{"id":63608,"date":"2005-04-27T00:00:00","date_gmt":"2005-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/t-siva-raman-vs-p-renganayaki-on-27-april-2005"},"modified":"2015-10-30T21:40:31","modified_gmt":"2015-10-30T16:10:31","slug":"t-siva-raman-vs-p-renganayaki-on-27-april-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/t-siva-raman-vs-p-renganayaki-on-27-april-2005","title":{"rendered":"T.Siva Raman vs P.Renganayaki on 27 April, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
T.Siva Raman vs P.Renganayaki on 27 April, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 27\/04\/2005 \n\nCoram \n\nThe Hon'ble Mr.Justice S.SARDAR ZACKRIA HUSSAIN       \n\nCivil Revision Petition (PD)No.2746 of 2003\nand \nC.M.P.No.20747 of 2003 and V.C.M.P.No.1221 of 2004   \n\n\n\nT.Siva Raman                                 ... Petitioner\n\n-Vs-\n\nP.Renganayaki                                 ... Respondent\n\n\n        Civil Revision Petition filed under Article  227  of  Constitution  of\nIndia  against  the  order  dated  30.9.2003 and made in I.A.No.870 of 2003 in\nF.C.O.P.No.1195 of 2002 on the file of the  Second  Additional  Family  Court,\nChennai. \n\n\n!For petitioner :  Prof.S.Krishnaswamy.\n\n^For respondent :  Mr.C.Ravichandran\n\n\n:O R D E R \n<\/pre>\n
        The  revision  is  preferred  by  the husband against the order of the
\npetition in I.A.No.870 of 2003 for dismissing the Original Petition No.1195 of
\n2002 filed by the wife for restitution of conjugal rights.  The  Family  Court
\ndismissed the Petition I.A.No.870 of 2003 as per order dated 30.9.2003.\n<\/p>\n
        2.  The facts of the case are that the revision petitioner married the
\nrespondent  on 16.3.2000 as per Hindu Rites and Customs in Vijaya Raju Kalyana
\nMandapam, Adyar, Chennai and the marriage is an arranged  marriage  and  after
\nmarriage,  the  respondent  stayed in the matrimonial home at B-2, Flat No.26,
\nC.V.Koil Street, Alwar Thirunagar, Chennai-600 087  only  for  five  days  and
\nthereafter,  she  left  India to the United States of America on 30.3.2000 and
\nwho was employed in Arizona as Software Consultant.  The  revision  petitioner
\ngot  a  job in Los Angeles in California State in the United States of America
\nas a Post Graduate  MCA in Computer Application and has  joined  as  Software
\nConsultant on  12.6.2000  at  Rapidigm  in  Los  Angeles.    When the revision
\npetitioner met the respondent on 30.6.2000,  21.7.2000,  4.8.2000,  18.8.2000,
\n8.9.2000  and 29.9.2000 in United States of America, the respondent refused to
\naccommodate so as to co-habitate with the revision petitioner.   The  revision
\npetitioner  lastly  met  her  when she lived in California State in the United
\nStates of America and later she disappeared and despite  the  sincere  efforts
\nthrough U.S.   Search  Com.    the  revision  petitioner could not search her.
\nDuring the visit of the  revision  petitioner  in  India,  on  13.8.2001,  the
\nrevision  petitioner  caused lawyer notice to the respondent to her last known
\naddress in California State in the U.S.  marking a copy to her father  in  his
\naddress  at  Thiruvanmiyur,  Chennai-600  041  and the respondent replied with
\nfalse averments on 15.10.2001.  The  revision  petitioner  sent  rejoinder  on
\n27.11.2001.  After  reply  by  the respondent nothing was heard about her.  On
\nreturn to U.S.  On 18.9.2001 and after waiting for  long  time,  the  revision
\npetitioner  tried for marital settlement agreement as per the American Law for
\nmutual divorce.  There was no response from the respondent.    Thereafter  the
\nrevision  petitioner  filed  a  petition  for  dissolution  of marriage in the
\nSuperior Court of California State, Country of Los Angeles in  the  U.S.    in
\nCase  No.VDO  49409  on 23.4.2002 where the respondent lastly met the revision
\npetitioner at California State  and  within  the  jurisdiction  of  California
\nSuperior Court.    The  respondent filed counter objecting the jurisdiction of
\nthe said Court to which the revision petitioner filed a reply.  When the  case
\nwas  posted in Superior Court of California Country of Las Angeles on 5.8.2002
\nfor the appearance of the respondent, she had run away from U.S.A.   and  came
\nto India.  But, however, filed petition in O.P.No.1195 of 2002 under Section 9
\nof  the  Hindu  Marriage  Act for restitution of conjugal rights in July 2002.
