Full Judgment Text
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PETITIONER:
SATYA
Vs.
RESPONDENT:
TEJA SINGH
DATE OF JUDGMENT01/10/1974
BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
KHANNA, HANS RAJ
CITATION:
1975 AIR 105 1975 SCR (2) 97
1975 SCC (1) 120
ACT:
Code of Civil Procedure (Act 5 of 1908) s. 13 and Indian
Evidence Act (1 of 1872) s. 41-Indians married in India-
Judgment of American State Court granting divorce to
husband--When may be recognised by Indian Courts.
HEADNOTE:
Section 13(a), Civil Procedure Code, 1908, makes a foreign
judgment conclusive as to any matter thereby directly
adjudicated upon except where it has not been pronounced by
a Court of competent jurisdiction;’ and s. 41, Indian
Evidence Act, 1872, provides that a final judgment of a
competent Court in the exercise of matrimonial jurisdiction
is conclusive proof that the legal character which it
confers or takes away accrued or ceased at the time,
declared in the judgment for that purpose.
The appellant and respondent, who were Indian citizens were
married in India in 1955. The respondent left for the U.S.
in 1959 and from 1960 to 1964 was living in Utah for
sometime as a student and thereafter in employment. Since
1965 he had been in Canada. He filed a petition for divorce
in November 1964 in Nevada, and obtained a decree against
the appellant in December 1964. The appellant did not
appear in the Nevada Court, was unrepresented and did not
submit to its jurisdiction.
In 1965, the appellant moved an application for maintenance
under s. 488, Criminal Procedure Court, 1898, and the
respondent relied upon the divorce decree of the Nevada
Court as a complete answer to the appellant’s claim. The
trial court held in favour of the appellant and the order
was confirmed in revision. In further revision, the High
Court held in favour of the respondent on the basis that ’at
the crucial time of the commencement of the proceedings for
divorce the petitioner was domiciled’ in Nevada, that during
marriage the domicile of the wife follows the domicile of
the husband, that it was decided in Le Mesurier v. Le
Mesurier [1895] A.C. 517 that ’according to international
law, the domicil for the time being of the married pair
affords the only test of jurisdiction to dissolve their
marriage, and that therefore, the Nevada Court had
jurisdiction to pass the decree of divorce.
Allowing the appeal to this Court.
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HELD : The decree of divorce passed by the Nevada Court in
U.S.A. could not be recognised in India. [212F]
(1) The question as regards the recognition to be accorded
to the Nevada decree depends on the rules of Indian Private
International Law. Our notions of a genuine divorce and of
substantial justice and the distinctive principles of our
public policy must determine the rules of our Private
International Law. But awareness of foreign law in a
parallel jurisdiction would be a useful guideline in
determining these rules. [200 F-G; 211 A-B]
Shorn of confusing refinements, a foreign decree of divorce
is denied recognition in American Courts if the judgment is
without jurisdiction or is procured by fraud or if treating
it as valid would offend against public policy. The English
law on the subject, prior to the passing of the Recognition
of Divorces and Legal Separation Act, 1971, has grown out of
a maze of domiciliary wilderness but English Courts have; by
and large, adopted the same criteria as the American Courts
for denying validity to foreign decrees of divorce. (206p;
207 A-B]
(2) The Judgment of the Nevada Court was rendered in a
civil proceeding and therefore its validity in India must be
determined on the terms of s. 13,
198
C.P.C. It is beside the point that the validity of that
judgment is questioned in a Criminal Court in India. if the
Judgment falls under any of the clauses (a) to (e) of s.
13, it will cease to be conclusive as to any matter thereby
adjudicated upon. The Judgment will be open to collateral
attack on the _grounds mentioned in the five clauses of s.
13. (213 C-E]
(3) Under s. 13(e), the foreign Judgment is open to
challenge ’where it has been obtained by fraud.’ Fraud as to
the merits of the case may be ignored, but fraud as to the
jurisdiction of the Nevada Court is a vital consideration in
the recognition of the decree passed by that Court. Though
it is not permissible to allege that the Court is taken by
it is permissible to allege that the Court was ’misled’.
The essential distinction is between ’mistake, and
’trickery’. [213 E-H]
The Duchess of Kingston’s Case, Smith’s Leading Cases, (13th
Ed) Vol. II, 644 at p. 651, referred to.
(4) Domicil being a jurisdictional fact, the Nevada decree
is open to the collateral attack that the respondent was not
a bona fide resident of Nevada, much less was he domiciled
in Nevada. The recital in the judgment of the Nevada Court
is not conclusive and can be contradicted by satisfactory
proof. [211 D-F]
(5) The facts of the present case establish that the
respondent went to Nevada as a bird of passage, resorted to
the Court there solely to found jurisdiction and procured a
decree of divorce on a misrepresentation that he was
domiciled in Nevada. Prior to the institution of the
divorce proceedings, he might have stayed but he never
lived, in Nevada. Having secured a divorce decree he left
Nevada immediately thereafter rendering false his statement
in the petition for divorce that he had ’the intent to make
the State of Nevada his home for an indefinite period,’ The
concept of domicil is not uniform in all jurisdictions and
just as long residence does not by itself establish domicil,
brief residence may not negative it. But residence for a
particular purpose fails to satisfy the qualitative test,
for, the purpose being accomplished the residence would
cease. The two elements of factum et animus must concur.
Thus, the decree of the Nevada Court lacks jurisdiction and
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cannot receive recognition in Indian Courts. [212 D-F]
(6) The judgment to operate as conclusive proof under s.
41, Evidence Act, has to be of a ’Competent Court’, that is,
a Court having jurisdiction over the parties and the subject
matter. Even a judgment in rem is open to attack on the
ground that the Court had no jurisdiction, and s. 44 of the
Evidence Act gives the right to a party to show that a
judgment under s. 41 was delivered by a Court. not competent
to deliver it, or was obtained by fraud or collusion.
Fraud, in any case bearing on jurisdictional facts, vitiates
all judicial acts whether in rem or in personam; and no rule
of private international law could compel a wife to submit
to a decree procured by the husband by trickery. [213H-214
D, G]
R. Viswanathan v. Rukn-vl Mulk, [1963] 3 S.C.R. 22, 42,
followed.
