PADMINI MISHRA Vs. RAMESH CHANDRA MISHRA

JUDGEMENT

(1.) This appeal arises out of a suit filed by the wife for obtaining a decree of divorce under Section 13 of the Hindu Marriage Act. The present appellant as plaintiff instituted the suit (O. S. No. 48/ 83-I) in the court of Subordinate Judge, Bhubaneswar praying for dissolution of the marriage on the ground, of ill-treatment and cruelty by her husband (respondent in this appeal). The suit was decreed by the trial Court. But the appellate court reversed the judgment on a finding that the marriage between the plaintiff and the defendant stands dissolved with effect from 18-1-1980 by the decree passed by the Supreme Court of County of Albany (U.S.A.) When this appeal was placed for admission, the respondent entered appearance through Advocates and both parties prayed for final disposal of the appeal at the stage of admission saying that a complaint case has been filed by the mother of the present appellant against the respondent and his old father alleging that the respondent is guilty of bigamy and a Criminal Revision (Criminal Revision No. 98 / 86) is pending in this Court to quash the proceeding. It was stated by the counsel for both parties that apart from the other questions of fact which may be required to be proved to bring home the charge of bigamy, the question as to whether the marriage was dissolved with effect from 18-1-1980 by the judgment of the foreign Court would be one of the most relevant points for consideration and the said point is the only question for consideration in this appeal. Accordingly the L.C.R. was called for and this appeal was heard at length for final disposal of the appeal.

(2.) As already stated the plaintiff filed the suit praying for dissolution of the marriage mainly on the ground of ill-treatment and cruelty. Admittedly the marriage was performed at Bhubaneswar on 18-5-1974 whereafter plaintiff and the defendant lived as husband and wife for some time at Bhubaneswar, and thereafter went to Delhi. The defendant-husband left for U.S.A. shortly thereafter and the plaintiff joined her husband some time in April, 1975. According to the plaintiff, she lived with her husband in U.S.A. till August, 1975., during which time she found that the relationship is getting strained and there was temperamentally incompatibility. During her stay in U.S.A. she found that the behaviour of her husband was intolerable and under the circumstances she left her husband and returned to India to be with her parents. It has also been alleged in the plaint that her husband has obtained a void decree of divorce from the Supreme Court of County of Albany in the State of New York in U.S.A. which, according to her, is incompetent to dissolve a Hindu marriage, as it is not a forum created under the Hindu Marriage Act. Since the said decree of divorce is neither operative nor enforceable in law, she has filed the suit almost for the same relief from a court of competent jurisdiction. In the written statement of the defendant the allegations of illtreatment, misbehaviour and cruelty were stoutly denied. It was further alleged that the plaintiff voluntarily deserted the defendant and went away for Delhi for her own purposes and was, therefore, guilty of desertion. According to the defendant, all his attempts for reconciliation having failed, he filed a case for divorce in the Supreme Court of County of Albany in the State of New York in U.S.A. on the ground of desertion for a continuous period of about 4 years. The defendant asserts that the Supreme Court of the State of New York is a competent court having jurisdiction in relation to a dispute involving matrimonial relationship between the parties, since the plaintiff and defendant last lived together and cohabitated in the State of New York. The decree for divorce granted by the Supreme Court on 18-1-1980 was after due notice to the plaintiff, which as stated by the defendant is binding on the parties and has already severed the marital relationship between them. It was, therefore, urged that the question of dissolution of the marriage or granting a decree for divorce did not arise at all as by the date of the suit there existed no such relationship. The learned trial Court held that the judgment of the Supreme Court of New York in U.S.A. was void under S.13(3) of the Civil Procedure Code as the same was obtained by making a false representation as to the jurisdictional facts. The contention of the plaintiff that the Supreme Court of the State of New York in the County of Albany is not a District Court within the meaning of the Hindu Marriage Act and that the decree is void on that ground was, however, not accepted by the learned trial court. It was further found that the plaintiff has successfully established that during her stay in U.S.A. defendant treated her with cruelty and deserted her. On these findings the learned trial court dissolved the marriage by a decree of divorce with effect from the date of the judgment. The defendant-husband came up in appeal and the District Judge, Puri in the judgment, impugned in this appeal, allowed the same, as according to him, the foreign judgment dissolving the marriage with effect from the 18/01/1980 is conclusive and binding on the parties and the present proceeding for divorce is not maintainable. It appears from the appellate judgment that finding as regards ill-treatment and cruelty was not effectively challenged before the appellate court and consequently the appellate court has not recorded any finding whatsoever on that issue.

(3.) The substantial questions of law which arise for consideration in this appeal are as to whether the foreign judgment passed by the Supreme Court in the State of New York is valid and binding on the parties and whether the said judgment dissolved the relationship of marriage between the parties.