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INTRODUCTION

In England, before 1857, the jurisdiction over matrimonial causes was exercised by the
ecclesiastical courts. Then divorce was unknown. In those days actions in matrimonial causes did
not involve any problem of conflict of laws as the jurisdiction of ecclesiastical courts extended to
all Christians. The church was not concerned with the domicile or nationality of the parties. 1The
basis of the exercise of jurisdiction by the ecclesiastical courts was the residence of the parties
within the jurisdiction.2 And, as has been in the preceding Chapter of this work, the jurisdiction
was available to those marriages alone which fell within the definition of Christian marriage.

In the rapidly advancing English society of eighteenth and nineteenth centuries the need for
divorce was so pressing that its recognition became imperative. All the ingenuinity of the church
failed to avert its reception in English law. In 1857 the first Matrimonial Causes Act was passes
which not only repudiated the doctrine of indissolubility of marriage, but also transferred the
entire jurisdiction in matrimonial causes from ecclesiastical courts to civil court. Subsequently,
bit by bit, many reforms were made. The same has now been consolidated in the Matrimonial
Causes Act, 1973, and which has been supplemented by the Domicile and Matrimonial
Proceedings Act, 1973.

The matrimonial causes were statutorily defined in England in 1925 by the Supreme Court of
Judicature Act, 1925. They are defined as actions for nullity of marriage, divorce, judicial
separation, restitution of conjugal rights (which has now been abolished). 3 and jactitation of
marriage.4

In India these have always been treated to include the first four matrimonial causes, though
jactitation of marriage does not find any place in any of the Indian matrimonial statutes.
However, a civil suit for such a declaration is maintainable under the Specific Relief Act, 1963.

In India the matrimonial causes are comparatively of recent growth. Muslim law has all along
recognized divorce, but it never had anything akin to matrimonial causes. Divorce has been
recognize in some Hindu communities by custom, otherwise Hindu marriage has been a

1
Niboyet v. Niboyet, (1878) 4 P.D.1.
2
Ross-Smith v. Ross-Smith, (1963) A.C. 280.
3
See the Matrimonial Proceedings and Property Act, 1970, s.20.
4
Section 225 of the Judicature Act, 1925.

1
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sacramental union. Thus, among Hindus the question of existence of matrimonial causes could
not have arisen, and, broadly speaking, India did not have anything like matrimonial causes
before the advent of British rule. In 1869, the Indian Divorce Act was passed which for the first
time introduced matrimonial actions of divorce, nullity of marriage, judicial separation and
restitution of conjugal rights, and ancillary reliefs of alimony, and custody etc. of children. But
then the Act applies to very limited persons: to Christians alone. Four years earlier, the Parsi
Marriage and Divorce Act, 1865 was also passed which recognized matrimonial causes for Parsis
and which was modeled on the Matrimonial Causes Act, 1857. This and its successor statute, the
Parsi Marriage and Divorce Act, 1936 make provision for divorce, nullity of marriage, judicial
separation and restitution of conjugal rights.

The Dissolution of Muslim Marriages Act, 1939 was passed to enable the Muslim wife to obtain
divorce on certain grounds, as before 1939 there was hardly any ground on which the Muslim
wife could ask for divorce.5 This is the only aspect of the Muslim matrimonial causes where a
suit of divorce can be filed in a court of law.

The Special Marriage Act, 1954 makes provision for all the four matrimonial causes. It also
provides for ancillary reliefs.

The Hindu Marriage act, 1955 introduced all the four matrimonial causes for Hindus.

CHAPTER-I JURISDICTION

5
In the Khula and the Mubaarat forms of divorce consent of husband is imperative. It is only in lian i.e. when her
husband falsely accuses her of adultery that wife could sue for divorce.

2
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I. ENGLISH LAW

1. BASES OF JURISDICTION

The Domicile and Matrimonial Proceedings Act 1973, Part II, provides two broad bases of
jurisdiction for divorce, nullity and judicial separation- domicile and habitual residence. These
are the only two bases of jurisdiction, and they provide uniform bases throughout the United
Kingdom.

a) Domicile – The English courts have jurisdiction to entertain proceedings for divorce,
nullity and judicial separation (whether the marriage is alleged to be void or voidable) if
either of the parties to the marriage is domiciled in England at the time when the
proceedings are begun.6 Jurisdiction is based on the domicile of either party whether
petitioner or respondent (or, in the case of nullity, even if neither) bearing in mind that
one spouse can acquire a domicile separate from that of the other. Thus a husband
domiciled abroad may petition for a divorce on the jurisdictional ground that his wife, the
respondent, is domiciled in England, even though he has never visited England.

The time at which domicile is to be determined is (with one exception relating to nullity
petitions7), as at common law,8 the time when proceedings are commenced, not at the
later time when the case is actually tried. If the rule were otherwise, a respondent
domiciled in England could frustrate a petition brought by the other spouse, domiciled
and resident abroad, by changing his domicile between the presentation of the petition
and the hearing of the case. The rule is “once competent, always competent” and this will
be so even if the party domiciled in England at the time of the English proceedings has
since changed his domical, disassociated himself from the determination of his status by
an English court and even take proceedings in the court of his new domicile.

b) Habitual residence- The English courts have jurisdiction to hear petitions for divorce,
nullity or judicial separation if either party, husband or wife, was habitually resident in

6
S 5(2)(a)
7
Infra, p 767
8
Leon v Leon (1967) p 275

3
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England throughout the period of one year up to the date when the proceedings were
begun.9 As with domicile, the relevant date is one year’s habitual residence up to the date
of commencement of proceedings, rather than of trial or judgment. The time factor is
even more significant in the case of habitual residence than in domicile for it is easier to
change one’s residence than domicile and thus frustrate the petitioner.

The residence to fond jurisdiction must be “habitual”. This is not easy to define and
indeed it was thought that “habitual residence” was similar to the concept of “ordinary
residence”, a view which has been adopted by the House of Lords10 in a different context.

Kapur v Kapur,11
Bush J:
“In my view, there is no real distinction to be drawn between “ordinary” and
“habitual residence”. It may be that in some circumstances a man may be
habitually resident without being ordinarily resident, but I cannot at the moment
conceive of such a situation... “Habitually” means settled practice or usually, or,
in other words, the same as...ordinary residence-a voluntary residence, with a
degree of settled practice.”

The essence of the concept of “habitual residence” is less demanding in terms of intention
than the concept of domicile.12 but “a residence must be more than transient or casual;
once established, however, it is not necessarily broken by a temporary absence.”13

c) Jurisdiction to entertain other matrimonial proceedings in respect of the same

marriage – Although domicile and habitual residence are determined as at the date when
proceedings are begun, section 5(5) of the Domicile and Matrimonial Proceedings Act
1973 makes provision for jurisdiction to be assumed in other circumstances. If
proceedings are pending for divorce, judicial separation or nullity in which the court has
9
S 5(2)(b); again with an exception in relation to nullity petitions.
10
Shah v Barnet London Borough Council (1983) 2 AC 309
11
(1984) FLR 920 at 926.
12
Adderson v Adderson (1987) 36 DLR (4th) 631.
13
Law Com No 48 (1972), para 42.

4
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jurisdiction by reason of the grounds laid down in the 1973 Act, then the court has the
jurisdiction to entertain other proceedings, in respect of the same marriage, for divorce,
judicial separation or nullity even though there would be no jurisdiction under the 1973
Act.

d) Nullity petitions: domicile or habitual residence before death - There is one basis of
jurisdiction which applies only to nullity petitions. If either party to the marriage has died
before the date when the proceedings for nullity were begun, the court has jurisdiction if
the deceased were domiciled at death in England, or had been habitually resident in
England for the year immediately preceding the death.14

2. IMPACT OF STATUTORY BASES

a) No discretion- If the statutory bases of jurisdiction are satisfied, the court does not have a
general jurisdiction to refuse to hear the petition.

b) Effect on the common law rules - In the case of divorce and judicial separation, the
jurisdictional bases under the 1973 Act are markedly broader than the common law rules
which they replaced. With nullity petitions, the effect of the statutory jurisdictional rules
is one of great simplification, but one notable basis of jurisdiction has been lost. It was
the case that celebration of the marriage in England conferred jurisdiction over a nullity
petition relating to a void marriage.15

c) Retention of domicile as a jurisdictional basis - Despite the improvements afforded by

the Domicile and Matrimonial Proceedings Act, 1973 in the cases of married women and
minors, it is still a difficult and complex factor to apply in particular cases. What would
be lost if it was abandoned altogether? such a move would, however, lead to hardship in a
number of cases where the spouses, though not resident in England, retain strong links

14
Domicile and Matrimonial Proceedings Act 1973, s 5(3((c).
15
Simonin v Mallac (1860) 2 SW & Tr 67

5
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with England, such as those who spend long periods abroad either in the service of the
crown as diplomats or administrators or in a purely business capacity.

II. INDIAN LAW

Although the matrimonial law in India differs from community to community, the jurisdictional
rules differ only slightly. The matrimonial laws of all communities, except the Muslims and the
Jews is not statutory laws. The peculiar feature of all these statutes, except the Divorce Act,
1868, is that the domicile or nationality of either party is not relevant for the purpose of
jurisdiction in any matrimonial cause. The outstanding feature of all the statutes is that in all
causes the jurisdictional basis is the same.16

Under the Indian Divorce Act 186917 a petition in any matrimonial cause may be present to the
District Court or the High Court18, in any matrimonial cause on the basis of the residence of the
parties within the jurisdiction or that of the parties last resided together within the jurisdiction of
the court,19 or for dissolution of marriage, the parties are domiciled in India at the time of the
presentation of the petition.20

A further jurisdictional requirements in a petition or nullity are that such a petition can be
presented only if the marriage was solemnize in India, and further the petitioner was resident in
India at the time of the presentation of the petition.21 In respect of a petition of judicial separation
or restitution of conjugal rights, the additional requirement is that at the time of presentation of
the petition the petitioner must be residing in India.22

The Parsi Marriage and Divorce Act, 1936 stipulated for the establishment of special courts
known as Parsi Chief Matrimonial Courts at Calcutta, Bombay and Madras and at such other
places as the Government may think fit. The jurisdictional requirements in respect of all

16
For instance, see section 19, Hindu Marriage Act, 1955.
17
Section 2
18
Ss 10, 18, 23, 32
19
Section 13(3)
20
Section 2, para 2
21
Section 2, para 3.
22
Section 2, para, 4.

6
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matrimonial causes are the same. the Act lays down that a suit in a matrimonial causes may be
filed:

i. in the Parsi Matrimonial court within the limits of whose jurisdiction the defendant
resides at the time of the institution of the suit,
ii. (if the defendant is not residing in India), in the Parsis matrimonial court within whose
jurisdiction parties last resided together,23
iii. (with the permission of the Court) at a place where the plaintiff is residing or at a place
where the parties last resided together irrespective of the fact whether the defendant
resides in India or not.24

The Hindu Marriage Act, 1955 applies to all Hindus. It is also not necessary that they should be
Indian nationals.25

Under the Special Marriage Act, 1954, domicile is important only in respect of those Indian
citizens who are outside India.26 Again in the jurisdictional rules no difference is made between
the matrimonial causes. The jurisdictional grounds under both the statutes are the same. 27 Under
the Acts a petition for dissolution of marriage, nullity of marriage, judicial separation or
restitution of conjugal rights may be presented to the District Court within the local limits of
whose jurisdiction-

a) The marriage was solemnized.

b) the parties last resided together,28
c) the respondent, at the time of presentation of petition resides, and
d) the petitioner is residing at the time of presentation of petition, in a case where the
respondent is, at the time, residing outside the territories to which the Act extends has not
been heard of being alive for seven years.