(7) The High Court wrongly assumed that the respondent was
domiciled in Nevada; and in this view, the Le Mesurier
doctrine on which the High Court relied, loses its
relevance. (212 F-G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 187 of
1970.
From the Judgment and Order dated the 13th November, 1969,
of the Punjab and Haryana High Court in Criminal Revision
No. 108 of 1968.
V. C. Mahajan, Urmila Kapur, Kamlesh Bansal and Sobha
Dikshit, for the Appellant.
199
B. P. Maheshwari, Suresh Sethi, R. K. Maheshwari and
Randhir Jain, for the Respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, J. This appeal by special leave arises out of
an application made by the appellant under section 488, Code
of Criminal Procedure, 1898. it raises issues for beyond the
normal compass of a summary maintenance proceeding designed
primarily to give quick relief to a neglected wife and
children. Are Indian courts bound to give recognition to
divorce decrees granted by foreign courts ? That, broadly,
is the question for decision.
Satya, the appellant herein, married the respondent Teja
Singh on July 1, 1955 according to Hindu rites. Both were
Indian citizens and were domiciled in India at the time of
their marriage. The marriage was performed at Jullundur in
the State of Punjab., Two children were born of the
marriage, a boy in 1956 and a girl in 1958. On January 23,
1959 the respondent, who was working as a Forest Range
Officer at Gurdaspur, left for U.S.A. for higher studies in
Forestry. He spent a year in a New York University and then
joined the Utah State University where he studied for about
4 years for a Doctorate in Forestry. On the conclusion of
his studies, he secured a job in Utah on a salary of the
equivalent of about 2500 rupees per month. During these 5
years the appellant continued to live in India with her
minor children. She did not ever join the respondent in
America as, so it seems, he promised to return to India on
completing his studies.
On January 21, 1965 the appellant moved an application under
section 488, criminal Procedure Code, alleging that the
respondent had neglected to maintain her and the two minor
children. She prayed that he should be directed to pay a
sum of Rs. 1000/- per month for their maintenance.
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Respondent appeared through a counsel and demurred that his
marriage with the appellant was dissolved on December 30,
1964 by a decree of divorce granted by the ’Second Judicial
District Court of the State of Nevada and for the County of
Washoe, U.S.A.’. He contended that the appellant had ceased
to be his wife by virtue of that decree and, therefore, he
was not liable to maintain her any longer. He expressed his
willingness to take charge of the children and maintain
them.
The Judicial Magistrate, First Class, Jullundur held by her
judgment dated December 17, 1966 that the decree of divorce
was not binding on the appellant as the respondent had not
"permanently settled" in the State of Nevada and that the
marriage between the appellant and the respondent could be
dissolved only under the Hindu Marriage Act, 1955. The
learned Magistrate directed the respondent to pay a sum of
Rs. 300/- per month for the maintenance of the appellant and
Rs. 100/- per month for each child. This order was
confirmed in revision by the Additional Session Judge,
Jullundur, on the ground that the marriage could be
dissolved only under the Hindu Marriage Act.
200
In the third round of litigation, the husband succeeded. in
a Revision Application filed by him in the High Court of
Punjab and Haryana. A learned single Judge of that Court
found that "at the crucial time of the commencement of the
proceedings for divorce before the Court in Nevada, the
petitioner was domiciled within that State in United States
of America". This finding is the corner-stone of the
judgment of the High Court. Applying the old English rule
that during marriage the domicil of the wife, without
exception, follows the domicil of the husband, the learned
Judge held that since the respondent was domiciled in Nevada
so was the appellant in the eye of law. The Nevada court
had, therefore, jurisdiction to pass the decree of divorce.
In coming to this conclusion the learned Judge relied
principally on the decisions of the Privy Council in (i) Le
Mesurier v. Le Mesurier,(1) and (ii) Attorney General for
Alberta v. Cook;(2) and of the House of Lords in (1) Lord
Advocate v. Jaffray,(3) and (ii) Salvesen or ’Von Lorang v.
Administrator of Austrian Property. (4) In Le Mesurier’s
case which is often referred to, though not rightly, as the
"starting point", it was held that "according to
international law, the donmcil for the time being of the
married pair affords the only true test of jurisdiction to
dissolve their marriage".
The High Court framed the question for consideration thus :
"whether a Hindu marriage solemnised within this country can
be validly annulled by a decree of divorce granted by a
foreign court". In one sense, this frame of the question
narrows the controversy by restricting the inquiry to Hindu
marriages. In another, it broadens the inquiry by opening
up the larger question whether marriages solemnised in this
country can at all be dissolved by foreign courts. In any
case, the High Court did not answer the question and
preferred to rest its decision on the Le Mesurier doctrine
that domicil of the spouses affords thee only true test of
jurisdiction. In order to bring out the real point in
controversy, we would prefer to frame the question for
decision thus : Is the decree of divorce passed by the
Nevada Court in U.S.A., entitled to recognition in India ?
The question is a vexed one to decide and it raises issues
that transcend the immediate interest which the parties have
in this litigation. Marriage and divorce are matters of
social significance.
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The answer to the question as regards the recognition to be
accorded to the Nevada decree must depend principally on the
rules of our Private International Law. It is a well-
recognized principle that "Private international law is not
the same in all countries".(5) There is no system of private
international law which can claim universal recognition and
that explains why Cheshire, for example, says that his book
is concerned solely with that system ’which obtains in
England, that is to say, with the rules that guide an
English court whenever it is seized of a case that contains
some foreign element. The same emphasis can be seen in the
works of other celebrated writers like Graveson, Dicey &
Morris, and Martin Wolff. Speaking of the "English
(1) [1895] A. C. 517. (2) 1926 A.C. 444.
(3) [1921] 1. A. C. 146. (4) [1927] A.C. 641.
