Enforcement of Foreign Decrees / Judgement in India

This Article aims to study in detail the enforceability of foreign Judgements/decrees passed by a foreign court and the scope of Sec. 13 of the Civil Procedure Code, 1908.

With the advent of globalization and with India poised as a major international and global player in the world economy, it is apposite to consider the law concerning enforcement of foreign judgments in India. In law, the enforcement of foreign judgments is the recognition and enforcement rendered in another (“foreign”) jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement. The “recognition” of a foreign judgment occurs when the court of one country or jurisdiction accepts a judicial decision made by the courts of another “foreign” country or jurisdiction, and issues a judgment in substantially identical terms without rehearing the substance of the original lawsuit.

Recognition will be generally denied if the judgment is substantively incompatible with basic legal principles in the recognizing country.

However, the Code of Civil Procedure, 1908 has defined Foreign Court and Foreign Judgements as :-

Section 2 of the CPC, 1908

(5) “foreign Court” means a Court situate outside India and not established or continued by the authority of the Central Government;

(6) “foreign judgment” means the judgment of a foreign Court;

In other words, a foreign judgment means an adjudication by a foreign court on a matter before it.

ENFORCING FOREIGN JUDGMENTS IN INDIA

A foreign judgment can be enforced in India in one of two ways:

  1. Firstly by filing an Execution Petition under Section 44A of the CPC (in case the conditions specified therein are fulfilled).

In other words – Judgments from Courts in “reciprocating territories” can be enforced directly by filing before an Indian Court an Execution Decree.

  1. Secondly by filing a suit upon the foreign judgment /decree

In other words – Judgments from “non-reciprocating territories,” such as the United States, can be enforced only by filing a law suit in an Indian Court for a Judgment based on the foreign judgment. The foreign judgment is considered evidentiary. The time limit to file such a law suit in India is within three years of the foreign judgment.

However, “reciprocating territory” is defined in explanation 1 to Section 44A of India’s Civil Procedure Code as:

Any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare as a reciprocating territory.”

 

The List of the Reciprocating Territories as per the Provisions of Section 44 A of the Code of Civil Procedure, 1908, is as under :

  1. United Kingdom
  2. Singapore
  3. Bangladesh
  4. UAE
  5. Malaysia
  6. Trinidad & Tobago
  7. New Zealand
  8. The Cook Islands (including Niue)and The Trust Territories of Western Samoa
  9. Hong Kong
  10. Papua and New Guinea
  11. Fiji
  12. Aden.

 

44A. Execution of decrees passed by Courts in reciprocating territory.

(1) Where a certified copy of decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in [India] as if it had been passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

“The Supreme Court held in the case of Moloji Nar Singh Rao vs Shankar Saran AIR 1962 SC 1737 that a foreign judgment which does not arise from the order of a superior court of a reciprocating territory cannot be executed in India. It ruled that a fresh suit will have to be filed in India on the basis of the foreign judgement.”

Therefore Under S. 44A of the CPC, a decree of any of the Superior Courts of any reciprocating territory are executable as a decree passed by the domestic Court. In case the decree does not pertain to a reciprocating territory or a superior Court of a reciprocating territory, as notified by the Central Government in the Official Gazette, the decree is not directly executable in India and a fresh suit will have to be filed in India on the basis of such a decree or judgment, which may be construed as a cause of action for the said suit. In the fresh suit, the said decree will be treated as another piece of evidence against the defendant.
However in both cases the decree has to pass the test of S. 13 CPC which specifies certain exceptions under which the foreign judgment becomes inconclusive and is therefore not executable or enforceable in India.

Sections 13 and 14 enact a rule of res judicata in case of foreign judgments. These provisions embody the principle of private international law that a judgment delivered by a foreign court of competent jurisdiction can be enforced by an Indian court and will operate as res judicata between the parties thereto except in the cases mentioned in Section 13.

A foreign judgment may operate as res judicata except in the six cases specified in the section 13 and subject to the other conditions mentioned in Sec. 11 of C.P.C.

 

Sec. 13 of CPC, 1908:- When foreign judgment not conclusive.

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) Where it has not been pronounced by a Court of competent jurisdiction;

(b) Where it has not been given on the merits of the case;

(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of [India] in cases in which such law is applicable;

(d) Where the proceedings in which the judgment was obtained as opposed to natural justice;

(e) Where it has been obtained by fraud;

(f) Where it sustains a claim founded on a breach of any law in force in [India].

The awards and decrees of the Indian courts are sacrosanct. However, Section 13 of the Code of Civil Procedure 1908 (CPC) lays down that a foreign judgment shall be conclusive as to any matter directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except in few cases.

The operation of section 13 would be better appreciated by the following illustration:

 

“A sues B in a foreign court. If the suit is dismissed, the decision will operate as a bar to a fresh suit by A in India on the original cause of action, unless the decision is inoperative by reason of one or more of the circumstances specified. If a decree is passed in favour of A in the foreign court and A sues B on the judgment in India, B will be precluded from putting in issue the same matters that were directly and substantially in issue in the suit in the foreign court, unless the decision is once again inoperative for the said exceptions.”