Under Muslim law, a legal action for divorce can be filed by the wife alone on any one of the
grounds laid down in the Dissolution of Muslim Marriages Act, 1939. The Act does not contain
23
Dinbai v. Framroz, 1918 Nag. 77.
24
Section 29.
25
Section 2, Hindu Marriage Act, 1955
26
s. 4 and Part III
27
Section 19, 31.
28
Murphy v Murphy, 1951 All, 180.

7
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any jurisdictional rule and the matter is therefore regulated by the general provisions of the Civil
Procedure Code.

Residence:

“Residence” for the purpose of matrimonial jurisdiction of the Indian courts means:

i. The place where the parties have set up a matrimonial home or the place where parties
already have a permanent home or abode where they live (or lived together) is the place
where they have their residence.
ii. In cases where parties have not set up an matrimonial home, nor do they have any
permanent abode or home, it will be the place where they stay (or stayed together),
however short the duration of stay might be (or might have been).

CHAPTER-II CHOICE OF LAW

1. DIVORCE AND JUDICIAL SEPARATION

I. ENGLISH LAW

8
9|Page

At common law, the sole basis of the jurisdiction of the English courts in divorce was domicile 29
and no choice of law problem arose. Once English court decides that it has jurisdiction in the
case, it has never felt any difficulty as to the choice of law. This is a typical corollary of the
English attitude towards divorce decrees of foreign courts.

The need for a choice of law rule arises when the court possesses jurisdiction on some basis
other than domicile, as may be illustrated by Zanelli v Zanelli;30

An Italian national, domiciled in England, married an Englishwoman in England in 1948.

Later he was deported from this country and thereupon reverted to his Italian domicile.
The Matrimonial Causes Act 1937, which was then in force, had given the English court
jurisdiction in divorce (and also judicial separation) in such a case, but it did not impose a
rule for the choice of law.

The court, applying English domestic law but without any consideration of the choice of law
issue, granted the wife a decree of divorce, despite the rule of the Italian law of her domicile at
that time that divorce was not permissible. A similar approach, namely the uniform application
of English law, was seen in the case of judicial separation not only where, at common law,
jurisdiction was taken on the basis of domicile, 31 but also on the basis of residence 32 or of a
matrimonial home within the jurisdiction,33 even though the parties were domiciled elsewhere.

The English common law rules were later extended to permit divorce and nullity (but not judicial
separation) decrees to be granted on the basis of three years’ residence in England by a wife, and
at that point a statutory choice of law rule was introduced both for this case and for that
exemplified in Zanelli v Zanelli, i.e. the domicile of the wife in England immediately prior to
the husband’s desertion or deportation. This choice of law provided that the court should apply
“the law which would be applicable thereto if both parties were domiciled in England at the time
of proceedings”.34

29
Le Mesurier v. Le Mesurier (1895) AC 517.
30
(1948) 64 TLR 556
31
Eustace v Eustace (1924) P 45.
32
Armytage v Armytage (1898) P 178.
33
Wells v Wells (1960) NI 122.
34
s 1(4), re-enacted in the Matrimonial Causes Act 1973, s 46(2)

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The Matrimonial Causes Act 1973, unlike its predecessors, is silent on the choice of law matters
relating to divorce and judicial separation, though the fact that there is no express saving for the
rules of private International law in the case of divorce and judicial separation, such as there is
the case of nullity,35 provides some tacit support for the application of the law of the forum.

II. INDIAN LAW

Although there is not much authority, it seems clear that once the Indian court decides that it has
jurisdiction to entertain the petition for divorce, then it will apply the personal law of the parties,
i.e. the law of the community to which parties belong. Thus, if parties are Christians the Indian
Divorce Act, 1869, if Parsis, the Parsi Marriage and Divorce Act, 1936, if parties are Hindus, the
Hindu Marriage Act, 1955 or if parties are Muslims (when wife had filed a suit for divorce), the
Dissolution of Muslim Marriage Act, 1939, will apply being the lex fori. It seems that if marriage
is performed abroad, or it has some foreign elements, the court will apply the provisions of the
Special Marriage Act, 1954, even if both the parties are Hindus, Christians or Parsis. Some
support for this view is derived from Christopher Neelkantam v. Annie Neelkantam,36 where
both the parties were Christians and the court could have easily applied the Christian law, i.e. the
Indian Divorce Act, 1869, but it chose to apply the Special Marriage Act, 1954. If the courts
would not do so, then they would be involved in the insoluble problem of conflict of personal
laws. An Indian domiciled Hindu, Christian, Muslim, Parsi or Jew can perform a marriage
abroad in accordance with the lex loci celebrationis with any person who may not belong to the
religious community to which he or she belongs. If such people come to India, and seek a
matrimonial relief from an Indian court, then the court would be faced with a difficult question
as to which of the communal laws it should apply, of the petitioner, or of the respondent? But if
the court takes the view that to such marriages law of the community of neither party is
applicable and applies the provisions of the Special Marriage Act, 1954, all difficulties will be
solved. The question is not of applying the lex domcilli of the parties, but of lex fori. In respect o
foreign marriages solemnized under the Foreign Marriages Act, 1969, the specific provision in
the Act is that to such marriages the provisions of the Special Marriage Act, 1954 apply.37
35
Matrimonial Causes Act 1973, s 14
36
1959 Raj 133
37
Section 18.

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2. NULLITY

I. ENGLISH LAW

Whilst divorce gives rise to a few choice of law problems, the same cannot be said for nullity.
The reasons for this are varied. A nullity decree is concerned with the validity of the creation of a
marriage, unlike divorce which dissolves a marriage which is admittedly validly created. This
means that the choice of law issues in nullity are essentially the same as those already examined
in the context of marriage. Another reason why choice of law in nullity is a more difficult area
than divorce is that the effects of annulment vary according to the particular ground in issue and
they vary in relation to the same ground even within the United Kingdom. Some defects avoid a
marriage ab initio, i.e. render it void, whilst others merely render it voidable. These distinctions
can readily be exemplified. If one party is below the minimum age of marriage or is already
married, English law regards the marriage as void. 38 If, however, a decree is granted in England
on the ground of the lack of consent, the marriage will be regarded as voidable. 39 In Scotland, on
the other hand, lack of consent renders the marriage void ab initio. Again, impotence or willful
refusal to consummate the marriage renders it voidable under English law; 40
whereas in
Scotland, although impotence also renders the marriage voidable, willful refusal has no effect on
its validity.

The difference between void and voidable marriages is significant. “A void marriage is no
marriage. Considered literally the expression is self-destructive and contradictory. But without
misleading anyone it serves to denote the situation where a ceremony of marriage does not bring
about a marriage”.41

On the other hand “A voidable marriage is one that will be regarded by every court as a valid
subsisting marriage until a decree annulling it has been pronounced by a court o competent
jurisdiction.”42

38
Matrimonial Causes Act 1973, s 11.
39
Ibid, s 12.
40
Ibid.
41
Ross Smith v Ross Smith (1963) AC 280 at 314
42
De Reneville v De Reneville (1948) P 100 at 111

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a) Classification of the nature of the defect

The ascertainment of the proper law in a nullity suit depend on analyzing the various defects
that may constitute cause for annulment, in order to determine their intrinsic nature. Once this is
done, the legal system to which a particular defect is subject should become apparent. The
consequence of this analysis is that, once the court has jurisdiction, then, in order to determine
the law applicable to some alleged defect, it applies its own characterization to decide whether
the defect is as to form or essential validity. This may be illustrated by the British Columbia
decision in Solomon v Walters,43 where the facts were these:

A marriage had been celebrated in Nevada between the husband, domiciled in British
Columbia, and the wife, apparently domiciled in Alberta. The wife petitioned in British
Columbia for a nullity decree on the ground of lack of parental consent as required by
Nevada law, though by the domestic law of British Columbia the marriage was
unaffected by the defect; by Nevada law it was rendered voidable.

The Judge , having classified the defect as one of form, applied Nevada law and granted
a decree of nullity. If the defect is as to capacity, then the court should apply the ante-
nuptial domiciliary law of the party alleged incapable.

b) Lack of consent: is it formal or essential?

There is no settled authority as to whether defects affecting consent to marry are to be classified
as akin to form, and thus to be governed by the law of the place of celebration, or as personal
defects, thus raising questions of essential validity to be referred to the personal law of the
parties.44 There are a variety of different grounds on which an allegation of lack of consent can
be based, not all of which are sufficient in English domestic law. It may be argued that one party
was mistaken as to the identity of the other party45, or as to the marriage ceremony,46 or that the

43
(1956) 3 DLR (2d) 78
44
Woodhouse (1954) 3 ICLQ 454.
45
Cf C v C (1942) NZLR 356.
46
Valier v Valier

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marriage was entered into as a result of fraud47 or fear caused by duress or coercion,48, or during
mental illness, or there may have been a mistake as to the legal effects of the ceremony, 49 or as to
the attributes of the other party, or cases where one party has made mental reservations as to the
effect of the ceremony. What is remarkable is that the English courts for many years failed to
realize that a choice of law problem existed in such cases and invariably applied English law.

c) Physical defects50-

It remains to identify the law which governs other personal physical defects. These can
encompass a wide range of grounds of invalidity, as is illustrated by those which render a
marriage voidable under section 12 of the Matrimonial Causes Act 1973: impotence, willful
refusal to consummate the marriage, mental disorder such as to render the person unfitted for
marriage, venereal disease and that the woman was pregnant by another man. In the context of
English law, a nullity petition on the ground of the respondent’s pregnancy or suffering from
venereal disease may only be brought if the petitioner is unaware of the fact and so such grounds
could be regarded more properly as relating to the reality of the petitioner’s consent and thus to
be governed by the law appropriate to that issue. However, other legal systems do not necessarily
take the same approach and, in any event, the consent classification cannot so readily be applied
to issues such as willful refusal or impotence.

In Robert v Robert51 willful refusal is characterized as an “error in the quality of the

respondent” to which the law of the place of celebration should be applied. Against such
classification may be cited Way v Way52, where English law was applied to a nullity
petition based on willful refusal arising from a marriage celebrated in Russia, and
Ponticelli v Ponticelli53, where English law was applied though the place of celebration
was Italy.

47
Johnson v Smith (1968) 70 DLR (2d) 374.
48
Hussein v Hussein (1938) P 159.
49
Way v Way (1950) P 71 at 79-80
50
Bishop (1978) 41 MLR 512
51
(1947) P 164.
52
(1950) P 71 at 80
53
(1958) P 204

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d) Annulment on grounds unknown to English law

Section 14(1) of the Matrimonial Causes Act 1973 qualifies the grounds of annulment of void
and voidable marriages laid down by the Act54 by stating that, where any matter affecting the
validity of a marriage would, in accordance with the rules of Private International law, fall to be
determined by a foreign law, nothing in the nullity provisions of the 1973 Act should preclude
the application of the foreign law or require the application of the English law of nullity.55

S 14(2) also provides that the grounds on which a marriage is to be declared void, laid down in s
11, are without prejudice to other grounds under which a marriage celebrated under the Foreign
Marriage Acts 1892-1947 or a common law marriage celebrated abroad might be declared void.

e) What law determines whether a marriage is void or voidable?