(5) Cheshire’s Private International Law, Eighth Ed.,
(1970) p. 10,
201
conflict of laws" Graveson says : "Almost every country in
the modern world has not only its own system of municipal
law differing materially from those of its neighbours, but
also its own system of conflict of, laws,. . . ."(1)
According to Dicey & Morris. "The conflict of. laws exists
because there are different systems of domestic law. But
systems of the conflict of laws also differ".(2) Martin Wolf
advocates the same point of view thus : "Today undoubtedly
Private International Law is National law. There exists an
English private international law as distinct from a French,
a German, an Italian private international law. The rules
on the conflict of laws in the various countries differ
nearly as much from each other as do those on internal
(municipal) law".(1) It is thus a truism to say that whether
it is a problem of municipal law or of Conflict of decided
in accordance with Indian law. it is another matter that the
Indian conflict of laws may require that the law of a
foreign country ought to be applied in a given situation for
deciding a case which contains a foreign element. Such a
recognition is accorded not as an act of courtesy but on
considerations of justice. (4) It is implicit in that
process, that the foreign law must not offend against our
public policy.
We cannot therefore adopt mechanically the rules of Private
International Law evolved by other countries. These
principles vary greatly and are moulded by the distinctive
social, political and economic conditions obtaining in these
countries. Questions relating to the personal status of a
party depend in England and North America upon the law of
his domicil, but in France, Italy, Spain and most of the
other European countries upon the law of his nationality.
Principles governing matters within the divorce jurisdiction
are so conflicting in the different countries that not
unoften a man and a woman are husband and wife in one
jurisdiction but treated as divorced in another
jurisdiction. We have before us the problem of such a
limping marriage.
The respondent petitioned for divorce in the Nevada court on
November 9, 1964. Paragraph 1 of the petition which has a
material bearing on the matter before us reads thus :
"That for more than six weeks preceding the
commencement of this action plaintiff has
been, and now is, a bona fide resident of and
domiciled in the County of Washoe, State of
Nevada, with the intent to make the State of
Nevada his home for an indefinite period of
time. and that he has been actually,
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physically and corporeally present in said
County and State for more than six weeks."
By Para IV, the respondent alleged :
"That plaintiff is a student who has not yet
completed his education, that by defendant’s
choice she and the minor
(1) The Conflict of Laws, R. H. Graveson,
Sixth Ed., (1969) pp. 3, 5, 6.
(2) "The Conflict of Laws", Dicey & Morris,
Eighth Ed., (1967) p. 10.
(3) "Private International Law", Martin
Wolff Second Ed., (1950) p. 11.
(4) See G. Melville Bigelow’s Note to
Story’s "Commentaries on the Conflict
of Laws" Eighth Ed. (1883) p. 38.
202
children the issue of the marriage reside with
her parents and are supported by her parents;
that at the place in India where defendant and
the minor children reside, seven and 50/100
(7.50) Dollars per month per child is more
than adequate to support. maintain and educate
a child in the best style; and that plaintiff
should be ordered to pay to defendant the sum
of 7.50 per month per child for the support,
maintenance and education of the aforesaid two
minor children
The cause of action is stated in Para VI of
the petition in these words
"That plaintiff alleges for his cause of
action against defendant that he and defendant
have lived separate and apart for more than
three (3) consecutive years without cohabita-
tion; and that there is no possibility of a
reconciliation."
The relief asked for by the respondent is :
"That the bonds of matrimony now and
heretofore existing between plaintiff and
defendant be forever and completely dissolved,
and that each party hereto be freed and
released from all of the responsibilities and
obligations thereof and restored to the status
of an unmarried person."
The judgment of the Nevada court consists of four parts :
(i) The preliminary recitals; (ii) "Findings of Fact"; (iii)
"Conclusions of Law"; and (iv) The operative portion, the
Decree of Divorce".The preliminary recitals show that the
respondent appeared personally and through his attorney,
that the appellant "failed to appear or to file her answer
or other responsive pleadings within the time required by
law after having been duly and regularly served with process
by publication And mailing as required by law", that the
case came on for trial on December 30, 1964 and that
evidence was submitted to the court for its decision.
The next part of the judgment, "Findings of Fact", consists
of five paragraphs which, with minor modifications, are a
verbatim reproduction of the averments contained in the
respondent’s petition for divorce. The relevant portion of
that petition is extracted above. The first paragraph of
this part may usefully be reproduced :
"That for more than six weeks preceding the
commencement of this action, the plaintiff
was, and now- is, a bona fide resident of and
domiciled in the County of Washoe, State of
Nevada with the intent to make the State of
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Nevada his ’-home for an indefinite period of
time, and that he has been actually,
physically and corporeally present in said
county and State for more than six weeks.
The second paragraph of the part refers to the factum of
marriage between the appellant and the respondent, the third
contains the finding that 7.50 Dollars per month for each of
the two minor children was a "reasonable sum for plaintiff
to pay to defendant as and for the support, care,
maintenance and education of the said minor children",
203
the fourth recites that there was no community property to
be adjudicated by the Court and the fifth contains the
findings :
"That the plaintiff and defendant have lived
separate and apart for more than three (3)
consecutive years without co-
habitation, and that there is no possibility
of a reconciliation
between them."
The part of the Judgment headed "Conclusions of Law"
consists of two paragraphs.The first paragraph states :
"That this Court has jurisdiction over the
plaintiff and over the subject matter of
this section."
The second paragraph says :
"That the plaintiff is entitled to the relief
hereinafter granted."
The operative portion of the Judgment, "Decree
of Divorce" says by its first paragraph :
"That plaintiff, Teja Singh, be and he hereby
is, given and granted a final and absolute
divorce from defendant, Satya Singh on the
ground of their having lived separate and
apart for more than three (3) consecutive
years without cohabitation. there being no
possibility of reconciliation between
them........
The second paragraph contains the provision for the payment
of maintenance to the minor children.
it is clear from the key recitals of the petition and the
judgment that the Nevada Court derived jurisdiction to
entertain and hear the divorce petition because it was
alleged and held that the respondent was "a bona fide
resident of and domiciled in the County of Washoe, State of
Nevada, with the intent to make the State of Nevada his home
for an indefinite period of time".
Since we are concerned with recognition of a divorce decree
granted by an American court, a look at the American law in
a similar jurisdiction would be useful. It will serve a
two-fold purpose: a perception of principles on which
foreign decrees of divorce are accorded recognition in
America and a brief acquaintance with the divorce
jurisdiction in Nevada.
