter shall thereafter proceed in accordance with law. We hope and expect an impartial investigation of the case will take place. 15. The appeal is accordingly allowed to the extent indicated above. .............................J. (ASOK KUMAR GANGULY) .............................J. (T.S. THAKUR) NEW DELHI, 12-01-2012

Wednesday, January 25, 2012

This petition has been preferred under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code (Cr.P.C.) impugning the order dated 26.08.2010 of the learned Metropolitan Magistrate dismissing the complaint under Section 200 of the Cr.P.C. filed by the petitioner of offence under Section 120-B read with Section 494 and Section 498A of the Indian Penal Code (IPC).=under Section 13 of CPC a foreign judgment is conclusive as to any matter thereby directly adjudicated upon between the same parties except in cases specified thereunder. However the right if any to contend that the said foreign judgment is not conclusive can be only of the party who had himself / herself / itself not initiated the process of obtaining the said judgment and cannot be of a party at whose instance such foreign judgment has been obtained. No litigant can be allowed to abuse the process of the Courts or to approbate and reprobate as per convenience

CRL.M.C. 3845/2010 Page 1 of 8 *IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 25th January, 2012 + CRL.M.C. 3845/2010 % DR. MEENA CHAUDHARY @ DR. MEENA P.N. SINGH ..... Petitioner Through: None. Versus BASANT KUMAR CHAUDHARY & ORS. ..... Respondents Through: Mr. Atul Jha, Adv. CORAM :- HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW J U D G M E N T RAJIV SAHAI ENDLAW, J. 1. This petition has been preferred under Article 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code (Cr.P.C.) impugning the order dated 26.08.2010 of the learned Metropolitan Magistrate dismissing the complaint under Section 200 of the Cr.P.C. filed by the petitioner of offence under Section 120-B read with Section 494 and Section 498A of the Indian Penal Code (IPC). This petition was listed before the learned Single Judge on 10.12.2010 when the CRL.M.C. 3845/2010 Page 2 of 8 petitioner appearing in person sought adjournment. The petitioner had also filed LPA No.64/2009 and contempt case No.C-386/2010. The petitioner on 03.05.2011, while appearing before the Division Bench in LPA No.64/2009 sought consolidation of the contempt petition as well this petition with the LPA and the matter was accordingly placed before Hon’ble the Chief Justice who vide order dated 22.05.2011 directed that the contempt petition as well as this petition be placed before the same Division Bench before which the LPA was pending. It is for this reason that the matter is before us. We may also notice that though the LPA and the contempt petition have since been disposed of but the petitioner appearing in person stated that rather than sending back this petition to the learned Single Judge, we only should hear the same. In view of the said request and for the reason that by doing so, the petitioner is not being deprived of any remedy had the matter been considered by the learned Single Judge, we proceeded to hear the petitioner. The petitioner sought and was granted liberty to file written arguments which have also been filed. CRL.M.C. 3845/2010 Page 3 of 8 2. The learned Metropolitan Magistrate after recording the statements of the petitioner and her witnesses held no case for summoning of the accused / respondent to have been made out for the reason of the petitioner herself having obtained decree of dissolution of her marriage with the respondent from the Court in U.K. and the respondent having so ceased to be the husband of the petitioner there being no question of his being guilty of the offence of bigamy under Section 494 of the IPC or of causing cruelty to the petitioner as wife under Section 498-A of the IPC. Qua the offence under Section 498-A of the IPC, reliance was also placed on the status report submitted by the police and on the petitioner having failed to make out any case of cruelty. 3. The argument of the petitioner before us, orally as well as in writing, is that the divorce decree obtained by her in U.K. being not a valid decree and hence not bringing to an end the relationship of husband and wife between the petitioner and the respondent. Reliance in this regard is placed on Smt. Satya Vs. Shri Teja Singh (1975) 1 SCC 120 and on Y. Narasimha Rao Vs. Y. Venkata Lakshmi (1991) 3 SCC 451. The CRL.M.C. 3845/2010 Page 4 of 8 Supreme Court in both Smt. Satya and Y. Narasimha Rao (supra) was faced with a situation of the husband setting up a decree of a foreign Court of dissolution of marriage as a defence to the claim / charge of the wife in the Indian Courts for maintenance or of bigamy. In both cases, the husband was found to have obtained the decree of foreign Court fraudulently. 