Monica Daniel Vs Danial Thomas and Others

Kurian Joseph, J.@mdashThe appellant is the writ petitioner. The writ petition was filed with the following prayers:

i) Declare that the Ext. P5 decree passed by the Law Court of U.A.E. in suite No. 69/2004 dated 30-1-2005 which is confirmed in appeal No. 94/2005 dated 30-4-2005 as per Ext. P6, and also in Judgment of appeal of Cessation in No. 57/2005 dated 19-12-2005 as per Ex. P7, and also in Judgment of Appeal with Cessation No. 20/2006 dated 5-12-2006 as Ext. P8 are passed without jurisdiction, without appreciating real merits of the case and further the decree was obtained by fraud, violative of legal principles and violative of natural justice and hence null and void.

ii) Declare that petitioner have the competency to raise the matrimonial dispute against the 1st respondent in appropriate court of law in India.

iii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to permit the petitioner to meet and communicate with her daughter as per any conditions imposed by this Hon''ble Court.

iv) To declare that the Indian courts have competent Jurisdiction to decide the matter of Divorce and custody of child of the Petitioner and the 1st Respondent afresh

v) To issue any other writ, order or direction which this Hon''ble Court deem fit and proper as per the facts and circumstances of the case

The learned single Judge held that the reliefs are not to be granted under Article 226 of the Constitution of India and hence the writ petition was disposed of without prejudice to the liberty to the petitioner to approach the proper forum. Aggrieved, the petitioner has come up in appeal.

2. The brief facts are as follows. Petitioner and the first respondent are Christians. The petitioner is married to the first respondent according to the Christian rites on 29-7-1993. Ext.P1 is the marriage certificate. Thereafter they were staying together in Dubai. On 14-1-1997 the petitioner gave birth to a child. It appears, after a couple of years the relationship got strained. Ultimately the first respondent filed a suit for divorce and custody of the child before the Low Court of First Instance, Dubai. The said Court, by order dated 30-1-2005, granted a decree of divorce. The custody of the child was also granted to the father. Copy of the judgment is Ext.P5. The judgment though challenged in appeal, petitioner could not succeed. That judgment in the appeal court is Ext.P6. It is to be noticed that as per Ext.P6 the verdict of divorce was modified as dissolution of marriage. Petitioner again pursued the matter before the Court of Cassation. The dissolution of the marriage was confirmed by the appeal court. But the verdict regarding custody was remitted to the appeal court for fresh consideration. Copy of the judgment is Ext.P7. Petitioner could not succeed on that aspect also before the appeal court. Therefore, the matter was again pursued before the Court of Cassation. That was dismissed. Copy of the judgment is Ext.P8. In the meanwhile, though an attempt was made to patch up the dispute, that was also in vain. The petitioner thereafter filed a writ petition, W.P(Crl.)No.243/2007 before this Court praying for a direction to produce the daughter before the Court. A Division Bench of this Court disposed of the writ petition observing that the dispute has to be adjudicated before the Family Court. That judgment is Ext. P9. Thereafter only the present writ petition was filed.

3. In the nature of the prayers sought by the writ petitioner, we are afraid, the same cannot be considered under Article 226 of the Constitution of India. It is an extra-ordinary jurisdiction. The ordinary jurisdiction is of civil court, now the Family Court. Petitioner is entitled to move the Family Court and for that no declaration as such is necessary. The orders passed by the Courts in Dubai are open to collateral attack on the grounds mentioned u/s 13 of the Code of Civil Procedure. Placing reliance on the judgment of the Supreme Court in Smt. Satya Vs. Shri Teja Singh, it is contended that the judgments rendered by foreign courts are not binding on Indian courts. There cannot be any doubt or dispute on the well settled principle that the foreign judgment is conclusive as to any matter directly adjudicated upon between the parties only subject to the five norms set out u/s 13 of the CPC. There has to be an enquiry whether the judgment attracts any of the exceptions enumerated in the clauses on the following aspects, apart of course from the acid test as to whether the judgment is between the same parties or between parties under whom they or any of them claim litigating under the same title: (i) that the judgment has been pronounced by a Court of competent jurisdiction, (ii) that it is rendered on the merits of the case, (iii) that it does not appear on the face of proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases where it is applicable, (iv) that the proceedings in which it was obtained are not opposed to natural justice, (v) that it has not been obtained by fraud, or (vi) that it does not sustain a claim founded on a breach of any law in force in India. Except for the above six situations a foreign judgment is to be taken as conclusive. Thus the adjudication has to be done before the Family Court and not under Article 226 of the Constitution of India. In fact that is what is held by the Division Bench of this Court in Ext.P9 judgment. Thereafter the petitioner should not have ventured to file another writ petition, ultimately for the very same reliefs. However, we find that one observation in the judgment of the learned single Judge would perhaps stand in the way of the petitioner pursuing the remedy before the Family Court. That observation reads as follows:

I am not going into the merits of the matter because of the reason that the various decrees passed by the foreign courts have become final.

That part of the judgment is liable to be set aside since the learned single Judge is not justified in making any such observation when the petitioner was relegated to pursue the remedy before the proper forum.

The observation in the judgment under appeal to the effect that the foreign judgments have become final is hence deleted.

The writ petition is disposed of without prejudice to the liberty to the appellant - petitioner to approach the Family Court on all available grounds.