The United States of America has its own peculiar problems
of the conflict of laws arising from the co-existence of 50
States each with its own autonomous legal system. The
domestic relations of husband and wife constitute a subject
reserved to the individual States and does not belong to the
United States under the American Constitution. Article IV,
section 1, of that Constitution requires that "Full Faith
and Credit shall be given in each State to the public Acts,
Records, and judicial Proceedings of every other State".
The Validity of a divorce decree passed by a State court is
in other States tested at if it were a decree granted by
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foreign court. In general, a foreign decree
204
of divorce is recognised in any other jurisdiction either on
the ground, in the case of a decree of a sister State, that
the decree is entitled to full faith and credit under
Article IV, Section 1, or in the case of a decree of a
foreign court and in some instances a decree of a State
court, on, the ground of ’comity’.(1) The phrase "comity of
nations" which owes its origin to the theory of a Dutch
jurist, John Voet, has, however, been widely criticised as
"granting to the ear, when it proceeds from a court of
justice". (2) Comity, as said by Livermore is a matter for
sovereigns, not for Judges required to decide a case accor-
ding to the rights of parties.
In determining whether a divorce decree will be recognised
in another jurisdiction as a matter of comity, public policy
and good morals may be considered. No country is bound by
comity to give effect in its courts to divorce laws of
another country which are repugnant to its own laws and
public policy. Thus, where a "mail-order divorce" granted
by a Mexican court was not based on jurisdictional finding
of domicile, the decree was held to have no extraterritorial
effect in New Jersey.(1) American courts generally abhor the
collusive Mexican mail-order divorces and refuse to
recognise them.(4) Mail order divorces are obtained by
correspondence by a spouse not domiciled in Mexico. Lately,
in his well-known book on divorce says that "The facilities
afforded by the Mexican courts to grant divorces to all and
sundry whatsoever their nationality or domicile have become
even more notorious than those in Reno, Nevada"(5)
Recognition is denied to such decrees as a matter of public
policy.
Foreign, decrees of divorce including decrees of sister
States save been, either accorded recognition or have been
treated as invalid, depending on the circumstances of each
particular case. But if a decree of divorce is to be
accorded full faith and credit in the courts of another
jurisdiction it is necessary that the court granting the
decree has jurisdiction over the proceedings. A decree of
divorce is thus treated as a conclusive adjudication of all
matters in controversy except the jurisdictional facts on
which it is founded. Domicil is such a jurisdictional fact.
A. foreign divorce decree is therefore subject to collateral
attack for lack of jurisdiction even where the decree
contains the, findings or recitals of jurisdiction facts.(6)
To confer jurisdiction on the ground of plaintiff’s
residence and entitle the decree to extraterritorial
recognition, the residence must be actual and genuine, and
accompained by an intent to make the State his home. A mere
sojourn or temporary residence as distinguished from legal
domicile is not sufficient.(7) In Untermann v.
(1) Corpus Juris Secundum, Vol. 27B, Paragraph 326. pp.
786-787.
(2) De Nova (1964), 8 American Journal of Legal History pp.
136, citing the American author, Livermore,
(3) State vs. Najjar, 2 N. J. 208.
(4) Langner vs. Langner, 39 N. Y. S. 2d. 9181
(5) Latey : "The Law and Practice in Divorce and
Matrimonial Causes" 15th Ed. (1973) p. 461.
(6) Corpus Juris Secundum, Vol. 27B. paragraph 335, pp.
796, 797.
(7) Harrison vs. Harrison, 99 L. Ed. 704.
205
Untermann,(1) a divorce decree obtained by a husband in
Mexico, after one day’s residence therein, was held invalid.
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A foreign decree of divorce is subject to collateral attack
for fraud or for want of jurisdiction either of the, subject
matter or of the parties provided that the attacking party
is not estopped from doing So.(2) A foreign decree of
divorce, obtained by fraud is void. Fraudulent simulation
of domicile is impermissible. A spouse who goes to a State
or country other than that of the matrimonial domicile for
the sole purpose of obtaining a divorce perpetrates a
found, and the judgment is not binding on the courts of
other States.(3)
In regard to the divorce law in force in Nevada it is only
necessary to State that though the plaintiff in a divorce
action is required to "reside" in the State for more than
six weeks immediately preceding the petition, the
requirement of residence is construed in the sense of
domicil.(4) In Lane v. Lane(5) it was held that under the
Nevada law, intent to make Nevada plaintiff’s home is a
necessary jurisdictional fact without which the decreeing
court is powerless to act in divorce action. Accordingly, a
husband who did not become a bona fide resident of Nevada,
who continued lease of his New Jersey apartment, who failed
to transfer his accounts, who continued his business
activities in New York City, and who departed from Nevada
almost immediately after entry of divorce decree, was held
never to have intended to estabilish a fixed and permanent
residence in Nevada, and, therefore any proof, which he
submitted to Nevada court in his divorce action, and on
which such finding by court of bona fide residence was based
was held to constitute a fraud on such court.(1)
A survey of American law in this jurisdiction would be
incomplete without reference to a decision rendered by the
American Supreme Court in Williams v. State of North
Carolina(7) the second Williams case. Mr. Williams and Mrs.
Hendrix who were long-time residents of North Carolina went
to Nevada, stayed in an tuto court for transients, filed
suits for divorce against their respective spouses
immediately after a six weeks’ stay, married one another as
soon as the divorces were obtained and promptly returned to
North Carolina. They were prosecuted for bigamous
cohabitation under section 14-183 of the General Statutes of
North Carolina (1943). Their defence to the charge of
bigamy was that at the time of their marriage they were each
lawfully divorced from the bond of their respective first
marriages. The question which arose on this defence was
whether they were "lawfully divorced", that is, whether the
decrees of divorce passed by the Nevada court were lawful.
Those decrees would not be lawful
(1) 19 N. J. 507.
(2) Cohen vs. Randall, 88 L. Ed. 480.
(3) Corpus Juris Secundum, Vol. 27B, Paragraph 361, p. 847.
(4) Cohen vs. Cohen 319 Mass. 31; Corpus Juris Secundum,
Vol. 27B, p. 799
-Footnote 29 : ’Residence’, ’domicil’
(5) 68 N. Y. S. 2d. 712.
(6) Idleman vs. Edelman, 161 N. Y. S. 2d 717.
(7) 89 L. Ed. 1577.
