 powers of grant, a decree in respect of the foreign courts, the powers of the foreign courts to grant a decree for the divorce under the Hindu Marriage Act is a deeper dive with Mr. Shankar Moldy and Advocate. Practicing in the High Court of Madras, friendly is a session which we are going to take across. The team of Beyond Law CLC and the legal legal elites are too happy that Mr. Shankar Moldy, despite the fact that he has him tied back, scheduled professionally, but still his passion to pay back to the society by taking sessions is well acknowledged, not only by the team of Beyond Law CLC as well as legal legal elites, but even otherwise. The fact that the participants are fully jam packed according to the capacity itself shows the people look upon for the knowledge being shared by Shankar Moldy. And we are thankful that he has accepted our invite and we will straight away ask Mr. Shankar to take over the session. Over to you. Thank you. Thank you. Very good morning to all of you. This is a very small topic. I would like to give the topic's name as competency of the foreign court to dissolve the Hindu marriage by a degree of divorce under section 13 of the Hindu marriage act and to declare the Hindu marriage as void by a degree of nullity under section 11 of the Hindu marriage act, 1955. Advocates are often confused. What is the distinction between the granting a degree of divorce under section 13 and the declaring the marriage as nullity under section 11 of the Hindu marriage act? The reason is this. Section five of the Hindu marriage act contemplates when a degree can be declared as void. Section five says, suppose the parties are in the prohibited relationship or before the, at the time of marriage he is living in adultery or already married another person or incapable of giving valid consent or in consequence of his own mind or suffering from mental disorder and subject to recurrent attacks of insanity. And the bridegroom has completed the age of 21 years and the bride age of 18 years at the time of marriage. These are all the grounds set out under section five of the Hindu marriage act. If section five, the conditions are there then it can be declared as void under section 11 of the Hindu marriage act. Once the marriage is declared as void there is no further benefit as in the case of granting a degree of divorce under section 13 of the Hindu marriage act. Now, this topic, whether the foreign court is competent to grant a degree of divorce under the Hindu marriage act. Straight away, I would like to take attention to section one, two of the Hindu marriage act. Which contemplates that the set act extends to the whole of India except German cashmere. Now, after the repeal of 370 it is also applicable to German cashmere. And further says it applies also to the Hindus domiciled in the territories to which this act extends who are outside the same territories. Section two C of the Hindu marriage act contemplates it applies to any other persons domiciled in the territories to which this act extends who is not a Muslim Christian policy or Jew by religion. So, the combined reading of section one, two under section two subclass C of the Hindu marriage act proves through the insurmountable fact that the person, the Hindus domiciled in India and outside India, this act is applicable. This act is applicable. In the Supreme Court, in Sondur Kobal versus Sondu Rajini reported in 2013-7 SCC, page 426 has held that domicile of Arjun provides until not only another domicile is acquired, but it must manifest the intention of abandoning the domicile of Arjun. A question may be asked. Sir, in parties, houses are settled at U.S.A. They have acquired the citizens of U.S.A. or permanent resident status in Australia or person of Indian Arjun, whether this act is applicable. Yes, the law says the Hindu marriage act is applicable despite the fact they have acquired citizens of foreign countries. Because their origin is that their origin is in India. Suppose they have voluntarily abandoned the domicile of Indian Arjun, then this act will not apply. So, person of Indian Arjun attaining Indian citizens of U.S.A., overseas citizens of India, permanent resident status in Australia or acquired citizens of other foreign countries are still governed under the Hindu marriage act unless there is a voluntary abandonment of domicile of this Indian Arjun. Then, section 13 of CPC is of greater significance. It deals with conclusiveness of the degree passed by foreign countries. It called out certain exceptions. Section 13 says a foreign judgment is not conclusive as to any matter directly adjudicated upon between the parties. The exception number one, it has not been pronounced by a court of competent jurisdiction. In order to grant a degree of divorce under the Hindu marriage act, the foreign court must have competent jurisdiction to grant a degree. Otherwise, if any degree is passed by the incompetent court having jurisdiction, then the degree will not bind, it is only anality. Then, it has not been given on the merits of the case. So, if the degree passed by the foreign court is not on merits, then it will not be a, it will not bind and the judgment is not conclusive. It is founded on an incorrect view of international law or a refusal to recognize the law in law of India in cases in which the law is applicable. So, incorrect view of international law, we are not concerned about it now. Refusal to recognize the law of India. Under the Hindu marriage act 1955, certain grounds are enumerated under section five of the Hindu marriage act to get a degree of nullity. Or under section 13 of Hindu marriage