\nThe Superior Court of California granted decree of dissolution of marriage  in
\nthe  Case  No.VDO  49409,  between  the revision petitioner and the respondent
\neffective from 10.2.20 03 and the decree is dated 9.1.2003.  The Family  Court
\nhas  no  jurisdiction  to  continue  the  trial in O.P.No.1195 of 2002 and the
\njudgment of the California Court is binding on the Family Court under  Section
\n4 1  of Indian Evidence Act.  Therefore, the petition O.P.No.1195 of 200 2 for
\nrestitution of conjugal rights by the respondent is not maintainable.   Hence,
\nthe  revision  petitioner has filed the petition I.A.No.870 of 2003 to dismiss
\nthe O.P.No.1195 of 2002 filed by the respondent for  restitution  of  conjugal
\nrights.\n<\/p>\n
        3.   The  petition I.A.No.870 of 2003 was opposed in the counter filed
\nby the respondent that the petition subject matter of this revision  has  been
\nfiled  to drag the proceedings in O.P.No.1195 of 2002 filed for restitution of
\nconjugal rights.  It is  further  stated  that  the  revision  petitioner  has
\nobtained  the  alleged  decree  of  divorce by playing fraud upon the Superior
\nCourt, Los Angeles Country, California and in any event the said Court is  not
\nhaving  competent  jurisdiction  to try matrimonial cause between the revision
\npetitioner and the respondent which was consummated in Chennai, India  and  as
\nsuch, it  is  only  the Family Court, which has got jurisdiction.  The alleged
\ndecree of dissolution of marriage obtained by the revision petitioner is  only
\nan ex  parte  decree.    The respondent never submitted to the jurisdiction of
\nSuperior Court Los Angeles Country, California and  also  her  counsel.    The
\nalleged  decree  of  dissolution  of  marriage delivered by Superior Court Los
\nAngeles Country, California is not valid in law, since it  is  passed  without
\njurisdiction  and  as  such,  Section  41  of  the  Indian Evidence Act is not
\napplicable.  The grounds raised in the  matrimonial  proceedings  in  Superior
\nCourt  Los  Angeles  Country, California are not the grounds covered under the
\nHindu Marriage Act.  It is denied that the respondent remained in U.S.A.    as
\nan independent unmarried woman and that the respondent has no contact with the
\nrevision petitioner  except  for  five  days  after  marriage.    There  is no
\ndesertion even as per American Law and no ground for desertion  as  per  Hindu
\nLaw.  The desertion mentioned in the judgment for dissolution of marriage does
\nnot  confirm  the  requirements  of  desertion  as  per the provision of Hindu
\nMarriage Act.   It  is  denied  that  the  respondent  deserted  the  revision
\npetitioner committing  lot of cruelty against him and against his parents.  It
\nis  also  denied  that  the  respondent  never  cohabited  with  the  revision
\npetitioner   except   for   five   days  immediately  after  the  marriage  at
\nAlwarthirunagar.  The respondent lived  with  the  revision  petitioner  after
\nmarriage  till  30.3.2000 and the revision petitioner refused to live with the
\nrespondent when he came to U.S.A.  in June, 2000 at  the  instigation  of  his
\nparents.  The  respondent  left U.S.A.  in June, 2002 under the instruction of
\nthe revision petitioner so that they can rejoin in India, since  the  revision
\npetitioner  had  planned  to  come  to India in December, 2002 to settle down.