206
unless the Nevada court had jurisdiction to pass them. The
jurisdiction of the Nevada court depended on whether Mr.
Williams and Mrs. Hendrix were domiciled in Nevada at the
time of the divorce proceedings. The existence of domicil
in Nevada thus became the
decisive issue.
While upholding the conviction recorded in North Carolina,
Frankfurter J., speaking for the majority, said, (i) a
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judgment in one State is conclusive upon the merits in every
other State, only if the court of the first State had
jurisdiction to render the judgment; (ii) a decree of
divorce passed in one State can be impeached collaterally in
another State on proof that the court had no jurisdiction
even when the record purports to show that it had
jurisdiction; (iii) under the American system of law.
judicial power of jurisdiction to grant. a divorce is
founded on domicile; and (iv) domicile implies a nexus
between person and place of such permanence as to control
the creation of legal relations and responsibilities of the
utmost significance. The learned Judge observed: "We
conclude that North Carolina was not required to yield her
State policy because a Nevada court found that petitioners
were domiciled in Nevada when it granted them decrees of
divorce. North Carolina was entitled to find, as she did,
that they did not acquire domiciles in Nevada and that the
Nevada court was therefore without power to liberate the
petitioners from amenability to the laws of North Carolina
governing domestic relations." Murphy J. in his concurring
judgment said: "No justifiable purpose is served by im-
parting constitutional sanctity to the efforts of
petitioners to establish a false and fictitious domicile in
Nevada.... And Nevada has no interest that we can respect in
issuing divorce, decrees with extraterritorial effect to
those who are domiciled elsewhere and who secure sham
domicils in Nevada solely for divorce purposes."
Those then are the principles on which American courts grant
or refuse to grant recognition to divorce decrees passed by
foreign courts which includes the courts of sister States.
Shorn of confusing refinements, a foreign decree of divorce
is denied recognition in American courts if the judgment is
without _jurisdiction or is procured by fraud or if treating
it as valid would offend against public policy. Except
where the issue of jurisdiction was litigated in the foreign
action or the defendant appeared and had an opportunity to
contest it, a foreign divorce may be collaterally attacked
for lack of jurisdiction, even though jurisdictional facts
are recited in the judgment. Such recitals are not
conclusive and may be contradicted by satisfactory proof.
Domicil is a jurisdictional fact. Therefore, a foreign
divorce decree may be attacked, and its invalidity shown, by
proof that plaintiff did not have, or that neither party
had, a domicil or bona fide residence in the State or
country where the decree was rendered. In order to render a
foreign decree subject to a collateral attack on the ground
of fraud, the fraud in procurement of the judgment must go
to the jurisdiction of the court. It is necessary and
sufficient that there was a fraudulent representation
designed and intended to mislead and resulting in damaging
deception. In America, in most of the States, the wife can
have a separate domicil for divorce and it is easy enough
for anyone, man or woman, to acquire a domicil of choice in
another State.
207
The English law on the subject has grown out of a maze of
domiciliary wilderness but English courts have, by and
large, come to adopt the same criteria as the American
courts for denying validity to foreign decrees of divorce.
Recent legislative changes have weakened the authority of
some of the archaic rules of English law like the one by
which the wife’s domicil follows that of the husband; a rule
described by Lord Denning M. R. in Formosa v. Formosa(1) as
"the last barbarous relic of a wife’s servitude". The High
Court has leaned on that rule heavily but in the view which
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we are disposed to take, the rule will have riot relevance.
The wife’s choice of a domicil may be fettered by the
husband’s domicil but that means by a real, not a feigned
domicil.
From Lolleys case(2) which is the true starting point of the
con. troversy, to Indyka v. Indyka(3) which is treated as
the cause celebre, the law has gone through many phases.
The period of over a century and half is marked by a variety
of views showing how true it is that there is scarcely a
doctrine of law which as regards a formal and exact
statement is in a more uncertain condition than that which
relates to the question as to what effect should be given by
courts of one nation to the judgments rendered by the courts
of another nation.
Lolley’s case was for long considered as having decided
that a foreign decree of divorce could not ever dissolve a
marriage celebrated in England. "Its ghost stalked the
pages of the law reports for much of the remainder of the
nineteenth century before it was finally laid.(4)" in
Dolhpin v. Robbins(5) and Shaw v. Gould,(1) the House of
Lords declined to grant validity to Scots divorces as in the
former case parties were not bona fide domiciled in Scotland
and in the latter, residence in Scotland did not involve the
acquisition of a Scots domicil. These were cases of
"migratory" divorces and the court applied the universalist
doctrine that questions of personal status depended, as a
matter of "universal jurisprudence", on the law of domicil.
In this climate, the decision of the Court of Appeal in
Niboyet V. Niboyet(7) came as a surprise. The majority took
the view that if the spouses actually resided in England and
were not merely present there casually or as travellers, the
English courts were competent to dissolve their marriage
even though they were not actually domiciled in England.
Several Christian European Countries had by this time
adopted the test of nationality in preference to that of
domicil in matters of personal status. The dissenting
Judge, Brett L. J. preferred in Niboyet’s case to stick to
the domiciliary test but he perceived how a strict
application of the test would result in hardship to the
deserted wife :
Le Mesurier v. Mesurier,(8) on which the judgment of the
High Court rests, is a decision of the Privy Council in an
appeal from Ceylon
(1) [1962] (3) A. E. R. 419.
(3) [1967] (2) A. ’P. R. 689.
(2) R. vs. Lolley (1 812) 2 Cl. F. 567 n.
(4) "The Old Order Changeth-Travers vs. Holley
Reinterpreted"by P. R. B. Webb, International & Comparative-
Law Quarterly, 1967 (Vol16), pp. 997, 1000.
(5) (1859) 7 H. L. Cas. 390.
(7) (1878) 4 P. D. 1.
(6) (1868) L. R. 3.H. L. 55.
