# SATYA v. TEJA SINGH

- **Citation:** [1975] 2 S.C.R. 197
- **Court:** Supreme Court of India
- **Decided:** 1974-10-01
- **Case number:** Criminal Appeal No. 187 of 1970
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satya-v-teja-singh-6288
- **Pages:** 18

## Headnote

A
B
c
D
E
F
G
H
SATYA
v.
TEJA SINGH
October 1, 1974
fH. R. KHANNA AND Y. V, CHANl>RAcHUD, JJ.]
Code of Civil Procedure (Aci 5 of 1908) s. 13 and Indian Evidence Act (I
of 1872) s. 41-lndians m_arried in [ndia-Judgmelll of American State Court
granting divorce to husband-When may be recognised by Indian Courts.
Section 13(a), Civil Procedure Code, 1908, makes a .foreign judgment
conclusive as to any matter thereby directly adjudicated upon except where it
has not been pronounced by a Court of competent iurisdiction;' and s. 41,
Indian Evidence Act, 1872, provides that a final judgment of a competent Court
in the exercise of matrimonial jurisdiction is conclusive proof that the legal
character which it confers or takes away accr.ied or ceased at the tim~ declared
in t.hc judgment for that purpose.
The appellant and respondent, who were Indian citizens were married In
India in 1955. The respondent left for the U.S. in 1959 and from 1960 to
l~o4 was living in Utah for sometime as a student and thereafter in employ·
ment.
Since 1965 he had been in Canada. He filed a petition for divorce in
November 1964 in Nevada, and obtained a decree aga,inst the appellant in
Dc,ember 1964. The appellant did not appear in the
Nevada
Court,
was
unrepresented and did not submit to its jurisdiction.
In 1965, the appellant moved an application for maintenance under ~. 488,
Criminal Procedure Court, 1898, and the respondent relied upon the divorce
decree of the Nevada CQurt as a complete answer to the appellant's claim. The
trial court held in favour of the appellant and'" the order was confirmed in
revision. In further revision, the High Court held in favour of the respondent
on the basis that 'at the crucial time of the commencement of the ptoceedings
for divorce the petitioner was domiciled' in Nevada, that during marriage the
domicil of the wife follows the domicil of the husband, that it was decided in
Le Mcsur·in v. Le Mesurter [1895) A.C. 517 .that 'according to international
law, the domicil for the time being of the married pair affords the only test
of jurisdiction to dissolve their marriage, and that therefore, the Nevada Olurt
had jurisdiction to pass the decree of divorce.·
.
Allowing the appeal to this Court.
HELD : The decree of divorce pasesd by the Nevada Couri tn U.S.A. could
not .be recognised in India. [212F]
.
·
(I) The qUestion as regards the recognition to be accorded to the Nevada
decree depends on the rules of Indian Private International Law. Our notions of
a genuine divorce and of substantial justice and the distinctive principles of our
public policy must determine the rules of our Private International Law. But
awareness of foreign law in a parallel jurisdiction would be a useful guideline
in determining these rules.
[200 F-G; 211 A-BJ
Shorn of confusing refinements, a foreign decree of divorce iS denied re.cognition in American Courts if the judgment is without jurisdiction or -is pro- -
cnred by fraud or if treati~ it as valid would offend against public policy. The
English law on the subject, prior to the passing of the Recognition of Divorces
and Legal Separation Act, 1971, has grown out of a maz.e of domiciliary wilder.
ness but English Courts have, by and large, adopted the same criteria as the
American Courts for denying validity to foreign decrees of divorce. [206F;
207 A-Bl
(2) The Judgment of the Nevada Court was rendered in a dvii proceeding
and therefore its validity in India must be determined on the terms of s. 13,
198
SUPREME COURT REPORTS
[1975) 2 s.c.R.
C.P.C. It is beside the point that the validity of that judgme11t is questioned
A
in a Criminal Court in India. If the Judgment falls under. any of the clauses
(a) to (e) of s. 13, it will cea~ to b~ conclusive as to any matter thereby
adjudicated upon. The Judgment will be open to collateral attack on
tpe
grounds menlloned in the five clauses ·of s. 13.
[?.1? C-EJ
(3) Under s. 13{e), ihe foreign Judgment is open to challenge 'wher~ it
has been obtained by

## Text

_Characters 0–39,623 of 58,280. This is a partial read: ask again with offset=39623 for what follows._