\nThereafter, the respondent did  not  go  to  U.S.A.    and  submitted  to  the
\njurisdiction of the Superior Court Los Angeles Country, California.\n<\/p>\n
        4.  The Second Additional Family Court, Chennai, in refusing to accept
\nthe  case of the revision petitioner\/husband dismissed the petition I.A.No.870
\nof 2003 filed to dismiss the O.P.No.1195 of 2002 filed by the  respondent\/wife
\nfor restitution  of  conjugal  rights,  as  per  order  dated  30.9.2003.  The
\ncorrectness of the order is challenged in this revision.\n<\/p>\n
        5.  Heard  Prof.S.Krishnaswamy,  learned  counsel  appearing  for  the
\nrevision  petitioner\/husband  and Mr.C.Ravichandran, learned counsel appearing
\nfor the respondent\/wife.\n<\/p>\n
        6.  The respondent filed O.P.No.1195 of  2002  in  the  Family  Court,
\nChennai  against  her  husband,  the  revision  petitioner  for restitution of
\nconjugal rights.  The Original Petition was filed  in  July,  2002.    In  the
\nOriginal  Petition,  the  circumstances  that  led to the marriage between the
\nrevision petitioner and the respondent on 16.3.2000 is stated.  It is  further
\nstated  that  the  respondent stayed in her matrimonial home till 30.3.2000 at
\nAlwarthirunagar, Chennai and she left India on that date to U.S.A.   and  also
\narranged job  for  the  revision petitioner in Los Angeles, California.  It is
\nalso stated in the Original Petition that  the  revision  petitioner  and  the
\nrespondent  met  at  weekends,  since  the revision petitioner was employed at
\nArizona and the respondent was employed at Los Angeles.    Both  the  revision
\npetitioner and the respondent celebrated Deepavali at Sanfransisco for 4 days.
\nThey celebrated   their  wedding  anniversary  on  16.3.2001.    The  revision
\npetitioner told the respondent to accept a job offer  in  Virginia  in  March,
\n2001 and the revision petitioner also promised that he will get a job and both
\ncan live  together.    The  respondent  joined  the job in April 2001, but the
\nrespondent did not keep up his words.  The revision petitioner alone  went  to
\nIndia without informing the respondent and when the respondent called him over
\nphone  in  India,  the  revision  petitioner’s  parents  told her to give bank
\nbalance or agree for mutual divorce.  Though the respondent informed that  she
\nwants  to  live  with her husband, the revision petitioner, he refused to live
\nwith her and caused a lawyer notice dated 8.9.2001, to which a reply was  sent
\non 15.10.2001.   The  revision  petitioner  sent rejoinder.  The respondent is
\nwilling to live with her husband, the revision petitioner, in  separate  house
\nand she  has left her job in U.S.A.  and settled down in India for the purpose
\nof rejoining with her husband, the revision petitioner.\n<\/p>\n
        7.  The said petition filed for  restitution  of  conjugal  rights  is
\nresisted  in the counter filed by the revision petitioner on 24.2.2003 raising
\nthe very same averments as raised in the affidavit filed  in  support  of  the
\npetition I.A.No.870  of  2003,  which  was also filed on the same day i.e.  on
\n24.2.2003, subject matter of this revision.\n<\/p>\n
        8.  The learned counsel for the revision petitioner vehemently  argued
\nnarrating  the  facts and circumstances which led to the filing of the divorce
\npetition in Superior  Court  of  California  and  immediately  the  respondent
\nengaged  a  counsel and since she did not appear for the final hearing, decree
\nof divorce has been granted by the said Court and as such, O.P.No.1195 of 2002
\nfiled  by  the  respondent  for  restitution  of  conjugal   rights   is   not
\nmaintainable.   According  to the learned counsel that both the parties, viz.,
\nthe revision petitioner and the respondent belong to Hindu Community and their
\nmarriage was solemnised on 16.3.2000 as per Hindu Rites and Customs,  inasmuch
\nas both the revision petitioner and the respondent, who were in America during
\nthe  relevant  time  and  within  the  jurisdiction  of  the Superior Court of
\nCalifornia, the divorce granted by that Court as per  American  Laws  is  very
\nmuch in  force.  In this regard, the learned counsel also submitted that after
\nthe summons have been duly served on the respondent from the Superior Court of
\nCalifornia in which she also  entered  appearance  through  counsel,  but  not
\nappeared  for  the final hearing, in which day it was posted for consideration
\nof divorce petition filed by the revision petitioner.  For her non-appearance,
\ndivorce has been granted.  Inasmuch as the petition for divorce was  filed  by
\nthe  revision  petitioner, in which summons was served upon the respondent and
\nto escape from the divorce proceedings, the respondent had left California  to
\nChennai,  India  and has filed O.P.No.1195 of 2002 for restitution of conjugal
\nrights in July, 2002.  Therefore, according to the learned counsel, since  the
\nrevision  petitioner  and  his  wife having separated by the decree of divorce
\ngranted by the Superior Court of California, the O.P.No.1195 of 2002 filed  by
\nthe  respondent\/wife  in  the  Family  Court  at  Chennai  is  very  much  not
\nmaintainable.  In support of such contentions, the learned counsel has  relied
\non the following decisions:-\n<\/p>\n
        (1) Ishri Prasad    vs.  – Sri Ram reported in A.I.R.  1927 Allahabad
\n510, in which it is held that  burden  of  proving  want  of  jurisdiction  in
\nforeign court is on defendant.  It is further held thus:-\n<\/p>\n
        “It  is  well settled rule of international law that Courts cannot, by
\ntheir judgments, bind absent  foreigners  who  have  not  submitted  to  their
\njurisdiction,  and  can only exercise jurisdiction over persons who are within
\nthe territorial limits of their jurisdiction, and, therefore, a judgment of  a
\nforeign Court obtained against a defendant cannot be enforced in British India
\nwhere  the  defendant  at  the  time of the commencement of the suit was not a
\nsubject of, nor resident in, the country in which the judgment  was  obtained.
