Satya v. Teja Singh

This is the leading Indian authority on the recognition of a foreign divorce, and it is the case that fills a legislative hole. England has a statute on recognition; India has none. What India has instead is Satya, and a residual judicial discretion to refuse a decree obtained by trickery.

It is also the case that destroys the most attractive argument a party can make in this area: that a decree of status is a judgment in rem and therefore binds the whole world.

The husband obtained a divorce decree in Nevada. He had never been bona fide domiciled in Nevada; he had invoked its jurisdiction by misrepresenting the jurisdictional fact of domicile. The wife's claim — the appeal was a maintenance appeal — required the Indian court to decide whether the Nevada decree was entitled to recognition in India.

The Nevada decree was refused recognition. Two propositions carry it.

"Fraud, in any case bearing on jurisdictional facts, vitiates all judicial acts whether in rem or in personam."

and

"It is therefore wrong to think that judgments in rem are inviolable."

The Court accepted the consequence: "Unhappily, the marriage between the appellant and respondent has to limp."

Step one: trace the classical rule and its cost. Niboyet v. Niboyet had allowed dissolution for spouses actually resident in England though not domiciled there. The Privy Council in Le Mesurier v. Le Mesurier found an "obvious fallacy" in that reasoning and laid down the domiciliary rule, per Lord Watson: "Their Lordships have come to the conclusion that, according to international law, the domicile for the time being of the married pair affords the only true test of jurisdiction to dissolve their marriage." Combined with the unity of domicile — Lord Advocate v. Jaffrey, and Att. Gen. for Alberta v. Cook, under which even a judicially separated wife could acquire no separate domicile — the rule was brutal: deserted wives "had to seek the husband in his domicile to obtain against him a decree of divorce recognizable in England."

Step two: note how England escaped, and that India did not. England's escape was legislative and judicial by turns — the Court calls it "something like a game of chess between the judiciary and the legislature" — ending in the Recognition of Divorces and Legal Separations Act 1971, which recognises an overseas divorce if, at the date of institution, "either spouse was habitually resident in that country or either spouse was a national of that country", subject to refusal where notice was not given or where "recognition would manifestly be contrary to public policy". India has no corresponding enactment, so the remedy has to be judicial.

Step three: attack the jurisdictional fact. Domicile was the foundation of the Nevada court's jurisdiction, and that foundation was a lie. Fraud bearing on jurisdictional facts vitiates all judicial acts — and the Court draws from The Duchess of Kingston's Case the distinction that governs the whole fraud exception: to say the court was mistaken is impermissible; to say it was misled is not. "The essential distinction thus was between mistake and trickery."

Step four: dispose of the in rem argument by reading the evidence provision closely. 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 — and the operative words are competent court. Competence is competence "in an international sense and not merely by the law of foreign State in which the Court delivering judgment functions", on R. Viswanathan. And the companion provision allows any party to show that the judgment "was delivered by a court not competent to deliver it, or was obtained by fraud or collusion". So even a judgment in rem is open to attack for want of jurisdiction.

Step five: accept the price and ask for a statute. The result is a limping marriage — divorced in Nevada, married in India. The Court prefers that to giving effect to a decree got by trickery, quoting Donovan L.J. in Formosa v. Formosa: "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 achieved". It then called on the legislature to act, suggesting the 1971 Act and the Hague Convention of 1970 as models.

It opens: Discuss the recognition of foreign matrimonial decrees in India; the jurisdictional-fraud limb of s. 13 of the Code; and the in rem question.

Close every such answer with the gap. The call for legislation has not been answered. Nineteen years later, in Neeraja Saraph v. Jayant V. Saraph, the Supreme Court asked again, proposing that "no marriage between a NRI and an Indian woman which has taken place in India may be annulled by a foreign court", that "provision may be made for adequate alimony to the wife in the property of the husband both in India and abroad", and that Indian decrees be made executable abroad on the model of s. 44A of the Code. Two judgments asking for the same statute is the best single observation available on this module.

Add the timing companion. Rosetta Evelyn Attaullah v. Justin Attaullah: the matrimonial statute required domicile in India at the time the petition was presented; the parties being then domiciled in Pakistan, the decree nisi could not be confirmed. Which connecting factor, and when it is tested, are two separate questions and the second is as important as the first.

And the forum's-own-law companion. Joao Gloria Pires, where confirmation in Goa of a Ugandan divorce was resisted because Roman Catholic marriages solemnised in Goa were indissoluble under the law prevailing there — recognition failing not for want of jurisdiction but because the forum's own law denied that the marriage could be dissolved at all.

It does not decide that fraud on the merits may be reopened in India; for that limit go to Sankaran Govindan v. Lakshmi Bharathi, which requires new evidence not known to the parties at the former trial. Nor does it lay down a general Indian rule of recognition — it refuses one decree on a jurisdictional fraud, and asks Parliament for the rule.