act 1955 to get a degree of divorce on the grounds enumerated under section 13. If it is not properly considered or the foreign court refused to apply the, refused to take into consideration of the Hindu marriage act, if any degree is passed, the degree is nullity and the foreign judgment is not conclusive, it will not bind the parties. Because in foreign countries, there may be other grounds are there to grant a degree of divorce. For example, irretrievable break and down of marriage is a ground to get a degree of divorce both in USA and as well as in United Kingdom. But that is not a ground I mentioned in section 13 of the Hindu marriage act 1955. Suppose the foreign court, whether the USA court or United Kingdom court in UK grants a degree of divorce on the ground that there is a irretrievable break down of the marriage, then such a degree will not bind the parties. It is not conclusive. Because that is not a ground under section 13 of the Hindu marriage act. Another one, the proceedings are opposed to natural justice. So, violation of natural justice or the ultrampartum are there. Then the foreign judgment is not conclusive. Then, if it is obtained by fraud. If the foreign judgment is obtained by fraud without serving any notice or by giving incorrect address of the respondent in any other manner, if it is fraudulently obtained then it is not conclusive, it will not bind. So, if the foreign judgment is marred by any of the disqualifications mentioned in section 13 of the Hindu marriage act then only it is not conclusive. But if it passes all the litmus test for its conclusiveness, the same is applicable and cannot be termed as not conclusive. Then, section 14 of CPC deals with presumption of foreign judgment. If any foreign judgment is produced before the courts in India the courts in India shall presume that the judgment was passed by the foreign court having competent jurisdiction. Of course, this presumption is reputable unless the contrary is true. So, the disqualification mentioned in section 13 is not there. If the foreign judgment passes all the litmus test then it will bind the parties and it can be enforced. Once the certified copy of the foreign judgment is produced the presumption is it shall be, it is passed by the foreign court having competent jurisdiction. Now, foreign degree was passed can it be executed by the courts in India that's another point. Section 34A of CPC deals with execution of degrees passed by courts in reciprocating territory. What it means reciprocating territory? Explanation 1 gives the answer. Explanation 1 defines the meaning of reciprocating territory. It means any country or territory outside India which the central government may by notification declared to be reciprocating territory for the purpose of this section and the superior courts with reference to any such territory means such courts as may be specified in the set notification. The union of India by way of notification declare what are all the reciprocating territories for the purpose of section 44A. So, notification is already being passed. United Kingdom is reciprocating territory. USA is a reciprocating territory. Australia is a reciprocating territory. Therefore, the conjoint reading of section 13, 14 and 44A of CPC expounds the power of the foreign court to grant a degree of divorce and it's execution by the courts in India. In the Punjab and Haryana court, in Rupakrati v. Anitha Choudhary reported in 2014 Supreme Punjab and Haryana page 293. In this case, parties are domiciled in India. Then they went to USA, obtained the USA situation. An account of the few cropped up between them, the husband filed a petition for divorce before the Brentford country court in the United Kingdom. So, they went to UK. Pending the application filed by the husband for divorce before the Brentford county court, the wife filed a petition under section 13 of the Hindu marriage act on the ground of cruelty before the district court, Panchkula. Before the UK court, certificate of entitlement to a degree on the petition on account of irritable breakdown of marriage was issued. So, before passing a degree, certificate of entitlement to a degree has to be passed. Degree in AC will be passed. Why the degree shall not be passed? But the degree was passed on the ground that the marriage is irretrievably broken down. Then the court said, the irretrievable breakdown of marriage is not a ground under the Hindu marriage act. So, the degree passed by the Brentford county court in UK is nullity, is not conclusive, it will not bind the parties, bind the parties. The foreign judgment is in defiance of the Hindu marriage act and the same is nullity. Then the court in why Narasimha Rao and others versus why Velkate Lakshmi and another reported in 1991 3 SEC page 441 has held that. The jurisdiction assumed by foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. Certain exceptions are also carried out by a Honorable Supreme Court. They are where the matrimonial action is filed in the forum where the respondent is on my side or habitually or permanently reside and the relief is granted on the ground available under the Hindu marriage act. Then where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on the ground available under the Hindu marriage act under which the parties are married. Third one is where the respondent concerns to the degree, concerns to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimony law of the parties. So, the respondent must have domicile or habitually and permanently resides and the relief must be granted on the ground available in the matrimonial law under which the parties