Jammu, March-31: In a significant Order the City Judge Jammu Mr M S Manhas has kept in abeyance the operation of Foreign Judgment and Decree dated 21.11.2016 passed by Hon’ James E Walsh, Jr Acting Justice of the Supreme Court of State of New York, County of Monroe whereby the New York Supreme Court had passed a Divorce Decree in favour of on lady Soni (named changed in the interest of privacy) who had obtained an exparte decree of Divorce against her husband Nikhil Sharma (named changed in the interest of privacy) when the husband was in India.
This order of keeping in abeyance the Judgment and Decree of the Supreme Court of New York was perhaps the first of its kind case in the history of J&K where a foreign decree has been challenged in the local Civil Court in a Suit filed by Nikhil Sharma (named changed) through counsels Mr A K Sawhney, Aseem Sawhney Advocates with Neeraj Singh, Utkarsh Pathania, Ila Sharma and Shiv Dev Thakur.
Mr Aseem Sawhney while making submissions before the City Judge Mr M S Manhas, submitted that the marriage between the parties took place at Jammu and therefore the parties were governed by the J&K Hindu Marriage Act 1961. He submitted that plaintiff is a resident of Jammu and was married to defendant on 22nd February 2008 in accordance with the Hindu rites and ceremonies under the J&K Hindu Marriage Act 1961 and marriage was solemnized according to Hindu rites at Hotel Asia in Jammu. Plaintiff prior to marriage was working in the US and therefore after married took his wife with him to USA in 2008.
In USA there were some disturbances both the employment front of the plaintiff as well as health front and therefore problems started due to tough days for the couple. Due to problems the plaintiff returned back to India but the defendant wife who was a doctor stayed in New York, but to the utter shock of the plaintiff the defendant stopped taking calls from the plaintiff and even the family of the defendant in India gave a cold shoulder response to the plaintiff .She stopped speaking to plaintiff or even snapped ties through social media also. Plaintiff filed a petition in the Jammu Court for restitution of conjugal rights wherein defendant was served in July 2016 with the court summons.
In March 2017 itself the defendant who had been served in the said petition under section 9 of the J&K HMA at New York USA, sent her counsel who appeared before the Jammu Matrimonial Court and filed a copy of the Judgment and Decree of the Supreme Court of State of New York, County of Monroe passed by Hon. James E Walsh, Jr. Acting Justice of Supreme Court, whereby the application of the defendant (plaintiff there) was allowed and the marriage was dissolved between the parties by the said Court as has been broken irretrievably for a period of at least six months pursuant to DRL 170 (7), besides other directions and orders.
Mr Aseem Sawhney submitted before the Court that plaintiff was shocked to read the said Judgment and Decree which has been passed ex parte as the plaintiff was never served nor ever appeared or could go to New York in USA as the plaintiff was jobless and without money. So much so that the defendant was served on 28.7.2016 at New York by the US Process Serving agency and a report was furnished in the Matrimonial Court Jammu still she instead of pursuing the matter in Jammu, neither disclosed the fact to the Court there nor approached the Court here, whileas it was explained in the said petition before the Matrimonial Court that it is only the Jammu’s Court which has the jurisdiction to entertain the petitions under the J&K Hindu Marriage Act as marriage took place in Jammu, but the defendant has obtained the illegal Decree and judgment from the New York Court by concealment of facts, fraud and against the law, therefore the said impugned Judgment and Decree is illegal and deserves to be declared as nullity.
He submitted that Section 13 of the J&K CPC 1977 (1920 AD) deals with a foreign decree and a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title
He also alleged that the decree has been passed as per the laws of US – New York State and not as per the Indian- J&K Hindu Marriage Act, which prescribes the situations where a divorce can be granted, but in the present case the law which has been pressed into aid is the law of New York whileas the marriage took place as per law of J&K thus the Decree is bad in the eyes of law and not conclusive, therefore be declared as nullity. Further the ground on which the Decree of Divorce has been granted is the irretrievable break down of marriage whileas the fact remains that the same is not a ground under the J&K Hindu Marriage Act, hence the same is invalid and illegal therefore the Decree be declared and bad and illegal. The New York law is not applicable to both the parties as neither the plaintiff nor the defendant are citizens of USA or New York and only were working there on a temporary work visa, therefore the law is only applicable to the citizens and not to guests or temporary workers who are Hindus and are governed by their exclusive State law governing marriages and divorces of Hindu, thus the Decree is bad and nullity in the eyes of law.
That the opening words are that “Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction:..” confers the jurisdiction and the jurisdiction thus cannot be conferred to the Supreme Court of New York.
That further it is submitted that Division Bench Judgment of J&K High Court in K Radha Krishan Nayyar Vs Shrimati Radha has held that if the parties are married in J&K State, the parties would be governed under the J&K Hindu Marriage Act and would be adjudicated by the J&K Courts only. Mr Aseem Sawhney Advocate also cited several Supreme Court of India as well as High Court decisions to persuade the Court that the foreign decree obtained by defendant Soni (named changed) was illegal. He cited the Supreme Court Judgment which stated that a decree dissolving the marriage passed by the foreign court is 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. Further, irretrievable breakdown of marriage is not one of the grounds recognized by the Act of dissolution of marriage.
Hence, the decree of the divorce passed by the foreign court was on a ground unavailable under the Act which is applicable to the marriage. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is therefore, unenforceable.
On hearing these submissions, perusing the file with documents, the City Judge Jammu Mr M S Manhas observed that the Foreign Judgment and Decree of divorce dated 21.11.2016 passed by Ho’ Jamesh E Walsh, Jr Acting Justice of the Supreme Court of New York, County of Monreo is kept in abeyance till next date of hearing.
