If a wife acquiesced in the jurisdiction of a foreign Sharia court , she cannot challenge that judgement in India !!
Comments : It is generally believed that pronouncements by a foreign sharia court are NOT valid in India in the case of Hindu Couples, as they are governed by Hindu Marriage act. This judgement is a counter to that belief … UNDER specific circumstances
Punjab-Haryana High Court
Kirandeep Kaur vs Dr. Ajinder Singh on 10 March, 2009
F.A.O. No. 155-M of 2000 (O&M) -1- ****
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
F.A.O. No. 155-M of 2000 (O&M)
Date of decision: 10.03.2009.
Kirandeep Kaur …Appellant Versus
Dr. Ajinder Singh …Respondent CORAM: HON’BLE MR. JUSTICE S.D.ANAND.
Present: Mr. Raman Mahajan, Advocate, for the appellant. Mr. Arun Jain, Senior Advocate with
Mr. Ajay Kaushik, Advocate for the respondent.
A plea filed by the appellant-wife under Section 9 of the Hindu Marriage Act (hereinafter referred to as “the Act”) for the restitution of conjugal rights, did not find favour with the learned Trial Court which negatived it, vide the impugned judgment and decree dated 8.9.2000. The appellant-wife is in appeal against it.
The plea for restoration of conjugal rights was based on allegations which may be indicated as under:-
After solemnisation of marriage, the parties cohabited initially at Amritsar upto May, 1984. A female child (named Sukhmani) was born out of their union. The respondent-husband, thereafter, shifted to Abudhabi. The appellant also joined him in September, 1984. A male child (named Kanwarpreet) was born out of their union at Abudhabi. The F.A.O. No. 155-M of 2000 (O&M) -2- ****
female child is presently putting up with the appellant-wife; while the male child is living with the respondent-husband.
The parties “cohabited as husband and wife upto April, 1994 in Abudhabi.” Thereafter the respondent ‘evaporated’ from Abudhabi and left for some foreign country without announcing that fact to appellant. However, the respondent came home on 2.10.1994 but again disappeared from the scene on 4.5.1994 without disclosing his destination to the appellant-wife and two children of the parties who were left without any means of sustenance. It was after a great effort that the appellant was able to find out that the respondent was, infact, residing in America. The appellant “made frantic efforts to reside and co-habit with the respondent but all her efforts went in vain.” The respondent-husband “indulged in various vices and is running after the other girls and is not caring for the petitioner at all but on the other hands the petitioner has got love and affection for the respondent……. he is indulging in various kind of vices and presently residing in America.” As against the frantic efforts made by the appellant-wife to request the respondent, “to keep and maintain her as his wife”, the respondent “is claiming that he has got divorce from Sheriah Court at Abudhabi.” That divorce is not legal and valid because the parties are governed by the Hindu Marriage Act and the marriage between them could be dissolved only “under Hindu Law and not otherwise”. The further averment is that “if any divorce decree has been obtained under Sheriah the same is null and void”. The further averment was that, even otherwise, “the said decree is based on misrepresentation and fraud committed by the respondent on the Court at Abudabhi.” The appellant-wife had, thus, filed a plea for restitution of conjugal rights on a pure and simple averment that the respondent- F.A.O. No. 155-M of 2000 (O&M) -3- ****
husband had deserted her without any reasonable cause and the reliance placed by the latter upon an alleged divorce decree granted by Sheriah Court is invalid inasmuch as no such decree could have been granted by that Court. The further plea in the context is that decree aforementioned claimed to have been obtained by the respondent is based on mis- representation and fraud at the hands of the respondent. The respondent-husband averred that the appellant-wife is disentitled to the grant of any relief as she has not come to the Court with clean hands. The petition was averred to be barred by resjudicata. The appellant was further averred to be estopped, by her own act and conduct, from filing the present petition in view of the fact that she had already, unsuccessfully though, invoked the jurisdiction of the two Courts superior to the Sheriah Court, which granted the impugned decree for dissolution of marriage, and had thereby acquiesced in the jurisdiction of those Courts. It was further alleged that the decree for dissolution of marriage followed a mutual divorce agreement dated 31.12.1992 (Mark PZ) which had been voluntarily executed by the parties. The further averment, in the context, is that it was in terms of that agreement that the female child is putting up with the appellant-wife and the male child is putting up with the respondent-husband. It was also averred that the appellant-wife had already exhausted the remedies available to her in the Ist Appellate Court and highest Court of the land in Abudhabi. It was also the further averment that since the marriage between the parties stands dissolved under the orders of the Sheriah Court and that finding had been upheld up to the highest Court of the land in Abudhabi, the appellant-wife having submitted to the jurisdiction to the Courts over there cannot be allowed to raise a plea afresh in India for the restitution of conjugal rights. F.A.O. No. 155-M of 2000 (O&M) -4- ****
The trial proceeded on the following issues:-
“1. Whether there is a valid subsisting marriage between the parties?OPA
2. Whether the petitioner is entitled to restitution of conjugal rights?OPA
3. Whether the present petition is barred by principle of resjudicata? OPR
4. Whether the marriage between the petitioner and respondent has already been dissolved by competent Court according to Hindu law? OPR
5. Whether the petitioner has not come to the Court with clean hands?OPR
6. Whether the petitioner has estopped by her own act and conduct?OPR
7. Whether the present petition has been filed with malafide intention to harass the respondent, who has settled at America?OPR
The learned trial Court disposed of issues No. l to 4 against the appellant-wife and in favour of the respondent. Issues No. 5 to 7 were disposed of against the respondent-husband and in favour of the appellant- wife.