\nTherefore  in  a  suit  based on a foreign judgment, one of the questions that
\narises for consideration is, was the defendant at the time of the commencement
\nof the suit in the foreign Court residing within the territorial limits of the
\njurisdiction of the State  in  which  the  suit  was  brought.    But  on  the
\nproduction  of  a  certified  copy of a foreign judgment the Court is bound to
\npresume that the judgment was pronounced by a Court of competent  jurisdiction
\nand  therefore  it  devolves  on the defendant by his pleading and evidence to
\ndeny and disprove every fact and circumstance which negative the  jurisdiction
\nof the foreign Court.”\n<\/p>\n
        (2) Sankaran Govindan  vs.  – Lakshmi Bharathi and others reported in
\nA.I.R.   1974 Supreme Court 1764, in which, the Hon’ble Supreme Court has held
\nthus:-\n<\/p>\n
        “Unless a foreign Court has jurisdiction in the international sense, a
\njudgment delivered by that Court would not be  recognised  or  enforceable  in
\nIndia.   The  true  basis  of  enforcement  of  a foreign judgment is that the
\njudgment imposes an obligation upon the defendant and, therefore,  there  must
\nbe  a  connection  between him and the forum sufficiently close to make it his
\nduty to perform that obligation.”\n<\/p>\n
        (3) Nirmala Balagopal  vs.  – Venkatesulu Balagopal reported  in  200
\n3(4) C.T.C.  451, in which, this Court has held thus:-\n<\/p>\n
        “Contract Act, 1872,  Section  70.  Fraud.  Wife filed proceedings for
\nseparation in Court of State of Connecticut, united States of America.    Wife
\nand  Husband  entered in Post Marital Agreement during pendency of proceedings
\nin USA, whereby husband agreed not to institute any legal action  for  divorce
\nor  legal  separation  against  wife  in  India irrespective of whether or not
\nhusband resides in  India.    Subsequently  both  husband  and  wife  came  to
\nCoimbatore and  lived  in  rental  flat.    Husband filed petition for divorce
\nbefore Family Court.  Action of husband  consists  of  two  parts  namely  (a)
\nEntering  into  Post Marital Agreement (b) Filing of petitions for dissolution
\nof marriage in India by violating clause of Post Marital Agreement.  Filing of
\npetition is not fraud.  Entering into an agreement without intending to act in
\nterms of agreement could amount to fraud  if  wife  could  prove  that  mental
\ncondition  of  husband  at  time  of  agreement  was  polluted  one containing
\nfraudulent ideas.  Wife did not furnish any material to  establish  fraud  and
\nhusband is not guilty of fraud.”\n<\/p>\n
        (4) Commissioner  of  Customs,  Kandla   vs.  – M\/s.Essar Oil Ltd., &
\nothers reported in 2004(8) Supreme Court 304, in  which  the  Hon’ble  Supreme
\nCourt has held:-\n<\/p>\n
        “By  “fraud”  is meant an intention to deceive; whether it is from any
\nexpectation of advantage to the party himself or from the ill will towards the
\nother is immaterial.  The expression “fraud” involves two elements, deceit and
\ninjury to the person deceived.  Injury is something other than economic  loss,
\nthat is, deprivation of property, whether movable or immovable or of money and
\nit  will  include  and  any  harm whatever caused to any person in body, mind,
\nreputation or such others.  In short, it is a  non-economic  or  non-pecuniary
\nloss.  A benefit or advantage to the deceiver, will almost always call loss or
\ndetriment to  the deceived.  Even in those rare cases where there is a benefit
\nor advantage to be deceiver, but not corresponding loss to the  deceived,  the
\nsecond condition is satisfied.”\n<\/p>\n
        “Fraud” as is well known vitiates every solemn act.  Fraud and justice
\nnever dwell  together.    Fraud  is a conduct either by letter or words, which
\nincludes the other person or authority to take a definite determinative  stand
\nas a  response  to the conduct of the former either by words or letter.  It is
\nalso well settled that misrepresentation itself amounts  to  fraud.    Indeed,
\ninnocent misrepresentation may also give reason to claim relief against fraud.
