Harpreet Singh Sekhon vs Rajwant Kaur

Harpreet Singh Sekhon .....Appellant

Versus

Rajwant Kaur ..... Respondent

CORAM: HON'BLE MR. JUSTICE S.S. SARON HON'BLE MR. JUSTICE S.P. BANGARH

Present: Mr. Surjit Singh, Senior Advocate with Ms. Ishreet Kaur, Advocate for the appellant and Mr. Dilraj Singh Sekhon, GPA Holder of the appellant in person.

Mr. Manish Jain, Advocate, Mr. Aman Singla, Advocate and Mr. Tajinder Singh, Advocate for the respondent with respondent-Rajwant Kaur in person. S.S. SARON, J.

The appellant Harpreet Singh Sekhon has filed this

appeal through his father and General Power of Attorney Dilraj Singh

Sekhon against the judgment and decree dated 25.08.2010 passed

by the learned District Judge, Family Court, Faridabad whereby the

suit filed by the respondent-wife Rajwant Kaur Sekhon for declaring

the ex parte judgment dated 23.05.2005 passed by the Circuit Court

of Cook County, Illinois, United States of America (USA-for short) to

be illegal has been decreed in her favour and the aforesaid divorce

decree has been declared null and void and not binding on the rights

of the plaintiff-respondent Rajwant Kaur Sekhon.

The marriage between the plaintiff-respondent Smt.

Rajwant Kaur Sekhon and the defendant-appellant-Harpreet Singh

Sekhon was solemnized by way of Anand Karaj on 09.02.2000. The FAO NO.5742 of 2010 (O & M) -2-

plaintiff alleged that her marriage was a decent marriage. Her

parents, brothers and sisters spent about Rs.30,00,000/- on the

marriage. A list of expenses on the dowry articles and the other

expenses including ring ceremony expenses has been attached. The

defendant-appellant along with his parents had been permanently

residing in USA. They are green card holders of United States of

America. The father of the defendant-appellant namely Dilraj Singh

Sekhon Ex Joint Director of Central Bureau of Investigation after

leaving his job in India settled permanently in USA. He was working

as a lecturer at Columbia College, Chicago, USA. However, for the

last about three years, he was living at Mohali in Punjab in his own

house. He is owner of more than 70 'killas' (acres) of agricultural

land in village Issawal, Ludhiana (Punjab). The plaintiff-respondent

was residing at House No.645 Sector-16, Faridabad (Haryana). The

said house is owned by the father of the defendant/appellant and is a

Joint Hindu Family property. According to the plaintiff-respondent,

the minor daughter of the parties namely Sirut (sic. Seerat) Sekhon

through her mother and guardian Rajwant Kaur Sekhon (plaintiff-

respondent) filed a suit against her father Harpreet Singh Sekhon

(defendant/appellant), her grand parents namely Dilraj Singh Sekhon

and Smt. Tejinder Kaur, her father's brother namely Sarabjit Singh

Sekhon and paternal aunt namely Smt. Satnam Kaur inter alia

claiming that she is also co-owner in possession in equal share of the

residential House No.645 Sector-16, Faridabad; besides, co-owner in

equal share of property in village Issawal, District Ludhiana (Punjab)

and co-owner in residential House No.722 Phase-IX, near Cricket FAO NO.5742 of 2010 (O & M) -3-

Stadium, Mohali. The said suit was pending in the Court of Civil

Judge (Junior Division), Faridabad at the time of filing of the present

suit out of which the present appeal arises. On 24.02.2002, the

plaintiff/respondent received a telephone message from Dilraj Singh

Sekhon (father-in-law of the plaintiff), the husband of the plaintiff and

her mother-in-law as also other family members namely Satnam

Kaur and Pikky Aulakh. It is alleged that they were taunting her for

bringing inadequate dowry. They were harassing her mentally and

physically by beating her. First Information Report (FIR) for the

offences under Sections 498-A and 406 read with Section 34 of the

Indian Penal Code (IPC-for short) was got registered in this regard at

Police Station Central, Faridabad. After marriage, the plaintiff and

defendant resided at Mohali, Ludhiana and village Issawal. The

defendant-appellant then went to USA leaving the plaintiff at her

parental house at Faridabad. There she had a daughter on

04.12.2000. The in-laws of the plaintiff did not cook food for three

days as they did not want a female child. On 30.12.2000, the

defendant came back to India and took the plaintiff with him to

Mohali. The defendant, it is alleged, came to India from USA on

several occasions, however, despite promising to take the plaintiff to

USA, he never took her and each time he would say that he would

take her next time. The plaintiff in this way felt that she was being

made a fool of. Thereafter on 23.05.2005, the defendant obtained a

decree of divorce from the Circuit Court of Cook County, Illinios

Department-Domestic Relations Division. In terms of the said decree

it is alleged that an ex parte and a fraudulent divorce decree was got FAO NO.5742 of 2010 (O & M) -4-

passed in favour of the defendant. The said divorce decree being a

foreign judgment it was prayed was liable to be set aside being not a

valid decree in view of Section 13 of the Code of Civil Procedure

(C.P.C-for short) and on other grounds as well. It was submitted that

under the provision of Hindu Marriage Act, 1955 only the District

Courts within the local limits of whose ordinary civil jurisdiction (i) the

marriage was solemnized, or (ii) the respondent, at the time of the

presentation of the petition, resides, or (iii) the parties to the

marriage last resided together, or (iv) the petitioner is residing at the

time of the presentation of the petition, in a case where the

respondent is, at that time, residing outside the territories to which

this Act extends, or has not been heard of as being alive for a period

of seven years or more by those persons who would naturally have

heard of him if he were alive would have the jurisdiction to entertain

and try the petition. Therefore, it was submitted that the Circuit Court

of Cook County, Illinos had no jurisdiction to entertain the petition.

According to the provisions of the Hindu Marriage Act under which

the parties were admittedly married, irretrievable break down of

marriage as a ground for dissolution of the marriage was not

recognised. It was submitted that the defendant by way of filing the

divorce petition in USA committed fraud and forged grounds, which

were not available to him; besides, no valid ground mentioned in the

divorce petition by the defendant was existing at the time of filing the

divorce petition. The parties never resided in USA together and the

plaintiff never refused to reside with the defendant in USA or in India.

The defendant does not provide or send from USA any kind of FAO NO.5742 of 2010 (O & M) -5-

maintenance to the plaintiff and her daughter in India. The defendant

and her family had been avoiding services in all Court cases which

were pending at Faridabad. The plaintiff and her minor daughter

were fully dependent on her parents. The plaintiff had also filed a

petition under Section 9 of the Hindu Marriage Act for seeking

restitution of conjugal rights.

The defendant/appellant filed written statement through

his father and General Power of Attorney (GPA) Dilraj Singh Sekhon.

Preliminary objections were raised to the effect that the petition was

time barred. The divorce judgment by the Court of Cook County

Illinos, it is stated, was passed on 23.05.2005 and the petition to set

aside the divorce judgment was filed on 15.04.2008. The case did

not fall within the territorial jurisdiction of Faridabad Court. The

marriage was solemnized at Jalandhar in Punjab. The plaintiff and

defendant had lived together as husband and wife in H.No.722,

Phase-9, Mohali. They had never lived in House No.645 Sector-16,

Faridaband. The said house was occupied by a tenant. The divorce

granted by the Circuit Court of Cook County, Illinios was a valid

divorce. On receipt of notice from the said Court, it is stated that the

plaintiff had filed her appearance voluntarily through her attorney. By

filing her appearance, she had submitted to the jurisdiction of the

said Court. By filing reply to the same she had contested the case in

the Circuit Court of Cook County, Illinios. It is stated that the

defendant Harpreet Singh Sekhon could not file divorce petition in

India because he was not a domicile of India. He has been a

domicile and permanent resident of USA. A reference was made to FAO NO.5742 of 2010 (O & M) -6-

the case of Dr. David Chakravarthy Arunmainayagan vs. Geetha

Chakravarthy Arunmainayagan 2002 (1) Marriage Law Journal 254

(Madras) wherein in the context of the Divorce Act, 1869, it is stated

that the parties to marriage should be domiciled in India which is a

condition precedent under Section 2 of the Divorce Act to file a

petition. It is further stated that the list relating to expenditure on

dowry articles was false and baseless. It was a simple and dowry

less marriage. The dowry articles such as furniture, TV, Refrigerator

and other such items were not required to be taken to USA where

non-resident Indians (NRIs) live. On 11.06.2002, the plaintiff and her

father Sarwan Singh Nijjar got the marriage registered with the

Registrar of Marriages, Jalandhar-I, Punjab when Harpreet Singh

Sekhon defendant was living in USA. This fraudulent registration of

marriage was being investigated by the Deputy Commissioner,

Jalandhar and the Punjab Police, Jalandhar. The plaintiff it is stated

is not residing in House No.645 Sector-16, Faridabad. The said

house was in forcible possession of her brother Jagjit Singh who had

taken its possession after breaking open the lock of the house with

the help of his relative. On 06.07.2005, case FIR No.252 had been

registered at Central Police Station, Faridabad for the offence under

Section 448 of the IPC. The plaintiff had never lived in the said

house. She lived in her parental house i.e. H.No.2382 Sector-9,

Faridabad. She reaches that house whenever Investigating Officer

goes there. The said house is a self-acquired property of Harpreet

Singh Sekhon who had constructed the house to live in it after

retirement from the Central Government. Baby Sirut (sic. Seerat) FAO NO.5742 of 2010 (O & M) -7-

Sekhon minor it is stated was being misused by the plaintiff and her

relative to grab the property. No Court had declared the plaintiff as

her guardian. Harpreet Singh Sekhon defendant had filed a case for

custody of Baby Sirut (Seerat) Sekhon. On 30.11.2005, the

Additional District Judge, Faridabad had vacated the stay granted by

the lower Court. Thereafter the High Court had granted interim stay

in this case. On 24.02.2002, it is stated that no telephone call was

made from USA to the husband of plaintiff and her mother-in-law in

India because during that period they were living in USA. A false

dowry complaint was got registered under Section 498-A and 406

IPC. A complaint under Section 498-A IPC was not maintainable at

the behest of a divorcee. Besides, Section 34 IPC was not

incorporated in the FIR as had been alleged by the plaintiff in this

para. Out of five accused, three had been discharged as the police

had found them innocent. Regarding the remaining two accused, the

allegations of ill-treatment, physical assaults and dowry demand

pertain to the periods they were living in USA. The letters written by

the plaintiff to her mothere-in-law at an address in USA during the

said periods it is stated contradict the allegations in the FIR. Dowry

articles cannot be entrusted to NRIs who live in USA and NRIs living

in USA cannot misuse dowry articles in India. It is alleged that the

father of Harpreet Singh Sekhon defendant had arranged admission

of plaintiff in an institute in USA where he was teaching. He had also

sent sponsorship for her but she did not get a visa from the American

Embassy. Brother of Harpreet Singh Sekhon-defendant had also

sent sponsorship for the plaintiff from Canada but the plaintiff did not FAO NO.5742 of 2010 (O & M) -8-

go to the Canadian Embassy for an interview. Thereafter Harpreet

Singh Sekhon had sent Immigration Forms to the plaintiff to be filled

up for immigration to USA, which she did not fill up. This showed

that the plaintiff did not want to join her husband in USA. When the

defendant came to India, he was subjected to mental cruelty which

was unendurable. She had inflicted immeasurable mental agony and

torture. During his short stay in India, she had made his life

miserable and they had lived separate and apart in India. It is

alleged that she did not cook food in the house and was getting food

from a hotel. She had stated that she had not dined in less than five

star hotels. It is alleged that her father and mother were illiterate.