 

  1. NOT PRONOUNCED BY A COURT OF COMPETENT JURISDICTION

 

In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar, AIR 1973 Mad. 141, it was alleged by the respondent that since he was not a subject of the foreign country, and that he had not submitted to the jurisdiction of the Foreign Court (Singapore Court), the decree could not be executed in India. The Appellant, in defense of this argument, stated that the Respondent was a partner of a firm which was doing business in Singapore and had instituted various suits in the Singapore Courts. Therefore, the Appellant argued, that the Respondent had accepted the Singapore Courts jurisdiction. The Court held that it was the firm which had accepted the jurisdiction of the foreign Court and the Respondent, in an individual capacity, had not accepted the jurisdiction. This was one of the reasons for which the High Court held that the decree against the Respondent was not executable.

The High Court in the above case had referred to a decision of the Madras High Court in the case of Ramanathan Chettiar v. Kalimuthu Pillai AIR 1914 Mad. 556, which lays down the circumstances when the foreign courts would have jurisdiction under this Section. The circumstances mentioned are as follows:

a)Where the person is a subject of the foreign country in which the judgment has been obtained                             against him on prior occasions. b) Where he is a resident in foreign country when the action is commenced. c) Where a person selects the foreign Court as the forum for taking action in the capacity of a plaintiff, in which forum he is sued later. d) Where the party on summons voluntarily appears e) Where by an agreement a person has contracted to submit himself to the forum in which the judgment is obtained.

In the case of Oomer Hajee Ayoob Sait v. Thirunavukkarasu Pandaram, the Madras High Court while dealing with the issue of submission to jurisdiction held that mere conduct or circumstances indicative of intention to submit to the jurisdiction is enough to derive a conclusion of submission to jurisdiction. In the present case, during the pendency of the suit, plaintiff effected attachment before judgment of certain property of the defendant and the defendant by a letter acknowledged the attachment and requested merely for a concession, which was not a conditional request and when the offer is refused and the defendant remained ex parte and the suit was decreed, it was deemed that the defendant submitted to the jurisdiction of the foreign Court.

In the case of British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries Ltd. the Supreme Court held that even though the defendant had taken the plea of lack of jurisdiction before the trial Court but did not take the plea before the Appeal Court or in the Special Leave Petition before the Supreme Court, it amounted to submission to jurisdiction.

           PROPOSITION

 

By reading the aforesaid cases under Section 13(a) of CPC the following proposition may be laid:

 

In case of actions-in-personam, a Foreign Court may pass a decree or judgment against an Indian defendant, who is served with the summons but has chosen to remain ex parte. But the said judgment or decree may be enforceable against such a defendant in India, only if by fulfilling any of the following conditions it can be shown that the Foreign Court had jurisdiction upon the Indian defendant:

 

  • Where the person is a subject of the foreign country in which the judgment has been obtained against him on prior occasions.
  • Where he is a resident in foreign country when the action is commenced.
  • Where a person selects the foreign Court as the forum for taking action in the capacity of a plaintiff, in which forum he is sued later
  • Where the party on summons voluntarily appears
  • Where by an agreement a person has contracted to submit himself to the forum in which the judgment is obtained

 

 

 

 

  • Not given on the merits of the case:

 

 

The fountainhead of all decisions under this head has been the decision of the Privy Council in the case of D.T. Keymer v. P. Viswanatham. In this case, a suit for money was brought in the English Courts against the defendant as partner of a certain firm, wherein the latter denied that he was a partner and also that any money was due. Thereupon the defendant was served with certain interrogatories to be answered. On his omission to answer them his defence was struck off and judgment entered for the plaintiff. When the judgment was sought to be enforced in India, the defendant raised the objection that the judgment had not been rendered on the merits of the case and hence was not conclusive under the meaning of S. 13(b) of CPC. The matter reached the Privy Council, where the Court held that since the defendant’s defence was struck down and it was treated as if the defendant had not defended the claim and the claim of the plaintiff was not investigated into, the decision was not conclusive in the meaning of S. 13(b) and therefore, could not be enforced in India.

In deciding International Woolen Mill’s case (supra), the Supreme Court of India also noted with approval the decision rendered by the Kerala High Court in the case of Govindan Asari Kesavan Asari v. Shankaran Asari Balakrishnan Asari AIR (1958) Ker. 203 wherein the Kerala High Court held as follows :-

(a) In construing section 13 of the CPC, the Indian Court has to be guided by the plain meaning of the word and expressions used in the section itself and not by other extraneous considerations. There is nothing in the section to suggest that the expression “judgment on the merits” has been used in contradistinction to a decision on a matter of form or by way of penalty.