\nA  fraudulent misrepresentation is called deceit and consists in leading a man
\ninto damage by wilfully or recklessly  causing  him  to  believe  and  act  on
\nfalsehood.   It  is  a fraud in law if a party makes representations, which he
\nknows to be false, and injury enures therefrom although the motive from  which
\nthe representations proceeded may not have been bad.  An act of fraud on court
\nis always  viewed seriously.  A collusion or conspiracy with a view to deprive
\nthe rights  of  the  others  in  relation  to  a  property  would  render  the
\ntransaction void ab  initio.  Fraud and deception are synonymous.  Although in
\na given case a deception may not amount to fraud, fraud  is  anathema  to  all
\nequitable  principles  and any affair tainted with fraud cannot be perpetuated
\nor saved by the application of any equitable doctrine including res judicata.”\n<\/p>\n
        9.   Learned  counsel  for  the  respondent  strenuously  argued  that
\ninasmuch as the revision petitioner and the belongs to Hindu Community and the
\nmarriage was celebrated as per Hindu Rites and Customs in Chennai, the divorce
\ngranted by the Superior Court of California on the application by the revision
\npetitioner is  improper  and  invalid.   The learned counsel further submitted
\nthat inasmuch as the respondent was not submitted to the jurisdiction  of  the
\nSuperior  Court  of  California,  the  divorce  granted  by  that Court is not
\nenforceable and as such, it is invalid.  The learned counsel further contended
\nthat by  playing  fraud,  the  divorce  has  been  obtained  by  the  revision
\npetitioner  against  the respondent in the foreign court may be Superior Court
\nof California and suppressing the material facts and therefore,  according  to
\nthe  learned  counsel, inasmuch as the divorce granted by foreign court, viz.,
\nSuperior Court of California being invalid, the O.P.No.1195 of 2002  filed  by
\nthe  respondent  herein  for  restitution  of  conjugal  rights  is  very much
\nmaintainable.  The  learned  counsel  also  submitted  that  inasmuch  as  the
\nrevision  is  filed  under Article 227 of the Constitution of India, it is not
\nmaintainable.  The learned counsel has relied on the judgment  in  Y.Narasimha
\nRao  vs.  – Y.Venkata Lakshmi reported in (1991)3 Supreme Court Cases 451, in
\nwhich the Hon’ble Supreme Court has held thus:-\n<\/p>\n
        “The  decree  dissolving  the  marriage passed by the foreign court is
\nwithout jurisdiction according to  the  Hindu  Marriage  Act  as  neither  the
\nmarriage  was  celebrated  nor  the  parties  last  resided  together  nor the
\nrespondent resided within the jurisdiction of that court.  Residence does  not
\nmean a temporary residence for the purpose of obtaining a divorce but habitual
\nresidence  or  residence which is intended to be permanent for future as well.