4. The situation here is however converse. It is the petitioner herself who had obtained the decree from the foreign Court of dissolution of marriage and who now wants our Courts to ignore the same. Obviously, no case of the foreign decree having been obtained fraudulently can be said to exist in this scenario. Rather the said foreign decree was at the sole initiative of the petitioner with the respondent having no role in the same and having not even contested the same. The question which arises is, can the petitioner, who by obtaining the said decree led the respondent to believe that his marriage with the petitioner stood dissolved and that he was free to remarry, can now be permitted to challenge the foreign decree obtained herself and charge the respondent with the offence of bigamy. In CRL.M.C. 3845/2010 Page 5 of 8 our opinion, no and the complaint has been rightly dismissed by the learned Metropolitan Magistrate. As far back as in Asanalli Nagoor Meera Vs. K.M. Madhu Meera MANU/TN/0707/1925, a division bench of the Madras High Court held that a litigant cannot be allowed to deny the jurisdiction which he himself invoked. The same principle was recently applied by a Single Judge of the same Court in Ms. Dorothy Thomas Vs. Rex Arul MANU/TN/2876/2011 in near similar facts. 5. We may also notice that under Section 13 of CPC a foreign judgment is conclusive as to any matter thereby directly adjudicated upon between the same parties except in cases specified thereunder. However the right if any to contend that the said foreign judgment is not conclusive can be only of the party who had himself / herself / itself not initiated the process of obtaining the said judgment and cannot be of a party at whose instance such foreign judgment has been obtained. No litigant can be allowed to abuse the process of the Courts or to approbate and reprobate as per convenience. Mention at this stage may also be made of the finding recorded by the learned Metropolitan Magistrate and not disputed before us CRL.M.C. 3845/2010 Page 6 of 8 that the petitioner in the disputes with her siblings before another Indian Court sought to justify her claim by contending herself to be a divorcee by virtue of the said foreign judgment. 6. Thus, whichever way we may look, we cannot find any error in the order of dismissal of the complaint aforesaid. We had also called for the records of the Court of the Metropolitan Magistrate and have perused the pre-summoning evidence led by the petitioner. The petitioner had deposed that she was in U.K. from 1993 to 1999. She has not even whispered, alleged or made out any case of any of the grounds for the foreign judgment of dissolution of her marriage with the respondent being not conclusive. For the said foreign judgment to be not conclusive, the petitioner was required to make out a case of the same being either pronounced by a Court having no jurisdiction and / or having been not given on the merits of the case or being founded on an incorrect view of international law or the proceedings resulting therein being opposed to natural justice or having been obtained by fraud or sustaining a claim founded on a breach of any law in force in India. Moreover all the grounds CRL.M.C. 3845/2010 Page 7 of 8 specified in Section 13 of the CPC and on establishment whereof a foreign judgment can be said to be not conclusive are such which can be set up only by a party not himself/herself/itself approaching the foreign Court. The judgments cited by the petitioner cannot be read as laying down and indeed do not lay down any absolute principle that a marriage under the Hindu Marriage Act, 1955 cannot be dissolved by a foreign Court. Here the petitioner who is challenging the judgment was at the relevant time resident for a fairly long time within the jurisdiction of the foreign Court, did not approach the foreign Court under the dictates of the respondent and made out a case before the foreign Court for obtaining the judgment. Indeed in Y. Narasimha Rao (supra) itself the Supreme Court held matrimonial action filed in the forum where the wife is domiciled or habitually and permanently resides or where the wife voluntarily and effectively submits to the foreign jurisdiction or where the wife consents to the grant of the relief by the foreign Court although the jurisdiction of the foreign Court is not in accordance with the provisions of the Matrimonial Law of the parties, to be valid and the judgment of such foreign Court to be conclusive. We, therefore, do not find any merit in this petition. CRL.M.C. 3845/2010 Page 8 of 8 7. Before parting with the case, we may observe that though the order of the Metropolitan Magistrate of dismissal of complaint is under Section 203 of the Cr.P.C. and is challengeable by way of Revision Petition under Section 397 read with Section 401 of the Cr.P.C. but since the matter had remained pending before this Court, though in the circumstances aforesaid for considerable time, we did not deem it appropriate to reject this petition on the said ground. The petition is accordingly dismissed. No order as to costs. RAJIV SAHAI ENDLAW, J ACTING CHIEF JUSTICE JANUARY 25, 2012 ‘gsr’.