I have heard Mr. Raman Mahajan, learned counsel appearing on behalf of the appellant and Mr. Arun Jain, learned Senior counsel assisted by Mr. Ajay Kaushik, Advocate appearing for the respondent and have carefully gone through the record.
It was common ground, at the time of arguments before this F.A.O. No. 155-M of 2000 (O&M) -5- ****
Court, that the fate of the litigation would turn on the finding with regard to validity or otherwise of the foreign judgments rendered by the Abudhabi Courts between the parties to the cause.
Mr. Raman Mahajan, learned counsel appearing on behalf of the appellant-wife, argued that the judgments rendered by the Courts at various hierarchal levels in Abudhabi cannot be termed as valid foreign judgments binding the parties to the cause. In that context, he argued that the foreign judgments would have been binding only if the disposal thereof had been in accord with the principles of Hindu Marriage Act by which the parties to the cause are governed. In that very context, it was argued that the marriage between the parties could not have been dissolved without the applicant party therein proving one of the grounds on the basis whereof their marriage could be dissolved under the Hindu Marriage Act. In an act of resistance, learned Senior counsel appearing on behalf of the respondents argued that the appellant-wife having submitted to the jurisdiction of the foreign Courts cannot be heard to argue for invalidation of the foreign judgments which (foreign judgments) are indicated on record to have taken notice of provisions of the Hindu Marriage Act. It was also argued that the foreign judgments only enforced the mutual agreement dated 31.12.1992 (Mark PZ) which had been entered into between the parties for dissolving their marriage. Learned Senior Counsel further argued that the appellant-wife is not entitled to the grant of relief for restitution of conjugal rights because she did not aver the factum of contest raised by her in Abudhabi Courts (about the decree of divorce granted by the Sheriah Court) in the petition. The appellant-wife, the argument proceeded, had also not been able to prove the plea raised by her at the trial that her signatures upon the mutual agreement dated F.A.O. No. 155-M of 2000 (O&M) -6- ****
31.12.1992 (Mark PZ) had been obtained by fraud or misrepresentation. Learned Senior Counsel had a grievance that the petition had been filed after unexplained and inordinate delay and that this, by itself, disentitled the appellant-wife to the grant of any relief. A grievance was also made of the fact that the appellant-wife had levelled unsubstantiated character-related allegations against the husband.
In the course of the petition, the appellant-wife made a precise averment that the parties co-habited, as husband and wife till April, 1994 (para 4 of the petition). In the course of the rejoinder, she gave the date, upto which they co-habited ,as 6.4.1994. However, when she entered the witness box, as her own witness, as PW-1, she testified that the parties co- habited as husband and wife till 5.5.1995 (“we have residing together as husband and wife and cohabited as such till 5.5.1995 on which date the respondent suddenly disappeared.”).
It is apparent from a perusal of the rejoinder that the appellant -wife had, in the course thereof, raised a precise plea that she “was sent to India on 28.3.1993 for the purpose of seeking admission in school in India for her daughter but she had to rejoin in Abudabhi with the respondent on 16.4.1993”. The further averment in the continuity was that “she was again forced to leave for India on 22.4.1993.” It was on the basis of the above factual averment that the appellant-wife suggested that she was taken off the scene by the respondent-husband in order to be able to play a fraud with the Court by filing a petition for divorce on 11.5.1993 and obtaining an exparte dissolution of marriage. In the course of the testimony, as her own witness, she testified that her daughter was not required to obtain admission in India as she was doing well at Abudhabi. It is also in her testimony that though her daughter could not obtain admission on account of non availability of a seat, she was again forced to leave for India on 22.4.1993. The bald averment (qua her visits to India and also the inability F.A.O. No. 155-M of 2000 (O&M) -7- ****
to obtain admission for the daughter on account of the non-availability of a seat) is not cemented by any corroborative evidence, documentary or otherwise. Both the facts aforementioned (the visits to India and also the non-availability of a seat), could otherwise be proved by adducing documentary evidence. That relevant allegation at the hands of the appellant-wife, even otherwise, stands falsified in view of her statement that she left Abudhabi in June, 1994 to settle at Amritsar permanently (“I left Abudhabi in June, 1994 to settle at Amritsar permanently.”) She did otherwise beat a hasty retreat to state in the next sentence that she did not come over to India at that point of time with the intention to permanently settle down at Amritsar.