(b) The section prescribes the conditions to be satisfied by a foreign judgment in order that it may be accepted by an Indian Court as conclusive between the parties thereto or between parties under whom they or any of them litigate under the same title. One such condition is that the judgment must have been given on the merits of the case.

“Whether the judgment is one on the merits, must be apparent from the judgment itself. It is not enough if there is a decree or a decision by the foreign court. In fact, the word “decree” does not find a place anywhere in the section.

What is required is that there must have been a judgment. What the nature of that judgment should be is also indicated by the opening portions of the section where it is stated that the judgment must have directly adjudicated upon the questions arising between the parties”.

(c) The Court must have applied its mind to that matter and must have considered the evidence made available to it in order that it may be said that there has been an adjudication upon the merits of the case. It cannot be said such a decision on the merits is possible only in cases where the defendant enters appearance and contests the plaintiff’s claim. Even where the defendant chooses to remain ex-parte and to keep out, it is possible for the plaintiff to adduce evidence in support of his claim and such evidence is generally insisted on by the Courts in India, so that the Court may give a decision on the merits of the plaintiff’s case after a due consideration of such evidence, instead of dispensing with such considerations and giving a decree merely on account of the default of appearance of the defendant.

     PROPOSITION

Under Section 13(b) of CPC the following proposition may be laid:

A judgment or decree passed by a Foreign Court against an Indian defendant, who has    chosen to remain ex-parte, may not be enforceable against him, until unless it can be shown that the said judgment was passed after investigation into, and leading of evidence on the plaintiff’s claim

 

 

  1. Where the judgment is passed disregarding the Indian Law or the International Law. –

 

      In the case of Panchapakesa Iyer v. K.N. Hussain Muhammad Rowther, the facts were that the foreign Court granted the probate of a will in the favour of the executors. The property was mostly under the jurisdiction of the foreign Court, but some of it was in India. A suit came to be filed by the wife of the testator against the executors for a claim of a share in the property. The suit of the widow was decreed and a part of it was satisfied. The remaining part the widow assigned in favour of the Plaintiff in the present suit. In the present suit the Plaintiff relied upon the foreign judgment for a claim against the defendants for a share in the property within the jurisdiction of the domestic Court. One of the defences which was taken for resisting the suit was that the widow’s claim was founded upon a breach of a law in force in India. The Court observed that

She made as the Learned Subordinate Judge has found in another part of his judgment, a claim which could not be entirely supported by the law of British India; but that is a different thing from founding a claim on a breach of the law in British India, for instance a claim in respect of a contract which is prohibited in British India.”

 

      Another issue which fell for the Courts consideration was that whether the foreign Court had decreed the suit on an incorrect view of International Law. In this regard the Court held that the foreign Court had adopted an incorrect view of International Law, since a foreign Court does not have jurisdiction over the immovable property situated in the other Country’s Court’s jurisdiction. Therefore the judgment was declared to be inconclusive and unenforceable in India.

 

PROPOSITION

       Under Section 13(c) of CPC the following proposition may be laid:

 

  • A judgment or decree passed by a foreign Court upon a claim for immovable property which is situate in the Indian territory may not be enforceable since it offends International Law.
  • A judgment or decree passed by the foreign Court to where before a contrary Indian law had been shown, but the Court had refused to recognise the law, then that Judgement or decree may not be enforceable. However if the proper law of contract is the foreign law then this may not be applicable. 

 

 

  1.  
  • Where the proceedings in which judgment was obtained are opposed to natural justice –  

 

  1.  
  2.  

In the case of Sankaran Govindan v. Lakshmi Bharathi, the Supreme Court while interpreting the scope of S. 13(d) and the expression “principles of natural justice” in the context of foreign judgments held as follows:

 

“… it merely relates to the alleged irregularities in procedure adopted by the adjudicating court and has nothing to do with the merits of the case. If the proceedings be in accordance with the practice of the foreign court but that practice is not in accordance with natural justice, this court will not allow it to be concluded by them. In other words, the courts are vigilant to see that the defendant had not been deprived of an opportunity to present his side of the case. … The wholesome maxim audi alterem partem is deemed to be universal, not merely of domestic application, and therefore, the only question is, whether the minors had an opportunity of contesting the proceeding in the English Court. If notices of the proceedings were served on their natural guardians, but they did not appear on behalf of the minors although they put in appearance in the proceedings in their personal capacity, what could the foreign court do except to appoint a court guardian for the minors.”

 

PROPOSITION

 

Under Section 13(d) of CPC the following proposition may be laid:

 

The Foreign Court which delivers the judgment or decree must be composed of impartial persons, must act fairly, without bias in good faith, and it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case, in order to avoid any allegation of not fulfilling the principles of natural justice in case the judgment or decree comes to the Indian court for enforcement. Unless this is done the judgment or decree passed by a foreign Court may be opposed to Principles of Natural Justice.