Hindu Marriage Act, 1955: Section 19. Dissolution of marriage-Court to which petition should be presented-Parties marrying in India under Hindu Law-Husband's petition for dissolution of marriage in Foreign Court-Fraud-Incorrect representation of jurisdictional facts-Husband neither domiciled nor had intention to make the foreign state his home but only technically satisfying the requirement of residence of 90 days for the purpose of obtaining divorce- Divorce decree by foreign court on a ground not available under the 1955 Act-Enforceability of. Civil Procedure Code, 1908: Section 13. Matrimonial dispute-Foreign judgment-When not conclusive. Clause (a)-``Court of competent jurisdiction''-Which is. Clause (b)-Judgment on merits-What is. Clause (c)-Judgment founded on a ground not recognised by Law of India-Effect of. Clause (d)-Judgment obtained in proceedings opposed in principles of natural justice-Effect of-Principles of natural justice-Scope of. Clause (e)-`Fraud'-Scope of-Judgment obtained by fraud- Effect of. Clause (f)-Judgment founded on a breach of law in force in India-Effect of. Section 14-Presumption as to foreign judgments- Expression ``Certified copy of a foreign judgment''-Should be read consistent with requirement of Section 86 of Indian Evidence Act. Indian Evidence Act, 1872. Section 41-``Competent court''-Which is. 822 Section 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and 86. Foreign judgment-Photostat copy-Admissibility of. Private International Law-Matrimonial dispute- Recognition of foreign judgment-Rules for recognition of foreign matrimonial judgment laid down-Hague convention of 1968 on the recognition of divorce and legal separations- Article 10-Judgment Convention of the European Community. Words and phrases ``Residence-Meaning of''.

The first appellant and the first respondent were married at Tirupati on 27.2.1975 according to Hindu Law. They separated in July 1978. The appellant-husband filed a petition for dissolution of the marriage in the Sub-Court of Tirupati stating that he was a resident of South Claiborn Avenue, New Orleans, Louisiana, and that he was a citizen of India and that he and his wife last resided together at New Orleans, Louisiana. Subsequently he filed another petition for dissolution of marriage in the Circuit Court St. Louis Country, Missouri, USA alleging that he has been a resident of the State of Missouri for 90 days or more immediately preceding th filing of the petition by refusing to continue to live with the appellant in the US and particularly in the State of Missouri. But from the averments made by him in the petition before the Sub-Judge, Tirupati it was obvious that he and his wife had last resided together at New Orleans, Louisiana and never within the jurisdiction of th Circuit Court of St. Louis Country in the State of Missouri. The respondent-wife filed her reply raising her objections to the maintainability of the petition. She also clearly stated that her reply was without prejudice to her contention that she was not submitting to the jurisdiction of the foreign court. The Circuit Court Missouri assumed jurisdiction 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 in the Court. In the absence of the respondent-wife the Circuit Court, Missouri passed a decree for dissolution of marriage on the only ground that the marriage has irretrievably down. Subsequent to the passing of the decree by the Circuit Court, Missouri, the appellant filed an application for dismissal of his earlier petition before the Sub-Court of Tirupati and the same was dismissed. 823 On 2nd November 1981 the last appellant married appellant No. 2. Thereafter, the 1st-respondent filed a criminal complaint against the appellants for the offence of bigamy. The appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by the Circuit Court, Missouri. The Magistrate discharged the appellants by holding that the complainant-wife had failed to make out a prima facie case against the appellants. The respondent preferred a Criminal Revision Petition before the High Court which set aside the order of the Magistrate by holding (i) that a photostat copy of the judgment of Missouri Court was not admissible in evidence; (ii) since the Learned Magistrate acted on the photostat copy of the judgment, he was in error in discharging the accused. Accordingly the High Court directed the Magistrate to dispose of the petition filed by the appellants for their discharge afresh in accordance with law. Aggrieved by the decision of the High Court the appellants filed appeal in this Court. Dismissing the appeal, this Court, HELD: 1. The decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Hindu Marriage Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. Further, irretrievable breakdown of marriage is not one of the grounds recognised by the Act of dissolution of marriage. Hence, the decree of the divorce passed by the foreign court was on a ground unavailable under the Act which is applicable to the marriage. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is therefore, unenforceable. [828H, 829A, 828E, 834H, 835A] 2. Residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. [829E] Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971, referred to. 3. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract ACt, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some 824 rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. Today more than ever 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 the order of the day. A time has, therefore, come to ensure certainty in the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the frame-work of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. Though the proposed rules of guidance in this area may prove inadequate or miss some aspects which may not be present to us at this juncture, yet a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments. [829H, 830A, 831C, F-H] 4. The relevant provisions of Section 13 of the CPC are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our social life. [832A] 4.1 On an analysis and interpretation of Section 13 of CPC the following rule can be deduced for recognising 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 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. [834B-D] 825 5. The High Court erred in setting aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. In the instant case photostat copies of the judicial record of the Court of St. Louis is certified for th Circuit Clerk by the Deputy clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Indian Evidence Act also in the manner required by the provisions of the said section. Hence the photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. Therefore the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court. [835B, E, F-G] 6. The Magistrate is directed to proceed with th matter pending before him according to law as expeditiously as possible, preferably within four months. [835G] , 1991( 2 )SCR 821, 1991( 3 )SCC 451, 1991( 2 )SCALE1 , 1991( 3 )JT 33 PETITIONER: Y. NARASIMHA RAO AND ORS. Vs. RESPONDENT: Y. VENKATA LAKSHMI AND ANR. DATE OF JUDGMENT09/07/1991 BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. MISRA, RANGNATH (CJ) CITATION: 1991 SCR (2) 821 1991 SCC (3) 451 JT 1991 (3) 33 1991 SCALE (2)1 ACT: Hindu Marriage Act, 1955: Section 19. Dissolution of marriage-Court to which petition should be presented-Parties marrying in India under Hindu Law-Husband's petition for dissolution of marriage in Foreign Court-Fraud-Incorrect representation of jurisdictional facts-Husband neither domiciled nor had intention to make the foreign state his home but only technically satisfying the requirement of residence of 90 days for the purpose of obtaining divorce- Divorce decree by foreign court on a ground not available under the 1955 Act-Enforceability of. Civil Procedure Code, 1908: Section 13. Matrimonial dispute-Foreign judgment-When not conclusive. Clause (a)-``Court of competent jurisdiction''-Which is. Clause (b)-Judgment on merits-What is. Clause (c)-Judgment founded on a ground not recognised by Law of India-Effect of. Clause (d)-Judgment obtained in proceedings opposed in principles of natural justice-Effect of-Principles of natural justice-Scope of. Clause (e)-`Fraud'-Scope of-Judgment obtained by fraud- Effect of. Clause (f)-Judgment founded on a breach of law in force in India-Effect of. Section 14-Presumption as to foreign judgments- Expression ``Certified copy of a foreign judgment''-Should be read consistent with requirement of Section 86 of Indian Evidence Act. Indian Evidence Act, 1872. Section 41-``Competent court''-Which is. 822 Section 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and 86. Foreign judgment-Photostat copy-Admissibility of. Private International Law-Matrimonial dispute- Recognition of foreign judgment-Rules for recognition of foreign matrimonial judgment laid down-Hague convention of 1968 on the recognition of divorce and legal separations- Article 10-Judgment Convention of the European Community. Words and phrases ``Residence-Meaning of''. HEADNOTE: The first appellant and the first respondent were married at Tirupati on 27.2.1975 according to Hindu Law. They separated in July 1978. The appellant-husband filed a petition for dissolution of the marriage in the Sub-Court of Tirupati stating that he was a resident of South Claiborn Avenue, New Orleans, Louisiana, and that he was a citizen of India and that he and his wife last resided together at New Orleans, Louisiana. Subsequently he filed another petition for dissolution of marriage in the Circuit Court St. Louis Country, Missouri, USA alleging that he has been a resident of the State of Missouri for 90 days or more immediately preceding th filing of the petition by refusing to continue to live with the appellant in the US and particularly in the State of Missouri. But from the averments made by him in the petition before the Sub-Judge, Tirupati it was obvious that he and his wife had last resided together at New Orleans, Louisiana and never within the jurisdiction of th Circuit Court of St. Louis Country in the State of Missouri. The respondent-wife filed her reply raising her objections to the maintainability of the petition. She also clearly stated that her reply was without prejudice to her contention that she was not submitting to the jurisdiction of the foreign court. The Circuit Court Missouri assumed jurisdiction 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 in the Court. In the absence of the respondent-wife the Circuit Court, Missouri passed a decree for dissolution of marriage on the only ground that the marriage has irretrievably down. Subsequent to the passing of the decree by the Circuit Court, Missouri, the appellant filed an application for dismissal of his earlier petition before the Sub-Court of Tirupati and the same was dismissed. 