RUPAK RATHI Vs. ANITA CHAUDHARY

JUDGEMENT

(1.) This is a rather strange and awkward case to deal with. The petition has been filed under Article 227 of the Constitution of India challenging the order dated 5th April, 2013 passed by the learned District Judge, Panchkula declining an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 ('CPC' for short) filed by Rupak Rathi in a divorce petition instituted by his wife Anita Chaudhary under Section 13 of the Hindu Marriage Act, 1955 ('HMA') praying for dissolution of marriage. Nevertheless, the issues involved have a wide import on other cases of the kind with serious ramifications on the applicability of the last of the three exceptions carved out by the Supreme Court in Y.Narasimharao and others v. Y. Venkata Lakshmi and another, 1991 3 SCC 451in para. 20 of the ruling on recognition of foreign matrimonial decrees sought to be enforced in India and where the three exceptions for the first time have been carved out from the basic rule that the jurisdiction assumed by the foreign Court as well as the grounds on which the relief is granted by a foreign court must be in accordance with the matrimonial law under which the parties are married. I would come to those three exceptions and especially exception (iii) in the course of the discussion on which the fate of this case turns, but not before noticing a few seminal facts which are not disputed by the parties and which would influence later events as they happened, impacting the view ultimately taken in concluding this case.

(2.) The complexity of the matter has arisen from divorce proceedings instituted by Rupak Rathi, husband of Anita Chaudhary, the respondent in this petition, in Brentford County Court ('BCC' for short) in the United Kingdom on 17th March, 2011. While those proceedings were pending, Anita Chaudhary filed a divorce petition in the Court of the learned District Judge, Panchkula through her father holding her general power of attorney to file a petition under Section 13 of the HMA on her behalf on the ground of cruelty practiced by Rupak Rathi upon her. The pendency of the proceedings in the English Court is duly mentioned in the divorce petition instituted on 17th May, 2011. In such circumstances, both the proceedings ran parallel for sometime, the first concluding in a decree of divorce in the English court on 31st January, 2012. The other is from which the present petition arises.

(3.) The decree nisi was passed by the BCC on 7th June, 2011 and made absolute on 31st January, 2012 vide P-7. It may be noted that the decree nisi was passed by the BCC on the ground that the marriage of the parties had broken down irretrievably. The proceedings were concluded without any adjudication on the merits of the case. Rupak Rathi calls it a consent order. He made use of the decree of divorce secured before the English Court in the presence of Anita Chaudhary, who then indisputably was living in her temoprory matrimonial home in the United Kingdom, and approached the matrimonial court at Panchkula through an application of 18th July, 2012 under Order VII Rule 11 CPC praying for rejection of the divorce petition on the ground that the UK divorce decree passed on 31st January, 2012 was binding between the parties. Therefore, the divorce petition filed by the wife on grounds of cruelty was barred by the principles of both res judicata and estoppel and the learned District Judge, Panchkula had no jurisdiction to entertain the divorce petition as the matter inter-parties stood settled by the English decree. The application was contested by Anita Chaudhary by filing a reply alleging that the BCC had no jurisdiction to pass the decree of dissolution of marriage on the impermissible ground of irretreivable breakdown of marriage not available in HMA and further still, that both the parties are domiciled in India and are governed by the Hindu law under which they were married in Panchkula in the State of Haryana, India on 7th March, 2010.