 

  • Where it has been obtained by fraud- In the case of Sankaran v. Lakshmi the Supreme Court held as follows:“In other words, though it is not permissible to show that the court was mistaken, it might be shown that it was misled. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely that on the merits, the decision was one which should not have been rendered but that it can be set aside if the Court was imposed upon or tricked into giving the judgment.” 
  • PROPOSITION 

 

           Under Section 13(e) of CPC the following proposition may be laid:

 

“In case the plaintiff misleads or lies to the Foreign court and the judgment is obtained on that basis, the said Judgment may not be enforceable, however if there is a mistake in the judgment then the Indian courts will not sit as an appeal Court to rectify the mistake”.

 

  1. Where it sustains a claim founded on a breach of any law in force in India –
  2. “It is argued that the Orissa Money Lender’s Act precludes a decree being passed for more than double the principal amount and in passing a decree, based on a claim which violates that rule, the English Court sustained a claim founded on the breach of a law in force in the State of Orissa. I am unable to accept the argument. The claim was not based on the law as prevailing in India at all. Rightly or wrongly, the plaintiffs alleged that the parties were governed not by the Indian law but the English Law. The English Court accepted that plea and were consequently not sustaining a claim based on any violation of the law in India. Suppose, that the defendant had submitted to the jurisdiction of the English Court and that Court passed a decree. Such a decree would by implication have decided that the defendant was bound by English Law and that the Orissa Money Lender’s Act did not apply. Such a decision would be binding from the international point of view and the point could not be further agitated in these Courts.”
  3. In the case of I&G Investment Trust v. Raja of Khalikote, it was held as follows:

 

PROPOSITION

             Under Section 13(f) of CPC the following proposition may be laid:

 

A judgment or a decree, passed by a foreign court, on a claim founded on a breach of any law in force in India may not be enforceable. However, in case it is based upon a contract having a different “proper law of the contract” then it may be enforced.

 

 

 

 

 

 

 

 

 

With the liberalization of Indian economy and the globalization of business activities, there is now almost a free flow of foreign capital/funds in India and similarly Indian companies are increasingly investing in foreign companies. Naturally, in many such international contracts, there are provisions for settlement of inter-se disputes through arbitration at International level or through the adjudication of disputes by the foreign courts. While routinely signing such international contracts may not be in vogue, but still many Indian companies assume that just like in India, litigation in foreign courts will also be protracted and time consuming and that somehow the Indian companies can stall the enforcement of decrees passed by the foreign Courts against Indian companies.

“Recently the Bombay High Court had rendered a judgment ordering admission of a winding up of an Indian company based on the decree passed by a foreign court”

 

The Bombay High Court has passed a judgment in China Shipping Development Co. Limited v. Lanyard Foods Limited (2007-77 SCL 197-Bom) wherein the High Court has held that a petition for winding up of an Indian company would be maintainable on the basis of judgment of foreign Court. In the above case before the Bombay High Court, the foreign company delivered cargo to the Indian company in compliance with requests made by the Indian company and in the process the foreign company had incurred certain liabilities towards third parties and it had to pay certain amount in legal proceedings and therefore, in terms of the letter of indemnity issued by the respondent Indian company, the foreign company claimed the amount from the respondent Indian company, which denied its liability and therefore the foreign petitioner company initiated legal proceedings against the Indian company in the English Courts as provided in the Letter of Indemnity. The respondent Indian company did not file defence and therefore the English Court passed ex-parte order awarding certain amount in favor of the petitioner foreign company and the foreign court’s order made it clear that the said order was passed on consideration of evidence and was a judgment granted on merits of the claim filed by the foreign company. By a notice issued under sections 433 and 434 of the Companies Act, 1956, the petitioner foreign company called upon the respondent Indian company to pay the amount due under the order of the English Court. As the respondent Indian company still did not pay the amount, the Petitioner foreign company filed a petition for winding up of the Indian company. In the above circumstances since the records of the case manifestly revealed that the respondent Indian company was unable to pay its debts, the petition for winding up was admitted vide order dated 4.4.2007 under sections 433 and 434 of the Companies Act, 1956.

 

 

Therefore the Analysis of the legal issues involved in enforcement of foreign decrees in India emphasizes the need for the Indian business sectors not to treat the summons received from foreign courts casually and enter appearance and make submissions against the plaint initiated in the foreign courts. Otherwise, to contend at a later stage that the foreign decision/decree is not based on “merit” and does not conform to the provisions of the Indian Civil Procedure Code, may turn out to be too much of a risk and may jeopardize the protective umbrella which the Indian companies are so accustomed to while dealing with litigations in Indian courts.                                                                                                                                    

                                                                                                                                            AASHISH. M DAFARIA

  CHENNAI LAW ASSOCIATES.