823 On 2nd November 1981 the last appellant married appellant No. 2. Thereafter, the 1st-respondent filed a criminal complaint against the appellants for the offence of bigamy. The appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by the Circuit Court, Missouri. The Magistrate discharged the appellants by holding that the complainant-wife had failed to make out a prima facie case against the appellants. The respondent preferred a Criminal Revision Petition before the High Court which set aside the order of the Magistrate by holding (i) that a photostat copy of the judgment of Missouri Court was not admissible in evidence; (ii) since the Learned Magistrate acted on the photostat copy of the judgment, he was in error in discharging the accused. Accordingly the High Court directed the Magistrate to dispose of the petition filed by the appellants for their discharge afresh in accordance with law. Aggrieved by the decision of the High Court the appellants filed appeal in this Court. Dismissing the appeal, this Court, HELD: 1. The decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Hindu Marriage Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. Further, irretrievable breakdown of marriage is not one of the grounds recognised by the Act of dissolution of marriage. Hence, the decree of the divorce passed by the foreign court was on a ground unavailable under the Act which is applicable to the marriage. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is therefore, unenforceable. [828H, 829A, 828E, 834H, 835A] 2. Residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. [829E] Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971, referred to. 3. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract ACt, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some 824 rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. Today more than ever 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 the order of the day. A time has, therefore, come to ensure certainty in the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the frame-work of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. Though the proposed rules of guidance in this area may prove inadequate or miss some aspects which may not be present to us at this juncture, yet a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments. [829H, 830A, 831C, F-H] 4. The relevant provisions of Section 13 of the CPC are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our social life. [832A] 4.1 On an analysis and interpretation of Section 13 of CPC the following rule can be deduced for recognising 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 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. [834B-D] 825 5. The High Court erred in setting aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. In the instant case photostat copies of the judicial record of the Court of St. Louis is certified for th Circuit Clerk by the Deputy clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Indian Evidence Act also in the manner required by the provisions of the said section. Hence the photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. Therefore the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court. [835B, E, F-G] 6. The Magistrate is directed to proceed with th matter pending before him according to law as expeditiously as possible, preferably within four months. [835G] JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 385 of 1991. From the Judgment and Order dated 18.4.1988 of the Andhra Pradesh High Court in Crl. Revision Petition No. 41 of 1987. M.C. Bhandare and Ms. C.K. Sucharita for the Appellants. C.N. Sreekumar and G. Prabhakar (for the State) for the Respondents. The Judgment of the Court was delivered by SAWANT, J. Leave is granted. Appeal is taken oj board for final hearing by consent of parties. The 1st appellant and the 1st respondent were married ar Tirupati on February 27, 1975. They separated in July 1978. The 1st appellant filed a petition for dissolution of marriage in the Circuit of St. Louis Country Missouri, USA. The 1st 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 1st respondent. 826 2. The 1st appellant had earlier filed a petition for dissolution of marriage in the Sub-Court of Tirupati being O.P. No. 87/86. 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. 3. On November 2, 1981, the 1st appellant married the 2nd appellant in Yadgirigutta, 1st 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 Missouri Court. By this judgment of October 21, 1986, the learned Magistrate discharged the appellants holding that the complainant, i.e., the 1st respondent had failed to make out a prima facie case against the appellants. Against the said decision, the 1st 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 photostat copy 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 in 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 decision that the present appeal is filed. 4. It is necessary to note certain facts relating to the decree of dissolution of marriage passed by the Circuit Court of St. Louis Country 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 as follows: ``without prejudice to the contention that this respondent is not submitting to the jurisdiction of this hon'ble court, this respondent sub- 827 mits 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, (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 1st respondent was neither present nor represented in 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 1st 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 Country of St. Louis, Missouri, he had also alleged that the 1st 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 Claiborn 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 1st respondent had resided with him at Kuppanapudi for about 4 to 5 months after th marriage. Thereafter she had gone to her parental house at Relangi, Tanuka Taluk, West Godawari 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 emp- 828 loyed. Again according to the averments in the said petition, when the 1st 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 Country in the State of Missouri. The averments to that effect in the petition filed before the St. Louis Court are obviously incorrect. 