Her father had worked as a tempo driver in Faridabad and the

marriage was a fraud. It is further alleged by the defendant that the

character and loyalty of the plaintiff were found doubtful. Unknown

men were coming to meet her. Those men did not know that her

husband had come from USA and was sitting inside the house. The

defendant did not know where his wife was going in a car. Her

whereabouts were not known. Attitude and behaviour of his wife

showed total disrespect towards him. She had used filthy and

abusive language against him. When her husband had raised

objections about her undesirable activities then she had threatened

him that she would get him put behind bars by lodging a dowry

complaint which she later did in the year 2005. There was no

temperamental compatibility. She was hot headed and quarrelsome.

On 11.09.2007, she had misbehaved with the father of the defendant

Harpreet Singh Sekhon in the District Courts, Faridabad. On this the FAO NO.5742 of 2010 (O & M) -9-

father of the defendant had lodged a written complaint with the SSP,

Faridabad seeking protection and to restrain her not to come near

him during the period he remains in the District Courts, Faridabad.

About half a dozen cases filed by plaintiff against the defendant were

pending in the District Courts, Faridabad. On 23.05.2005, it is stated

that the Circuit Court of Cook County had passed a decree for

dissolution of the marriage between the parties after the plaintiff had

filed her appearance through her attorney and had contested the

case on receipt of notice from the said Court. The parties were

married under Hindu Law but the said law did not allow the defendant

Harpreet Singh Sekhon to file a divorce petition in India because he

was not a domicile of India. The plaintiff had stated that she had not

submitted to the jurisdiction of that Court but by filing her apearance

she had in fact submited to the jurisdiction of the said Court. The

Circuit Court of Cook County was a Court of competent jurisdiction.

The said Court had gone through the reply to the claims submitted by

the plaintiff and had taken a decision. This confirmed that the

decision of the Court was based on contest between the parties. As

per the judgment for dissolution of marriage passed by the Circuit

Court of Cook County, the Court at Faridabad, it is submitted,

expressly retains jurisdiction of this case for the purpose of enforcing

all the terms of the said judgment for dissolution of marriage. The

defendant Harpreet Singh Sekhon was a domicile of that country. It

is submitted that there was no fraud with relation to merits of the

case and the jurisdictional facts. The said Court had the jurisdiction

because the defendant in this case was a domicile of that country. FAO NO.5742 of 2010 (O & M) -10-

The custody of Baby Sirut (sic. Seerat) Sekhon had been reserved in

the judgment passed by Circuit Court of Cook County. The objection

of plaintiff that divorce petition was not maintainable in USA was

dismissed on the ground that the petitioner (now defendant) satisfied

all the conditions laid down by that Court. Baby Sirut (sic. Seerat)

Sekhon, it is submitted, was being misused by the plaintiff and her

relatives to grab the property. The defendant-Harpreet Singh

Sekhon wants to take her to USA to give her education there. The

conjugal rights cannot be restored to a divorcee who had filed a

criminal complaint under Sections 498-A and 406 IPC, besides,

about half a dozen cases against the defendant in District Courts,

Faridabad. The divorce judgment passed by the Circuit Court of

Cook County, it is submitted is a valid divorce judgment and the

Court had jurisdiction over the subject matter. On the pleadings of

the parties, the following issues were framed by the learned Civil

Judge (Junior Division) Faridabad on 13.05.2009:-

1. Whether the plaintiff is entitled to decree of declaration

as prayed for? OPD

2. Whether the suit is time barred? OPD

3. Whether the Court has no jurisdiction to entertain the

present suit? OPD.

4. Relief.

After the said issues were framed by the learned Civil

Judge (Junior Division), Faridabad on 13.05.2009, the case on the

establishment of the Family Court, was transferred and received by

the District Judge, Faridabad on 27.05.2009. On 04.11.2009, the FAO NO.5742 of 2010 (O & M) -11-

learned District Judge, Family Court observed that it had been

brought to the notice of the said Family Court that the issues settled

on 13.05.2009 were not specific. Therefore, it was expedient to

reframe the issues. The parties had not led any evidence till the said

date i.e. 04.11.2009. Accordingly, the following issues were settled

for adjudication by re-framing them:-

1. Whether the judgment and decree dated 23.05.2005 of Circuit

Court of Cook County, Illinois County Department-Domestic

Relations Division of Judge Jeanne R. Cleveland Bernstein in

case titled Harpreet Singh Sekhon and Rajwant Kaur Sekhon

dated May 23, 2005 dissolving the marriage is liable to be set

aside, as alleged? OPP.

2. Whether this Court has no territorial jurisdiction to try this suit,

as alleged? OPD

3. Whether the suit is time barred? OPD

4. Whether the suit is not maintainable before the Civil Court?

OPD

5. Relief.

No other issues were pressed or claimed.

The learned District Judge after considering the evidence

and material on record decreed the suit of the plaintiff-respondent

with costs. The divorce decree dated 30.05.2005 passed by the

Circuit Court of Cook County, Illinois, USA was declared null and

void and not binding on the rights of the plaintiff; besides, the suit

was held to be within limitation and as regards jurisdiction of the

Court at Faridabad, the same was not pressed during the course of FAO NO.5742 of 2010 (O & M) -12-

arguments. The plaintiff had also sought alimony/maintenance

allowance for a sum of Rs.75000/- per month. However, the said

plea was not supported by any kind of evidence. Accordingly the

same was declined.

Aggrieved against the said judgment and decree, the

defendant-appellant through his father and Attorney Dilraj Singh

Sekhon has filed the present appeal. This Court on 04.10.2010

subject to the appellant's depositing an amount of Rs.70,000/-

(provisional) towards litigation expenses, to be paid to the

respondent, issued notice of motion on the application regarding

condonation of delay and also in the main appeal. The service was

complete. Thereafter on 09.02.2011 to explore the possibility of a

compromise between the parties the case was adjourned to

16.02.2011. On the said date as per the attorney (Dilraj Singh

Sekhon) of the appellant, there were no chances of compromise.

The case was adjourned to 20.04.2011 for arguments. On

27.04.2011, counsel for the parties were in agreement that efforts

were being made to compromise the matter and the case on request

was adjourned to 06.05.2011. On 06.05.2011, the following order

was passed:-

"Present: Mr. Robin Dutt, Advocate for the appellant.

Mr. Manish Jain, Advocate for the respondent.

*** Efforts were made to settle the matter

amicably. However, it appears that the appellant is not

ready to arrive at a reasonable settlement. It has also

been brought to our notice that the Court at Faridabad, FAO NO.5742 of 2010 (O & M) -13-

granted an interim maintenance to the respondent-wife @

Rs.30,000/- per month and Rs.20,000/- per month to the

child. It is stated that despite directions issued by the

appellate Court, where the dispute is pending at the

instance of the appellant, the amount of maintenance has

not been paid, which is to the tune of about Rs.11 lacs.

Unless that amount is paid, probably, this appeal cannot

be pressed by the appellant.

Under the circumstances, we direct the

appellant to deposit amount of compensation granted,

before the next date of hearing with the Court below,

where the appeal is pending under the Domestic Violence

Act, 2005.

Adjourned to 20.05.2011."

The appellant, however, did not deposit the amount in

terms of the said order. He filed CM No.13227-CII of 2011 for

modification of the above said order dated 06.05.2011. It was

submitted that it had wrongly been presented before this court that

the appellant was liable to pay the respondent Rs.11 lacs as arrears

of maintenance. It was submitted that the Judicial Magistrate Ist

Class, Faridabad vide order dated 13.12.2010 (in proceedings under

the Protetion of Women from Domestic Violence Act, 2005) had

directed the appellant to make payment of Rs.30,000/- to applicant

No.1 (Rajwant Kaur) and Rs.20,000/- to applicant No.2 (Seerat)

before 10th of every from the date of application. Besides, the

employer of respondent No.1 was also directed to deduct the same FAO NO.5742 of 2010 (O & M) -14-

amount and deposit it in the account of applicant No.1 (on behalf of

applicant No.2 as well) before 10th of every month. Therefore,

according to the appellant, it was evident that the maintenance in fact

was to be paid from 13.12.2010 and the judgment dated 13.12.2010

was under appeal and the appellant had applied for stay of operation

of the judgment before the appellate Court and no order regarding

payment of the maintenance amount had been directed by the

appellate Court and the stay matter was to come up for hearing

before the appellate Court on 26.05.2011. Therefore, the direction to

pay the maintenance amount mentioned in the order dated

06.05.2011, it was submitted, needed to be modified. The said CM

came up before the Bench which had passed the earlier order on

11.07.2011. A copy of the order dated 03.06.2011 passed by the

learned Additional Sessions Judge, Faridabad in appeal against the

order dated 13.12.2010 passed by the Judicial Magistrate Ist Class,

Faridabad was shown in this regard. A perusal of the same indicated

that the appeal filed by the applicant/appellant against the order

dated 13.12.2010 passed by the learned Judicial Magistrate Ist

Class, Faridabad was not being heard on account of the aforesaid

order dated 06.05.2011 passed by this Court. The appeal before the

Court below was fixed for 24.07.2011. The application for

modification of the order dated 06.05.2011 passed by this Court and

also the main appeal on 11.07.2011 were adjourned to 26.07.2011.