\nThe decree had been obtained by  appellant  1  by  stating  that  he  was  the
\nresident  of  the Missouri State when the record shows that he was only a bird
\nof passage there and was ordinarily a resident of the State of Louisiana.   He
\nhad,  if at all, only technically satisfied the requirement of residence of 90
\ndays with the only purpose of obtaining the divorce.  He was neither domiciled
\nin that State nor had he an intention to make it his home.   He  had  also  no
\nsubstantial connection  with  the  forum.   Appellant 1 had further brought no
\nrules on record under which the St.  Louis  Court  could  assume  jurisdiction
\nover the  matter.    On  the  contrary,  he  had  in his petition made a false
\naverment that respondent 1 had refused to continue to stay  with  him  in  the
\nState of  Missouri  where  she  had  never  been.   Therefore, the case can be
\ndisposed of on the narrow ground that the appellant  played  a  fraud  on  the
\nforeign court  representing to it incorrect jurisdiction facts.  However, even
\npresuming that the foreign court by its own rules of jurisdiction had  rightly
\nentertained the dispute and granted a valid decree of divorce according to its
\nlaw,  it  must be held that since with regard to the jurisdiction of the forum
\nas well as the ground on which it was passed the foreign decree in the present
\ncase is not in accordance with the Act under which the parties  were  married,
\nand  the  respondent  had  not  submitted  to the jurisdiction of the court or
\nconsented to its passing, it cannot  be  recognised  by  the  courts  in  this
\ncountry and is, therefore, unenforceable.”\n<\/p>\n
        “The  relevant  provisions  of  Section  13 of the Code are capable of
\nbeing interpreted to secure the required  certainty  in  the  sphere  of  this
\nbranch  of  law  in  conformity  with  public policy, justice, equity and good
\nconscience, and the  rules  so  evolved  will  protect  the  sanctity  of  the
\ninstitution  of marriage and the unity of family which are the cornerstones of
\nour societal life.  Today the need for definitive  rules  for  recognition  of
\nforeign  judgments  in  personal  and  family  matters,  and  particularly  in
\nmatrimonial disputes has surged to the surface.  Though the rules of  guidance
\nmay  prove  inadequate  or miss some aspects but a beginning has to be made as
\nbest as one can, the lacunae and the errors being left to  be  filled  in  and
\ncorrected by future judgments.”\n<\/p>\n
        “On  an  interpretation  of  Section  13 CPC the following rule can be
\ndeducted for recognising a foreign matrimonial judgment in this country.   The
\njurisdiction  assumed by the foreign court as well as the grounds on which the
\nrelief is granted must be in accordance with the matrimonial law  under  which
\nthe parties are  married.  The exceptions to this rule may be as follows:  (i)
\nwhere the matrimonial action is filed in the forum  where  the  respondent  is
\ndomiciled or habitually and permanently resides and the relief is granted on a
\nground  available  in the matrimonial law under which the parties are married;\n<\/p>\n
(ii)  where  the  respondent  voluntarily  and  effectively  submits  to   the
\njurisdiction  of  the forum as discussed above and contests the claim which is
\nbased on a ground available under the the  matrimonial  law  under  which  the
\nparties  are  married; (iii) where the respondent consents to the grant of the
\nrelief although the jurisdiction of the forum is not in  accordance  with  the
\nprovisions of the matrimonial law of the parties.”\n<\/p>\n
        10.   The  learned counsel for the revision petitioner argued that the
\nrevision filed under Article 227 of the Constitution of  India  is  very  much
\nmaintainable.   In  support  of such a view, the learned counsel relied on the
\ndecision in Surya Dev Rai  vs.  – Ram Chander  Rai  and  others  reported  in
\nA.I.R.   2003 Supreme Court 3044, in which the Hon’ ble Supreme Court has held
\nthus:-\n<\/p>\n
        “Amendment by Act No.46 of 1999 with effect from 1.7.2002  in  Section
\n115 C.P.C.    cannot and does not affect in any manner the jurisdiction of the
\nHigh Court under Articles 226 and 227  of  the  Constitution.    Interlocutory
\norders,  passed  by  the  Courts  subordinate to the High Court, against which
\nremedy of revision has been excluded by the C.P.C.   Amendment  Act  No.46  of
\n1999  are  nevertheless  open  to  challenge in, and continue to be subject to
\ncertiorari and supervisory jurisdiction of the High Court.”\n<\/p>\n
        “The curtailment of revisional jurisdiction of the High Court does not
\ntake away and could not have taken away the constitutional jurisdiction of the
\nHigh Court to issue a writ of certiorari to a Civil Court  nor  the  power  of
\nsuperintendence  conferred  on  the  High  Court  under  Article  227  of  the
\nConstitution is taken away or whittled down.  The power  exists,  untrammelled
\nby the amendment  in  Section  115  of  the  C.   P.C.  and is available to be
\nexercised subject to rules of  selfdiscipline  and  practice  which  are  well
\nsettled.”\n<\/p>\n
        11.    It  is  admitted  that  the  revision  petitioner  married  the
\nrespondent on 16.3.2000 at Adayar, Chennai as per Hindu Rites and Customs  and