(8) [1895] A.C. 517
208
but it was always treated as laying down the law for
England. Observing that there was an "obvious fallacy" in
the reasoning in Niboyet’s case, the Privy Council held that
although the matrimonial home of the petitioning husband was
in Ceylone, the courts of that country were disentitled from
entertaining his divorce petition because he was not, in the
strict sense, domiciled there. Lord Watson, who delivered
the opinion of the Board said : "Their Lordships have
come to the conclusion that, according to international law,
the domicil for the time being of the married pair affords
the only true test of jurisdiction to dissolve their
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marriage." Later cases like the decision of the House of
Lords in Lord Advocate v. Jaffrey(1) and of the Privy
Council in Att. Gen. for Alberta v. Cook,(2) show faith in
the dominance of the domicil principle. Under the former
decision the wife was incapable of acquiring a domicil
separate from her husband even if he had afforded her
grounds for divorce, while under the latter even a
judicially separated wife could not acquire a separate
domicil.
These decisions caused great hardship to deserted wives for
they had to seek the husband in his domicil to obtain
against him a decree of divorce recognizable in England.
During something like a game of chess between the judiciary
and the legislature, the rigour of the rule regarding the
dominance of domicil was reduced by frequent legislative
interventions.
By section 1 of the Law Reforms (Miscellaneous Provisions)
Act, 1949, English courts were given jurisdiction to
entertain proceedings for divorce by a wife even if the
husband was not domiciled in England, provided that the wife
had resided in England for a period of three years
immediately preceding the commencement of the proceedings.
In Travers v. Holley(3) the Court of Appeal, drawing on this
provision, accepted as valid a decree of divorce granted to
the wife by an Australian Court though the husband after
acquiring a domicil in New South Wales had reverted to his
English domicil at the time of the wife’s petition. This
was put on the ground that "what entitles an English court
to assume jurisdiction must be equally effective in the case
of a foreign court". Section 40(1) (a) and (b) of the
Matrimonial Causes Act, 1965 confer upon a wife the right,
in some circumstances, to sue for divorce in England even if
the husband is not domiciled there the time of the
proceedings.
The decision in Travers v. Holley(3) was accepted as correct
by the House of Lords in Indyka V. Indyka. (4) The husband,
a Czech national married his first wife, also a Czech
national, in Czechoslovakia. He acquired an English domicil
in 1946 but his wife who was continuously residing in
Czechoslovakia obtained in 1949 a decree of divorce in that
country in 1949 the husband married his second wife in
England who petitioned for divorce on the ground of cruelty.
The husband cross-petitioned for nullity alleging that the
Czech divorce would not be recognised in England since
England was the country of common
(1)[1921] A. C. 146. (2) [1926] A. C. 444. (3) [1953] (2)
All. E. R. 794. (4) [1967] (2) All. E. R 689.
209
domicil and the decree of the Czech Court was therefore
without jurisdiction. The House of Lords upheld the.
validity of the Czech divorce. Though the decision in
Indyka broadened the prevalent rules for recognition of
foreign decree and though a new look at the Le Mesurier
doctrine was imperative in a changed world, it is not easy
on a reading of the five judgments in the Indyka case to lay
down a definitive act of rules as to when an English court
will or will not recognise a foreign decree of divorce.
Cheshire says : "One cannot turn from Indyka v. Indyka
without expressing grave concern at decisions of the House
of Lords which, though unanimous., epitomize the adage "tot
hominess, quest sententiao’ Graveson observes : "Although
each of the five judgments in this case differs from the
other four, none is dessenting; ....... (2) The English Law
Commission opined that "in any case a complete overhaul of
the relevant law is urgently needed since recent decisions
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have left it in a state of considerable uncertainty."(3)
Very recently, the extended rule in Indyka was applied in
Nessina vs. Smith(4) where a Nevada decree of divorce
obtained by the wife was granted recognition in England.
The wife was resident in the United States for a period of
six years but the domicil of the spouses, in the strict
sense, was in England. The Nevada decree was accepted as
valid on the ground that the wife had a sufficient
connection with the court granting the decree and that if
the Nevada decree could be recognised as valid by the other
States in America under Article IV, Section 1 of the
American Constitution, there was no justification for the
English courts to deny recognition to that decree. English
courts have thus been attempting to free the law of divorce
from the stronglehold of the Council rule.
The Recognition of Divorces and Legal Separations Act, 1971
which came into force on January 1, 1972 has brought about
important changes in the law of England and Scotland
relating to the recognition of divorces and legal
separations in the British Isles and abroad. The Act
results from the Hague Convention agreed to by most coun-
tries in 1970, and ratifies that Convention in accordance
with the terms set out in the Act.
Section 2 provides for the recognition in Great Britain of
overseas divorces and legal separations obtained or judicial
or other proceedings in any country outside the British
Isles which are effective according to the law of that
country. Section 3 provides for the validity of an overseas
divorce or legal separation to be recognised if, at the date
of institution of proceedings in the country in which it was
obtained, either spouse was habitually resident in that
country or either spouse was a national of that country. In
a country comprising territories in which different systems
of law are in force in matters of divorce or
(1) Cheshire’s Private international Law, 8th Ed.. p. 368.
(2) "The Conflict of Laws" by Graveson. 6th Fd., p. 324.
(3) Third Annual Report 1967-68 (Law Com. No. 15), para
57.
(4) (1971) (2) All. E. R. 1046.
5-L251Sup-CI/75
210
legal separation (e.g. United States or Canada), the
provisions of section 3 have effect as if each territory
were a separate country. Where the concept of domicil as a
ground of jurisdiction for divorce or legal separation
supplies, this is to have effect as if reference to habitual
residence included a reference to domicile Under section 5,
any finding of fact made in proceedings by which a decree
was obtained and on the basis of which jurisdiction was
assumed is conclusive evidence of the fact found if both
spouses took part in such proceedings, and in any other case
is sufficient proof of that fact unless the contrary is
shown. Section 6 provides that certain existing rules of
recognition are, to continue in force, so that decree
obtained in the country of the spouses’ domicil or obtained
elsewhere but recognised. as valid in that country or by
virtue of any Act will be recognised; "but save as aforesaid
no such divorce or legal separation shall be recognised as
valid in Great Britain except as provided in this Act".
According to the English Law Commission, the effect of this
provision would seem to preclude any further development of
judge-made rules of recognition of divorces and legal
separations and further the principles laid down in Traders
vs. Halley and Indyka vs. Indyka would be excluded By
section 8(2), recognition of an overseas divorce or legal
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separation may be refused if a spouse obtained it without
notice of the proceedings to the other spouse or if the
"recognition would manifestly be contrary to public policy".