A
B
c
D
E
F
G
H
SATYA
v.
TEJA SINGH
October 1, 1974
fH. R. KHANNA AND Y. V, CHANl>RAcHUD, JJ.]
Code of Civil Procedure (Aci 5 of 1908) s. 13 and Indian Evidence Act (I
of 1872) s. 41-lndians m_arried in [ndia-Judgmelll of American State Court
granting divorce to husband-When may be recognised by Indian Courts.
Section 13(a), Civil Procedure Code, 1908, makes a .foreign judgment
conclusive as to any matter thereby directly adjudicated upon except where it
has not been pronounced by a Court of competent iurisdiction;' and s. 41,
Indian Evidence Act, 1872, provides that a final judgment of a competent Court
in the exercise of matrimonial jurisdiction is conclusive proof that the legal
character which it confers or takes away accr.ied or ceased at the tim~ declared
in t.hc judgment for that purpose.
The appellant and respondent, who were Indian citizens were married In
India in 1955. The respondent left for the U.S. in 1959 and from 1960 to
l~o4 was living in Utah for sometime as a student and thereafter in employ·
ment.
Since 1965 he had been in Canada. He filed a petition for divorce in
November 1964 in Nevada, and obtained a decree aga,inst the appellant in
Dc,ember 1964. The appellant did not appear in the
Nevada
Court,
was
unrepresented and did not submit to its jurisdiction.
In 1965, the appellant moved an application for maintenance under ~. 488,
Criminal Procedure Court, 1898, and the respondent relied upon the divorce
decree of the Nevada CQurt as a complete answer to the appellant's claim. The
trial court held in favour of the appellant and'" the order was confirmed in
revision. In further revision, the High Court held in favour of the respondent
on the basis that 'at the crucial time of the commencement of the ptoceedings
for divorce the petitioner was domiciled' in Nevada, that during marriage the
domicil of the wife follows the domicil of the husband, that it was decided in
Le Mcsur·in v. Le Mesurter [1895) A.C. 517 .that 'according to international
law, the domicil for the time being of the married pair affords the only test
of jurisdiction to dissolve their marriage, and that therefore, the Nevada Olurt
had jurisdiction to pass the decree of divorce.·
.
Allowing the appeal to this Court.
HELD : The decree of divorce pasesd by the Nevada Couri tn U.S.A. could
not .be recognised in India. [212F]
.
·
(I) The qUestion as regards the recognition to be accorded to the Nevada
decree depends on the rules of Indian Private International Law. Our notions of
a genuine divorce and of substantial justice and the distinctive principles of our
public policy must determine the rules of our Private International Law. But
awareness of foreign law in a parallel jurisdiction would be a useful guideline
in determining these rules.
[200 F-G; 211 A-BJ
Shorn of confusing refinements, a foreign decree of divorce iS denied re.cognition in American Courts if the judgment is without jurisdiction or -is pro- -
cnred by fraud or if treati~ it as valid would offend against public policy. The
English law on the subject, prior to the passing of the Recognition of Divorces
and Legal Separation Act, 1971, has grown out of a maz.e of domiciliary wilder.
ness but English Courts have, by and large, adopted the same criteria as the
American Courts for denying validity to foreign decrees of divorce. [206F;
207 A-Bl
(2) The Judgment of the Nevada Court was rendered in a dvii proceeding
and therefore its validity in India must be determined on the terms of s. 13,
198
SUPREME COURT REPORTS
[1975) 2 s.c.R.
C.P.C. It is beside the point that the validity of that judgme11t is questioned
A
in a Criminal Court in India. If the Judgment falls under. any of the clauses
(a) to (e) of s. 13, it will cea~ to b~ conclusive as to any matter thereby
adjudicated upon. The Judgment will be open to collateral attack on
tpe
grounds menlloned in the five clauses ·of s. 13.
[?.1? C-EJ
(3) Under s. 13{e), ihe foreign Judgment is open to challenge 'wher~ it
has been obtained by fraud.' Fraud as to the merits of the case may be ignored,
but fraud as to the- jurisdiction of the Nevada Court is a vital consideration in
the recognition of the de~ree passed by that Court. Though it is not permissible
B
to allege that the Cou1t is 'mistaken', it is permissible to allege that the Court
was 'misled'. The essential distinction is between 'mistake' and
'trickery'.
[113 E-HJ
The Duchess of Ki11gston's Case, Smith's Leading Cases, (13th Ed) Vol. 2,