The appellate Court (Addl. Sessions Judge, Faridabad) was directed

to decide the appeal filed by the appellant on the date fixed without

being influenced by any observation made by this Court in its order FAO NO.5742 of 2010 (O & M) -15-

dated 06.05.2011. On 26.07.2011, it was brought to the notice of the

Court that on account of some unavoidable circumstances, the

appeal could not be heard by the Court below on the date fixed. The

Court below was directed to comply with the order passed by this

Court on 11.07.2011 and the case was adjourned to 09.08.2011 and

then to 17.08.2011. On the said date it was adjounred to

26.08.2011. On 26.08.2011, the record from the learned trial Court

was received and the case was adjourned to 16.09.2011 for

arguments. On 14.10.2011, CM No.13277-C2 of 2011 seeking

clarification (sic.-modification) of the order dated 06.05.2011 it was

observed had become infructuous in view of order passed

subsequent thereto. In view of the above this matter, it was ordered

be listed before a Bench as per roster on 07.11.2011, on which date

it was adjourned to 29.11.2011. On 29.11.2011 this court observed

that the appeal filed by the appellant against the order dated

13.12.2010 passed by the court of Judicial Magistrate Ist Class,

Faridabad i.e. in proceedings under the Protection of Women from

Domestic Violence Act had been dismissed by the court of Additional

Sessions Judge, Faridabad on 08.08.2011 and the order regarding

payment of interim maintenance to the extent of Rs.30,000/- and

Rs.20,000/- per month to the respondent and her minor daughter

respectively had been upheld. Though Criminal Misc. No.M-24964 of

2011 had been filed against the order dated 08.08.2011 but no stay

regarding the payment of interim maintenance had been granted.

Before addressing arguments, learned counsel for the appellant had

sought time to seek instructions with regard to the payment of said FAO NO.5742 of 2010 (O & M) -16-

amount to the destitute wife and child of the appellant. The case was

adjourned to 19.12.2011. It was made clear that if the aforesaid

interim maintenance in terms of order dated 13.12.2010 passed by

the Judicial Magistrate Ist Class, Faridabad was not paid, the plea

taken by the respondent wife that this appeal is to be dismissed

would be considered on the adjourned date. On 19.12.2011 learned

counsel for the appellant sought more time to have instructions

whether the order regarding payment of interim maintenance to the

respondent had been complied with or not. For the said purpose the

case was adjourned to 02.02.2012. On 02.02.2012 a week's time

was granted to make payment of maintenance as it prima facie

appeared that the appellant was not providing for his wife and minor

daughter. The case was adjourned to 09.02.2012. On 09.02.2012 a

detailed order was passed by this Court. It was inter alia observed

by the Bench that passed the order that it was prima facie satisfied

that the appellant may be guilty of contempt of court. However,

before initiating any proceeding the Bench intended to grant the

appellant a week's time to purge the contempt. The Bench also

recorded its opinion that interim maintenance was not prayed for or

assessed in the appeal as maintenance had already been assessed

by Judicial Magistrate Ist Class, Faridabad. The case was then

adjourned to 21.02.2012. On 21.02.2012, the appellant had not filed

any reply or affidavit in response to order dated 09.02.2012. On the

request of learned counsel for the appellant, the case was adjourned

to 14.03.2012, on which date it was adjourned to 23.03.2012 and

then to 02.05.2012. On the last of the dates, it was adjourned to FAO NO.5742 of 2010 (O & M) -17-

29.05.2012 for arguments and then to 23.07.2012. On 23.07.2012,

learned Senior counsel Mr. Surjit Singh, Advocate who had been

appearing for the appellant did not appear. He was called for by the

Court and he submitted that his client had taken the brief from him. It

was, however, accepted that he had not been discharged by the

Court. In order to effectively decide the case, it was observed that it

would be just and expedient that he assists the Court. Learned

Senior counsel gracefully agreed to assist the Court. He prayed for

time. On his request, the case was adjourned to 30.07.2011. On the

said date, Mr. Manish Jain, Advocate for the respondent submitted

that since the appellant had not complied with the orders passed by

this Court on 06.05.2011, 11.07.2011, 26.07.2011, 29.11.2011 and

09.02.2012, this appeal may be dismissed and contempt

proceedings be initiated against the appellant. The case was

adjourned to 14.08.2012 and the trial Court records were

requisitioned for the said date. The case was heard on 05.10.2012

and thereafter on 06.10.2012. The case was heard on 06.10.2012 at

length. Mr. Manish Jain, Advocate appearing for the respondent had

submitted that this case is liable to be dismissed for non-payment of

maintenance.

Mr. Surjit Singh, learned Senior Advocate appearing with

Ms. Ishreet Kaur, Advocate submitted that Crl. Misc.No.M-24964 of

2011 had been filed by the appellant against the order dated

08.08.2011 passed by the learned Additional Sessions Judge,

Faridabad ordering the payment of maintenance in proceedings

under the Protection of Women from Domestic Violence Act. Even FAO NO.5742 of 2010 (O & M) -18-

though no stay had been granted but an application for grant of stay

was pending. It is also submitted that an order passed in another

proceedings under the Protection of Women from Domestic Violence

Act, 2005 for payment of maintenance could not be executed in the

present appeal which is a suit for declaration.

Mr. Manish Jain, Advocate leaned counsel for the

plaintiff-respondent, however, submitted that this Court on

09.02.2012 had recorded its opinion that interim maintenance was

not prayed for or assessed in the appeal as maintenance had already

been assessed by the Judicial Magistrate Ist Class which it is

submitted is in proceedings under the Protection of Women from

Domestic Violence Act, 2005.

After deliberations it was agreed between the learned

counsel for the parties and Mr.Dilraj Singh Sekhon GPA for the

appellant that the main appeal as also the effect of non-payment of

maintenance and the connected appeal (FAO No.6208 of 2011)

claiming custody of the minor child Seerat be heard together.

Accordingly, the main appeal as also the effect of non-payment of

maintenance amount and the connected appeal are taken up and

have been heard.

Insofar as the main appeal is concerned Mr. Surjit Singh,

learned Senior Advocate with Ms. Ishreet Kaur, Advocate for the

appellant has contended that the learned trial Court wrongly held that

the plaintiff-respondent had not submitted herself to the Circuit Court

of Cook Country, Illinios in USA. In fact she had filed her appearance

in the said Court. A reference has been made to the judgment dated FAO NO.5742 of 2010 (O & M) -19-

23.05.2005 of the Circuit Court of Cook County, Illinois, the letter to

the notice issued on 07.04.2005 by Dorothy Brown,Clerk of the

Circuit Court of Cook County, Illinois which is a publication in the

press and a letter dated 13.05.2005 in which appearance has been

entered on behalf of respondent by Shri Mandeep Singh Sachdev,

Advocate at Jalandhar and a letter dated 19.04.2005 written by

Malhotra & Malhotra Associates International Lawyers at Chandigarh

regarding appearance; besides, the application (Ex.P5) written by the

respondent through her counsel Shri Mandeep Singh Sachdev,

Advocate at Jalandhar to Ms. Dorothy Brown Clerk of the Circuit

Court of Cook County, Illinois and another letter dated 05.09.2005

(Ex.P6) written by Shri Mandeep Singh Sachdev, Advocate at

Jalandhar to Ms. Dorothy Brown, Clerk of the Circuit Court of Cook

County, Illinois. According to learned Senior Counsel the said

documents evidently show that the respondent had put in her

appearance before the Circuit Court of Cook County, Illinios. It is

submitted that even though some of the documents are not exhibited,

however, strict rules of Evidence Act are inapplicable in view of the

provisions of Sections 14 and 16 of the Family Courts Act 1984 and

the same can be read in evidence. It is next contended that the suit

filed was not within the jurisdiction of the Family Court. A reference

has been made to Section 7 of the Family Courts Act. A suit for

specific relief, it is contended, would not be covered under the Family

Courts Act. It is lastly contended that a foreign judgment is

conclusive as to any matter thereby adjudicated upon between the

parties in view of Section13 CPC. Therefore, the decree (Ex.P7) FAO NO.5742 of 2010 (O & M) -20-

passed by the Circuit Court of Cook County, Illinois is valid.

Mr. Dilraj Singh Sekhon GPA for the appellant has

vehemently contended that the Circuit Court of Cook County, Illinois

was the only competent Court to grant the decree of divorce as the

defendant-appellant was not a domicile in India and, therefore, in

view of Section 2 of the Divorce Act, a suit filed by him for grant of

divorce would not be maintainable in India. A pointed reference has

been made to the case of Dr. David Chakaravarthy Arumainayagam

and another versus Geetha Chakravarthy (supra); besides, it is

submitted that the application for ordering payment of maintenance

under the Protection of Women from Domestic Violence Act, 2005

was not maintainable and a criminal miscellaneous application under

Section 482 of the Code of Criminal Procedure against the order

dated 13.12.2010 passed by the learned Judicial Magistrate Ist

Class, Faridabad and order dated 08.08.2011 passed by the learned

Additional Sessions Judge, Faridabad is pending in this court.

In response Mr.Manish Jain, Advocate learned counsel

for the respondent has submitted that the judgment and decree

passed by the learned Court below are perfectly legal and valid. It is

submitted that the plaintiff respondent never submitted to the Circuit

Court of Cook County, Illinois. She had been proceeded against ex

parte there. A reference has been made to the copy of the passport

(Ex.P8) to contend that she had never visited USA. Therefore, there

was no question of her defending the case; besides, it is submitted

that the notices received from Ms. Dorothy Brown, Clerk of the Circuit

Court of Cook County, Illinois have been placed on record as Ex.P2 FAO NO.5742 of 2010 (O & M) -21-

and Ex.P3 by the plaintiff herself and even the form filled by Mr.

Mandeep Singh Sachdev, Advocate at Jalandhar and the application

(Ex.P8) and the letter dated 05.09.2009 (Ex.P5) of Mr. Mandeep

Singh Sachdev, Advocate at Jalandhar have been placed on record

by the plaintiff herself to show that she had been demanding the

necessary documents and procedure for filing a reply which was not

responded to by the Circuit Court of Cook County, Illinois. Besides,

it is submitted that the parties are Sikhs and governed by Hindu law

in the matters of marriage specially when one of them is not a citizen

of America. The Circuit Court of Cook County, Illinois, it is

submitted, had no jurisdiction to dissolve the marriage. In any case it

is submitted that the decree comes within the exceptions to Section

13 CPC inasmuch as it has not been pronounced by a court of

competent jurisdiction and it has not been given on merits of the

case; besides, it is opposed to the principles of natural justice.