are married or voluntary and effectively submitting to the jurisdiction of the courts or the respondent has to give consent to grant the relief even though the forum is not in accordance with the provisions of the matrimony law of the parties in India. But there are lot of cases whereby the forum codes used to grant a degree of divorce without taking into consideration of the law in India without taking into consideration of its competency to grant the relief and the degree may be obtained by fraud. In order to curb all this menace our Honorable Supreme Court of India has suggested to safeguard the interest of women suffered by a foreign degree by advising the government to make a legislation to that effect saying that no marriage between a NRI and an Indian woman which has taken place in India may be annulled by foreign law. The second one is provision may be made for adequate alimony to the wife in the property of the husband both in India and abroad. This has been held in Neeraj Sharpa v. Jayan B. Sharpa reported in 1994-6 SCC page 461. As I said earlier this is only a small topic it will consume only to half an hour. So the point for our consideration is whether the foreign court is competent to grant a degree of divorce or declaring the marriage as anality under section 11 of the Hindu marriage section 13 is the answer section 13, 14, 44, AFCBC is the answer. Yes, it can grant a degree of divorce provided it shall not come within the purview of the exception enumerated under section 13 of the Hindu marriage. The problem of filing divorce applications not only in India and before the courts are day by day are increasing. The reason is very obvious. The first one is ego, ego of the spouse. Another one is both the spouses are drawing a feasible salary and they are able to stand on their own leg without the help of another spouse. Another one is our old customs, usage, practice are not liked by the spouses living in foreign countries. I would like to remind one thing broken iron can be united but not the broken cars. It is a fashion to file a question for divers by the spouse both in India and in foreign countries. But after getting a degree of divorce their life would be in miserable state because the impact of degree speaks its value. After getting a divorce no ordinary fruit and mint is ready to marry you. He may think and work around the degree was passed what are all the hardship caused by the one spouse to another and if any child is born absolutely the chances of getting second marriage is very remote. So before filing an application for divorce it is advisable to think twice whether is there any possibility for union. By keeping in mind that the family court act came in the very object of family court is only for mooting out reconciliation of this process. So the marriage somebody says wife is a necessary even but we have to adjust and live with the necessary even. You ask your grandfather or father they are not thought of getting a they are not thought of filing any divorce application. So you have to sink the differences and able to live with your spouse adjust your spouse just heed to the representation of your spouse whether it may be a wife or husband. So I hope my proper legislation has to be made to protect the interest of the Indian woman suffered by a foreign degree. It is very easy to get a degree for divorce before the foreign court but it is very difficult to get a degree of divorce before the courts in India. So the foreign court has got power to grant a degree of divorce provided it must be competent to grant such a degree and it must consider the Indian marriage act before passing a degree of divorce and it should not be passed fraudulently. With this I conclude this session. Yashengar Ji it couldn't have been more crisp than what you have told and we have Adilakshmi joining us. Adilakshmi. Is because, am I audible? Yeah, yeah. Yeah, I am in my village so I am on travel also. Thank you so much Shankar Modi sir it was very nice after a very long time I am connecting to Shankar Modi sir but I am listening to all his session. Today is very popular we are so happy there are so many clients calling up and asking for his number we are very proud of you sir very senior lawyer and it is one of the very important topic today NRI marriages are on the rise in spite of having a NRI cell opened in Tamil Nadu Chennai but we have no idea clear cut idea about this particular topic sir you have made it very excellent legal equivalent and beyond law CLC is much indebted to make a clarity on this topic sir. Thank you so much Vikas for getting me connected to this program it was immense pleasure and it was house full and I had just posted in all the groups people are keeping on calling me how to connect for this program so I was just holding the other line I am saying they can only watch it on the YouTube it is already uploaded. Yes I am just posting and honorable judges also call me and ask for the YouTube link. Thank you all the credit goes to only our most respected and beloved senior advocate Shankar Modi sir practicing mode in Madras and Madurai high quotes and today is much wanted all over India not only in Tamil Nadu so he has been practicing all over India and such a great knowledge Thank you so much sir Thank you so much Vikas and thank you all the participants of beyond law CLC and legal legal select for joining me in this session Thank you so much Before we leave if you could just wind up in 2-3 minutes what is your crux of this entire session? Pardon? You can just give the summary whatever you explained today so that one can have a gist of this Yes, yes