Private International Law

CUSTODY OF CHILDREN/VISITATION RIGHTS, ENFORCEMENT OF FOREIGN DECREE THROUGH WRIT JURISDICTION

 

Jurisdictional issues and applicability of the correct domestic law and conflict of legal remedies in Indian courts viz-a-viz foreign courts have assumed great PRIVATE INTERNATIONAL LAWcustody importance in the recent past in view of the world becoming a global village.  The realm of Private International Law has assumed greater significance and dimensions with the spread of the Indian community across the globe in large numbers. Young and enterprising men and women desirous of career opportunities abroad, move on and relocate themselves for permanent settlement in foreign countries without any hesitation to satisfy their financial needs apart from enhancing their technical skills and intellectual content.  We, Indians are being appreciated across the globe for our adaptability to new language, community living and altogether new lifestyles.  While all these positives have come with the economic growth and the pursuit for excellence abroad in our younger generation, the most important aspects of our culture and value systems have received a true and genuine beating.  As a result in many cases pertaining to Indian spouses/couples settled abroad, we can notice incompatibility of temperament (not at an acceptable marginal level but at a very high level), intolerance to accept the changed life style of either of the partners and constant stress in the marital relationship of spouses/couples living abroad with or without children.  Constant stress and matrimonial discord, invariably leads one of the parties to seek redress within the legal system of the country which they have chosen to pursue their dreams.

In very many cases it is not uncommon to find either the husband or the wife or the live in partner or the spouse, to abscond from the foreign soil in order to escape from the legal clutches of the country where they chose to pursue their dreams.  While absconding from the foreign court’s jurisdiction in most cases we can observe that either one or more children of the couple are taken by the parent who absconds and a whole lot of proceedings are initiated in our country i.e. in India relying on the Guardian and Wards Act and other laws relating to family disputes in India.  The aggrieved person domiciled in the foreign country also resorts to getting remedies legally through such courts having jurisdiction to decide issues like custody, child care, protection of children etc. from the courts of the country of domicile.  Resultant outcome is passing of orders of different nature in both countries favoring either of them.  Most of the times both the spouses decide to remain ex-parte in the foreign jurisdiction and orders are being passed in the absence of either of them.

 

The following case laws from the Hon’ble Supreme Court and other High Courts has stressed the need to redirect the party approaching Indian courts to their respective country of domicile for pursuing legal remedies such as custody of minor children in the absence of any orders being passed by foreign courts.  However if orders have already been passed by foreign courts the party residing in India where the wife or the husband with or without children are directed to pursue, contest and bring to finality the orders regarding custody of children in the foreign court which is the court of the country where the parties had domiciled foregoing their Indian citizenship.

 

  • Isabell Singh V. Ram Sing and Anr, reported in AIR 1985 Raj 30, – “I am thus satisfied that it would be in the welfare of both Joanna and Lisa if their custody is restored to the petitioner and she is allowed to take them to the United States of America. I would accordingly direct that the Respondent Ram Singh shall handover the custody of both Joanna and Lisa to the petitioner forthwith. The petitioner is entitled and is hereby authorized to take the children to the United States of America.”

 

 

  • Elizabeth Dinsha -Vs- Arvand M. Dinshaw & Anr, reported in 1987 (1) SCC 42 – “As already observed by us, quite independently of this consideration, we have come to the firm conclusion that it will be in the best interests of the minor child that he should go back with his mother to the United States of America and continue there as a ward of the concerned court having jurisdiction in the State of Michigan.”

 

  • V. Ravi Chandran –Vs- Union of India & Ors., (2010) 1 SCC 174 – “However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the Jurisdiction of the Court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspect relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest if the child.”

 

  • Elizabeth Packiam & Another –Vs- State of Tamil Nadu,. CDJ 2013 MHC 3660, – “Finding the petitioners have approached this court with utmost promptitude, that the minors were ordinarily residents of Australia, that no elaborate enquiry into the merits of the rival contentions is called for and it would be appropriate to allow the Courts of the Country of the minors natural habitat to decide upon custody and related issues this court allows this petition.”

 

“…………as the minors were not ordinarily resident in India and that it would be best to leave issues relating to their custody to Courts in their country of habitat, Australia.”

 

Both the parents are found to use minor children either one of them or all of them to some practical advantage in order to settle personal scores.  While doing so either of the parents are often involved in character assassination of their counter parts.  Prejudicing the tender mind of the minor children courts could cause havoc in the psyche of the young kids who are in the company of a single parent either the mother or the father.  Children are taught the worst things about their father or mother living in separation due to forced circumstances to tarnish the image of their counterpart and to boost and show that the parent with whom the child is currently living is the best in the world. To satisfy their personal egos, to wreck vengeance on the other partner, unmindful of the agonizing effect that is being etched on the delicate mind of the young child such acts are consciously pursued by none other than the parents.  Winning legal battles and teaching a lesson to the life partner takes centre stage and priority and the spouses are not afraid of cleaning up their savings to achieve the said goal. Some single parents are seen working overtime to make money for budgeting the legal expenses likely to be incurred in prosecuting and defending proceedings. Children also take undue advantage and increase their demands and requirements knowing fully well that certain requirements of theirs will be met if the parent with whom they are residing is made happy even by accusing the other parent.  Lot of emotional undesirable changes affecting the character of the child in the long run gets registered, nurtured and projected unknowingly.  The words such as co-parenting, single mother, single father etc., have all gained significance due to the recent globalization and opening of career opportunities throughout the world. Courts have also started to consider foreign judgments as binding on parties and in all the above Supreme Court decisions, we find that due respect for a foreign decree is being canvassed and subscribed with the authority by the Apex Court of our country perhaps to curb malicious prosecution, self serving litigation etc.