Therefore, the same comes within the exceptions as envisaged by

clauses (a), (b), (c) and (d) of Section 13 CPC. The proceedings

before the Family Court are valid and there is no infirmity in the

same. Besides, it is submitted that for failure to pay the maintenance

amount as ordered by this Court, the appeal is liable to be dismissed

on that account alone.

During the course of hearing, it has also been submitted

by Mr. Manish Jain, Advocate for the respondent that Dilraj Singh

Sekhon, who has filed the appeal does not have a valid attorney to

present the appeal and the attorney given in his favour by his son

(appellant) does not authorise him to file an appeal on his behalf. FAO NO.5742 of 2010 (O & M) -22-

We have given our thoughtful considerations to the

contentions of the learned counsel for the parties and with their

assistance gone through the records. The primary issue, which is

involved in the case is whether the marriage between the parties

stands dissolved on account of the judgment dated 23.05.2005

(Ex.P7) passed by the Circuit Court of Cook County, Illinois or

whether the said judgment is null and void and does not affect the

matrimonial status of the plaintiff respondent to continue to be the

wife of the appellant-Harpreet Singh Sekhon. In order to appreciate

the said contention, the said judgment (Ex.P7) as has been filed in

Court in its entirety is reproduced as under:-

"PERSONAL SERVICE OR DEFAULT

IN THE CIRCUIT COURT OF COOK COUNTY ILLINOIS COUNTY DEPARTMENT- DOMESTIC RELATIONS DIVISION

In Re the Marriage of: ) Judge Jeanne R. HARPREET SINGH SEKHON ) Cleveland Bernstein Petitioner ) May 23, 2005 and ) Circuit Court-1883 RAJWANT KAUR SEKHON ) 05D03518 Respondent ) No.D JUDGMENT FOR DISSOLUTION OF MARRIAGE This cause coming on to be heard for prove up on the Verified Petition for Dissolution of Marriage, Petitioner appearing pro se, personal service having been had on Respondent and Respondent having been found in default, or the Respondent having filed a pro se appearance and the parties being in agreement, the court having heard testimony FINDS:

FAO NO.5742 of 2010 (O & M) -23-

1. Respondent did / did not appear in court.

2. The Court has jurisdiction of the parties and the subject matter.

3. Petitioner was a resident of the State of Illinois on the date the petition was filed and for 90 days preceding these findings.

4. The parties were married on 2/9/2000 in Jalandhar, Punjab, India.

5. Petitioner has proven that grounds exist for dissolution of marriage as alleged in the Petition.

6. The following children were born.

NAME BIRTH DATE a. Seerat Kaur Sekhon December 4, 2000 Respondent is not pregnant.

7. The custody of the child Seerat Kaur Sekhon is reserved.

8. Based on the testimony of the Petitioner which has been transcribed for the record and the evidence received.

IT IS HEREBY ORDERED THAT:

A. The parties are awarded a judgment of Dissolution of Marriage and the bonds of matrimony existing between Petitioner and Respondent are hereby dissolved.

B. Wife is granted leave to resume the use of her former name. C. This court expressly retains jurisdiction of this case

for the purpose of enforcing all of the terms of this judgment for Dissolution of Marriage."

NAME ENTER ADDRESS sd CITY, STATE, ZIP JUDGE TELEPHONE

The decree as has been placed on record shows that it is

quite unclear as to whether the respondent has been found in default FAO NO.5742 of 2010 (O & M) -24-

or the respondent had filed a pro se appearance. Besides, it records

that the parties are in agreement and the Court had found the facts

as mentioned in paras 1 to 8 above to be established. Para 1

mentions respondent did/did not appear in Court. Therefore, it is

unclear as to whether the respondent before the Circuit Court of

Cook County, Illinois who is the plaintiff-respondent herein had

appeared or did not appear. The same also records that the parties

are in agreement. However, even if it is to be taken that the plaintiff-

respondent herein had appeared in the Court of Cook County, Illinios

there is nothing to show that she was in agreement with the order

that was passed for dissolving the marriage. The said order also

mentions that the custody of child Seerat Kaur Sekhon is reserved.

In case the order is reserved, it is not shown as to whether any

further order has been passed or whether the same in fact meant

that it was deferred. There is a hand written note on the left side of

the order (Ex.P7) that all other issues of custody, property division

are reserved. There is no signature below the said note and it is

unclear as to whether it is part of the Court proceedings or has been

added later and, if so, by whom. The columns of name, address,

city, State, zip and telephone have been left blank. Therefore, the

said decree is quite unclear as regards the fact whether the

respondent is taken to have appeared or not. The provisions of

Section 13 and 14 CPC which are relevant for consideration may be

noticed. The same read as under:-

"Section 13:-When foreign judgment not conclusive. A

foreign judgment shall be conclusive as to any matter thereby directly FAO NO.5742 of 2010 (O & M) -25-

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 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 recognise the

law of India in case in which such law is

applicable;

(d) where the proceedings in which the

judgment was obtained are 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.

Section 14:-Presumption as to foreign judgments.__The

Court shall presume, upon the production of any

document purporting to be a certified copy of a

foreign judgment, that such judgment was

pronounced by a Court of competent

jurisdiction, unless the contrary appears on the

record; but such presumption may be displaced

by proving want of jurisdiction"

A perusal of the above shows that a foreign judgment is FAO NO.5742 of 2010 (O & M) -26-

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 in six

circumstances as enumerated in Clause (a) to (f); besides, there is a

presumption as to foreign judgments. Therefore, it is to be

ascertained whether the present case comes within the exceptions of

Section 13 CPC. It may be noticed that merits of the case have not

been adverted to in the judgment (Ex.P7) of the Court of Cook

County, Illinios and neither have any reasons been given in support

of the decision that has been passed, which indeed is a violation of

the principles of natural justice and would come within the exceptions

envisaged by clause (b) and (d) of Section 13 CPC. The recording of

reasons in support of an order is an accepted facet of the principles

of natural justice. Reasons recorded in an order indicate the link

between the materials on which certain conclusions have been

reached at and are based. These disclose as to how the mind has

been applied to the subject matter for a decision and against

plausible injustice. The reasons are liable to be given so as to reveal

a rational nexus between the facts considered and the conclusion

reached. These satisfy the party against whom an order is made.

Although if reasons are not recorded in support of an order, it does

not always vitiate decision, however, principles of natural justice

enjoin the recording of reasons. The judgment (Ex.P7) of the Circuit

Court of Cook County, Illinois as reproduced above indeed does not

deal with the merits of the case and does not record any reasons in

support of its decision which is in clear violation of the principles of FAO NO.5742 of 2010 (O & M) -27-

natural justice. In terms of Clause (c) of Setion 13 CPC the exception

to a foreign judgment being conclusive inter alia provides that a

refusal to recognise the law of India in cases in which such law is

applicable; besides, clause (f) thereof provides that the foreign

judgment is not conclusive where it sustains a claim founded on a

breach of any law in force in India. The parties to the marriage are

Sikhs and are governed by Hindu law in the matter of marriage and

divorce. The Hindu Marriage Act, 1955 applies to them. The

question that the appellant is a domicile in USA is inconsequential as

the parties were married by Anand Karaj ceremony of marriage in

India. Marriage by Anand Karaj is recognized form of marriage under

the Hindu Marriage Act by virtue of Section 2 of the Anand Marriage

Act, 1909 which envisages that all marriages which may be or may

have been duly solemnized according to the Sikh marriage ceremony

called Anand shall be, and shall be deemed to have been with effect

from the date of the solemnization of each respectively, good and

valid in law. Therefore, for the purpose of divorce, provisions of

Hindu Marriage Act, 1955 are applicable to the parties especially

when the wife has been a resident of India and is shown to have

never gone to USA. Therefore, it is difficult to say that she is subject

to the law of a country to which she has never visited or merely

because her husband has been residing there. When the marriage

was solemnized in India in accordance with the Hindu Marriage Act,

the law applicable to the parties would be governed by the said Act.

In the circumstances the case of the plaintiff comes within the

exceptions envisaged clauses (c) and (f) of Section 13 CPC as well. FAO NO.5742 of 2010 (O & M) -28-

The question whether the plaintiff respondent appeared in the said

Court as has already been noticed is quite unclear from the judgment

(Ex.P7).

Learned Senior counsel appearing for the appellant has

referred to the documents regarding notice (Ex.P2) issued to the

plaintiff respondent. The same in fact is a publication made in the

press which was issued on 07.04.2005 and was addressed to the

plaintiff respondent at House No.2382, Sector-9, Faridabad. The

plaintiff respondent in her evidence tendered her affidavit as

Ex.PW1/A. It is inter alia submitted by her that she was married to

the defendant appellant on 09.02.2000, according to Sikh rites and

rituals by Anand Karaj. It is further stated that somewhere in the

middle of April 2005 she found an envelope in the letter box of her

House No.645, Sector 16, Faridabad containing a cutting of a

newspaper wherein a notice (Ex.P2) was published that the

defendant had filed a petition for dissolution of the marriage between

the parties in the Circuit Court of Cook County, Chicago, Illinois USA

against her and she was called upon to file her response to the said

petition or otherwise make her appearance in the Office of Clerk of

the Circuit Court of Cook County, Illinois, Room No.802, Richard J.

Daley Centre, in the City of Chicago, Illinois on or before 06.05.2005

otherwise default may be entered against her any time after that day

and a judgment for dissolution of marriage entered in accordance

with the prayer of the said petition. It is further deposed by the

plaintiff that she wrote a letter dated 19.04.2005 to the aforesaid

Clerk of the Circuit Court of Cook County to supply the details of the FAO NO.5742 of 2010 (O & M) -29-

above case to her along with copy of the petition and further

informing her that the aforesaid Court had no jurisdiction to hear the

case because the marriage of the plaintiff and the defendant never

took place in USA and she had never visited USA and stayed with

her husband in USA. In response to the said letter, the plaintiff

received a photocopy of letter dated 25.04.2005 (Ex.P3) from Hon'ble

Dorothy A. Brown, Clerk of the Circuit Court of Cook County, Illinois,

Chicago USA whereby she was required to submit fee of $143.00 so

as to complete and submit appearance Form. The appearance

Form (Ex.P4) was appended with the said letter. The deponent

(plaintiff) wrote another letter dated 29.04.2005 (Ex.P5) to the

aforesaid Clerk of the Circuit Court of Cook County, Illinois

demanding a copy of petition, telephone number, E-mail address and

Website of the Court and other facilities so she might contest the

above case. However, she categorically stated in her letter that she

was not submitting herself to the jurisdiction of the said Court.