5. 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 of 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 Country, 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 recognised 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. Under Section 13 of the Code of Civil Procedure 1908 (hereinafter referred to as the ``Code''), a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if (a) it has not been pronounced by a Court of competent jurisdiction; (b) it has not been given on the merits of the case; (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice, (e) it is obtained by fraud, (f) it sustains a claim founded on a breach of any law in force in India. 7. 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 829 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 the marriage. What is further, the decree has been obtained by the 1st appellant 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 Louisiana. He had, if at all, only technically satisfied the requirement of residence of ninety days with the only purpose of obtaining the divorce. He was neither domiciled in that State nor had he an intention to make it his home. He had also no substantial connection with the forum. The 1st appellant 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 that the 1st respondent had 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 the 1st respondent within the State of Missouri was necessary to confer jurisdiction on that court, and if not, of the reasons for making the said averment. 8. Relying on a decision of this Court in Smt. Satya v. Teja Singh, [1975] 2 SCR 1971 it is possible for us to dispose of this case on a narrow ground, viz., that the appellant played a fraud on the foreign court residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. We remain from adopting that course in the present case because there is nothing on record to assure us that the Court of St. Louis does not assume jurisdiction only on the basis of a mere temporary residence of the appellant for 90 days even is such residence is for the purpose of obtaining divorce. We would, therefore, presume that the foreign court by its own rules of jurisdiction had rightly entertained the dispute and granted a valid decree of divorce according to its law. The larger question that we would like to address ourselves to is whether even in such cases, the Courts in this country should recognise the foreign divorce decrees. 9. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of 830 children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. The distinction between matters which concern personal and family affairs and those which concern commercial relationships, civil wrongs etc. is well recognised in other countries and legal systems. The law in the former area tends to be primarily determined and influenced by social, moral and religious considerations, and public policy plays a special and important role in shaping it. Hence, in almost all the countries the jurisdicational procedural and substantive rules which are applied to disputes arising in this area are significantly different from those applied to claims in other areas. That is as it ought to be. For, no country can afford to sacrifice its internal unity, stability and tranquility for the sake of uniformity of rules and comity of nations which considerations are important and appropriate to facilitate international trade, commerce, industry, communication, transport, exchange of services, technology, manpower etc. This glaring fact of national life has been recognised both by the Hague Convention of 1968 on the Recognition of Divorce and Legal Seperations as well as by the Judgments Convention of the European Community of the same year. Article 10 of the Hague Convention expressly provides that the contracting States may refuse to recognise a divorce or legal separation if such recognition is manifestly incompatible with their public policy. The Judgments Convention of the European Community expressly excludes from its scope (a) status or legal capacity of natural persons, (b) rights in property arising out of a matrimonial relationship, (c) wills and succession, (d) social security and (e) bankruptcy. A separate convention was contemplated for the last of the subjects. 10. We are in the present case concerned only with the matrimonial law and what we state here will apply strictly to matters arising out of and ancillary to matrimonial disputes. The Courts in this country have so far tried to follow in these matters the English rules of Private International Law whether common law rules or statutory rules. The dependence on English Law even in matters which are purely personal, has however time and again been regretted. But nothing much has been done to remedy the situation. The labours of the Law Commission poured in its 65th Report on this very subject have not fructified since April 1976, when the Report was submitted. Even the British were circumspect and hesitant to apply their rules of law in such matters during their governance of this country and had left the family law to be governed by the customary rules of the diffe- 831 rent communities. It is only where was a void that they had stepped in by enactments such as the Special Marriage Act, Indian Divorce Act, Indian Succession Act etc. In spite, however, of more than 43 years of independence we find that the legislature has not thought it fit to enact rules of Private International Law in this area and in the absence of such initiative from the legislature the courts in this country their inspiration, as stated earlier, from the English rules. Even in doing so they