Even though prescribed provision of Public International Law requires only signatory countries to the treaty to honour their counterpart judgments and decrees, the Supreme Court is still considering the nuances, and changes in the Private International Law has come to the aid of the spouse who had secured appropriate orders regarding custody of children from the competent court.  The Supreme Court would go on to add a phrase “comity of courts” to bring in a host of other countries who are not signatories to the treaty regarding execution of foreign decrees.

Writ of Habeas Corpus generally considered as a remedy for securing a detenu who is in illegal custody of either the law enforcement agency or individuals, is the writ i.e. being invoked by the aggrieved parent against whose wish and consent the minor child has been withdrawn from the country of their domicile to the country of birth of the other parent. Various guidelines have been framed by the Supreme Court and the High Courts as to when and how the writ jurisdiction can and cannot be invoked and courts have always come to the rescue of the aggrieved parent by directing the return of custody of children along with their passports with a direction to the other parent to participate in any proceedings relating to custody in a competent court in the country of their domicile.  The spheres of 2 courts, the applicability of laws regarding jurisdiction, the management of litigation and the urgent interim measures regarding visitation rights of either of the parents pending litigation and the temporary custody are all aspects for which proper and effective legal remedy can be availed by invoking article 226 of the Constitution of India or Article 32 of the Constitution of India either before the Hon’ble High Courts or before the Apex Court as the case may be.  The above mentioned case laws will give enough insight into the legal topic private international law – custody of children/visitation rights and enforcement of foreign decree.

  M.L. Joseph

 

Fear Of The Mighty – Fearlesness Of The Judiciary

M.L.Joseph,
Managing partner, Chennai Law Associates

Rights, Remedies and Consequences

On 27.07.2014 the Special Trial Judge, John Michael D’Cunha passed an order of conviction after hearing the arguments of the prosecution and defence against the former Chief Minister of Tamil Nadu, Selvi Jayalalitha and 3 others in the Rs.66.65 Crores disproportionate assets case. After coming to the conclusion that the guilt of the accused has been proved by the prosecution beyond reasonable doubts the Special Court sentenced Selvi Jayalalitha to four years imprisonment along with a fine of Rs.100 Crores and confiscated the seized properties and also awarded the same imprisonment for other accused while awarding a lesser fine of Rs. 10 Crores each.
This article is not meant to scrutinise the merits and de-merits of the Judgment passed by the Special Trial Judge but intends to go deeper into the legalities, repercussions, ramifications surrounding the order and the propriety expected to be maintained by individuals, societies, groups etc in light of such high profile judgments.
Section 389 of the Code of Criminal Procedure lays down the procedure of suspension of sentence pending an appeal; release of appellant on bail. As per the section, the appellate court can suspend the sentence for reasons to be recorded in writing and if the convicted person is in confinement he or she can be released on bail. The section further states that the power of suspension of sentence can be exercised by the Court which has sentenced the accused without requiring the accused to invoke the appellate authority, if the term of conviction does not exceed three years. In such event the accused, subject to granting of such suspension of sentence by the trial Court itself under Section 389 (3) of CrPC, would not be required to go to the prison immediately. However in the present case as the imprisonment is for 4 years the Sessions Judge ( the Trial Court) is not at liberty to exercise such powers and hence Selvi Jayalalitha and the other accused had to undergo imprisonment immediately. Section 389 CrPC is extracted herein below:
“Section 389 in The Code Of Criminal Procedure, 1973
389. Suspension of sentence pending the appeal; release of appellant on bail.