\nafter  the  marriage,  the  respondent  stayed  in  the  matrimonial  home  at
\nAlwarthirunagar, Chennai for 5 days.  The  respondent  left  India  to  United
\nStates  of  America  on  30.3.2000  and the revision petitioner went to United
\nStates of America on 11.6.2000 and met his wife, the respondent  on  30.6.2000
\nat Arizona,  United  States of America, where the respondent was working.  The
\ncase of  the  revision  petitioner  that  the  respondent  refused  to  resume
\nmatrimonial relation  is  denied by the respondent.  Further, according to the
\nrevision petitioner, he was deserted by the respondent  and  therefore,  after
\ncausing  lawyer notice dated 13.8.2001, which was replied by the respondent on
\n15.10.2001, to which the revision petitioner sent rejoinder on 27.11.2001, the
\nrevision petitioner filed petition for dissolution of marriage on  23.4.2  002
\nin  the  Superior  Court of California in the United States of America, as per
\nthe case No.VDO 49409.  Notice was also  sent  by  the  revision  petitioner’s
\ncounsel  on  20.5.2002  along  with  marital  settlement  agreement,  but  the
\nrespondent filed petition for declaration to quash the  proceedings  in  June,
\n2002 in the  U.S.  Court, Los Angeles, California.  It appears the proceedings
\nwere posted in that Court on 11.9.20 02 in the Superior  Court  of  California
\nand  in  the  proceedings,  the revision petitioner appeared in person and the
\nrespondent  was  represented  by  her  counsel,  during   which   proceedings,
\ndeliberations were made as to whether the Indian Court or California Court has
\njurisdiction over  the  matter.    During the proceedings, the counsel for the
\nrespondent represented that he will talk to her client about  the  stipulation
\nto  have  the  said Court jurisdiction over the status for granting divorce to
\nthe revision petitioner and the respondent counsel also informed  to  talk  to
\nthe  respondent  to  put a stipulation together for signing and filing so that
\nthe Court can adjudicate the divorce.  During the proceedings  on  22.10.2002,
\nthe  counsel  for  the  revision petitioner took final 30 days’ time since the
\nrespondent believed that there is no jurisdiction and if 30 days extension  is
\ngiven,  they may get stipulation papers from the wife, who is in India to have
\na judgment for status only through the superior Court of  California  and  the
\nrespondent  is  checking  with her Attorney to India before signing a slip and
\nthey have been waiting for a process.  Finally, it appears  on  9.1.2003  ,  a
\ndecree  of  dissolution  of  marriage  between the revision petitioner and the
\nrespondent was granted by the Superior Court of California, as per  which  the
\nmarital status ended on 10.2.2003 and such a decree was granted in the absence
\nof the respondent and as such, it is an ex parte judgment.\n<\/p>\n
        12.   There  is  nothing  to show that the revision petitioner and the
\nrespondent entered into a marital settlement agreement during the pendency  of
\nproceedings  in United States of America not to institute any legal action for
\ndivorce or legal representation in India and as  such,  no  inference  can  be
\ndrawn that the respondent agreed for divorce proceedings in America as per the
\nAmerican Laws.   Therefore, it cannot be said that the dissolution of marriage
\ngranted by the Superior Court of California  in  the  petition  filed  by  the
\nrevision petitioner  against the respondent is valid.  The law on the point is
\nvery well settled by the Hon’ble Supreme Court in  the  decision  reported  in
\n1991(3)  Supreme  Court Cases 451 (cited supra) that the decree dissolving the
\nmarriage passed by the foreign Court is without jurisdiction according to  the
\nHindu Marriage Act as neither the marriage was celebrated nor the parties last
\nresided  together  nor  the respondent resided within the jurisdiction of that
\nCourt.  It is also held by the Hon’ble Supreme Court that the  residence  does
\nnot  mean  a  temporary  residence for the purpose of obtaining a divorce, but
\nhabitual residence or residence which is to be permanent for future  as  well.
\nAdmittedly, the revision petitioner is not a permanent resident of America and
\nin  fact,  he  secured a job in America after the marriage with the respondent
\nand reached America in June, 2002.  It  is  not  made  clear  as  to  how  the
\nSuperior Court  of  California  has  got  jurisdiction  over  the matter.  The
\ndissolution of marriage granted by the Superior Court of California in any way
\nis to be considered as not in accordance with the Act,  viz.,  Hindu  Marriage
\nAct  under  which  both the revision petitioner and the respondent married and
\nthe respondent had not submitted to the jurisdiction of the Superior Court  of
\nCalifornia  or  consented  to  its  passing  and therefore, the dissolution of
\nmarriage granted by Superior Court of California cannot be recognised  and  as
\nsuch, unenforceable.  In interpreting Section 13 C.P.C., it is further settled
\nby  the  Hon’ble  Supreme  Court that the jurisdiction assum ed by the foreign
\nCourt as well as the grounds on  which  the  relief  is  granted  must  be  in
\naccordance  with  the  matrimonial  law  under  which the parties are married.