Another letter dated 05.09.2005 (Ex.P6) was also written to the

aforesaid Court by the deponent (plaintiff) through her counsel Shri

M. S. Sachdev, Advocate seeking the details of the next date of

hearing. However, thereafter the deponent (plaintiff) did not receive

any information whatsoever from the aforesaid Court. Somewhere in

the end of July, 2006, she again received a plain envelope containing

a photocopy of judgment of dissolution of marriage dated

23.05.2005. In terms of the ex parte judgment (Ex.P7), the marriage

between the deponent (plaintiff) and the defendant was declared

dissolved. According to the plaintiff, it was apparent that the copy of FAO NO.5742 of 2010 (O & M) -30-

the divorce decree was brought at the house of the deponent

(plaintiff) by the defendant through his father or somebody else. By

that time multi pronged litigation was in process between the parties

as the defendant and his father were trying their level best to oust the

deponent (plaintiff) and her little child from House No.645, Sector-16,

Faridabad which was her matrimonial home. Her petition under

Section 125 of the Code of Criminal Procedure for grant of

maintenance and several other cases including cases under Section

406 and 498-A IPC were also in process.

It may, therefore, be noticed that according to the plaintiff

she received an envelope in her House No.645, Sector-16,

Faridabad, which contained cutting of a newspaper wherein a notice

(Ex.P2) was published that the defendant had filed a petition seeking

dissolution of the marriage between the parties in the Circuit Court of

Cook County, Chicago, Illinois. In cross-examination, it is stated by

the plaintiff that she did not live in House No.2382, Sector-9,

Faridabad but she was living in House No.645, Sector-16, Faridabad.

It is, however, stated as correct that when her daughter Seerat

Sekhon was born she had shown her address of House No.2382,

Sector-9, Faridabad. She voluntarily stated that this was her parents'

house and at that time, none of her in-laws or her husband were

present in India. She denied that the defendant never asked her to

shift in House No.645 Sector-16, Faridabad. She further denied that

in the said house her brother and his family were staying. She

denied that she never stayed at Ludhiana and Issewal. She denied

that her father-in-law sent sponsorship along with admission in some FAO NO.5742 of 2010 (O & M) -31-

course in USA. She voluntarily stated that he had sent sponsorship

to her as his friend's daughter and not his (daughter) in-law and,

therefore, the said sponsorship was totally illegal. At that time it is

voluntarily stated that she was five months' pregnant. It is stated as

correct that elder brother of the defendant ('Jeth' of the plaintiff) had

sent Rs.20,000/- as a gift for her daughter Baby Seerat. She denied

that she was ever sent any immigration form or that she had not sent

the same back duly filled. She denied the suggestion that she ever

sent any appearance sheet to American Court and a copy to her

father-in-law. It is voluntarily stated by her that her in-laws sent to

her a newspaper slip/clipping of the American Court and then she

asked the American Court to send her the details of the Court case

and copy of the petition. She or her mother never received any

registered cover containing judgment of divorce of American Court in

July, 2005. She voluntarily stated that she had received a copy of

divorce judgment in July, 2006 which was thrown in the court yard of

her house by someone else in an envelope. She had only discussed

with a lawyer Mr. Malhotra and had never engaged him to appear in

the case in America. She voluntarily stated that she had engaged

Mr. Mandeep Singh Sachdev to issue a letter to American Court

which was Ex.P-6. She possessed only one passport and not two.

A letter Ex.P-5 was written by the plaintiff to Ms. Dorothy

Brown, Clerk of the Circuit Court of Cook County, Illinois. It was

primarily for supplying a copy of the petition to her. It was inter alia

stated by the plaintiff in her said letter (Ex.P5) that she had received

an envelope containing a cutting of alleged publication. The said FAO NO.5742 of 2010 (O & M) -32-

envelope bears the name of Ms. Dorothy Brown but does not bear

the seal of posting or receiving. It was possible that some prank had

been committed on her, so for verification purposes, the application

was being sent for assistance. The plaintiff also asked for supplying

her the telephone numbers of the Hon'ble Court, E-mail address and

website, so that the forms could be downloaded; besides, she

requested for supplying her the relevant law to the effect as to how

she could appear before the Hon'ble Court for contesting the petition

and also provide the details of free legal aid assistance, in her

country because she was not having any independent income and

was totally dependent on the meagre income of her father as

admittedly she had not been sent any maintenance by the petitioner

(defendant herein). The claims mentioned by the plaintiff in her letter

(Ex.P-5) were without prejudice to her legal rights of not submitting to

the jurisdiction of the said Court as the divorce petition had to be

challenged firstly and foremostly on the ground of jurisdiction. The

letter dated 05.09.2005 (Ex.P6) is from Mandeep Singh Sachdev,

Advocate for the plaintiff requesting for providing him further details

as to what was the status of the case and which was the next date of

hearing.

The contention of the learned senior counsel for the

defendant/appellant that the Forms had been tendered as

appearance on behalf of the plaintiff before the Circuit Court of Cook

County, Illinois is not of much significance. The said Forms are not

exhibited on record and have not been proved in accordance with the

mode of proving documents. Section 14 of the Family Courts Act FAO NO.5742 of 2010 (O & M) -33-

relates to application of Indian Evidence Act. It is provided therein

that a Family Court may receive as evidence any report, statement,

documents, information or matter that may, in its opinion, assist it to

deal effectually with a dispute, whether or not the same would be

otherwise relevant or admissible under the Indian Evidence Act,

1872. Therefore, in terms of Section 14 of the Family Courts Act, a

Family Court may receive evidence and the strict rules of evidence

for proving a document are not rigorously applicable. However,

even then the said documents are not of much significance or

relevance. The documents which are referred to are admittedly not

exhibited documents but in fact these have not even been marked.

One of the documents is a cutting of the newspaper, the other is a

document of putting in appearance in which only the name of the

parties is mentioned and is signed by Advocate Mr. Mandeep Singh

Sachdev of Jalandhar and is signed by the plaintiff entering her

appearance but it is not shown whether the same had indeed been

filed or whether the same was considered to have been filed by the

Circuit Court of Cook County, Illinois. The letter dated 19.04.2005 of

Malhotra and Malhotra Associates is addressed to the Minister

Counsellor for Counsular Affairs and Counsul General, American

Embassy, Santipath, Chankyapuyri, New Delhi in which entry of

details of Harpreet Singh Sekhon (defendant) bearing Indian

passport number A5692155 issued in Chicago, on October 21, 1998

and valid till June 17, 2007 are mentioned. It is stated that the wife

Rajwant Kaur Sekhon (plaintiff) is contesting the proceedings of

divorce pending in the State of Illinois, County of Cook and a copy of FAO NO.5742 of 2010 (O & M) -34-

the newspaper notice in this regard was enclosed. The matrimonial

proceedings initiated by Harpreet Singh Sekhon (defendant) were

being contested by Rajwant Kaur Sekhon, therefore, a note of the

matter with regard to Harpreet Singh Sekhon may be made as he

may try to remarry and obtain another spouse visa for another

helpless Indian Girl. The said letter it may be noticed was primarily

an intimation to refrain the defendant-appellant from remarrying

another person and obtaining another spouse visa for another

helpless girl. The letter was not addressed to the Court but to the

American Embassy at New Delhi. The benefit which the defendant-

appellant seeks to derive from the said letter is that it is mentioned

therein that the plaintiff was contesting the proceedings for divorce.

This by itself in fact is quite an innocuous statement as she in fact all

along had been expressing her desire to contest the petition by

asking for a copy of the petition, the proceedings in that case, the

procedure to be followed for putting in appearance and whether free

legal aid was available as she had no means to bear the expenses

for the litigation. Therefore, the said letter of 'Malhotra & Malhotra

Associates is also quite inconsequential. Another document is of

biographic information which has various columns. The said

document is signed by the plaintiff-respondent. The columns are all

blank. Therefore, the said document is also quite inconsequential.

The above circumstances indicate that the plaintiff-

respondent had not put in appearance in the Circuit Court of Cook

County, Illinois. It is not clearly mentioned in the judgment dated

23.05.2005 (Ex.P7) as to whether she had put in appearance. It FAO NO.5742 of 2010 (O & M) -35-

does not say whether she put in appearance or she had been found

in default. In fact both are mentioned. The documents that had been

in the Circuit Court of Cook County, Illinois do not show that she filed

her reply. In fact she had not received a copy of the petition, which

she had been asking for. In the absence of a copy of the petition she

could not have made an effective contest. Therefore, for all intents

and purposes, the judgment dated 23.05.2005 (Ex.P7) of the Circuit

Court of Cook County, Illinois was/is an ex parte judgment; besides,

it failed to comply with principles of natural justice.

In International Woolen Mill versus Standard Wood

(U.K) Ltd. (2001) 5 SCC 265, it was held that the broad proposition

that any decree passed in the absence of defendant, is a decree on

merits as it would be the same as if the defendant had appeared and

contested the judgment cannot be accepted. In respect of the

judgment in question in the said case, it was observed that the same

did not indicate whether any documents were looked into and/or

whether the merits of the case were at all considered. It merely

granted to the respondent a decree for the amounts mentioned

therein. It was noticed that the appellant in the said case by his letter

dated 8.11.1997, replied to the notice of the respondent dated

18.10.1997. In the said reply it had been mentioned that the goods

were of an inferior quality and not as per contract. It was held that

the Court had not applied its mind or dealt with this aspect. It had not

examined points at controversy between the parties. It had given an

ex parte order as the appellant did not appear at the hearing of the

suit. It was not a judgment on merits and such a decree it was held FAO NO.5742 of 2010 (O & M) -36-

cannot be enforced in India. In respect of Section 114 Illustration (e)

of the Indian Evidence Act, it was observed that the same merely

raises a presumption that judicial acts have been regularly

performed. However, to say that a decree had been passed regularly

is completely different from saying that the decree had been passed

on merits. An ex parte decree passed without consideration of merits

may be a decree passed regularly if permitted by the rules of that

Court. Such a decree would be valid in that country in which it is

passed unless set aside by a Court of appeal. However, even though

it may be a valid and enforceable decree in that country, it would not

be enforceable in India if it has not been passed on merits.

Therefore, for a decision on the question whether a decree has been

passed on merits or not, the presumption under Section 114 of the

Evidence Act would be of no help at all. Even if it were to be

presumed that all formalities were complied with and the decree was

passed regularly it still would not lead to the conclusion that it was

passed on merits. Therefore, the ratio of the said judgment in

International woolen Mill versus Standard Wood (U.K) Ltd. (supra)

applies to the facts and circumstances of the present case inasmuch

as the impugned judgment (Ex.P7) is not on merits of the case, it is

not clear whether the respondent had put in appearance; besides, it

is in violation of the principles of natural justice.