We have treated the development of the English Law of
divorce prior to the passing of the Act of 1971 as we have
in India on corresponding enactment. Besides, the judgment
of the High Court is wholly founded on English decisions and
the respondent’s counsel also based his argument on these
decisions.
Turning to proof of fraud as a vitiating factor, if the
foreign decree was obtained by the fraud of the petitioner,
then fraud as to the merits of the petition was ignored in
England, but fraud as to the jurisdiction of the foreign
court, i.e. where the petitioner had successfully invoked
the jurisdiction by misleading the foreign court as to the
jurisdictional facts, used to provide grounds for not
recognizing the decree. In Middleton vs. Middleton,(1) the
husband domiciled and resident in Indiana petitioned for
divorce in Illinois. He alleged that he had been resident
in Illinois for over a year before taking the proceedings
and he alleged further that his wife had deserted him. Both
of these allegations, unknown to the Illinois court, were
false. The decree was granted and when the wife petitioned
in England for a declaration as to the validity of the
Illinois divorce, evidence was given that, notwithstanding
the fraud, that decree was a lawful decree and would be
recognised by the let domiciling, Indiana, Chairns, J. held
that the husband’s false and fraudulent evidence as to the
matrimonial offence was not a ground for refusal to
recognise the Illinois decree, but that his fraud as to the
jurisdiction of the Illinois court did justify a refusal to
recognize the decree. According to Cheshire : "it is firmly
established that a foreign judgment is impeachable for fraud
in the sense
(1) [1966] 1 All. E. R., 168.
211
that upon proof of fraud it cannot be enforced by action, in
England."(1)
As we have stated at the outset, these principles of the
American and English conflict of laws are not to be adopted
blindly by Indian courts. Our notions of a genuine divorce
and of substantial justice and the distinctive principles of
our public policy must determine the rules of our Private
International Law. But an awareness of foreign law in a
parallel jurisdiction would be a useful guideline in
determining these rules. We are sovereign with our
territory but "it is no derogation of sovereignty to take
amount of foreign law" and as said by Cardozo J. "We are not
so provincial as to say that every solution of a problem is
wrong because we deal with it otherwise at home"; and we
shall not brush aside foreign judicial processes unless
doing so "would violate some fundamental principle of
justice, some prevalent conception of good morals, some deep
rooted tradition of the common weal." ( 2 )
The decree of divorce obtained by the respondent from the
Nevada court is, prima facie, a complete answer to the
appellant’s claim for maintenance under section 488, Code of
Criminal Procedure. If that decree is valid the appellant’s
claim for maintenance, though not her childrens’ must fail,
as section 488 enables a "wife" and children to apply for
maintenance. But was the decree of divorce procured by
fraud and if so, is it entitled to recognition here ? That
is the essence of the matter.
The Nevada court assumed and exercised jurisdiction to pass
the divorce decree on the basis that the respondent was a
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bona fide resident of and was domiciled in Nevada. Domicil
being a jurisdictional fact, the decree is open to the
collateral attack that the respondent was not a bona fide
resident of Nevada, much less was he domiciled in Nevada.
The recital is the judgment of the Nevada court that the
respondent was a bona fide resident of and was domiciled in
Nevada is not conclusive and can be contradicted by
satisfactory proof. The appellant did not appear in the
Nevada court, was unrepresented and did not submit to the
jurisdiction of that court.
The record of the present proceeding establishes certain
important facts : The respondent left India for the United
States of America ’On January 23, 1959. He spent a year in
a New York University. He then joined the Utah State
University where he studied for his doctorate for 4 years.
In 1964, on the conclusion of his studies he secured a job
in Utah. On August 17, 1964 he wrote a letter (Ex. RW 7/1)
to his father Gian Singh from "791 North, 6 East Logan,
Utah",, U.S.A.
The respondent filed his petition for divorce in the Nevada
court on November 9, 1964 and obtained a decree on December
30, 1964.
Prior to the institution of the divorce proceedings the
rest) respondent might have stayed, but never lived. in
Nevada. He made a false representation to the Nevada court
that he was a, bona fide resident of
(1) Cheshire (Supra) P. 652.
(2) Loucks v. Standard Oil Co, of New York (1918) 224 N.Y.
99 at p. 111.
212
Nevada. Having secured the divorce decree, he left Nevada
almost immediately thereafter rendering it false again that
he had "the intent to make the State of Nevada his home for
an indefinite period of time’.
The appellant filed the maintenance petition on January 21,
1965. On November 4, 1965 the respondent applied exemption
from personal appearance in those proceedings mentioning his
address as "791 North, 6 East Logan, Utah, 228, 4th, U. S.
A.". The letter dated December 13, 1965 from the Under
Secretary, Ministry of External Affairs, Government of India
to one Lakhi Singh Chaudhuri, a Member of the Punjab Vidhan
Sabha, shows that by then the respondent had taken a job as
Research Officer in the Department of Forestry, Alberta,
Canada. The trial court decided the maintenance proceeding
against the respondent on December 17, 1966. Early in 1967,
the respondent filed a revision application in the Sessions
Court, Jullundur mentioning his then address as "Deptt. of
Forestry, Public Building, Calgary, Alberta (Canada)". The
revision was dismissed on June 15, 1968. The respondent
filed a further revision application in the High Court of
Punjab & Haryana and gave the same Canada address.
Thus, from 1960 to 1964 the respondent was living in Utah
and since 1965 he has been in Canada. It requires no great
persuasion to hold that the respondent went to Nevada as a
bird-of-pasage, resorted to the court there solely to found
jurisdiction and procured a decree of divorce on a
misrepresentation that he was domiciled in Nevada. True,
that the concept of domicil is not uniform throughout the
world and just as long residence does not by itself
establish domicile brief residence may not negative it. But
residence for a particular purpose fails to answer the
qualitative test for, the purpose being accomplished the
residence would cease. The residence must answer "a
qualitative as well as a quantitative test", that is, the
two elements of factum et animus must concur. The
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respondent went to Nevada forum-hunting, found a convenient
jurisdiction which would easily purvey a divorce to him and
left it even before the, ink on his domiciliary assertion
was dry. Thus, the decree of the Nevada court lacks
jurisdiction. It can receive no recognition in our courts.