\nAdmittedly, the respondent has  not  submitted  to  the  jurisdiction  of  the
\nSuperior  Court  at  California  and also not consented to the grant of relief
\nalthough the  jurisdiction  of  the  forum  is  not  in  accordance  with  the
\nprovisions of  the  matrimonial  law of the parties.  The respondent was not a
\npermanent resident of America when the dissolution of marriage was granted  by
\nthe  Superior  Court of California for granting the relief, in the matrimonial
\nlaw under which the  revision  petitioner  and  the  respondent  got  married.
\nTherefore,  there  is  no  explanation  to  recognise  the foreign matrimonial
\njudgment for granting relief in accordance  with  the  matrimonial  law  under
\nwhich the parties are married.\n<\/p>\n
        13.   As per Section 13B of the Hindu Marriage Act, for seeking relief
\nof divorce by mutual consent, petition for dissolution of marriage by a decree
\nof divorce is to be presented to District Court on the ground that  they  have
\nbeen  living  separately  for a period of one year or more, that they have not
\nbeen able to live together  and  that  they  have  mutually  agreed  that  the
\nmarriage  should  be dissolved and as per subsection (2) of Section 13B of the
\nHindu Marriage Act, only after six months after date of  the  presentation  of
\nthe  petition and the Court is satisfied to pass a decree of divorce declaring
\nthe marriage to be dissolved.\n<\/p>\n
        14.  As observed by the  Family  Court  the  dissolution  of  marriage
\nbetween  the revision petitioner and the respondent was granted by saying that
\nthey were living separately for more than  6  months  and  from  13.3.2000  to
\n29.9.2000,  which is incorrect, in view of the fact that after the marriage on
\n16.3.2000, the respondent lived in the matrimonial home for five days and when
\ncontacted, the respondent informed the petitioner on 30.6.2000 that  she  does
\nnot  like  him  and  that the revision petitioner also met her on 7.7.2000 and
\n21.7.2000.  Further, the petition I.A.No.870 of 2003, subject matter  of  this
\nrevision is  filed  under  Section  151  C.P.C.  itself is not maintainable as
\nrightly observed by the Family Court, since that petition was filed to  invoke
\nthe  inherent  powers of the Court by dismissing the O.P.No.1195 of 2002 filed
\nfor restitution of conjugal rights by the respondent.  Therefore, in the light
\nof the discussions made above, it is clear  that  the  Family  Court  has  not
\ncommitted  any  error  in  dismissing the petition I.A.No.870 of 2003, subject
\nmatter of this revision, filed for dismissal of O.P.No.1195 of  2002  and  the
\norder of the Family Court does not call for any interference.\n<\/p>\n
        15.   In  the  result,  this  Civil  Revision  Petition  fails  and is
\ndismissed.  The order dated 30.9.2003 in I.A.No.870 of 2003 in F.C.O.P.No.1195
\nof 2002 passed by the Second Additional Family Court,  Chennai  is  confirmed.
\nNo costs.    Consequently,  connected  petitions  C.M.P.No.20747  of  2003 and
\nV.C.M.P.No.1221 of 2004 are closed.\n<\/p>\n
Index:  Yes.\n<\/p>\n
Internet:Yes.\n<\/p>\n
ts.\n<\/p>\n
To
\nThe Second Additional Family Court,
\nChennai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court T.Siva Raman vs P.Renganayaki on 27 April, 2005 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 27\/04\/2005 Coram The Hon’ble Mr.Justice S.SARDAR ZACKRIA HUSSAIN Civil Revision Petition (PD)No.2746 of 2003 and C.M.P.No.20747 of 2003 and V.C.M.P.No.1221 of 2004 T.Siva Raman … Petitioner -Vs- P.Renganayaki … Respondent Civil Revision Petition filed under […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-63608","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nT.Siva Raman vs P.Renganayaki on 27 April, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/t-siva-raman-vs-p-renganayaki-on-27-april-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"T.Siva Raman vs P.Renganayaki on 27 April, 2005 - 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