IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 899 of 2009()
1. MONICA DANIEL
... Petitioner
Vs
1. DANIAL THOMAS AND OTHERS
... Respondent
For Petitioner :SRI.SIVAN MADATHIL
For Respondent :SRI.SUNNY XAVIER, ACGSC
The Hon'ble the Chief Justice MR.S.R.BANNURMATH
The Hon'ble MR. Justice KURIAN JOSEPH
Dated :15/04/2009
O R D E R
S.R.BANNURMATH, C.J. & KURIAN JOSEPH, J.
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W.A.No.899/2009
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Dated this the 15th day of April, 2009
JUDGMENT
Kurian Joseph, J.
The appellant is the writ petitioner. The writ petition was filed
with the following prayers:-
i) Declare that the Ext. P5 decree passed by the Law Court of U.A.E. in suite
No. 69/2004 dated 30-1-2005 which is confirmed in appeal No. 94/2005
dated 30-4-2005 as per Ext. P6, and also in Judgment of appeal of Cessation
in No. 57/2005 dated 19-12-2005 as per Ex. P7, and also in Judgment of
Appeal with Cessation No. 20/2006 dated 5-12-2006 as Ext. P8 are passed
without jurisdiction, without appreciating real merits of the case and further
the decree was obtained by fraud, violative of legal principles and violative
of natural justice and hence null and void.
ii) Declare that petitioner have the competency to raise the matrimonial dispute
against the 1st respondent in appropriate court of law in India.
iii) Issue a writ of mandamus or any other appropriate writ, order or direction
commanding the respondents to permit the petitioner to meet and
communicate with her daughter as per any conditions imposed by this
Hon’ble Court.
iv) To declare that the Indian courts have competent Jurisdiction to decide the
matter of Divorce and custody of child of the Petitioner and the 1st
Respondent afresh
v) To issue any other writ, order or direction which this Hon’ble Court deem
fit and proper as per the facts and circumstances of the case
The learned single Judge held that the reliefs are not to be granted under
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Article 226 of the Constitution of India and hence the writ petition was
disposed of without prejudice to the liberty to the petitioner to approach
the proper forum. Aggrieved, the petitioner has come up in appeal.
2. The brief facts are as follows. Petitioner and the first respondent
are Christians. The petitioner is married to the first respondent according
to the Christian rites on 29-7-1993. Ext.P1 is the marriage certificate.
Thereafter they were staying together in Dubai. On 14-1-1997 the
petitioner gave birth to a child. It appears, after a couple of years the
relationship got strained. Ultimately the first respondent filed a suit for
divorce and custody of the child before the Low Court of First Instance,
Dubai. The said Court, by order dated 30-1-2005, granted a decree of
divorce. The custody of the
child was also granted to the father. Copy of the judgment is Ext.P5. The
judgment though challenged in appeal, petitioner could not succeed. That
judgment in the appeal court is Ext.P6. It is to be noticed that as per
Ext.P6 the verdict of divorce was modified as dissolution of marriage.
Petitioner again pursued the matter before the Court of Cassation. The
dissolution of the marriage was confirmed by the appeal court. But the
verdict regarding custody was remitted to the appeal court for fresh
consideration. Copy of the judgment is Ext.P7. Petitioner could not
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succeed on that aspect also before the appeal court. Therefore, the matter
was again pursued before the Court of Cassation. That was dismissed.
Copy of the judgment is Ext.P8. In the meanwhile, though an attempt was
made to patch up the dispute, that was also in vain. The petitioner
thereafter filed a writ petition, W.P(Crl.)No.243/2007 before this Court
praying for a direction to produce the daughter before the Court. A
Division Bench of this court disposed of the writ petition observing that
the dispute has to be adjudicated before the Family Court. That judgment
is Ext. P9. Thereafter only the present writ petition was filed.
3. In the nature of the prayers sought by the writ petitioner, we are afraid,
the same cannot be considered under Article 226 of the Constitution of
India. It is an extra-ordinary jurisdiction. The ordinary jurisdiction is of
civil court, now the Family Court. Petitioner is entitled to move the
Family Court and for that no declaration as such is necessary. The orders
passed by the Courts in Dubai are open to collateral attack on the grounds
mentioned under Section 13 of the Code of Civil Procedure. Placing
reliance on the judgment of the Supreme Court in Satya v. Teja Singh, AIR
1975 SC 105 it is contended that the judgments rendered by foreign courts
are not binding on Indian courts. There cannot be any doubt or dispute on
the well settled principle that the foreign judgment is conclusive as to any
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matter directly adjudicated upon between the parties only subject to the
five norms set out under Section 13 of the CPC. There has to be an
enquiry whether the judgment attracts any of the exceptions enumerated in
the clauses on the following aspects, apart of course from the acid test as
to whether the judgment is between the same parties or between parties
under whom they or any of them claim litigating under the same title: (i)
that the judgment has been pronounced by a Court of competent
jurisdiction, (ii) that it is rendered on the merits of the case, (iii) that it
does not appear on the face of proceedings to be founded on an incorrect
view of international law or a refusal to recognize the law of India in cases
where it is applicable, (iv) that the proceedings in which it was obtained
are not opposed to natural justice, (v) that it has not been obtained by
fraud, or (vi) that it does not sustain a claim founded on a breach of any
law in force in India. Except for the above six situations a foreign
judgment is to be taken as conclusive. Thus the adjudication has to be
done before the Family Court and not under Art. 226 of the Constitution of
India. In fact that is what is held by the Division Bench of this court in
Ext.P9 judgment. Thereafter the petitioner should not have ventured to
file another writ petition, ultimately for the very same reliefs. However,
we find that one observation in the judgment of the learned single Judge
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would perhaps stand in the way of the petitioner pursuing the remedy
before the Family Court. That observation reads as follows:-
“I am not going into the merits of the matter because of the
reason that the various decrees passed by the foreign
courts have become final”.
That part of the judgment is liable to be set aside since the learned single
Judge is not justified in making any such observation when the petitioner
was relegated to pursue the remedy before the proper forum.
The observation in the judgment under appeal to the effect that the
foreign judgments have become final is hence deleted.
The writ petition is disposed of without prejudice to the liberty to
the appellant – petitioner to approach the Family Court on all available
grounds.
S.R.BANNURMATH,
Chief Justice
KURIAN JOSEPH,
Judge
ahg.