VEENA KALIA Vs. JATINDER NATH KALIA

JUDGEMENT

(1.) These appeals are by the appellant-wife against the order dated 23 November, 1985 of the Additional District Judge, Delhi, whereby her two petition, one for divorce under the Hindu Marriage Act, 1955 (for short the Act') and the other for maintenance pendente lite filed against the first respondent- husband were dismissed as not maintainable. This was on the ground that the petitioner had accepted the judgment of the Foreign Court dissolving the marriage between her and the first respondent on a petition filed by him. The learned Judge held that the present petition was barred by principles of res-judicata or in any case it was a mala fide attempt on the part of the petitioner to harass the respondent- husband and that it was nothing but a misuse of the process of the Court.

(2.) The petitioner filed a petition for divorce against the first respondent- husband under the provisions of Section 13(1)(i), (i-a) and (i-b) of the Act seeking divorce on the grounds of adultery, cruelty and desertion. The first respondent- husband was allegedly living with the second respondent in adultery with whom, he said, he had married after his divorce from the petitioner. Both the respondents are residents of the United States of America. This petition for divorce was filed in September, 1984 in the Court of the District Judge, Delhi. The petitioner said she and the first respondent were married in India according to Hindu rites on 12 October, 1968 and that two daughters were born to her in 1970 and 1971. In February, 1972 the first respondent left for England to pursue further studies and in 1973 he went to Canada. From there he wrote a letter to the petitioner to join him in Canada. That was in June, 1973. In November, 1973, however, he wrote another letter to the petitioner that she should not come to Canada as he was interested in getting their marriage dissolved. In August, 1975 the first respondent filed a petition for divorce in the Supreme Court of Nova Scotia in Canada on the ground that his marriage with the petitioner had permanently broken down. The petitioner could not contest these proceedings, she having no means to go to Canada. On 22 December, 1975 the Supreme Court of Nova Scotia granted a divorce decree in favour of the respondent-husband to be made absolute within three months. This decree of divorce was made final on 19 May, 1976. The Court at Nova Scotia further ordered that respondent-husband would pay to the petitioner an amount of Rs. l,000.00 per month for her maintenance and for that of the children w.e.f. 1 July, 1976 till she remarried. Since the respondent-husband failed to pay maintenance to the petitioner, she approached the Court at Nova Scotia by letter and prayed that she be provided legal aid and on that proceedings were initiated and warrants of arrest were issued against the first respondent. He, it appeared, then left Canada for the United States. However, he deposited a cheque of Rs. 5,000.00 with the Legal Hid Cell in Canada and petitioner says he misled there that he could not pay maintenance as he had lost the address of the petitioner. The petitioner then states how she was harassed for not being paid maintenance right from 1978 to 1985. Petitioner says subsequently she came to know that the first respondent married the second respondent and had three children from her. She said the ex-parte decree of divorce obtained by the first respondent was not binding on her and was illegal, and that the petitioner and the first respondent continued to be wife and husband. On various averments set out in the petition, the petitioner sought divorce on the ground of adultery, cruelty and desertion, and on these grounds the petitioner would be entitled to a decree of divorce if she proved that the first respondent - (1) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than the petitioner [Section 13(1)(i)]; or (2) has, after the solemnization of the marriage, treated the petitioner with cruelty [Section 13(1)(i-a)]; or (3) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition [(Section 13(1)(i-b)].

(3.) On notice being issued, the first respondent appeared and filed an application under Section 11 read with Section 151 of the Code of Civil Procedure praying for dismissal of the petition. He did not file any written statement. He referred to a decree of divorce granted by the Supreme Court of Nova Scotia and said inspite of notice the petitioner did not contest the same and by not raising any objection she is deemed to have accepted jurisdiction of the Foreign Court in trying the petition there and, thus, making the decree nisi absolute by the Foreign Court. He also said that by accepting the maintenance she again in effect in law accepted the foreign judgment and, thus, was estopped from filing the present petition. It was then stated that the earlier suit in the Foreign Court was between the same parties and subject-matter was also the same, i.e.,grantof decree of divorce and alimony which is the very same subject in the present petition, and thus, present petition was barred under Section 11 of the Code of Civil Procedure and further that the judgment of the foreign Court was conclusive under Section 13 of the Code. All these averments were denied by the petitioner. She said principles of res-judicata did not apply nor the decree passed by the Foreign Court could be conclusive under Section 13 of the Code. She said Section 13 of the Code clearly showed that the judgment of the Foreign Court was a nullity and the marriage subsisted between the parties. She said decree had been obtained by fraud and was in breach of the Act as in force in India. She raised various other objections as well but all these were brushed aside by the Trial Judge who, as noted above, dismissed the petition for divorce and also dismissed the petition for grant of maintenance pendente lite on the ground that the petitioner was already in receipt of the maintenance from the first respondent, and that "it would not be desirable to burden her (him ?) with any costs in these proceedings." Both the petitions i.e., for divorce and maintenance, were held to be not maintainable and dismissed.