The appellant-wife testified at the trial that though she has been residing at her natal house since May, 1995, she still has a job at Abudhabi and, for that purpose itself, and also “to keep my visa alive,” she has to frequently go over to that place i.e. Abudhabi. She testified that she is presently working in “some private office at Abudhabi. She was initially serving at Abudhabi, as a Teacher in an English medium school under the name and style of Merry Land School, Abudhabi. She resigned from there in or about February, 1985 and started teaching at another school known as Daralmaarif School. Thereafter, she rejoined the Daralmaarif School. In order to expose the falsehood of her above indicated stance, the appellant-wife was called upon to indicate her present job address of Abudabhi. She testified that she does not want to disclose the name of that private office because, on the basis of that information, the respondent-husband would create trouble for her. Even when specifically called upon to indicate the nature of her apprehensions, she was not able to offer a precise response and she rest content with the observation that F.A.O. No. 155-M of 2000 (O&M) -8- ****
she has a general apprehension that her husband would create problem for her “since he had already deserted me and my children and has earned a lot of money due to which his mind has become corrupt”. That the appellant-wife has been taking up varying and inter- se contradictory stances is apparent from the above facts and also the facts noticed hereunder:-
The allegations in the petition are to the effect that the respondent-husband alleges to have obtained a divorce decree. The petition conspicuously refrains from making a mention of the fact that the appellant is very much in the know of the fact that the respondent-husband had obtained an exparte divorce decree from the Sheriah Court at Abudabhi and she had gone in for a first appeal and further appeal against the decree granted by that Court. In that backdrop of facts, she made an altogether illogical statement at the trial “I have no knowledge if respondent obtained exparte decree against me on 11.5.1993 when I was in India.” This statement of fact, coming from a person who had herself challenged that decree, would appear to be nothing short of an abortive attempt made by her to feign ignorance for nothing. Insofar as the factum of mutual agreement dated 31.12.1992 (Mark PZ) is concerned, the appellant-wife did not dispute it. though the averment made by her in the context was that her signatures thereon had been obtained by fraud and that she had signed those papers in blank condition and in good faith. In that context, a suggestion was put to her that the mutual agreement Ex. PZ/1 does bear her signatures. She conceded that suggestion as correct but proceeded to aver that her husband used to, at times, obtain her signatures on blank papers which she would do in good faith as he was her husband. She was not in a F.A.O. No. 155-M of 2000 (O&M) -9- ****
position to definitely indicate “whether when I put signatures it was typed or it was blank because some time the papers were many in number and in good faith I used to put signatures quickly without actually reading the contents of the documents.” She could not give any other instance where her husband may have misused her signatures.(“I cannot give any other instance where my husband misused my signatures …….Except this I cannot give any other instance where any notice from any Court came to me telling me that my signatures have been misused or that any property has been sold by my husband by wrongly using my signatures.”). There is plethora of evidence on record to prove that though the Sheriah Court ordered dissolution of marriage in the absence of the appellant-wife, she did file first appeal and also second appeal at the appropriate level in Abudabhi. In spite thereof, she did not not make a mention of the filing of those appeals in the petition, in the course whereof, the only averment made by her was that “the respondent is claiming that he has got divorce from Sheriah Court at Abudabhi”. At the trial, she conceded that the grant of exparte divorce by the Sheriah Court was conveyed to her in the first week of November, 1994. On her own showing, two appeals filed by her were disposed of in November, 1995 and in the year, 1997 respectively. The present petition was filed in the year 1999. There was, thus, no understandable reason for the appellant-wife to refrain from mentioning the factum and fate of two appeals filed by her at Abudabhi against the orders of the Sheriah Court. In order to prove that the respondent-husband was, at all times, out to defraud her, she testified that her husband had applied to the British Club in Abudabhi in the year, 1994 for renewal of the club membership,wherein status of the appellant was indicated as wife of the F.A.O. No. 155-M of 2000 (O&M) -10- ****
respondent. The relevant evidence was not adduced at the trial to prove it. As against it, the appellant conceded, as correct, a suggestion that she obtained her individual membership of Marina Club at Abudabhi (for a period of one year). She did not indicate the exact timing at which that membership was obtained. She also did not indicate the exact period of currency of that membership either.