have not been uniform in practice with the result that we have some conflicting decisions in the area. 11. We cannot also lose sight of the fact that today more than ever 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. Many a man and woman of this land with different personal laws have migrated and are migrating to different countries either to make their permanent abode there or for temporary residence. Likewise there is also immigration of the nationals of other countries. The advancement in communication and transportation has also made it easier for individuals to hop from one country to another. It is also not unusual to come across cases where citizens of this country have been contracting marriages either in this country or abroad with nationals of the other countries or among themselves, or having married here, either both or one of them migrate to other countries. There are also cases where parties having married here have been either domiciled or residing separately in different foreign countries. This migration, temporary or permanent, has also been giving rise to various kinds of matrimonial disputes destroying in its turn the family and its peace. A large number of foreign decrees in matrimonial matters is becoming the order of the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the framework of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. It is with this intention that we are undertaking this venture. We aware that unaided and left solely to our resources the rules of guidance which we propose to lay down in this area may prove inadequate or miss some aspects which may not be present to us at this juncture. But a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments. 832 12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect th sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression ``competent court'' in Section 41 of the Indian Evidence Act has also to be construed likewise. Clause (b) of Section 13 states that if a foreign has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted 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. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate. The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable 833 to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country. Clause (d) of Section 13 which makes a foreign judgment unenforceable on th ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to b extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are file by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community . If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only it it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) may be held to have been satisfied. The provision of clause (e) of Section 13 which requires that the 834 courts in this country will not recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh, (supra) it must be understood that the fraud need not be only in relation to the merits of the mater but may also be in relation to jurisdictional facts. 13. From the aforesaid discussion the following rule can be deduced for recognising 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 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 aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes due allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife's domicile follows that of her husband and that it is the husband's domicilliary law which determines the jurisdiction and judges the merits of the case. 14. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case 835 is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is, therefore, unenforceable. 15. The High Court, as stated earlier, set aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. The High Court is not correct in its reasoning. Under Section 74(1)(iii) of the Indian Evidence Act (Hereinater referred to as the "Act") documents forming the acts or records of the acts of public judicial officers of a foreign country are public documents. Under Section 76 read with Section 77 of the Act, certified copies of such documents may be produced in proof of their contents. However, under Section 86 of the Act there is presumption with regard to the genuineness and accuracy of such certified copy only if it is also certified by the representative of our Central Government in or for that country that the manner in which it has been certified is commonly in use in that country for such certification. Section 63(1) and (2) read with Section 65(e) and (f) of the Act permits certified copies and copies made from the original by mechanical process to be tendered as secondary evidence. A photostat copy is prepared by a mechanical process which in itself ensures the accuracy of the original. The present photostat copies of the judicial record of the Court of St. Louis is certified for the Circuit Clerk by the Deputy Clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Act and also in the manner required by the provisions of the said section. Hence the Photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. The expression "certified copy" of a foreign judgment in Section 14 of the Code has to be read consistent with the requirement of Section 86 of the Act. 16. While, therefore, holding that the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court, we uphold the order of the High Court also on a more substantial and larger ground as stated in paragraph 14 above. Accordingly, we dismiss the appeal and direct the learned Magistrate to proceed with the matter pending before him according to law as expenditiously as possible, preferably within four months from now as the prosecution is already a decade old. T.N.A. Appeal dismissed. 836