Another aspect which requires consideration is whether the

judgment (Ex.P7) being passed by a Foreign Court is valid in respect

of matters where the parties are governed by Hindu Law and the

Hindu Marriage Act in respect of the marriage. The Hon'ble Supreme FAO NO.5742 of 2010 (O & M) -37-

Court in Y. Narasimha Rao and others versus Y. Venkata

Lakshmi and another, (1991) 3 SCC 451 held that marriages

performed under Hindu Marriage Act can be dissolved only under the

said Act. The parties in the said case were married at Tirupati on

27.02.1975. They separated in July, 1978. The Ist appellant therein

filed a petition for dissolution of the marriage in the Circuit Court of

St. Louis County, Missouri, USA. The Ist respondent sent her reply

from here under protest. The Circuit Court passed a decree for

dissolution of marriage on 19.02.1980 in the absence of Ist

respondent. Certain facts relating to the decree of dissolution of

marriage passed by the Circuit Court of St. Louis County, Missouri,

USA were that the Court assumed jurisdiction over the matter on the

ground that the 1st appellant had been a resident of the State of

Missouri for 90 days next preceding the commencement of the action

and the petition in that Court. Secondly, the decree had been passed

on the only ground that there remained no reasonable likelihood that

the marriage between the parties could be preserved and that the

marriage had, therefore, irretrievably broken. Thirdly, the 1st

respondent had not submitted to the jurisdiction of the Court. From

the records it appeared that to the petition, the respondent therein

had filed two replies of the same date. Both were identical in nature

except that one of the replies began with an additional averment as

follows: ``without prejudice to the contention that this respondent is

not submitting to the jurisdiction of this Hon'ble court, this respondent

submits as follows''. She had also stated in the replies, among other

things, that (i) the petition was not maintainable, (ii) she was not FAO NO.5742 of 2010 (O & M) -38-

aware if the first appellant had been living in the State of Missouri for

more than 90 days and that he was entitled to file the petition before

the Court, (iii) the parties were Hindus and governed by Hindu Law,

(iv) she was an Indian citizen and was not governed by laws in force

in the State of Missouri and , therefore, the Court had no jurisdiction

to entertain the petition, (v) the dissolution of the marriage between

the parties was governed by the Hindu Marriage Act and that it could

not be dissolved in any other way except as provided under the said

Act, (vi) the Court had no jurisdiction to enforce the foreign laws and

none of the grounds pleaded in the petition was sufficient to grant

any divorce under the Hindu Marriage Act. The Hon'ble Supreme

Court observed that under the provisions of the Hindu Marriage Act,

1955 only the District Court within the local limits of whose original

civil jurisdiction-(i) the marriage was solemnized, or (ii) the

respondent, at the time of the presentation of the petition resides, or

(iii) the parties to the marriage last resided together, or (iv) the

petitioner is residing at the time of the presentation of the petition, in

a case where the respondent is, at the time, residing outside the

territories to which the Act extends, or has not been heard of as

being alive for a period of seven years of more by those persons who

would naturally have heard of him if he were alive, has jurisdiction to

entertain the petition. The Circuit Court of St. Louis Country, Missouri

had, therefore, no jurisdiction to entertain the petition according to

the Act under which admittedly the parties were married. Secondly,

irretrievable breakdown of marriage is not one of the grounds

recognised by the Act for the dissolution of marriage. Hence, the FAO NO.5742 of 2010 (O & M) -39-

decree of divorce passed by the foreign court was on a ground

unavailable under the Hindu Marriage Act. A reference was made to

Section 13 CPC, which states that a foreign judgment is not

conclusive as to any matter thereby directly adjudicated upon

between the parties if (a) it has not been pronounced by a court of

competent jurisdiction; (b) it has not been given on the merits of the

case; (c) it is 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) the proceedings are opposed to natural justice, (e) it is

obtained by fraud, (f) it sustains a claim founded on a breach of any

law in force in India. The decree in the said case dissolving the

marriage passed by the foreign court it was held was without

jurisdiction according to the Hindu Marriage Act as neither the

marriage was celebrated nor the parties last resided together nor the

respondent resided within the jurisdiction of that Court. The decree

was also held to be passed on a ground which was not available

under the Hindu Marriage Act which was applicable to the marriage.

Further, the decree it was held had been obtained by the 1st

appellant by stating that he was a resident of the Missouri State

when the record showed that he was only a bird passage there and

was ordinarily a resident of the State of Louisiana. He had, if at all,

only technically satisfied the requirement of residence of ninety days

with the only purpose of obtaining the divorce. He was neither

domiciled in that State nor had he an intention to make it his home.

He had also no substantial connection with the forum. The 1st

appellant had further brought no rules on record under which the St. FAO NO.5742 of 2010 (O & M) -40-

Louis Court could assume jurisdiction over the matter. On the

contrary, he had in his petition made a false averment that the 1st

respondent had refused to continue to stay with him in the State of

Missouri where she had never been. In the absence of the rules of

jurisdiction of that Court, it was observed by their Lordships that they

were not aware whether the residence of the 1st respondent within

the State of Missouri was necessary to confer jurisdiction on that

court, and if not, of the reasons for making the said averment. In

respect of clause (a) of Section 13 CPC it was held that the said

clause should be interpreted to mean that only that court would be a

court of competent jurisdiction to which the Hindu Marriage Act or

the law under which the parties were married recognises as a court

of competent jurisdiction to entertain the matrimonial dispute. Any

other Court should be held to be a court without jurisdiction unless

both parties voluntarily and unconditionally subject themselves to the

jurisdiction of that court. The expression "competent court" in Section

41 of the Evidence Act, it was observed was also to be construed

likewise. It was further observed that Clause (b) of Section 13 CPC

states that if a foreign judgment has not been given on merits of the

case, the courts in this country will not recognise such judgment. This

clause, it was held, should be interpreted to mean (a) that the

decision of the foreign court should be on a ground available under

the law under which the parties are married, and (b) that the decision

should be a result of the contest between the parties. The latter

requirement, it was held, is fulfilled only when the respondent is duly

served and voluntarily and unconditionally submits himself/herself to FAO NO.5742 of 2010 (O & M) -41-

the jurisdiction of the court and contests the claim, or agrees to the

passing of the decree with or without appearance. A mere filing of the

reply to the claim under protest and without submitting to the

jurisdiction of the court, or an appearance in the Court either in

person or through a representative for objecting to the jurisdiction of

the Court, is not to be considered as a decision on the merits of the

case. In this respect the general rules of the acquiescence to the

jurisdiction of the Court which may be valid in other matters and

areas should be ignored and deemed inappropriate. It was further

held that clause (c) of Section 13 CPC states that where a judgment

is founded on a refusal to recognise the law of this country in cases

in which such law is applicable, the judgment will not be recognised

by the courts in this country. It was observed that the marriages

which take place in this country can only be under either the

customary or the statutory law in force in this country. Hence, the

only law that can be applicable to the matrimonial disputes is the one

under which the parties are married, and no other law. When,

therefore, a foreign judgment is founded on a jurisdiction or on a

ground not recognised by such law, it is a judgment which is in

defiance of the Law. Hence, it is not conclusive of the matters

adjudicated therein and therefore, unenforceable in this country. For

the same reason, such a judgment will also be unenforceable under

clause (f) of Section 13, since such a judgment would obviously be in

breach of the matrimonial law in force in this country. Clause (d) of

Section 13 CPC which makes a foreign judgment unenforceable on

the ground that the proceedings in which it is obtained are opposed FAO NO.5742 of 2010 (O & M) -42-

to natural justice, it was observed, states no more than an

elementary principle on which any civilised system of justice rests.

However, in matters concerning the family law such as the

matrimonial disputes, this principle has to be extended to mean

something more than mere compliance with the technical rules of

procedure. If the rule of audi alteram partem has any meaning with

reference to the proceedings in a foreign court, for the purposes of

the rule it should not be deemed sufficient that the respondent has

been duly served with the process of the court. It is necessary to

ascertain whether the respondent was in a position to present or

represent himself/herself and contest effectively the said

proceedings. This requirement should apply equally to the appellate

proceedings if and when they are filed by either party. If the foreign

court has not ascertained and ensured such effective contest by

requiring the petitioner to make all necessary provisions for the

respondent to defend including the costs of travel, residence and

litigation where necessary, it should be held that the proceedings are

in breach of the principles of natural justice. It is for this reason that

their Lordships found that the rules of Private International Law of

some countries insist, even in commercial matters, that the action

should be filed in the forum where the defendant is either domiciled

or is habitually a resident. It is only in special cases which is called

special jurisdiction where the claim has some real link with other

forum that a judgment of such forum is recognised. This jurisdiction

principle is also recognised by the Judgments Convention of the

European Community. It is, therefore, the courts in this country also FAO NO.5742 of 2010 (O & M) -43-

insist as a matter of rule that a foreign matrimonial judgment will be

recognised only it it is of the forum where the respondent is domiciled

or habitually and permanently resides, the provisions of clause (d) of

Section 13 CPC may be held to have been satisfied. The provision

of clause (e) of Section 13 CPC which requires that the courts in this

country will not recognise a foreign judgment if it had been obtained

by fraud, it was observed, is self-evident. It was held that the said

rule could be deduced for recognising foreign matrimonial judgment

in this country. The jurisdiction assumed by the foreign court as well

as the grounds on which the relief is granted must be in accordance

with the matrimonial law under which the parties are married. The

exceptions to this rule may be as follows: (i) where the matrimonial

action is filed in the forum where the respondent is domiciled or

habitually and permanently resides and the relief is granted on a

ground available in the matrimonial law under which the parties are

married; (ii) where the respondent voluntarily and effectively submits

to the jurisdiction of the forum as discussed above and contests the

claim which is based on a ground available under the matrimonial law

under which the parties are married; (iii) where the respondent

consents to the grant of the relief although the jurisdiction of the

forum is not in accordance with the provisions of the matrimonial law

of the parties.