(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

Provided that the Appellate Court shall, before releasing on bail or on his own Bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term not less than 10 years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.”
Section 389 has a larger importance in the present case in view of the proviso to Section 389 (1) which was inserted by The Criminal Law (Amendment) Act, 2005. The proviso as extracted above does not make it mandatory for the appellate court to give an opportunity to the Public Prosecutor for showing cause in writing against such release if the offence is not punishable with death, imprisonment for life or if the period of punishment is less than 10 years. However at the same time the proviso does not make it mandatory for such appellate courts not to hear the objections in such cases as well. In legal parlance the courts are vested with a discretionary power to call for objections even if the period of imprisonment is less than 10 years or if the offence is not punishable with death or imprisonment for life. Therefore in the present case the accused cannot ask as a matter of right before the appellate court waive the hearing of objections of the Public Prosecutor in suspending the sentence and granting of bail. In fact after an eminent Senior Advocate of the Supreme Court filed an advance hearing petition before the Chief Justice Court in the Karnataka High Court for hearing the matter urgently the CJ had directed for the formation of special vacation bench headed by Justice Ratnakala on 1st October, 2014. However the Bench insisted that the hearing of suspension of sentence and bail application would have to wait until a public prosecutor is appointed and specifically stated that the case required representation from the prosecution side and hence adjourned the matter perhaps by exercising the said discretion vested with the Appellate Judge.
A bare reading of the Preamble of the Representation of Peoples Act, 1951 ( RPA) makes it amply clear that the intention of the Legislators was to prevent persons involved in corrupt practices from representing the people in the House of Parliament and the House of Legislators. The Apex Court has on every occasion ensured that the spirit of the Act is protected and amendments which has the effect of diluting the legislative intention is struck down. The Supreme Court on 10th July, 2013 gave a landmark judgment whereby a bench comprising of Justice A.K.Patnaik and Justice S.J. Mukhopadiya reported in Lilly Thomas vs Union of India reported in 2013 (3) SCC (Cr) 641 struck down Section 8(4) of the Representation of Peoples Act, 1951 as unconstitutional. The said section before being struck down by Supreme Court was brought into force by an amendment in the year 1989 whereby the disqualification as prescribed under Section 8 of the Act will not be effective until the appeal or application against an order of conviction is disposed off. This provided an opportunity for the convicted representatives to file an appeal and continue to be in power and enjoy all the fruits attached therewith for a considerably longer period of time even after conviction. The relevant portion of the Judgment reads as follows:
“Looking at the affirmative terms of Articles 102(1) (e) and 191(1) (e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3) (a) and 190(3) (a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.”
The question as to whether a convicted member of Parliament or a State Legislature and a sitting member of a House of Parliament or a House of State Legislature faces further punishment under the Representation of Peoples Act, 1951 besides the conviction already passed against him or her has to be answered by giving due importance to Article 102 (1) (e) and 191 (1) (e) of the Constitution of India. The said Article empowers the Parliament to pass laws that may disqualify membership in either house of Parliament. A disqualification from either the Parliament or State Legislature cannot be equated to a punishment under any of the penal laws of the land. A member of a Parliament or State Legislature is expected to follow certain standards, principles, values and the Constitution has been given sufficient powers to disqualify members indulging in any act which is in contradiction to the dignity of the post that he or she holds. As politics is perceived to be a service to the people and not an occupation or employment such disqualification cannot be termed to be a punishment but only certain checks made by the Legislatures themselves to uphold the integrity of the House of Parliament and State Legislature.
Article 20 of the Constitution of India clearly protects persons from conviction of offences retrospectively. Article 20 reads as follows:
“20. Protection in respect of conviction for offences
(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence
……………………………………..”

Therefore if the law of the land does not deem an act to be an offence at the time of commission of such act or prescribes a lesser punishment, then the person cannot be either convicted or sentenced to a higher punishment subsequently on account of amendment of any law.

From a bear reading of the excerpts of the operative portion of the Judgment of conviction and sentences many question regarding the harshness of the sentence pertaining to imprisonment for 4 years is being discussed in the print and electronic media at length and debated for both sides non-stop on different television channels. Whether the new law prescribing a minimum of 4 years and a maximum of ten years and the intention of the Legislature to bring such an enhanced punishment for the same offence and the said minimum sentence itself being 4 years have all created a psychological bench mark in the mind of the trial Judge while fixing the quantum of sentence are all nuances of Criminal Law which will remain to be answered by High Court or the Supreme Court at appropriate stages of the respective appeals and the outcome of such arguments and findings in such judgments from the appellate Courts will indeed offer great insight into such finer aspects of Criminal Law in general and post conviction consequences, rights, remedies and also provide sufficient guidelines for judicial duties of a trial judge after recording his judgment of conviction.

