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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
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