It has been seen that different legal systems attribute different effects to invalidating factors. A
clear example is provided by lack of consent which renders a marriage void under Scots law but
voidable under English law. This poses a problem. If an English court annuls the marriage of
parties both domiciled in Scotland, applying the Scottish law on consent, is the marriage to be
regarded in England as void or merely as voidable? At first sight it might seem that an English
court ought to apply its own criteria for determining whether the problem is one of alleged
voidness or of alleged voidability. 56 A moment’s reflection, however reveals the illogicality of
this question.

So far as authority is concerned, the weight of opinion supports the approach of characterization
by the law governing the substantive issue rather than by the law of forum. 57 Nevertheless, it has
been argued that it is for English law as the law of the forum and not for some foreign governing
law to determine whether a marriage is void or voidable, and that any argument based upon or by

54
Ss 11-13
55
S 14(2)
56
This seems to have been what was done in Corbett v Corbett (1957) 1 All ER 621
57
De Reneville v De Reneville (1948) P 100 at 114.

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analogy with De Reneville v De Reneville58 “seems to have been overtaken by oblivion and no
longer represents the law.”59

The main support for such a view would appear to be an unarticulated assumption of the House
of Lords decision in the following case:

Ross Smith v Ross Smith60

It was held that there was jurisdiction to annul a void but not a voidable marriage
celebrated in England, even though the husband who was alleged to be impotent or
willfully to have refused to consummate the marriage was domiciled at all material times
in Scotland. No reference was made to whether the marriage was void or voidable under
Scots law.

In conclusion, it is the English law as the law of forum which has to classify the type of
defect as one of the formalities (governed by the law of the place of celebration) or as a
personal defect (governed by the law of the domicile). Once, that classification is made,
the effect of the defect on the validity of the marriage will be determined not by the law
of the forum but by the law which, according to English choice of law rules, governs
alleged defects of that kind.

I. INDIAN LAW

It is interesting to note that the early matrimonial statutes, the Divorce Act, 1869 and the Parsi
Marriage and Divorce Act, 1936, did not adopt the English law distinction between void and
voidable marriages. But the distinction was adopted in the two statutes, the Special Marriage
Act, 1954 and the Hindu Marriage Act, 1955 which were passed by India after attaining
independence. It is equally interesting to note that the Indian Divorce Act, 1869, which otherwise
follows the English Matrimonial Causes Act, 1857 also contains a unique provision in respect to
legitimacy of children of certain void marriages.
58
(1948) P 100 at 114.
59
Morris (1970) 19 ICLQ 424
60
(1963) AC 280.

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Section 21, the English matrimonial Causes Act, 1857

“Where a marriage is annulled on the ground of that a former husband or wife was living
and it is adjudged that the subsequent marriage was contracted in good faith and with full
belief of the parties that the former husband or wife was dead, or when a marriage is
annulled on the ground of insanity, children begotten before the decree is made shall be
specified in the decree and shall be entitled to succeed, in the same manner as legitimate
children, to the estate of the parent who at the time of the marriage was competent to
contract.”

The Parsi Marriage and Divorce Act, 1936 contains no provision relating to legitimacy of the
children of void marriages and therefore children of void marriages are illegitimate.

The Hindu Marriage Act, 195561 and the Special Marriage Act, 195462 adopt the distinction
between void and voidable marriages. Under both the statutes when a voidable marriage is
annulled63 or void marriage is declared null and void,64 the children remain legitimate though
they can inherit65 to their parents alone.

CHAPTER-III

RECOGNITION OF FOREIGN DIVORCES

I. ENGLISH LAW

The English law of recognition of foreign divorces has been codified and reformed by the
Recognition of Divorces and Legal Separations Act, 1971, which was passed to implement the
Convention on the Recognition of Divorces and Legal Separations adopted in 1970 by the Hague
Conference on Private International Law. There had previously been criticism of common law
rules, and the implementation of the Convention in the 1971 Act provided an opportunity to
61
S. 16
62
S. 26
63
S. 16(1) of the former statute and S. 26(1) of the latter statute
64
S. 16(2) of the former statute and S. 26(2) of the latter statute
65
S. 16(3) of the former statute and S. 26(3) of the latter statute

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introduce reforms rather broader in scope than the Convention required. However, the 1971 Act
did not extend to foreign annulments which continued to be governed by common law
recognition rules. The uncertainty of those rules and the fact that different regimes applied to
divorce and nullity recognition was a source of criticism 66 which led the Law Commission in
1984 to examine the varied rules for the recognition of divorces, annulments and legal
separations and to propose that essentially the same statutory rules should apply in the case of all
three matrimonial causes, and that those rules should be based on the Recognition of Divorces
and Legal separations Act 197, subject to a number of amendments. 67 These recommendations
were substantially carried into effect by Part II of the Family Law Act 1986.

The general effect of the statutory rules in the 1986 Act is that, subject to a few minor
exceptions, the same recognition rules apply to all three matrimonial causes. Furthermore, the
common law rules of nullity recognition, and those common law rules relating to the recognition
of divorces and legal separations which survived the 1971 Act, have now been replaced by the
new statutory regime irrespective of where the divorce, annulment or legal separation was
obtained and of whether it was obtained before o after the 1986 Act came into force.

Difficult rules are provided for the recognition of divorces, annulments and judicial separations
granted in other jurisdictions within the British Isles and of divorces, annulments and legal
separations obtained in politically foreign countries.

i. DIVORCES, ANNULMENTS AND JUDICIAL SEPARATIONS GRANTED

ELSEWHERE IN THE BRITISH ISLES

Any decree of divorce, nullity, or judicial separation granted by a court of civil

jurisdiction in any part of the British Isles must be recognized in any part of the United
Kingdom68 irrespective of when it was granted. So, the English courts must recognize any
divorce, etc granted elsewhere in the British Isles and similarly, such divorces, etc must
be recognized in Scotland and Northern Ireland.

66
Eg Carter (1979) 50 BYBIL 250, 252; Collier (1979) CLJ 289, 290
67
Law Com No 137 (1984)
68
Family Law Act 1986, ss 44(2), 54(1)

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Although, such divorces, etc cannot be denied recognition on jurisdictional grounds, two
qualifications to recognition are provided.

1) first, an English court can refuse recognition to a divorce or a judicial separation

granted elsewhere in the British Isles at a time when there was no subsisting
marriage between the parties according to English law, including English rules of
Private International Law. This would cover such situations as where a marriage
in England was invalid under English domestic law or a marriage abroad failed to
satisfy English rules of Private International law. It may be noted that this
provision does not apply to recognition of nullity decrees for which, given the
invalidity of marriage, it might be thought inappropriate.
2) However, the second qualification does extend to other British nullity decrees, as
well as to divorces and judicial separations. It gives the English courts a discretion
to deny recognition on a res judicata basis, i.e., if the other British decree was
granted at a time when it was irreconcilable with a decision on the validity of the
marriage previously given either by an English court or given elsewhere and
entitled to be recognized in England. So a Scottish decree annulling or dissolving
an English marriage can be denied English recognition if there is already an
English decree, or a French decree recognized in England, to similar effect.

Because of the mandatory wording of the Family Law Act 1986, section 44(2) of which states
that divorce, etc decrees granted elsewhere in the British Isles shall be recognized in England,
such other British decisions cannot be denied recognition in England even though they may
contravene the rules of natural justice or be manifestly contrary to English public policy.

ii. DIVORCES, ANNULMENTS AND LEGAL SEPARATIONS OBTAINED

OVERSEAS

a. Background

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In view of the codification and reform of English law of recognition of foreign divorces, a brief
survey of the pre-1971 law would suffice. The rule laid down in early cases was that the English
courts would not recognize a foreign decree unless pronounced by the courts of the country
where the parties were domiciled at the time of the suit.

Le Mesurier v. Le Mesurier69

Held:

“The principle of recognizing the validity of a decree pronounced by the court of the domicile
has been long established and forms an essential part of the comity of nations.”

The basis was extended by laying down that English courts would recognize a foreign decree of
divorce (even though not pronounced by the court of domicile) if it is recognized as valid by the
court of the domicile of the parties.70

Travers v Holley71

It was laid down that if the foreign court exercised jurisdiction on a basis on which
English courts would exercise jurisdiction ( the reference was to the statutory jurisdiction
where the court exercised jurisdiction on the basis of ordinary residence), then the
English courts would recognize the foreign decree of divorce.

In this case Hodson, L.J. very pertinently said : “ It must surely be that what entitled an
English court to assume jurisdiction, must be equally effective in the case of a foreign
court...it would be contrary to principle and inconsistent with comity if the courts of this
country were to refuse to recognize a jurisdiction which mutatis mutandis they claim for
themselves.”

Then came the most radical decision of the House of Lords in Indyka v Indyka.

Indyka v Indyka72

69
(1895) A.c. 517
70
Armitage v A.G. (1906), p.135.
71
(1953), p. 246.
72
(1967) 2 All E.R. 689.

19
20 | P a g e

In this case two persons domiciled in Czechoslovakia got married in 1938. In 1946 the
husband acquired a domicile of choice in England. In 1949 the wife, who had remained
in Czechoslovakia, and was resident there, obtained a decree of divorce from a Czech
court.73

The Indyka test may be formulated thus: If there is a real and substantial connection between the
party obtaining divorce and the country of the court which dissolved the marriage, then the
foreign decree of divorce would be recognized.

Mather v. Mahoney74

It was held that if a court of the place where one of the parties has a substantial
connection recognizes a decree of divorce passed by a foreign court, then the English
courts too would recognize it.

In another direction too the pre-1971 law of recognition of foreign divorces had gone much away
from the orthodox approach. This relates to the recognition of non-judicial divorces.

R .v. Hammersmith, Superintendent Registrar of Marriages75

The English court said that the non judicial divorce in the Muslim form of talak could not
effectively dissolve an English marriage.

English law then veered round to the position that non-judicial divorces in any form would be
recognized in England if parties were domiciled in a country which recognized such mode of
dissolution of marriage.76

b. General matters

73
The decision was followed in Angelo v Angelo, (1967)3 All E.R. 314; Welsby v Welsby (1970) 2 All E.R. 467 and
Munt v Munt, (1970) 2 All E.R. 516 (in all three cases the husband was domiciled in England.
74
(1968) 3 All E.R. 223.
75
(1917) 1 K.B. 634.
76
Qureshi v Qureshi (1971) 2 W.L.R. 51 (Muslim divorce in talak form.)

20
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Part II of the Family Law Act 1986 deals with a range of matters relating to the recognition in
England of divorces, annulments and legal separations which have been obtained in a country
outside the British Isles, referred to in the 1986 Act as an “overseas divorce”, etc. No distinction
is drawn in the 1986 Act, as there was in the 1971 Act, between different kinds of foreign
divorce, etc dependent on whether their recognition fell within or outside the Hague Convention
of 1970.

The recognition rules laid down in Part II are exclusive. 77 It is not possible for the recognition of
a foreign divorce, annulment or legal separation to be governed by common law recognition
rules, whether or not it was obtained78 before or after the 1986 Act came into effect.79 As a result,
the extension of the statutory regime for recognition of foreign annulments has the effect that it is
now clear that an annulment of a void marriage will not be recognized on the basis that it was
obtained in the country where the marriage was celebrated.

c. Jurisdictional rules

Section 46(1) of the 1986 Act provides a number of jurisdictional grounds for the recognition of
overseas divorces, annulments and legal separations which have been obtained by judicial or
other proceedings.