There is ample evidence on record to indicate that the appellant-wife acquiesced in the jurisdiction of the Abudabhi Courts in the matter of divorce proceedings between her and her husband. It is in her testimony that the exparte divorce (obtained by the respondent-husband on 11.5.1993) came to her notice on 26.10.1994 when she received the divorce papers through the Sheriah Court. She proceeded to aver that she filed an appeal to challenge the order of the Sheriah Court. She also conceded, as correct, a suggestion that the First Appellate court had given her the opportunity for leading evidence (“It is correct that in the said first appeal I was given time for leading evidence.”). She also conceded, as correct, a further suggestion that her first and last appeal had been decided on 21.1.1997 and that she never challenged that decision before any higher Court. ( “It is correct that my first and last appeal was decided on 21.1.1997. …… I never challenged the decision dated 21.1.1997 Ex. PZ/6 before any Court at Abudhabi. …. I did not challenge the last decision dated 21.1.1997 in Abudabhi or in Indiafor getting it set aside”.) Even otherwise, a perusal of the Ist appeal order would indicate that the provisions of the Hindu Marriage Act had been duly brought to the notice of that Court which had also taken notice of and considered those provisions before dismissing the appeal filed by the appellant-wife against the grant of exparte divorce by the Sheriah Court.
F.A.O. No. 155-M of 2000 (O&M) -11- ****
The appellant-wife would want the Court to believe that even before the Appellate court in Abudadhi, she raised a plea for transfer of divorce litigation to India. However, that averment had not been substantiated at the trial.
There is also force in the plea raised on behalf of the respondent-husband that the appellant-wife has disentitled herself to the grant of any relief by having refrained from independently challenging the validity of the foreign judgments in a Court of law in India and further for having filed the plea under adjudication after inordinate and unexplained delay. It is apparent from the record ( and even on her own showing) the judgment of the Second Appellate Court in Abudabhi came to be delivered in the year 1997. The present plea for the restitution was filed in the year 1999 (20.5.1999, to be precise).
The following facts can, thus, be safely culled out from the above discussion:-
1. The appellant-wife did not come to the Court with clean hands. In the petition, she did not at all make a mention of the fact that she had already filed two appeals (at various hierarchal levels) against the exparte judgment by the Sheriah Court. She even went to the extent of making an abortive endeavour to conceal the knowledge of factum of there being an exparte decree for dissolution of marriage (granted by the Sheriah Court. against her).
2. She acquiesced in the jurisdiction of the Abudabhi Courts to adjudicate and she has not been able to prove her averment that she had asked for the transfer of the F.A.O. No. 155-M of 2000 (O&M) -12- ****
proceedings to the Courts in India.
3. She did not initially even make a mention of the factum of the mutual divorce agreement dated 31.12.1992 (Mark PZ). It is only under the compulsion of the precise undeniable pleadings that she come forward with an explanation that she had signed a blank paper in good faith. She was, however, not able to indicate any other instance, when the respondent-husband may have misused her signatures which he had been obtaining from time to time.
4. The appellant has not, till date, independently challenged the validity of the foreign judgments in any Court in India. The refrain on her part (in making a categorical mention of the factum of exparte decree granted by the Sheriah Court and also the negativing of the two appeals filed by her against the exparte decree of dissolution of marriage) was obviously actuated by her inability to wriggle out of the predicament of having to explain the mutual divorce agreement dated 31.12.1992 (Mark PZ) and her acquiescence to the jurisdiction of the Courts in Abudabhi).
5. The appellant filed the petition under Section 9 of the Hindu Marriage Act after a delay of about two years. It is apparent from the record that the final appeal verdict against her was delivered in the year 1997; where this petition came to be filed in the year 1999. The delay in the context is relevant in view of the fact that she is F.A.O. No. 155-M of 2000 (O&M) -13- ****
presently residing in Amritsar and she has not been able to prove the averment that she has to go off and on to Abudabhi in order to keep her visa alive and also because is is an employee at Abudabhi in “some private office” whose particulars were not disclosed by her inspite of the challenge of her credentials in the context at the trial.
6. She levelled precise character-related allegation against the respondent in the course of the petition ( The respondent-husband “indulged in various vices and is running after the other girls and is not caring for the petitioner at all but on the other hands the petitioner has got love and affection for the respondent……. he is indulging in various kind of vices and presently residing in America.”
In the light of foregoing discussion, it is held under issue no.1 that there is no longer a subsisting marriage between the parties. In view thereof, the appellant-wife is not entitled to restitution of conjugal rights. In the light of the finding under issue no.1, it is held under issue no.4 that marriage between the parties had already been dissolved by competent Court. The finding under issue no.3 would be that the present petition is barred by resjudicata inasmuch there is no longer any subsisting marriage between the parties. No arguments with regard to finding under issues no.5,6 and 7 were addressed. Those finding shall stand affirmed accordingly. The appeal is held to be denuded of merit and is ordered to be dismissed.
March 10, 2009 (S.D.Anand) Pka Judge