While there will be voluminous arguments in the ongoing appeal regarding the quantum of sentence the impact of a new law ( Representation of Peoples Act, 1951 as it stands now) relating to disqualification of an MLA and thereby directly disqualifying a Chief Minister in office, post conviction in a Criminal case maybe of grave concern to the first appellant, Selvi Jayalalitha since RPA enabled her to stay as an MLA and Chief Minister by filing a criminal appeal within three months and obtaining suspension of sentence alone and ensuring she doesn’t undergo imprisonment pending appeal, before the landmark judgment given by Hon’ble Apex Court. Therefore a delayed justice in view of the protracted trial which ultimately saw the striking down of a beneficial provision of law for appellants against a judgment of conviction who are members of state legislature or parliament or holding any other office on account of such membership has infact caused huge injustice to the first appellant who is a Chief Minister in power. How and whether there is a legal remedy to such an injustice has to be examined by legal experts outside the purview of the present criminal appeal. The cause for delay and the revisions and appeals filed by the accused at various stages to High Courts and Supreme Court may not be put against the accused particularly after conviction for deciding on the imposition of a heavier sentence of imprisonment. Whether the said delay has also been a parameter for the trial Judge in this case to pass the sentence of 4 years imprisonment as against the minimum of one year as it stands in law for the offences committed during the check period between 1991-1996 are finer questions of law that will be scrutinized and examined by the reputed Judges of higher Judiciary in the present appeal. The fact that any judgment of the trial Court requires a re-look by a higher Judiciary is the very basis of appellate jurisdiction of High Court and Supreme Court. It is from this fact that the right of appeal stems out. Every accused despite a judgment of conviction is statutorily entitled to challenge the said judgment and sentences under the provisions of law. If the accused was on bail throughout the trial period and the trial Judge could suspend the sentence of imprisonment if he had imposed it within the statutory slab of 3 years then in all probabilities the High Court will exercise discretion in suspending the sentence for the enhanced imposition of one year with perhaps appropriate bail conditions. Whether the appellant should remain in judicial custody for a longer period during the hearing of an application to suspend the sentence of imprisonment and fine are again absolutely discretionary powers wholly vested with the appellate Judge. The Appellant has to only await favourable interim orders at the earliest in the given circumstances.

It is unfortunate that a judgment is being discussed with utter disregard by people related to the accused or attached emotionally to the accused and organising public protest (even in a peaceful manner) particularly when the criminal case that ended in conviction was an individual case nothing to do with the rights of any State, people at large, community of linguistic or religious nature or a social issue of national or regional importance etc. It is also unfortunate that several imaginary theories without any substance including theories of conspiracy by politicians and political parties be alleged by individuals and groups against the judgment of conviction and sentences that is subjected to an appeal and now pending scrutiny by the High Court. Whether the High Court can direct print, electronic and social media from exercising restrain of the highest order to avoid scandalous and unfair public opinion being created on lower judiciary. Whether the appellate court can do it suo motto or whether the High Court in writ jurisdiction can take judicial notice of such developments are again finer areas of law which definitely requires introspection by the higher judiciary. Whether there is a bias against the appellant in the appellate court trying to guard and protect the morale of the trial Judge by unduly delaying the hearing of an otherwise normal criminal appeal in which accused are sentenced for a period of 4 years but for the high profile individuals ranked as accused before the trial court, is also a question which will have to be answered with judicial conscience by the appellate Judge.
Burning of effigies, shutdown of shops and establishments, black days, protesters mouth tied with black band, sadness and gloom and grief expressed by Ministers swearing in at a Government ceremony ( reading out of the oath of fearlessness, integrity, not showing favour etc) and demonstrating perhaps some sort of fear, lack of integrity to the sovereign function and perhaps an indication to favour at least their leader, may all have sent varied signals to the literate/ educated class on one hand and the illiterate and emotional masses following the popular leader on the other hand and result in varied reactions/consequences. The public sentiment happening voluntarily and being indirectly spread through the above acts of literate and illiterate people undoubtedly causes public nuisance and may also affect the daily routine of an ordinary person.
Law relating to fines: Whether the imposition of 100 Crore fine on A1 is justified. Does it show bias of any nature by the judge as against the accused and has the power of A1 become a reason for the trial judge to react in a more than harsh manner, perhaps causing bias to his own reasoning, for imposition of a bigger sentence and an exorbitant fine? Has a legal ego kick started during the process of judgment writing to impose the highest fine that has been imposed on an individual in a criminal case in the sentence of Indian judiciary? Whether practice of High Court insisting on payment of fine as pre-requisite condition for entertaining suspension of sentence of imprisonment and thereafter suspending only sentence of imprisonment and not the sentence of fine was another reason by the trial judge to impose such a heavy fine on an individual and make her personal liberty ( to which she is entitled pending appeal) herculean or difficult legally? Whether there is a bias against the particular accused on that portion of the sentence (fine) will all be explored at great depths by legal luminaries inside and outside the court hall in the days to come. Being popular, powerful and appearing to be rich vis-a-vis the fate of common man in prolonged litigation and post conviction sufferings before being granted personal liberty pending appeal and the moral determination and inner ego of a strict judge to ensure that justice should also be seen to be done and perhaps going a little further than the judicial requirement which “little” causes huge impact on legal and social repercussions and ramifications, will also be hopefully dealt with sufficient justification and explanation in this sensitive appeal involving various finer questions of law.
The attempt of the author has only been to view the post conviction situation of a sensitive case in all angles of law and frame searching questions which can be answered only by persons with judicial knowledge, judicial conscience and perhaps guide the society at large to act with social sense, constitutional responsibilities of individuals and communities even in the wake of unexpected or unfavourable verdicts coming against popular persons and leaders in power and the restraint required to be exercised by every responsible citizen of the country. It is only hoped that our judiciary which is an independent judiciary with a sound appellate system to cure defects if any at various stages of the case in a legal manner will definitely address even such wider issues while pronouncing judgments in such sensitive appeals.