1) Domicile

An overseas divorce, etc will be recognized if either party, whether petitioner or respondent, to
the marriage was domiciled in the country where it was obtained80 at the date of the
commencement of the foreign proceedings.81 In the case of the recognition of foreign divorces
and legal separations, this involves a very slight limitation on the recognition rules available

77
S. 45.
78
S. 52, subject to certain saving provisions.
79
S. 52(1)
80
S 46(1) (b) (ii).
81
S 46(3).

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under the 1971 Act where it was possible for a divorce, etc to be recognized in England if its
validity was recognized in the country of each spouse’s domicile, though obtained in neither.82

Section 46(1)(b) of the 1986 Act requires an overseas divorce, etc to be recognized if either party
is domiciled in foreign country in either the English or the foreign sense of domicile, 83 this latter
being a ground of jurisdiction provided in the 1970 Hague Convention and in the 1971 Act.
Hence, an overseas divorce may have to be recognized on the basis of such foreign concept of
domicile, even though neither spouse was domiciled in the foreign country in the English sense
of term. Recognition does not depend, under the 1986 Act, on the foreign court having assumed
jurisdiction on the basis of domicile.

It is possible that a country may have different concepts of domicile for different purposes; and
so section 46(5) of the 1986 Act make it clear that the concept of domicile relevant for
recognition purposes is that used in the foreign country “in family matters”. This is consistent
with Article 3 of the 1970 Hague convention. It also involves dropping the requirement, to be
found in s 3(2) of the 1971 Act, that the foreign country uses its concept of domicile as a ground
of jurisdiction in divorce, etc. The Law Commission84 considered such a limitation to be
ineffective, unnecessary and illogical, especially in the case of extra-judicial divorces.

2) Habitual Residence

An overseas divorce will be recognized if it was obtained in a country in which, at the time of the
commencement of the proceedings, either spouse was habitually resident as determined under
English law.85 No length of period of residence is specified or required; and jurisdiction may be
founded on the habitual residence of either spouse, whether petitioner or respondent.

3) Nationality

82
Recognition of divorces and Legal Separations Act 1971, s 6(3)(b)
83
S 46(5)
84
Law Com No 137 (1984), para 6.18.
85
S 46(1)(b)(i), (3)(a).

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A similar rule applies in the case of nationality, so that divorces, etc obtained in a country of
which, at the time of the proceedings, either party was a national will be recognized in England. 86
No definition of nationality is provided, but there seems little doubt that, in the case of a person
with dual nationality, recognition will be given to divorces etc in either country of the
nationality.87

d. The time at which the jurisdictional rules must be satisfied

The general rule is that the jurisdictional connection must be satisfied at the date of the
commencement of the foreign proceedings by which the divorce, etc was obtained. 88 There are
however two exceptions to this:

1. The first is relevant only to the recognition of foreign annulments. It is possible both in
this country, and elsewhere, for an annulment of a void marriage to be obtained by a
person other than a spouse and for that to be done after the death of either or both
spouses. The jurisdictional rules under S.5(3)(c) of the Domicile and Matrimonial
Proceedings Act, 1973 make special provision for such a case, as does section 46(4) of
the 1986 Act in the case of recognition of an overseas annulment. If the annulment was
obtained after the death of a party of the marriage, the jurisdictional requirements of
domicile, habitual residence or nationality are satisfied if the appropriate connection
existed at the date of the death.89

2. The second exception concerns cross-proceedings, where it is sufficient if the

jurisdictional grounds of habitual residence, nationality and domicile in the English or the
foreign sense existed either at the date of the original proceedings or of the cross-
proceedings.90 This applies irrespective of which proceedings led to the foreign divorce
etc. Of course, even if this special jurisdictional provision is satisfied, it is necessary to

86
S 46(1)(b)(iii), 3(a)
87
Torok v. Torok (1973) 1 WLR 1066 at 1069
88
S 46(3)
89
Law Com No 137 (1984), para 6.32.
90
S 47(1)(a)

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satisfy all the other requirements of Part II of the 1986 Act for the divorce, etc to be
recognized.91

e. Effectiveness

Not only must one of the various jurisdictional requirements be satisfied at the relevant time, but
it is also necessary that the overseas divorce, etc be “effective under the law of the country in
which it was obtained”.92 This requirement of effectiveness was also to be found in the 1971
Act93 but did not there extend to recognition on the jurisdictional basis of domicile in the English
sense.

Merker v Merker94

Held: It might be argued that a foreign decree, though invalid in the country where granted, is
effective there until actually set aside.

Various examples of legal ineffectiveness might be provided, as, or instance, where a foreign
divorce does not, in the foreign country, dissolve a marriage until a specified period has elapsed 95
or whilst an appeal is pending, or until a decree absolute is pronounced.

f. Meaning of “country”

Part II of the 1986 Act does not define “country” apart from saying that it includes a colony or
other independent territory of the United Kingdom (eg Bermuda or Gibraltar), but that a person
is to be treated as a national of such a territory only if it has a law of citizenship or nationality
separate from that of the United Kingdom and he is the citizen or national of that territory under
the law.96

91
S 47(1)(b)
92
S 46(1)(a)
93
S 2(b)
94
(1963) P283.
95
Martin v Buret 1938 SLT 479.
96
S. 54(2).

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25 | P a g e

There are, however, political countries which comprise different territories Eg. the USA, Canada,
Australia, the United Kingdom and those territories may have different substantive or
jurisdictional rules for obtaining divorces, etc. There were problems with the 1971 Act in
deciding whether some or all of the references in that Act to “country” meant the political state
or the individual territory. In order to try to resolve these difficulties section 49 of the 1986 Act
provides express modifications of the provisions of Part II of that Act in those cases where, in a
country comprising different territories, there are different systems of law in force in relation to
divorce, annulment or legal separation.97 The general approach is to say that, in such cases, any
requirement of domicile (in the English or foreign senses) or habitual residence in a country, and
indeed effectiveness under the law of that country, means domicile or habitual residence in an
individual territory. This means that, as each America state has its own divorce, etc laws, New
York or California is to be treated as a separate country for the purposes of determining domicile
or habitual residence. On the other hand Canada and Australia, both also federal states, have
federal divorce laws. However, the position would be different in Canada with regard to legal
separation which, unlike divorce, is a provincial rather than a federal matter.

Nationality as a connecting factor poses rather different problems. Federal and other non-unitary
states do not have different nationality rules, depending on a person’s connection with a
particular territory within the state. This would suggest that a connection with a territory is
satisfied for jurisdictional purposes if either party is a national of the political state as a whole.
This means that if a divorce, etc is obtained in New York, it will be recognized in England even
though the only relevant connection for the purposes of the 1986 Act is that one spouse is a
United States Citizen.98 The provisions which state that connection by domicile or habitual
residence with territory will suffice99 do not extend to connection by nationality.

It is necessary in the case of connection by nationality, as in other cases, not only that the
divorce, etc was obtained in the country of the nationality but also that it was effective “under the
law of the country in which it was obtained”.100 This raises the issue as to the meaning of
“country” in this latter context. If, for instance, a divorce is obtained in California by an
American citizen, and the only jurisdictional test which is satisfied is that of nationality, does the
97
S 49(1)
98
S 46(1)(b)(iii)
99
S 49(2), (4), (5)
100
S 46(1)(a)

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divorce have to be effective in California or throughout the USA? The 1971 Act was unclear on
this question and academic view differed as to the answer; but section 49(3) (a) of the 1986 Act
now makes it clear, that, in such a case, effectiveness “throughout the country in which (the
divorce) was obtained” is necessary. So, in the example just given, the Californian divorce will
only be recognized here if it is recognized throughout the USA. There is a similar provision in s
49(3) (b) in relation to the effectiveness of the conversion into a divorce of a legal separation
obtained in a country of which one party was a national.

g. Conversion of legal separation into divorce

Some jurisdictions permit a legal separation automatically to be converted into a divorce at the
end of the prescribed period. If the legal separation would be recognized on the jurisdictional
grounds including the provisions as to cross-proceedings in s 47(1) of habitual residence,
nationality, or domicile in the English or the foreign sense, then the later divorce will be
recognized even though the jurisdictional criteria cannot be satisfied at the later date. 101 The
conversion must, however, be in the country where the legal separations was obtained and the
new divorce must be effective under the law of the country.

h. Meaning of divorce, annulment or legal separation

As foreign matrimonial proceedings may differ markedly from English ones, it is necessary for
the English court to decide whether the foreign proceedings come within one of the categories of
divorce, annulment or legal separation within the meaning of part II of the 1986 Act.

Viswalingam v Viswalingam102

It was held that the termination of a marriage by the husband’s unilateral decision to change his
religion and become a Moslem, which was evidenced by a declaration before witnesses in
Malaysia, could not be regarded here as either divorce or an annulment.

101
S 47(2)
102
(1979) 1 FLR 15.

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As the marriage was held to be ended under the law of Malaysia, the common domicile
of the parties, prima facie this would be recognized in England; but recognition was
infact denied on public policy grounds.

Legal Separations- In the case of legal separations, it should be noted that, although the rules
for the recognition of other British decrees refer to decrees of “judicial separation”, 103
those for
recognition of separations obtained outside the British Isles refer to “legal separations”. A legal
separation is not defined under the 1986 Act, nor indeed in the 1970 Hague Convention on which
the Act is based.

It must be assumed that the Act extends to all foreign decrees or orders which are similar in
character to an English decree of judicial separation and, indeed, to any order or decree made by
a foreign court which has the effect that the parties are no longer obliged to live together, but not
the effect of dissolving the marriage.

i. Other statutory grounds of recognition

Section 45 (b) of the Family Law Act, 1986 preserves the rules for the recognition of overseas
divorces, annulments and legal separations which exist by virtue of any other enactment.
However, at the same time, the 1986 Act repeals S 68(2) and Sch 2. as spent legislation most, if
not all, of the other statutory provisions under overseas divorces, etc might be recognized, whilst
also preserving the validity of past divorces, etc which would be recognized under that spent
legislation, and might not be recognized under the 1986 Act.104

In Maples v Maples105 it has been made clear that an overseas divorce, etc not recognized under
the 1986 Act cannot be recognized under the Foreign Judgements (Reciprocal Enforcement) Act
1933.

iii. EXTRA-JUDICIAL DIVORCES, ANNULMENTS AND LEGAL SEPARTIONS

103
1986 Act, s 44(2)
104
S 52 (5) (c), (d)
105
(1988) Fam 14

27
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a. Introduction

Extrajudicial divorce is divorce granted outside a court of law by a non-judicial process. It is

generally a divorce granted by a religious body such as the Islamic Talaq or the Greek Orthodox
Church. In some countries an extrajudicial divorce is considered as legal or binding if it is agreed
upon by the parties.

Har-Shefi v Har-Shefi106

It was held that a Jewish Rabbinical law allows a husband to dissolve his marriage by
delivering to his wife a letter of divorce called a gett and, though this necessitates his
appearance before the Rabbinical court, the proceeding is a formality and is not
accompanied by a judicial finding and pronouncement.

Under Muslim Law, a husband is permitted to divorce his wife without any reference to a court.
Such a divorce, by talak, merely requires him to state unequivocally three times his intention to
repudiate the marriage. In some countries, no further formality is required than this – what is
often called a “bare” talak.107

Quazi v Quazi108

In this case the House of Lords took the view that a divorce obtained in Pakistan by talaq
followed by compliance with the procedural requirements of the Pakistani Muslim
Family Law Ordinance, 1961 was a divorce obtained by “other proceedings” within the
intendment of s 2 (a) of the Recognition and Divorces and Legal Separation Act as
supplemented by the Domicile and Matrimonial Proceedings Act, 1973

106
(No 2) (1953) p 220.
107
sharif v sharif (1980) 10 Fam Law 216.
108
(1980) A.C. 744.

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Zaal v Zaal109

Bush, J. said that where a bare talak was recognized by the local law as effective to end
the marriage it was divorce within the phrase.