In this view, the Le Mesurier doctrine on which the High
Court drew loses its relevance. The Privy Council held in
that case that "the domicile for the time being of the
married pair affords the only true test of jurisdiction to
dissolve their marriage". The High Court assumed that the
respondent was domiciled in Nevada. It then applied the old
English rule that the wife’s domicile in all events, follows
the domicil of the husband.
Deducing that the appellant must also be deemed to have been
domiciled in Nevada, the High Court concluded that the
Nevada court had jurisdiction to pass the decree of divorce.
To an extent, the appellant is to blame for her failure to
put the plea of fraud in the forefront. If the fact-,
referred to by us were pointed out to the High Court, it
would probably have seen the futility
213
of relying on the rule in Le Mesurier and then in applying
the principle that the wife takes the domicil of the
husband. But facts on which we have relied to show a lack
of jurisdiction in the Nevada court are mostly facts to be
found in the pleadings and documents of the respondent
himself. Those incontrovertible facts establish that Nevada
was not and could not be the home, the permanent home of the
respondent. If the High Court were invited to consider the
conduct and projects of the respondent it would have
perceived that the respondent had merely simulated a domicil
in Nevada. In that event, even applying the Le Mesurier
doctrine the Nevada court would have had no jurisdiction to
pass the decree of divorce.
Section 13(a) of the Code of Civil Procedure, 1908 makes a
foreign judgment conclusive as to any matter thereby
directly adjudicated upon except "where it has not been
pronounced by a court of competent jurisdiction". Learned
counsel for the respondent urged that this provision
occurring in the, Civil Procedure, Code cannot govern
criminal proceedings and therefore the want of jurisdiction
in the Nevada court to pass the decree of divorce can be no
answer to an application for maintenance under section 488,
Criminal Procedure Code. This argument is misconceived.
The judgment of the Nevada court was rendered in a civil
proceeding and therefore its validity in India must be
determined on the terms of section 13. It is beside the
point that the validity of that judgment is questioned in a
criminal court and not in a civil court. If the judgment
falls under any of the clauses (a) to (e) of section 13, it
will cease to be conclusive as to any matter thereby
adjudicated upon. The judgment will then be open to a
collateral attack on the grounds mentioned in the five
clauses of section 13.
Under section 13(e), Civil Procedure Code, the foreign
judgment is open to challenge "where it has been obtained by
fraud". Fraud as to the merits of the respondent’s case may
be ignored and his allegation that he and his wife "have
lived separate and apart for more than, three (3)
consecutive years without cohabitation and that there is no
possibility of a reconciliation" may be assumed to be true.
But fraud as to the jurisdiction of the Nevada court is a
vital consideration in the recognition of the decree passed
by that court. It is therefore relevant that the respondent
successfully invoked the jurisdiction of the Nevada court by
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lying to it on jurisdictional facts. In the Duchess of
Kingston’s Case,(’:) De Grey C.J. explained the nature of
fraud in this context in reference to the judgment of a
spiritual court. That judgment, said the learned Chief
Justice, though yes judicature and not impeachable from
within, might be impeachable from without. In other words,
though it was not permissible to allege that the court was
"mistaken", it was permissible to allege that the court was
"misled". The essential distinction thus was between
mistake and trickery. The appellant’s contention is not
directed to showing that the Nevada court was mistaken but
to showing that it was imposed upon.
Learned counsel for the respondent argued that judgments on
status ire judgments in rem, that such is the character of
Nevada judgment
(1) Smith’s Leading cases,
(13th Ed.), 1, 644 :at P. 651
214
and therefore that judgment is binding on the whole world.
Section 41 of the Indian Evidence Act provides, to the
extent material, that a. final judgment of a competent court
in the exercise of matrimonial jurisdiction is conclusive
proof that the legal character which it confers or takes
away accrued or ceased at the time declared in the judgment
for that purpose. But the judgment has to be of a
"competent Court", that is, a court having jurisdiction over
the parties and the subject matter. Even a judgment in rem
is therefore open to attack on the ground that the court
which gave it had no jurisdiction to do so. In R.
Viswanathan v. Rukn-ul-Mulk Syed Abdul Majid(1) this Court
held that "a judgment of a foreign court to be conclusive
between the parties must be a judgment pronounced by a court
of competent jurisdiction and competence contemplated by
section 13 of the Code of Civil Procedure is in an
international sense and not merely by the law of foreign
State in which the Court delivering judgment functions". In
fact section 44 of the Evidence Act gives to any party to a
suit or proceeding the right to show that the judgment which
is relevant under section 41 "was delivered by a court not
competent to deliver it, or was obtained by fraud or
collusion". It is therefore wrong to think that judgments
in rem are inviolable. Fraud, in any case bearing on
jurisdictional facts, vitiates all judicial acts whether in
rem or in personam.
Unhappily, the marriage between the appellant and
respondent has to limp. They will be treated as divorced in
Nevada but their bond of matrimony will remain unsnapped in
India, the country of their domicil. This view, it is urged
for the respondent, will lead to difficulties. It may. But
"these rules of private international law are made for men
and women-not the other way round-and a nice tidy logical
perfection can never be acbieved".(2)
Our legislature ought to find a solution to such schizoid
situations as the British Parliament has, to a large extent,
done by passing the "Recognition of Divorces and Legal
Separations Act, 1971". Perhaps, the International Hague
Convention of 1970 which contains a comprehensive scheme for
relieving the confusion caused by differing. systems of
conflict of laws may serve as a model. But any such law,
shall have to provide for the non-recognition of foreign
decrees procured by fraud bearing on jurisdictional facts as
also for the nonrecognition of decrees, the recognition of
which would be contrary to our public policy. Until then
the courts shall have to exercise a residual discretion to
avoid flagrant injustice for, no rule of private inter-
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national law could compel a wife to submit to a decree
procured by the husband by trickery. Such decrees offend
against our notions of. substantial _justice.
In the result we allow the appeal with costs set aside the
judgment of the High Court and restore that of the trial
court.
V.P.S.
Appeal allowed.
(1) [1963] 3 S.C.R. 22 at 42.
(2) Per Denovan L.J., Formosa v. Formosa [1962]. 3 All E.R.
419, 424.
2 15