The present case does not come in any of the

aforementioned exceptions as the respondent before the Circuit

Court of Cook County, Illinois (i.e. the plaintiff herein) is not domiciled

nor habitually and permanently residing in USA. In fact the plaintiff FAO NO.5742 of 2010 (O & M) -44-

has placed on record her passport in terms of which she has never

visited USA. Relief that has been granted by the Circuit Court of

Cook County, Illinois is not available under the matrimonial law in this

country i.e. the Hindu Marriage Act, 1955 under which the parties

have been married. The claim for dissolution of the marriage as laid

is not available under the matrimonial law i.e. Hindu Marriage Act by

which the parties are governed. The parties are Sikhs and had

married in accordance with Anand Karaj and are governed by Hindu

Marriage Act. The respondent before the Circuit Court of Cook

County, Illinois never voluntarily or effectively submitted to the

jurisdiction of the said forum and did not contest the claim inasmuch

as she was never given copy of the petition. The respondent before

the Circuit Court of Cook County, Illinois never consented to the

grant of relief. Therefore, the decree (Ex.P7) of the Circuit Court of

Cook County is not a decree which can be said to be valid between

the parties. In terms of the ratio of the judgment in Y. Narasimha

Rao and others versus Y. Venkata Lakshmi and another (supra), the

decree (Ex.P7) cannot be said to be valid. Insofar as the rights of

the parties are concerned, the parties are Indians. The marriage was

solemnized in India and they are governed by the Hindu Marriage

Act. The law is well-settled by the judgment in Y. Narasimha Rao

and others versus Y. Venkata Lakshmi and another (supra) and the

decree (Ex.P7) of the Circuit Court of Cook County cannot be said to

be valid on any ground in view of the aforesaid enunciation of the

law.

In Harmeeta Singh versus Rajat Taneja 2003 (2) RCR FAO NO.5742 of 2010 (O & M) -45-

(Civil) 197 (Delhi) it was held that the parties lived together for a very

short time in the United States of America. The wife had lived in India

for almost her whole life and was presently domiciled in India. The

defendant (husband) was of Indian origin and his parents and family

members were Indian citizens and were domiciled in India. The

defendant in the said case it was alleged had substantial interests in

immovable properties in India. It was held that in the said event the

marriage dissolved by a decree in America, in consonance with

principles of private international law which are embodied in Section

13 CPC, inter alia, the said decree would have to be confirmed by a

Court in this country. Furthermore, if the defendant (husband) were

to remarry in the United States of America on the strength of the

decree of divorce granted in that country, until this decree is

recognized in India he would have committed the criminal offence of

bigamy and would have rendered himself vulnerable to be punished

for bigamy. It was further observed that the plaintiff (wife) had not

submitted to the jurisdiction of the Courts in the United States of

America. In the context of their residing together as husband and

wife, the Plaintiff's stay in the United States of America could well be

viewed as transient, temporary and casual. Having not received a

spouse visa she may not even be in a position to enter USA. The

defendant (husband) was restrained from continuing with the

proceedings in the United States of America.

From the afore-stated propositions, it is quite evident that

for a decree of divorce by a foreign Court to be valid in India in

respect of matrimonial matters, it must be passed (a) in accordance FAO NO.5742 of 2010 (O & M) -46-

with the law applicable for the grant of matrimonial relief by which the

parties are governed; (b) only that Court would be a Court of

competent jurisdiction by which the parties are governed in the

matters of marriage or the law under which the parties are married

recognises as a Court of competent jurisdiction to entertain the

matrimonial dispute. Any other Court would be a Court without

jurisdiction unless both the parties voluntarily and unconditionally

submit themselves to the jurisdiction of that Court; (c) the decision of

the foreign Court should be as a result of contest between the parties

which requirement would be fulfilled only when the respondent before

the foreign Court is duly served and he/she voluntarily and

unconditionally submits himself/herself to the jurisdiction of the Court

and contests the claim or agrees to the passing of the decree with or

without appearance. A mere filing of the reply to the claim under

protest and without submitting to the jurisdiction of the court, or an

appearance in the Court either in person or through a representative

for objecting to the jurisdiction of the Court, is not to be considered

as a decision on the merits of the case; (d) the foreign matrimonial

judgment is to be recognized only if it is of the forum where the

respondent is domiciled or habitually and permanently resides; (e) it

is to be ascertained that the foreign Court had ensured an effective

contest to a petition seeking matrimonial relief by requiring the

petitioner to make a necessary provisions for the respondent to

defend including the cost of travel, residence and litigation where

necessary and if not is to be held that the provisions are in breach of

the principles of natural justice.

FAO NO.5742 of 2010 (O & M) -47-

The contention of the learned Senior counsel that the

Family Court has no jurisdiction is devoid of merit. A perusal of the

record shows that the suit had been filed by the plaintiff for declaring

the decree (Ex.P7) to be void in the Court of the learned Civil Judge

(Senior Division), Faridabad. The Additional Civil Judge (Senior

Division), Faridabad on 17.04.2008 on perusal of the office report

ordered the suit to be registered and defendant summoned for

settlement of issues. The proceedings were conducted for sometime

by the learned Additional Civil Judge (Senior Division), Faridabad.

Then on 01.04.2009, it was transferred to the Court of Civil Judge

(Junior Division), Faridabad. The issues in the case were framed on

13.05.2009 by the Civil Judge (Junior Division), Faridabad. At the

time of framing issues the learned trial Judge heard arguments on

the jurisdiction of the Court. It was observed that the suit was for

declaration that the ex parte judgment dated 23.05.2005 passed by

the Circuit Court of Cook County in USA be declared as null and

void. The learned counsel for the defendant contested the suit on the

ground that since ex parte injunction had been granted by the Court

in USA, therefore, the appeal/suit to set aside the ex parte order of

Circuit Court should be filed in USA only. The learned Civil Judge

(Junior Division) referred to the case of Y Narasihma Rao versus

Ventaka Lakshmi (supra) wherein it has been held that parties

married according to Hindu rites in India, petition for divorce was filed

in American Court where parties never last resided. Therefore, under

Sections 13 and 9 of CPC, prima facie the Court had jurisdiction to

entertain the present suit. Thereafter on 27.05.2009, it was received FAO NO.5742 of 2010 (O & M) -48-

in the Family Court on its establishment and the proceedings were

conducted before the District Judge (Family Court), Faridabad.

Issues were re-framed on 04.11.2009. Therefore, it is a case of

transfer of the case to the Court of District Judge (Family Court),

Faridabad on its establishment. Section 7 of the Family Courts Act

deals with the jurisdiction of the Family Court and the same reads as

under:-

"Jurisdiction.-

(1) Subject to the other provision of this Act, a Family Court

shall--

(a) have and exercise all the jurisdiction exercisable by

any district court or any subordinate civil court under any law

for the time being in force in respect of suits and proceedings of

the nature referred to in the Explanation; and (b) be deemed,

for the purposes of exercising such jurisdiction under such law,

to be a district court or, as the case may be, such subordinate

civil court for the area to which the jurisdiction of the Family

Court extends.

Explanation.-- The suits and proceedings referred to in this sub-

section are suits and proceedings of the following nature,

namely:--

(a) a suit or proceeding between the parties to a marriage

for a decree of nullity of marriage (declaring the marriage to be

null and void or, as the case may be, annulling the marriage) or

restitution of conjugal rights or judicial separation or dissolution

of marriage;

FAO NO.5742 of 2010 (O & M) -49-

(b) a suit or proceeding for a declaration as to the validity

of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage

with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order or injunction in

circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the

legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of

the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court

shall also have and exercise--

(a) the jurisdiction exercisable by a Magistrate of the first

class under Chapter IX (relating to order for maintenance of

wife, children and parents) of the Code of Criminal Procedure,

1973 (2 of 1974 ); and

(b) such other jurisdiction as may be conferred on it by

any other enactment."

In terms of Section 7(1) (a), a Family Court is to exercise all the

jurisdiction exercisable by any district court or any subordinate civil

court under any law for the time being in force in respect of suits and

proceedings of the nature referred to in the Explanation and it is to be

deemed, for the purpose of exercising such jurisdiction under such

law, to be a District Court or, as the case may be, such subordinate

civil Court for the area to which the jurisdiction of the Family Court FAO NO.5742 of 2010 (O & M) -50-

extends. Therefore, Section 7 confers powers on the Family Courts

to exercise jurisdiction by which any District Court or any Subordinate

Civil Court under any law for the time being in force in respect of

suits and proceedings of the nature referred to in the Explanation are

mentioned. Clause (b) of Explanation relates to suits and

proceedings for any declaration as to the validity of a marriage or as

to the matrimonial status of any person. A suit for declaration when

clouds are cast on the matrimonial status of any person, a suit

seeking a declaration as to the validity of marriage or matrimonial

status can be instituted. In the present case, in view of the decree

of the Circuit Court of Cook County, Illinois, the matrimonial status of

the plaintiff-respondent was affected inasmuch as she was to be not

treated as the wife of the defendant-appellant. Therefore, the suit for

establishing her matrimonial status was clearly maintainable. A

declaratory decree merely declares the rights of a decree-holder and

the matrimonial status of the person seeking such declaration.

Family Court, therefore, decides disputes in a judicial manner and

declares the rights of the parties including the matrimonial status.

Family Court in terms of Section 7 is a District Court or a Subordinate

Civil Court to which the provisions of Civil Procedure Code and

Criminal Procedure Code have been made applicable in terms of

Section 10 thereof. Therefore, the Family Court is clothed with all

powers and the jurisdiction which any District Court or any

Subordinate Court exercises under the Hindu Marriage Act. Section

34 of the Specific Relief Act, 1963 entitles any person to any legal

character, or to any right as to any property, to institute a suit against FAO NO.5742 of 2010 (O & M) -51-

any person denying or interested to deny, his title to such character

or right, and the court may in its discretion make therein a declaration

that he is so entitled and the plaintiff need not in such suit ask for any

further relief. The said provision gives a remedy to a person against

others who claim an adverse interest as to his legal character or to

any right as to any property. The object is to remove the cloud which

may be cast upon the legal character of the plaintiff on his rights. A

declaration seeking a matrimonial status would be covered in a suit

seeking declaration for the purpose. Clouds having been cast on the

rights of the plaintiff as to her matrimonial status by virtue of the

impugned judgment of the Circuit Court of Cook County, Illinois,

USA, she was entitled to file a suit for declaration seeking the said

judgment to be a nullity and it would be a suit with respect to her

matrimonial status which would be within the competence of the

Family Court in view of Clause (b) of Explanation to Section 7 of the

Family Courts Act.