Muslim law also provides other forms of divorce, such as by Khula, a form of divorce by
agreement on the suggestion of the wife.

At common law, English courts were originally very reluctant to recognize the effectiveness and
validity of extra- judicial divorces, but attitudes have changed and it has come to be accepted that
they should normally be recognized if the general jurisdictional criteria for recognition have been
established.

Qureshi v Qureshi110

It was held that a talak pronounced in England, even if pronounced in respect of a

marriage celebrated in England will be recognized if under the law of domicile of the
parties this mode of divorce was valid.

The rules for the recognition of foreign extra-judicial divorces and legal separations were placed
by the Recognition of Divorces and Legal Separations Act 1971 on the same general statutory
basis as the rules for the recognition of foreign divorces and legal separations obtained by court
order; though the grounds for recognizing extra-judicial divorces and legal separations obtained
without their having been any proceedings (such as bare talak) were narrower i.e. Jurisdiction
could only be based on domicile in the English sense under s 6 of the 1971 Act; than for those
which involved some form of proceedings as in the case of a gett. There were also special rules
generally denying recognition to extra-judicial divorces and separations obtained in the British
Isles but recognized as valid elsewhere.111 This pattern has substantially been retained in Part II

109
(1982) 4 F.L.R. 284
110
(1971) 2 W.L.R. 518.
111
1971 Act, ss 1, 6: Domicile and Matrimonial Proceedings Act 1973, s 16.

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of the Family Law Act 1986, with the addition that the recognition rules now extend to the
recognition of extra-judicial annulments.112

In relation to extra-judicial divorces, etc, Part II of the 1986 Act still follows very much the
approach of the 1971 Act.

b. General issues

Here are two questions:

1. Where is an extra-judicial divorce, etc obtained?

2. What constitutes proceedings

Before examining the particular rules relating to the recognition of extra-judicial divorces, etc. it
is necessary to examine, first, two of these interrelated issues.

1. Where is an extra-judicial divorce, etc obtained?

This question may be asked in two main contexts.

 First, it is necessary that an overseas divorce, etc be effective in the country where it was
obtained and that one of the relevant jurisdictional links with that country is satisfied.
 The second context, which has proved in practice to be more important, is to determine
whether, the divorce, etc was obtained in the British Isles or overseas. The significance of
this is that the divorce, etc will normally be denied recognition if obtained in the British
Isles.

It might be though that the proceedings or act by which an extra-judicial divorce, etc is obtained
could only occur in one country. whilst this is usually true, particular difficulty has been caused
by Muslim divorces by talak especially where this religious requirement is also combined with a
need for some further type of proceedings.

R v Secretary of state for the Home Department, ex p Fatima113

112
Ss 44, 45
113
(1986) AC 527

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The husband was a Pakistan national who married there in 1968, but had lived in England
ever since. In 1978, he purported to divorce his wife by talak and in 1982 wished to
marry Ghulam Fatima; but she was refused entry to this country by an immigration
officer at Heathrow Airport. This was because the officer concluded that the husband’s
talak divorce was not recognized in this country and so the husband was not free to marry
again here.

The crucial issue with which the House of Lords was faced was to determine where the talak
divorce in 1978 was obtained. If it was obtained in Pakistan where it was effective, it would be
recognized here as a divorce obtained in the country of the nationality. If it was obtained in
England, it would be denied recognition. The circumstances were that it was a “trans-national”
divorce: some proceedings took place in England, others in Pakistan under the Muslim Family
Laws Ordinance 1961 in force there.

Lord ACKNER concluded that the divorce was not obtained by proceedings wholly in Pakistan
because the pronouncement of the talak in England was an essential part of the proceedings. This
led him to the conclusion that the divorce was obtained by proceedings which took place in both
the countries and that recognition must be denied, because section 2 of the 1971 Act required an
overseas divorce to be obtained by means of judicial or other proceedings in a country outside
the British Isles and to be effective under the law of that country.

Such a result is wholly consistent with the policy of denying recognition to extra-judicial
divorces, etc which have been obtained by proceedings in England.

There is a difficult question as to whether the same result is compelled under the 1986 Act which
is worded slightly differently. Section 46(1) requires an overseas divorce obtained by
proceedings to be effective in the country where it was obtained but does not, in so many words,
require the proceedings to be in that country. This led to the suggestion that where the
proceedings take place in more than one country, the divorce may still be recognized if the
element of the proceedings which render the divorce effective takes place in the overseas country

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with which the necessary jurisdictional links may be established. So, it is argued, a talak
pronounced in England by a Pakistan national but perfected by proceedings in Pakistan is
obtained (and effective) in Pakistan and should be recognized in England.

If a divorce, etc is obtained in a consulate or embassy, it is to be taken to be obtained in the

country where the consulate or embassy is situated, not in the country of the sending state.

Radwan v Radwan114

It was held that an extra-judicial divorce obtained in the Consulate-General of the United
Arab Republic in London was obtained in England and was not an overseas divorce.

2. What constitutes proceedings?

The significance of this question is that, where the divorce, etc is obtained by judicial or other
proceedings, the jurisdictional bases of recognition are much wider than if there are no
proceedings115- being limited in the latter case to domicile. 116 This is much the same as the
position under the 1971 Act in which context the courts had to consider the same question.
Whilst there is no definition of “judicial or other proceedings” in the 1986 Act, 117 it has been
suggested that the phrase is limited to cases involving some act external to the parties
themselves, such as registration, conciliation proceedings or some other form of approval

The House of Lords has held in Quazi v Quazi118 that a divorce obtained in Pakistan by talak and
which then involved the procedures of the Pakistan Muslim Family Laws Ordinance 1961-
namely by giving of notice to the wife and to the chairman of the local union council, with the
prospect of conciliation proceedings-had been obtained by means of judicial or other
proceedings. On the other hand, after a period of uncertainty, the Court of Appeal has concluded
that a “bare” talak, ie where there is no more than an oral pronouncement by the husband three
114
(1973) Fam 24
115
1986 Act, s 46 (1)
116
S 46(2)
117
S 54 (1)
118
(1980) AC 744

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times whether or not before witnesses, that he divorces his wife, does not constitute proceedings.
It has been suggested by OLIVER LJ that proceedings “must impart a degree of formality and at
least the involvement of some agency, whether lay or religious, of or recognized by the state
having a function that is more than simply probative,” 119 and would exclude “a private act
conducted entirely by parties inter se or by one party alone, as a proceeding, even though the
party performing it may give it an additional solemnity or even an efficacy by performing it in
the presence of other persons whose only involvement is that they witness the performance”.120

c. Extra-judicial divorces and annulments obtained in the British Isles

The type of situation with which we are concerned here is illustrated by the case of the
pronouncement of a talak in England, whether it is a “bare” talak or one followed by further
procedures in, say, Pakistan.121

S 44(1) of the Family Law Act 1986

No divorce or annulment obtained in any part of the British Isles be regarded as effective
in any part of the United Kingdom unless granted by a court of Civil jurisdiction.

This means that extra-judicial divorces and annulments wholly obtained in any part of the British
Isles will not be valid in England, including of course such divorces and annulments obtained in
England.122 Nor will they be valid where some part of the proceedings takes place in England and
other abroad.

d. Recognition of extra-judicial divorces, etc obtained overseas.

119
(1985) Fam 19 at 41.
120
Ibid.
121
A trans-national divorce.
122
Chaudhary v Chaudhary (1985) Fam 19 at 28.

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i. Where there are proceedings

The basic approach where there are proceedings in that recognition of the divorce, etc is
governed by the general rules as to recognition in relation to judicial divorces, etc. So, the
divorce, etc must have been obtained in a country where one party to the marriage was domiciled
(in the English or the foreign sense) or habitually resident or of which one party was a
national,123 and it must have been effective under the law of that country.124

The requirements of the 1986 Act that there be judicial or other proceedings if recognition is to
be based jurisdictionally on habitual residence are satisfied. 125 The extra-judicial divorce is not
valid under the domestic law of the British Columbia but it will be recognized there under that
province’s divorce recognition rules. On that basis it should be considered to be “effective”
under the law of British Columbia and thus be recognized in England.

ii. Where there are no proceedings

Part II of the Family Law Act 1986 follows the general approach of the 1971 Act and provides
special, and limited, recognition rules for overseas divorces, etc obtained where there are no
proceedings. The central provision is section 46(2):

The validity of an overseas divorce, annulment or legal separation obtained otherwise

than by means of proceedings shall be recognized if-

a. the divorce, annulment or legal separation is effective under the law of the
country in which it was obtained;

b. at the relevant date126-

(i) each party to the marriage was domiciled in that country; or

123
S 46 (1) (b)
124
S 46 (1) (a)
125
S 46 (1)
126
This means the date on which the divorce, etc was obtained

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(ii) either party to the marriage was domiciled in that country and the other party
was domiciled in a country under whose law the divorce, annulment or legal
separation is recognized as valid; and

c. neither party to the marriage was habitually resident in the United Kingdom
throughout the period of one year immediately preceding the date.

It will be seen that the divorce, etc must be obtained in one country and be effective there.

The rules laid down in section 46 (2) of the 1986 Act reveal three particular changes from the
rules applicable under the 1971 Act, in addition to their extension to extra-judicial annulments.

i. The first is that there is an express statutory requirement that the divorce, etc be effective
in the country in which it was obtained and, indeed, recognition may be refused if no
official documents can be produced certifying the effectiveness.127

ii. The second change the concerns the jurisdictional test. Section 46 (2) follows the pattern
of the 1971 Act in limiting the jurisdictional basis to domicile. However, the domicile test
under section 46 (2) is more narrowly drawn than under the 1971 Act. Under that Act,
recognition was allowed even though the overseas divorce, etc was obtained in a country
in which neither spouse was domiciled, provided it was recognized either in their
common domicile or the countries of their separate domiciles. 128 The 1986 Act, however,
contains no such jurisdictional basis of recognition.

iii. The third change from the jurisdictional rules under the 1971 Act is that, under those
provisions, the reference to domicile was to domicile in the English sense. However,
domicile under section 46 (2) of the 1986 Act includes, rather surprisingly, domicile in
both the English sense and that of the country where the divorce was obtained or
recognized.

127
S 51 (3) (b) (i)
128
S 6 (3) (b)

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iv. GROUNDS FOR NON-RECOGNITION OF DIVORCES, ANNULMENTS AND

LEGAL SEPARATIONS

a. Introduction

Not only does Part II of the 1986 Act provide an exclusive list of jurisdictional bases on which
overseas divorces etc may be recognized here, it also provides in section 51 an exclusive list of
the grounds on which recognition may be denied both to other British and to overseas divorces,
etc.

There are only two discretionary grounds on which another British divorce, etc may be denied
recognition: res judicata and that there was no subsisting marriage between the parties at the
time of divorce, etc. On the other hand, an overseas divorce, etc may be denied recognition, not
only on those grounds but also, if there have been judicial or other proceedings, on the ground of
want of notice of, or opportunity to take part in, the proceedings.

The various grounds for non-recognition laid down in section 51 of the 1986 Act must now be
considered in more detail.

b. Res judicata

In the 1971 Act there was no ground for non-recognition based specifically on res judicata.

Vervaeke v Smith:129

In 1970, the wife sought to have her English marriage in 1954 annulled on the ground
that her husband was already married at the time, even though he had gone through
divorce proceedings in Nevada in 1946, and that it was a “sham” marriage, being
celebrated simply to enable her to acquire British nationality. The English court refused
to grant her a nullity decree- because the Nevada divorce was recognized in England and
the fact her marriage was a “sham” was no ground of annulling it. then, in 1972, the wife

129
(1983) 1 AC 145

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obtained a nullity decree from a Belgian court on the ground, considered but rejected in
England, that the marriage was a “sham”.

