Swatantra Arora v. Rajendra Kumar Bali

RAJIV SAHAI ENDLAW, J.

AUGUST 29, 2018 bs ..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 29th August, 2018. + C.R.P. 153/2018 & CMs No.30324/2018 (for stay) & 30325/2018 (for condonation of 54 days delay in filing the appeal) SWATANTRA ARORA .... Petitioner Through: Mr. Jitendra Nath Pathak, Adv. Versus RAJENDRA KUMAR BALI ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. On 31st July, 2018, when this petition came up first before this Court, the following order was passed: "3. This Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) impugns the order [dated 1st March, 2018 in CC No.23/2017 of the Court of Judge, Family Court, East District] of dismissal of the application under Order VII Rule11 of the CPC filed by the petitioner wife for rejection of a Petition under Section 9 of the Hindu Marriage Act, 1955 filed by the respondent husband for restitution of conjugal rights. 4. Rejection of the petition for restitution of the conjugal rights was sought on the ground that the respondent husband who was living in USA had obtained a judgment from the US Court of dissolution of marriage with the petitioner wife. However only a photocopy of the said judgment was placed on record of the Family Court. 5. The application under Order VII Rule 11 of the CPC filed by the petitioner wife has been dismissed reasoning (i) that the petitioner wife had been unable to produce an authenticated/certified copy of the judgment and decree of the foreign court; (ii) that rejection under Order VII Rule 11 of the CPC is permissible only if on a reading of the averments in the plaint/petition itself no cause of action is made out and there can be no rejection on a plea raised by the defendant/respondent; (iii) that the respondent/husband had denied any judgment and decree of the foreign court and also pleaded the same to be nullity and without jurisdiction and in the face thereof the petition under Section 9 could not be rejected outrightly; and, (iv) it was also the plea of the respondent husband in the petition under Section 9 that the parties, after the judgment and decree of the foreign court alleged, had also been residing together as husband and wife and had substantiated the same by considerable financial transactions between the parties. 5. The counsel for the petitioner wife states that he has since received the certified copy of the judgment and decree of the foreign court and has handed over in the Court a certified copy of the judgment dated 17th July, 1995 of the Matrimonial Court of New York State Supreme Court in a proceeding filed by the respondent husband against the petitioner wife and dissolving the marriage of the parties. 6. The said certified copies of judgment and decree are taken on record. 7. I have however asked the counsel for the petitioner wife the mode of proof of a foreign judgment, if denied. 8. The counsel for the petitioner wife is unable to appreciate the question put to him. 9. Section 14 of the CPC though requires the Court to, upon production of any document purporting to be a certified copy of a foreign judgment, presume that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record but further provides that such presumption may be displaced by proving want of jurisdiction. 10. Similarly, Section 13 of the CPC though provides that a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties but further provides that it will not be conclusive inter alia where it has not been pronounced by a Court of competent jurisdiction or where it has not been given on the merits or where it appears on the face of the proceedings to be founded on an incorrect view of international law or refuses to recognise the law of India in cases in which such law is applicable or where it sustains a claim founded on a breach of any law in force in India. 11. The foreign judgment of dissolution of marriage