In KA Abdul Jaleel Versus T. A. Shahida (2003) 4 SCC

166, it was held that the expression "dispute relating to marriage and

family affairs and for matters connected therewith" in explanation (c)

to Section 7 of the Family Courts Act must be given a broad

construction. It was observed that the statement of objects and

reasons clearly show that the jurisdiction of the Family Court

extends, inter alia, in relation to properties of spouses or of either of

them which would clearly mean that the properties claim by the

parties thereto as spouse of the other, irrespective of the claim

whether the property is claimed during the subsistence of marriage or FAO NO.5742 of 2010 (O & M) -52-

otherwise. It was further held that it is well-settled that the

jurisdiction of a Court created specially for the resolution of disputes

of certain kinds should be construed liberally. The restricted

meaning if subscribed to Section 7 Explanation (c) of the Family

Courts Act would frustrate the object for which the Family Courts

were set up. Therefore, the Family Courts have jurisdiction to

determine the status of a party of his or her being the spouse of the

other. Clouds were casts on the rights of the plaintiff-respondent

regarding her matrimonial status with the passing of the decree dated

23.05.2005 (Ex.P-7) passed by the Circuit Court of Cook County,

Ilinios. Therefore, she had a right to seek declaration of her status in

terms of Section 34 of the Specific Relief Act, 1963. The effect of the

declaration is to hold the matrimonial status of the plaintiff-

respondent is that of a wedded wife of the defendant-appellant. The

effect would be that the plaintiff becomes entitled to the status and

privileges which she has of being the wife of the defendant

notwithstanding the decree of the Circuit Court of Cook County,

Illinios. Such a decree entitles the plaintiff to claim necessary relief

to which she is entitled to on account of her matrimonial status as the

wife of the defendant. For the said purpose, the Family Court

established under the Family Courts Act would have the jurisdiction

to entertain and try the suit. Therefore, the contention in this regard

of learned Senior Counsel for the appellant is without any basis.

The other contention that has been raised by Dilraj Singh

Sekhon father and general attorney of the defendant/appellant is that

the Court at Faridabad had no jurisdiction and the parties had FAO NO.5742 of 2010 (O & M) -53-

married at Jalandhar and last resided at Mohali. They had never

lived at Faridabad. In this regard, it may be noticed that the plaintiff

has pleaded that she was residing at Faridabad; besides, property of

the defendant i.e. House No.645 Sector-16, Faridabad is situated at

Faridabad. Both the parties last resided at House No.645 Sector-16,

Faridabad and the cause of action to file the suit had also accrued at

Faridabad within the jurisdiction of the Court at Faridabad. Issue

No.2 on 04.11.2009 was framed to the effect as to whether the

Family Court had no territorial jurisdiction to try the suit as alleged.

The onus of this issue was on the defendant. Dilraj Singh Sekhon

GPA of the defendant filed his affidavit (Ex.DW-1/A). In the said

affidavit (Ex.DW-1/A) there is nothing mentioned as regards the

jurisdiction of the Court at Faridabad even though the onus of the

issue was on the defendant. As against this the plaintiff in her

affidavit (Ex.PW-1/A) has stated that somewhere in the middle of

April 2005 she found an envelope in the letter box of her House

No.645, Sector-16, Faridabad containing a cutting of a newspaper

wherein a notice was published that the defendant had filed a petition

for dissolution of the marriage between them in the Circuit Court of

Cook County, Chicago, Illinios USA against her and she was called

upon to file her response to the said petition. Therefore, it is the

specific averment of the plaintiff that a notice for her appearance had

been found in an envelope of her letter box at Faridabad. Therefore,

the cause of action had accrued to the plaintiff within the territorial

jurisdiction of the civil Court at Faridabad. The objection in the

written statement filed by the defendant through his attorney and FAO NO.5742 of 2010 (O & M) -54-

father Dilraj Singh Sekhon is that the parties never last resided

together at Faridabad and they were married at Jalandhar. However,

the present is a suit for declaration and has been filed where the

defendant has his house at Faridabad and the cause of action

accrued to the plaintiff at Faridabad. It is not a case seeking

dissolution of marriage under the Hindu Marriage Act, 1955 where

the petition is to be filed at the place where the marriage was

solemnized or where the parties last resided together. In any case in

view of amendment effected to the Hindu Marriage Act by Act No.50

of 2003 Clause (iii-A) has been added to Section 19 thereof which

entitles the wife who is the petitioner to present to the District Court

within the local limits of whose ordinary original jurisdiction she is

residing on the date of the presentation of the petition. Therefore,

the contention of the defendant that the Court at Faridabad had no

jurisdiction to entertain and decide the petition is devoid of merit.

Another contention that has been raised by Sh.Dilraj

Singh Sekhon GPA holder is that the limitations for filing an appeal

under Section 28 of the Hindu Marriage Act is 30 days from the date

of decree. What is sought to be contended is that the decree dated

23.05.2005 (Ex.P-7) passed by the Circuit Court of Cook County,

Illinois has been assailed after 30 days of the date of decree.

However, it may be noticed that the present case relates to a suit for

declaration which was filed by the plaintiff on 17.04.2008. It is not an

appeal. The learned Additional Civil Judge (Senior Division),

Faridabad on 17.04.2008 passed an order to the effect that the suit

taken out from the petition box. Reader to put up after office report FAO NO.5742 of 2010 (O & M) -55-

on the said day itself. The Reader reported on 17.04.2008 that the

Court fee was correct. Thereafter on the same day, the learned

Additional Civil Judge (Senior Division), Faridabad passed an order

to the effect that office report had been perused. Suit was ordered to

be registered and the defendant summoned for settlement of issues

on filing of process fee. Copy of plaint and registered AD covers for

12.05.2008 were ordered. The suit was received by the learned

District Judge (Family Court), Faridabad on 27.05.2009. The date of

institution of the suit mentioned in the impugned judgment and

decree of the District Judge (Family Court) is 25.05.2009 which, in

fact is the date of transfer of the case. Otherwise, the suit was

initially filed on 17.04.2008. The learned District Judge (Family

Court), Faridabad while deciding issue No.2 held that the suit

seeking declaration had been filed within three years of the

impugned decree and, therefore, it was not time barred. The said

finding is correct and is in accordance with law. The said finding in

fact was to be on issue No.3 as reframed on 04.11.2009 by the

learned District Judge (Family Court), Faridabad. However, this is

only a technical lapse. A suit for declaration is governed by Article

113 of the Limitation Act, 1963 which is a residuary article. It is

envisaged therein that any suit for which no period of limitation is

provided elsewhere in the Schedule, the limitation is three years

when the right to file the suit accrues which in the facts and

circumstances would be when the status of the plaintiff as a wife of

the defendant is denied.

Another objection which is seriously pressed by Sh.Dilraj FAO NO.5742 of 2010 (O & M) -56-

Singh Sekhon GPA for the appellant is that the defendant is not

domicile in India, therefore, he could not file a suit for claiming the

matrimonial relief in India. The said contention has been urged on

the basis of Section 2 of the Divorce Act, 1869. A judgement of the

Hon'ble Madras High Court in Dr. David Chakaravarthy

Arumainayagam and another versus Geetha Chakravarthy

Armainayagam and another 2002(1) Marriage Law Journal 354 has

been strenuously relied upon. The said contention in fact is

absolutely misconceived as the parties are not governed by the

Divorce Act, 1869. The parties are admittedly Sikhs and are

governed by Hindu Law in the matters of marriage. Even during the

course of hearing, Sh. Dilraj Singh Sekhon GPA for the appellant

accepted that the parties profess the Sikh Religion. Section 2 of the

Divorce Act, 1869 relates to extent of the Act and in respect to the

extent of power to grant relief generally, it is provided that nothing

hereinafter contained shall authorise any Court to grant any relief

under the said Act except where the petitioner or respondent

professes the Christian religion. Neither of the parties professes the

Christian religion. Therefore, the said contention is absolutely

untenable and misconceived. The provisions of the Divorce Act,

1869 are not even remotely applicable to the present case.

Learned counsel for the plaintiff-respondent has also

raised an objection that Sh.Dilraj Singh Sekhon GPA for the

appellant who claims to have a power of attorney in his favour does

not have a valid power of attorney to represent his son Harpreet

Singh Sekhon who is the defendant. In the connected FAO No.6208 FAO NO.5742 of 2010 (O & M) -57-

of 2011, there was a specific issue in this regard and in the order

pronounced today, it has been held that the power of attorney on the

basis of which Dilraj Singh Sekhon is litigating on behalf of his son

does not give him the necessary power. Therefore indeed the power

of attorney executed by Harpreet Singh Sekhon defendant in favour

of Dilraj Singh Sekhon on 22.02.2006 does not confer on him any

power to pursue litigation on his behalf.

Another contention that has been raised by learned

counsel for the plaintiff is that the defendant-appellant has failed to

pay the maintenance amount and the appeal is liable to be dismissed

on this account. Normally where the maintenance amount has not

been paid, the Court is under an obligation to strike off the defence of

the defaulting party and dismiss or allow the appeal as the case may

be. However, the maintenance that has been granted in the present

case is in proceedings under the Protection of Women from

Domestic Violence Act, 2005. Criminal miscellaneous application

against the said proceedings against the orders passed by the

learned trial Magistrate and the learned Additional Sessions Judge,

Faridabad is pending in this Court and the matter is still to be finally

considered in the said case. Therefore, in the facts and

circumstances, we are not inclined to dismiss the appeal only on

account of non-payment of maintenance. However, that would not

preclude the plaintiff to claim her due rights in accordance with law in

the said proceedings by way of execution or other appropriate

remedies as may be available to her. The defendant appellant in fact

should have honoured the payment of maintenance as ordered by FAO NO.5742 of 2010 (O & M) -58-

this Court on various dates. However, Dilraj Singh Sekhon GPA for

the appellant has been reluctant in paying the amount and has

contended that the same is subject matter of the criminal

miscellaneous application, which is pending in this Court. Since we

are dismissing the appeal on merits we need not to go into this

aspect of the matter.

It may also be placed on record that Mr. Surjit Singh,

Senior Advocate had been appearing in the case. However, on

23.07.2012 he did not appear. He was called for by the Court and he

submitted that his client had taken the brief from him. It was,

however, accepted that he had not been discharged by the Court. In

order to effectively decide the case, he was asked to assist the Court

for which he gracefully agreed. Therefore, it is on the request of the

Court that Mr. Surjit Singh, Senior Advocate had appeared in this

case. Although he had submitted that he may be allowed to withdraw

and the appeal be allowed to be argued by Dilraj Singh Sekhon GPA

for the appellant.

In view of the above, we find no merit in the appeal and

the same is accordingly dismissed.

(S.S. SARON) JUDGE

(S. P. BANGARH) JUDGE 22.02.2013 A.Kaundal