It was held, in the lower courts, that the Belgian decree satisfied the common law jurisdictional
rules for the recognition of foreign annulments. Since, the wife had a real and substantial
connection with Belgium at the relevant time. Nevertheless, the recognition was denied, on the
basis of the doctrine of res judicata. The House of Lords had no doubt that the issue before the
Belgian courts was the very point earlier decided in the English courts.

A new head of non-recognition based more specifically on res judicata was introduced.

Section 51 (1) of the 1986 Act provides:

Subject to section 52 of this Act, recognition of the validity of-

a. a divorce, annulment or judicial separation granted by a court of civil jurisdiction in any part
of the British Islands, or
b. an overseas divorce, annulment or legal separation,

may be refused in any part of the United Kingdom if the divorce, annulment or
separation was granted or obtained at a time when it was irreconcilable with a
decision determining the question of the subsistence or validity of the marriage of the
parties previously given (whether before or after the commencement of this part) by a
court of civil jurisdiction in that part of the United kingdom or by a court elsewhere
and recognized or entitled to be recognized in that part of the United kingdom.

c. No subsisting marriage

The English court under S 51 (2) of the 1986 Act has a discretion to refuse recognition to a
divorce or legal separation, whether granted elsewhere in the British Isles, or obtained overseas,
if it was obtained at a time when according to English law, there was no subsisting marriage
between the parties. Under the 1971 Act, denial of recognition on this ground was mandatory 130

130
1971 Act, s 8 (1)

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but, because of the possible overlap with the res judicata ground, it was thought more
appropriate that this head also should become discretionary.131

d. Want of notice of the proceedings

Under S 51 (3) (a) (i) of the 1986 Act, recognition may be refused to an overseas divorce, etc
which has been obtained by judicial or other proceedings if it was obtained without such steps
having been taken for giving notice of the proceedings to a party to the marriage, as, having
regard to the nature of the proceedings and all the circumstances, should reasonable have been
taken.

Recognition should still be denied where the lack of notice is consequent upon the petitioner’s
fraud.132

The application of this ground of non recognition may not prove to be easy in the case of extra
judicial divorces, etc which have been obtained by means of judicial or other proceedings. So
there must have been sufficient formality for these to be considered to be “proceedings”, but
recognition may only be denied if the steps taken to give notice are inadequate with regard, inter
alia, to the nature of the proceedings.133

e. Want of opportunity to take part in the proceedings

Recognition of an overseas divorce, etc obtained by proceedings may be refused if it was

obtained without a party to the marriage having been given (for any reason other than lack of
notice) such opportunity to take part in the proceedings as, having regard to the nature of the
proceedings and all the circumstances, he should have been given.134

131
Law Com No 137 (1984), para 6.66.
132
Macalpine v. Macalpine (1958) P 35
133
D v D (1994) 1 FLR 38.
134
S 51 (3) (a) (ii)

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The “opportunity” is not to be limited to the mere taking part in the proceedings; it must be an
effective opportunity to place views before the court. In the case of an extra-judicial divorce, etc
the exiguous nature of the proceedings will not, as in the case of lack of notice, necessarily
constitute grounds for denial to recognition. Finally, the discretionary nature of the power to
refuse recognition must be stressed. Even if the necessary opportunity is lacking, the court may
still recognize the foreign divorce, etc.

f. Public policy

Recognition can only be refused on the grounds laid down in the Family Law Act,1986. One of
these is that recognition would be manifestly contrary to Public policy {S 51 (3)}

The common law rules

The residual discretion at common law to refuse to recognize a foreign divorce, annulment or
legal separation where such recognition would be contrary to English public policy led, for
example, to a foreign divorce being denied recognition where there had been fraud as to the
jurisdiction of the foreign court or duress had been exercised on the petitioner. Recognition
would also be refused if it would be contrary to English public policy to accept the foreign legal
rules being applied. Although it has been said in the context of the recognition of foreign
divorces that the residual discretion to deny recognition was one to be exercised sparingly, the
courts became increasingly willing to deny recognition, especially to foreign nullity decrees, on
the ground that either the foreign legal rule, or its application in the particular circumstances, was
offensive to the judicial sense of “substantial justice”.

There is a real danger in the adoption of so broad and vague an approach to the issue of public
policy. It renders the law un predictable on a matter vital to social stability and human happiness.

Merker v Merker135

135
(1963) P 283 at 301.

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It is a common, natural and reasonable thing for people to adjust their lives according to
the ostensible effect of a judgment disposing of their status pronounced by a competent
court.

The more likely it is that a foreign divorce, etc will be denied recognition on unpredictable
grounds of public policy, the harder is it for those reasonable expectations to be met.

Under the Family Law Act, 1986

Denial of recognition to an overseas divorce, etc on public policy grounds is specifically

provided for in section 51 (3) of the 1986 Act. The court has discretion to refuse recognition if
such recognition “would be manifestly contrary to public policy”.

The principles on which the statutory discretion should be exercised have been stated thus:

In exercising its discretion…this court should have regard to all the surrounding
circumstances which would include a full investigation of the facts relied upon to support
a refusal of recognition; the likely consequences if the petitioning spouse had been given
the opportunity to take part in the proceedings; an assessment of what the legitimate
objectives of the petitioning spouse are, and to what extent those objectives can be
achieved if the foreign decree remains valid, and what the likely consequences to the
spouses and any children of the family would be if recognition was refused.136

Kendall v Kendall137

H and W lived together in Bolivia. W decided to leave Bolivia, with their children, in
1974. Before leaving she signed documents, in Spanish which she did not read, which H
told her were documents to permit her to take the children out of the country. In 1975 the
Bolivian courts granted a decree of divorce, purporting to be a decree granted to W as

136
Social Security Decision No R (G) 1/85
137
(1977) Fam 208

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petitioner. It was probably the case that the documents W signed constituted a power of
attorney enabling a decree to be granted without W’s presence before the court.

JOLLINS J Held that recognition of the decree would manifestly be contrary to public
policy as the Bolivian court had been deceived, not just as to the facts alleged in the
petition, but as to the fundamental issue of whether W was petitioning at all.

It has also been suggested that recognition should be denied on public policy grounds to an extra-
judicial divorce, etc if both parties were domiciled in England when it was obtained.

Chaudhary v Chaudhary138

It must plainly be contrary to the public policy of the law in case where both parties to
the marriage are domiciled in this country to permit one of them, whilst continuing his
English domicile, to avoid the incidents of his domiciliary law and to deprive the other
party to the marriage of her rights under that law by the simple process of taking
advantage of his financial ability to travel to a country whose laws appear temporarily to
be more favourable to him.

v. RETROSPECTIVITY

The general rule in Part II of the 1986 Act is that its provisions govern the recognition of both
British and overseas divorces, annulments and legal separations, whether they were obtained
before or after the 1986 Act came into force. 139 There are two kinds of limitation on this general
retrospective effect.

1. The first is that, in so far as the rules of the 1986 Act are narrower than those prevailing
under earlier legislation or at common law, recognition will continue to be given to
certain divorces, etc which would have been recognized under the old law.140

138
(1985) Fam 19 at 45
139
1986 Act, s 51 (1), (2), (3).
140
S 52(4), (5)

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2. The second kind of limitation on the retrospective effect of Part II of the 1986 Act
concerns any divorce, etc, whether British or overseas, and whether or not obtained by
means of proceedings, which was obtained before Part II came into effect. Although the
recognition of such a divorce, etc will be governed by the general recognition rules, these
are subject to two qualifications.

a. The first is that these rules shall not affect any property to which any person
became entitled before the commencement of the 1986 Act.141

b. The second qualification is that the rules “shall not affect the recognition of the
validity of the divorce, annulment or separation if that matter had been decided by
any competent court in the British Islands” before the commencement of the 1986
Act.

vi. EFFECT OF A FOREIGN DIVORCE, ANNULMENT OR LEGAL SEPARATION

a. Divorce

The effect of a foreign divorce on the married status of the parties is obvious. If, in the eyes of
English law, the divorce is valid, it effectively terminates that status, if it is void for want of
jurisdiction, the status remains unchanged. Nevertheless, the divorce may have an effect with
regard to certain subsidiary purposes other than the assessment of status. The question of the
effect of a foreign divorce seldom arises in practice. However there are three questions.

1. First, although a valid divorce terminates the married status of the parties, it does not
automatically terminate the maintenance order in favour of the wife made by an English
court at a time when they were living permanently in England. The court has discretion to
retain, vary or discharge it, and in exercising this discretion it is relevant to consider
whether the wife participated in the divorce proceedings, whether the question of

141
52 (2) (a)

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maintenance was raised in the foreign court and whether the basis for the divorce was
insufficient by English law.

2. It is rare that a foreign divorce will be denied recognition here for want of jurisdiction,
given the breadth of our recognition rules. If, however, lack of jurisdiction were to render
the foreign divorce invalid here, it would not be altogether devoid of effect even though it
leaves the married status of the parties undisturbed.

3. Another question is whether a foreign divorce, invalid for the want of jurisdiction, is
affected by the doctrine of estoppel. It is clear that there is no estoppel so far as the
married status of the parties is concerned. Neither party is precluded from denying that in
the eyes of the English law the parties are still husband and wife.
b. Annulment

Where the foreign annulment has the same effect on the status of the parties as an equivalent
English decree, there will be little difficulty in giving full effect to it. Difficulty may arise where,
for example, a decree annulling a voidable marriage is retrospective in effect, whilst an
equivalent English decree is only prospective in effect.

Social Security Decision No R (G) 1/85

The wife lived in Scotland. Her first husband died in 1966 and she had received a widow’s
pension ever since. In 1980, in Northern Ireland, she went through a ceremony of marriage
with M with whom she lived for just seven weeks before returning to Scotland. As soon as
she married, her widow’s pension ceased to be paid. In 1982, she obtained a decree absolute
from the Northern Ireland court declaring her second marriage void on the ground of non-
consummation because of M’s impotence. In the light of that, she sought, in Scotland, to
have her widow’s pension reinstated retrospectively. The effect in Northern Ireland of the
nullity decree was that the marriage was voidable, and the decree had only prospective effect.
However, an equivalent decree in Scotland would render the marriage void and have

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retrospective effect. The two issues for the Social Security Commissioner were whether the
Northern Ireland nullity decree should be recognized in Scotland and, if so, whether it should
be given prospective or retrospective effect. If the former, the wife would lose; if it had the
Scottish retrospective effect, she would succeed.

The Commissioner had no hesitation in holding that the Northern Ireland nullity decree
should be recognized in Scotland. He followed the approach recommended by the Law
Commission that the foreign effects of the annulment should normally be recognized and
gave the Northern Ireland decree only prospective effect. To do otherwise would have given
the decree greater effect in Scotland than it had in the Northern Ireland as well as differing
effects as between two “spouses” who were domiciled in different countries.

c. Legal separation

An English decree of judicial separation entitles the petitioner to live apart from the respondent,
(s 18(1), Matrimonial Causes Act, 1973), but does not dissolve the married status of the parties.
Though if a spouse dies intestate whilst such a decree is in force, his property will devolve as if
the other spouse was dead. {S. 18(2), Matrimonial Causes Act, 1973.}. It is permanent in the
sense that it remains in operation unless and until a discharge of the decree is ordered. The effect
to be given to a foreign legal separation which is recognized in this country was considered at
common law in

Tursi v Tursi142

Two Italian subjects, domiciled in Italy, married there in 1942. The husband deserted the
wife and never returned to her. In 1947, the wife obtained in Rome a decree of judicial
separation, substantially similar in effect to an English decree, on the ground of the
husband’s desertion. In 1955, the wife, who had been resident in England since 1949,
petitioned for divorce on the ground of the husband’s desertion for three years, he being
still domiciled and resident in Italy.

142
(1958) P 54

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SACHS J held that it should have the same effect with respect to desertion as an English
decree of judicial separation, namely that a decree of judicial separation did not put an
end to desertion, as to common law, but that the wife could treat any period of desertion
occurring before the decree as occurring immediately before the petition for divorce.143

II. INDIAN LAW

a. Introduction

Apart from the general provisions contained in s.13, Civil Procedure Code, the Indian law of
recognition of foreign divorces is still not well developed. Sections 13 and 14 of the Civil
Procedure Code deals with the enforcement of foreign judgments. Section 44 A of CPC deals
with the execution of foreign judgments and section 41 of the Evidence Act with the impacts of
judgments.

The Law Commission in its 65th report recommended that:-

1. The practice of recognition of divorce granted in the country of domicile of the parties
should continue.
2. The divorce or legal separation though not granted in the country of domicile, if
recognized as valid in the country of domicile should be recognized in India and this
should be expressly provided for.
3. There should be a general provision to save the provisions of any other enactment which
provide for recognition.
4. Non-recognition of a divorce by a third country should not be a bar to the recognition of
divorce in India.
5. It is desirable to provide for the recognition of foreign divorces ort legal separations
granted by countries where both parties were habitually resident or by countries of which
both are a national, in addition to the current test of domicile.

143
Under s 7(3) of the Matrimonial Causes Act 1950/

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6. It is desirable to provide that the rule that on marriage the wife acquires the domicile or
the nationality of the husband shall not apply in relation to the recognition of foreign
divorces and separations.
7. A foreign judgment will not be recognized:-
i. If the other party had no reasonable notice of proceedings, or
ii. If the party had no opportunity of hearing depending on the nature of the
proceedings and all circumstances of the case, or
iii. If contrary to public policy, or
iv. If obtained by fraud.
8. Any anciliary order (concerning the custody of children and other allied questions)
should not be treated as binding by Indian courts even though the foreign decree of
divorce is recognized.
9. The proposed bill should apply to non-judicial divorces as well. To avoid any ambiguity,
the term “proceeding” was defined as including any act which might be sufficient to
effectuate a dissolution of marriage, however, informal that act may be, and whether or
not any formalities or legal process is required.

Pursuant to the recommendation of the Law Commission, no law has yet been passed.

In 1963, Shah. J. of the Supreme Court said that though the rules of private International law are
different in different countries, yet on the basis of comity certain rules are applied practically by
all the countries.144

b. Important definitions under the Civil Procedure Code, 1908

 “Decree”

i. “decree” means the formal expression of an adjudication which, so far as regards

the Court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit and may be either

144
Vishwanathan v Abdul Wazid, 1963 S.C. 1.

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preliminary or final. It shall be deemed to include the rejection of a plaint and the
determination of any question within 1 [* * *] section 144, but shall not include-
ii. (a) any adjudication from which an appeal lies as an appeal from an order, or
iii. (b) any order of dismissal for default.
iv. Explanation – A decree is preliminary when further proceedings have to be taken
before the suit can be completely disposed of. It is final when such adjudication
completely disposes of the suit, it may be partly preliminary and partly final;

 “Decree Holder”

“decree-holder” means any person in whose favour a decree has been passed or an
order capable of execution has been made;

 “Judgments”

“judgment” means the statement given by the judge on the grounds of a decree or
order;

 “Foreign Courts”

“foreign Court” means a Court situate outside India and not established or
continued by the authority of the Central Government;]

 “Foreign Judgment”

 “foreign judgment” means the judgment of a foreign Court;

c. Recognition of foreign Judgments

Under the Indian and English law a foreign judgment-creditor can bring an action on a foreign
judgment. If the defendant has filed a suit on the same cause of action, he can also take the plea
of res judicata. The English law is now contained in the civil jurisdiction and Judgments Act,
1982. The Indian law on this matter has been enacted in s. 13 of the Indian Code of Civil

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Procedure. With minor differences on matters of detail, the position in English private
International law is also the same.

Section 13 of the Code runs as under:

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or between parties under whom they or any of them claim litigating
under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of
international law or a refusal to recognize the law of

1
[India] in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural
justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in 1[India].

Section 14: Presumption as to foreign judgments:

The Court shall presume upon the production of any document purporting to be a
certified copy of a foreign judgment that such judgment was pronounced by a Court of
competent jurisdiction, unless the contrary appears on the record; but such presumption
may be displaced by proving want of jurisdiction.

It is a well established rule of English Private International law that a court cannot subject a
foreign judgment to a general review. A foreign judgment cannot be impeached on the ground
that it is based on an error or internal law or on an error of fact nor can it be impeached on the
ground of some procedural error. Whenever an action is brought on a foreign judgment it is for
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the defendant to establish that for one or the other defence available to him, he is not bound by it.
However, no action can be founded on a foreign judgment which is not a final and conclusive
adjudication between the parties.

d. Execution of foreign decrees

From April 1, 1951, the Civil Procedure Code has been made applicable to all the states of the
Indian Union. The Indian Constitution also contains a full faith and credit clause, by virtue of
which judgment of Part B States could be enforced in Part A States and vice versa. Clause (3) of
Article 261 of the Indian Constitution provides: “ Final judgments or orders delivered or passed
by the civil courts in any part of the territory of India shall be capable of execution anywhere
within the territory according to law.”

The Civil Procedure Code (Amendment) Act, 1951 had changed this position in respect of Part B
States. The modified sections 43 and 44 provide for the direct execution of decrees and orders of
civil and revenue courts situated in any part of the country.

Section 43 runs: “Any decree passed by any civil court established in any part of India to
which the provisions of this code do not extend, or by any court established or continued
by the authority of the Central Government outside India, may, if it cannot be executed
within the jurisdiction of the court by which it was passed, be executed in the manner
herein provided within the jurisdiction to which this Code extends.” For the application
of this section it is necessary that (a) the transferee court is one whish has been
established by the authority of the Central Government in such foreign territory, and (b)
the State Government has by notification declared this section applicable.

Section 45 runs: “So much of the foregoing sections of this Part as empowers a Court to
send a decree for execution to another Court shall be construed as empowering a Court in
any State to send a decree for execution to any Court established by the authority of the
Central Government [outside India] to which the State Government has by notification in
the Official Gazette declared this section to apply].”

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The combined effect of sections 43, 44 and 45 may be summed as under:

1. Execution of decrees by Indian Court: The Indian courts have power to execute: (a)
decrees of those Indian courts to which the Civil Procedure Code does not apply, (b) the
decrees of civil courts outside India which are established or continued by the authority
of the Central Government, and (c) decrees of the Revenue courts situate in India to
which the Code of Civil Procedures does not apply.

2. Execution of Decrees by Courts outside India: The decrees of Indian courts can also be
executed in territories outside India by the courts established or continued by the
authority of the Central Government and to which the State Government has notified that
section 45 applies.

Reciprocal Enforcement of Foreign Decrees: Section 44A of the Civil Procedure Code
provides for the reciprocal enforcement of foreign judgments.145 The section has been modeled
on the analogous provision in the Foreign Judgments (Reciprocal Enforcement) Act 1933. Under
the section the decrees of the superior courts of the United Kingdom and other foreign countries
with which India has reciprocal arrangement have been made enforceable as if they are the
decrees of the Indian courts. In reference to this section a decree means ‘any decree or
judgment…under which a sum of money is payable, not being a sum payable in respect of taxes
or other charges of a like nature or in respect of fine or other penalty.’ 146 And it does not include
an arbitration award, even if such an award is enforceable as a judgment or decree.147

When the execution of a foreign decree is sought in an Indian court, then it is necessary that a
certified copy of it should be filed in the court together with a certificate as to the extent, if any,
to which the decree has been satisfied or adjusted. Such a certificate shall be conclusive proof of

145
Section 44A(1)
146
Explanation (3) to s. 44A
147
Explanation 3(b) to s. 44A

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such satisfaction or adjustment.148 Foreign decrees can be executed in District Courts only. 149
Any territory which reciprocates in the execution of decree is a reciprocating territory.150

No foreign decree or judgment can be executed or enforced by any court in India 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 appears on the face of the proceedings to be founded on an incorrect view of
International law or a refusal to recognize the law of India in cases where it is applicable.
d. The proceedings in which it was obtained are opposed to natural justice,
e. It has been obtained by fraud, or
f. It sustains a claim founded on a breach of any law in force in India.

e. Relevancy of Judgments

Section 41 of the Indian Evidence Act

Relevancy of certain judgments in probate, etc., jurisdiction:

A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial
admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal
character, or which declares any person to be entitled to any such character, or to be entitled to
any specific thing, not as against any specified person but absolutely, is relevant when the
existence of any such legal character, or the title of any such person to any such thing, is
relevant.

Such judgment, order or decree is conclusive proof—

148
Sub-section 1 of s. 44A
149
Ibid.
150
Explanation (2) to s. 44A

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That any legal character, which it confers accrued at the time when such judgment, order or
decree came into operation;

That any legal character, to which it declares any such person to be entitled, accrued to that
person at the time when such judgment, order or decree declares it to have accrued to that
person;

That any legal character which it takes away from any such person ceased at the time from which
such judgment, order or decree declared that it had ceased or should cease;

And that anything to which it declares any person to be so entitled was the property of that
person at the time from which such judgment, order or decree declares that it had been or should
be his property.

Comments:

Section 41 deals with,— (i) relevant judgment of a competent court exercising probate,
matrimonial, admiralty or insolvency jurisdiction, (ii) the judgment confers upon or take away
from any person any legal character or declare any person to be entitled to any such legal
character, and (iii) the judgment is conclusive proof of matters mentioned in number (i)

Principle:

For the purpose of relevancy judgment is either judgment-in-rem or judgment-in-personam. This

section usually deals with judgment-in-rem. As a matter of principle a person is not bound by
any transaction to which he is not a party. Therefore, judgment between the parties is binding
upon third party, but Section 41 is an exception and the judgment which is in judgment-in-rem is
admissible under this section. To attract Section 41 judgment has to be pronounced. Mere
pending of two proceedings whether civil or criminal, however, by itself would not attract the
provisions of Section 41 of this Act.

Judgment-in-rem:

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It means a judgment against the whole world. According to Taylor “a judgment-in-rem has been
defined to be an adjudication pronounced, as its name indeed denotes upon the status of some
particular subject-matter, by a tribunal having competent authority for the purpose. A judgment-
in-rem under this section is conclusive in a civil as well as in criminal proceeding. Both the
proceedings may run simultaneously.

If the judgment of a civil court is not binding on a criminal court, a judgment of a criminal court
is not to be binding in civil court. Such judgment is conclusive evidence for and against all
persons whether parties, privies or strangers of the matters actually decided.” In Section 41
judgments of courts exercising probate, matrimonial, admiralty or insolvency jurisdictions are
judgments-in-rem.

Judgment-in-personam:

It means a judgment between the parties in contract, tort or crime. Judgment-in-personam binds
the parties and their representative- in-interests. This sort of judgment is not relevant in any
subsequent proceeding under section 41.

Binding nature of judgment-in-rem:

The judgment-in-rem is conclusive proof of matters showing that: (a) it has conferred legal
character, or (b) it has declared that person has such legal character or (c) it has declared that
such legal character has ceased to exist. The legal character means a legal status. To say that a
person is not a partner of a firm is not to declare his status or legal character; it is merely to
declare his position with respect to the particular firm.

Under section 41, a judgment-in-rem dealing with legal character of a person can be pronounced
by the courts exercising probate, matrimonial, admiralty and insolvency jurisdiction.

Matrimonial jurisdiction:

A court having matrimonial jurisdiction can decide matrimonial causes under various Act. By
virtue of this jurisdiction the court can decide the legal status of a person whether he is married
or she is widow or divorcee. The judgment of a Matrimonial court is judgment-in-rem and is

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admissible under section 41. A decree of nullity and divorce under Marriage Law has the same
effect.

f. Indian Decisions on ‘Foreign Judgments’

It is a well established rule of both English and Indian international laws that no foreign
judgment can be enforced or recognized which has been pronounced by a court having no
jurisdiction in the case.

The leading Indian case on the matter is :

Sirdar Gurdayal Singh. v. Raja of Faridkote151

One Raja of Faridkote obtained two ex parte decrees for sums together amounting to Rs.
76,474-11-3 from a civil court at Faridkote against the defendant who was, five years
before the decree, the treasurer of the Raaja. In both the cases the defendant had not
submitted to the jurisdiction of the Faridkote court. Subsequently, the Raja brought an
action on both the judgments of the Faridkote court in a Lajore court, within the
jurisdiction of which the defendant was residing. (At that time Faridkote was an Indian
state and vis-à-vis British India, judgment pronounced by the Faridkote vourt were
judgments of foreign courts.) Ultimately the matter went to the Privy council. The Privy
Council, dismissing the suit of the Raja, observed, “In a personal action…a decree passed
in absentem by a foreign court, to the jurisdiction of which the defendant has not in any
way submitted himself is by international law an absolute nullity.”
In other words, the foreign court should have jurisdiction in the international sense.

Clause (e) of s. 13. Civil Procedure Code lays down that a foreign judgment shall not be
conclusive if ‘it has been obtained by fraud’. But the Indian cases on the subject are few and
sparse.

151
(1894) A.C. 670.

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In Sama Rayer v Annamalai152

A decision under the old code, the Madras High Court observed, obiter, that a foreign
judgment can be impeached for fraud or collusion.

In Popat Virji v Damodar153

After a review of English authorities. Kania, J. said that a foreign judgment cannot be
impeached on the ground that the foreign court was mistaken; it can be impeached on the
ground that the foreign court was misled or imposed upon.

Sankaran v Lakshmi154

In this case the question has been examined in some detail by the Kerala High and by the
Supreme Court. One Krishnan went to England for higher studies but ultimately did not
return to Indian and died in England leaving behind some movable and immovable
property. On behalf of certain relatives of Krishnan letters of administration of the estate
of Krishnan were obtained. As there was a likelihood of dispute relating to the domicile
of Krishnan, the administrators took out originating summons in the High Court of
Judicature in England for deciding the question. The High Court held that Krishnan died
domiciled in England. In this case, inter alia, this judgment was impeached as one
obtained by fraud. It was alleged that those relatives of Krishnan who instructed the
English administrators deliberately withheld those facts from the court which would have
established that Krishnan did not acquire any domicile of choice in England. The trial
court and the Kerala High Court found that one of the relatives of Krishnan ‘in spite of
his knowledge that Krishnan had no intention to settle down in England permanently,
made the administrators believe and thereby imposed upon the English court that
Krishnan had an English ‘domicile’ at the time of his death, as a result of which the

152
(1884) 7 Mad. 164.
153
1934 Bom. 390
154
1974 S.C. 1764

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decision’ from the English court was obtained. Thus, it was held that the judgment of
English court was vitiated by fraud.

CONCLUSION

A contract to marry fundamentally forms a commercial contract, since creates a status that
affects both the parties themselves and the society to which they belong. It is fulfilled on the
solemnization of the marriage ceremony, and therefore there is a change in the law that governed
the relationship between the parties.

There are many different situations in which the existence of a marriage must be established as a
preliminary to legal proceedings. The matter may concern many different parts of the law. Thus,
the institution of matrimonial causes, such as a petition for divorce and judicial separation,
implies that the parties are related to each other as husband and wife. Each legal system must
determine the attributes of the consensual union between man and woman, the common factor, in
eyes of the English law, of every marriage, which are necessary to create the relationship of
husband and wife. The above project concludes that each case is decided on its own facts and
circumstances.

As far as jurisdiction of English Court is concerned, to entertain proceedings for nullity, if either
party was habitual resident for one year or domiciled in England, or if either of the parties died

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before that date and either was at domiciled in England or had been habitually resident foe one
year ending with the date of the death. A nullity decree may declare a marriage either void or
voidable.

FUTURE DEVELOPMENT

Jurisdiction, recognition and enforcement of judgments in matrimonial matters and

matters of parental responsibility (“Brussels II”)155

The purpose of this regulation is to bring together in a single document the provisions on divorce
and on parental responsibility. Among other matters, it establishes the automatic recognition of
judgments on rights of access which formed part of an initiative presented by France in 2000.
This regulation replaces Regulation (EC) No 1347/2000.

Prioritising children's rightsThe European Union (EU) gives priority to the child’s right to
maintain normal relations with both parents. The child will have the right to make his or her
views known on all aspects of parental responsibility, having regard to his or her age and degree
of maturity.

Scope, definitions and jurisdiction

The regulation applies to civil proceedings relating to divorce, separation and marriage
annulment, as well as to all aspects of parental responsibility. Parental responsibility refers to the
full set of rights and obligations in relation to a child’s person or property. In order to ensure
equality for all children, the regulation covers all judgments on parental responsibility, including
measures to protect the child, independently of any matrimonial proceedings.

The regulation does not apply to civil proceedings relating to maintenance, which are covered by
Regulation (EC) No 44/2001 on jurisdiction, recognition and enforcement of judgments in civil
and commercial matters.

The following are also excluded from the scope of the regulation:
155
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and
enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation
(EC) No 1347/2000 

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 establishing and challenging paternity;

 judgments on adoption and the related preparatory measures, and annulment or revocation of
adoption;
 the child’s first and last names;
 emancipation;
 trusts and inheritance;
 measures taken following criminal infringements committed by children.

The regulation establishes a full system of rules on jurisdiction. As regards divorce, it takes over
the rules on jurisdiction of Regulation (EC) No 1347/2000.

In general, matters relating to parental responsibility come under the jurisdiction of the courts of
the EU country of habitual residence of the child. In certain cases of relocation, that is of a lawful
change of residence of a child, where the courts of the EU country of the former residence of the
child have already issued a judgment on parental responsibility (particularly as concerns rights of
access), this matter continues to come under the jurisdiction of the courts of that country.
Moreover, the spouses may accept the jurisdiction of the divorce court to also decide on matters
of parental responsibility. In certain cases, the parents may also agree to bring the case before the
courts of another EU country with which the child has a close connection. Such a connection
may, for instance, be based on the nationality of the child.

Where a child's habitual residence cannot be established, the EU country in which the child is
present will assume jurisdiction by default. This provision applies, for instance, to cases of
refugee children or children internationally displaced because of disturbances occurring in their
countries of origin. Where it is not possible to define jurisdiction on the basis of the specific
provisions laid down by the regulation, each EU country may apply its national legislation. In
exceptional circumstances, the case may be referred to the court best placed to hear it, where this
is in the best interests of the child.

The courts are required to verify of their own motion whether they have jurisdiction for the
purposes of this regulation. If a court of an EU country has no jurisdiction in a matter submitted
to it, it must declare of its own motion that it has no jurisdiction. Where proceedings are brought

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against a respondent who is habitually resident in another EU country, the courts must verify
whether the respondent received the document instituting the proceedings in sufficient time to
enable him or her to arrange for his or her defence. In urgent cases, the courts may also take
interim protective measures relating to persons and property.

Recognition and enforcement

The rules on recognition and enforcement are those laid down by Regulation (EC) No
1347/2000 on this matter.

The regulation provides for automatic recognition of all judgments without any intermediary
procedure being required. It restricts the grounds on which recognition of judgments relating to
matrimonial matters and matters of parental responsibility may be refused to the following:

 recognition is manifestly contrary to public policy;

 the respondent was not served with the document that instituted the proceedings in
sufficient time to arrange for his or her defence;
 recognition is irreconcilable with another judgment.

For judgments in matters of parental responsibility, there are two further grounds for non-
recognition:

 the child was not given an opportunity to be heard;

 a person claims that the judgment infringes his or her parental responsibility, if it was
issued without this person having been given an opportunity to be heard.

A judgment on the exercise of parental responsibility can be declared to be enforceable in

another EU country on the application of an interested party (and, in the case of the UK, after it
has been registered for enforcement). The decision on the application for a declaration of
enforceability may be appealed against.

With regard to judgments on matrimonial matters and parental responsibility, the competent
court must, at the request of any interested party, issue a certificate using the standard forms set
out in Annexes I and II.

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All judgments on rights of access and return of children taken in accordance with the regulation
will be automatically recognised and enforced in all EU countries without the need for special
procedures (abolition of exequatur), provided that they are accompanied by a certificate.
Standard forms for certificates concerning rights of access and return of children are set out in
Annexes III and IV.

A certificate issued to facilitate enforcement of a judgment is not subject to appeal. However,

proceedings for rectifying the certificate can be initiated if it does not correctly reflect the
judgment.

The enforcement procedure is governed by the national law of the EU country of enforcement.

A distinction has to be made between a judgment acknowledging rights of access and the
practical arrangements for exercising such rights. The judge in the EU country of enforcement
can determine the practical arrangements for exercising rights of access if the necessary
procedures have not been specified in the judgments by the courts of the other EU country in
which rights of access were granted. In determining these practical arrangements, the judge must
at all times comply with the basic elements of the judgment conferring the right.

Cooperation between central authorities

Each EU country designates one or more central authorities to exercise several functions, in
particular to:

 promote exchanges of information on national legislation and procedures;

 facilitate communication between courts;
 provide assistance to holders of parental responsibility seeking to recognise and enforce
decisions;
 seek to resolve disagreements between holders of parental responsibility through
alternative means such as mediation.

The central authorities are regularly brought together in the European Judicial Network in civil
and commercial matters.

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All holders of parental responsibility can request for free assistance from the central authority in
the EU country in which the child is habitually resident.

As a general rule, the regulation replaces the existing conventions between two or more EU
countries that concern the same matters. It will prevail over certain multilateral conventions on
relations between EU countries that concern matters governed by the regulation: the Hague
Convention of 1961 (law applicable to protection of minors), the Luxembourg Convention
of 1967 (recognition of decisions on marriage), the Hague Convention of 1970 (recognition of
divorces), the European Convention of 1980 (custody of children), and the Hague Convention
of 1980 (civil aspects of international child abduction).

With regard to relations with the Hague Convention of 19 October 1996 on jurisdiction,

applicable law, recognition, enforcement and cooperation in respect of parental
responsibility and measures for the protection of children, this regulation is fully applicable
if the child in question is habitually resident in an EU country. The rules on recognition and
enforcement also apply if the competent court in an EU country issues a judgment, even if the
child in question is habitually resident in a non-EU country that is a party to this convention.

Special provisions are applicable to:

 relations of Finland and Sweden with Denmark, Iceland and Norway as regards the
application of the Nordic Marriage Convention of 6 February 1931;
 relations between the Holy See and Portugal, Italy, Spain and Malta.

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