644 at p. 65 I, referred to.
( 4) Domicll being a jurisdictional fact, the Nevadll decree is open to the
collateral attack that the respondent was not a bona fiie resident of Nevada,
C
much les1 wa1 he domiciled in Nevada. The recital in the judgment of the
Nevada Court is not conclusive and can be contradicted by satisfactory proof.
[211 D-F]
(S) The facts of the present case establish that the respondent went to
Nevada as a bird of passage, resorted to the Court there solely to found
jurisdiction and procured a decree of divorce on a misrepresentation that he
was domiciled in Nevada. Prior to the institution of the divorce proceedinl!ll
he might have stayed but he never lived,
in Nevada.
Having secured a
D
divorce decree he left Nevada immediately theteafter rendering false his statement in the petition for divorce that he had 'the intent to make the State of
Nevada his home for an indefinite period,' The concept Of domicil is not
uniform in all jurisdictions and just as long residence does not by itself
establish domicil, brief residence may not negative it.
But residence for a
particUlar purpose fails· to satisfy the qualitative test, for, the purpose being
a~complished the residence.WOUid cease. The two elements of facrum et animus
must concur. Thus, the decree of the Nevada Court lacks jurisdiction and
E
cannot receive recognition in Indian Courts. [212 D-FJ
(6) The jud11ment to operate as conclusive proof under s. 41, Evidence
Act, has to be of a 'Competent Court', that is, a Court having jurisdiction
over the parties and the subject matter. Even a jμdgment in rem is open to
attack on the ground that the Court had no jurisdiction, and s. 44 of the
Evidence Act gives the right to. a party to show that a judgment under s. 41
was delivered bJI a Court. not competent to deliver it, or was obtained by
fraud or collusion. Fraud, in any case bearing on jurisdictional facts: vitiates
F
all judicial acts whether in rem or in personam; and no rule of private international law co1,1ld compel a wife to submit to a decree procured by 'the
husband by trickery. [213H-214 D, G]
R. Viswanathan v.Rukn-u/ Mulk, [1963] 3 S.C.R. 22, 42, followed.
(7) The High Court wrongly assumed that the respondent was domicilea
in Nevada; and in this view,
th1~ Le Mesurier doctrine on which the High
Court relied, loses its relevance.
(212 F-0]
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 187 of
1970.
From the Judgment and Order dated the 13th November, 1969,
of the Punjab and Haryana High Court in Criminal Revision No. 108
Of 1968.
H
• V. C. Mahajan, Utmi/a Kapur, Kam/esh Bansal and Sobha Dikshit,
for the Appellant.
A
B
c
D
E
G
H
SATYA v. TEJA SINGH (Chandrachud, J.)
199
B. P. Maheshwari, Suresh Sethi, R. K. Maheshwari and Randhir
Jain, for the Respondent.
The Judgment. of the Court was delivered by
<?HA.NORACHUD, J. This appeal by special leave arises out of an
apphcauon made by the appellant under section 488, Code of Criminal
Procedure, 1898. It raises issues for beyond the normal compass .·of a
summary maintenance proceeding designed primarily to give quick relief to .a. ncglcct~d wife and children. Are I~dian courts bound to give
~ecogn1t1on !O divorce de.crees granted by foreign courts? That, broadly,
1s the question for decision.
Satya, the appellant herein, married the respondent Teja Singh on
July 1, 1955 according to Hindu rites. Both were Indian citizens and
were domiciled in India at the time of their marriage. The marriage
was performed at Jullundur in the State of Punjab. Two children were
born of the marriage, a boy in 1956 anJ a girl in 1958. On January
23, 1959 the respondent, who was working as a Forest Range Officer
at Gurdaspur, left for .U.S.A. for higher studies in Forestry. He spent
a year in a New York University and then joined the Utah State University where he studied for about 4 years for a Doctorate in Forestry.
On the conclusion of his studies, he secured a job in Utah on a salary
of the equivalent of about 2500 rupees per month.
During these 5
years the appellant continued to live in India with her minor children.
She did not ever join the respondent in America as, so it seems, he
promised to return to India on completing his studies.
·
On J anuarv 21, 1965 the appellant moved an application under
section 488, .Crimin.al Procedure Code, alleging that the respondent
had neglected to maintain her and the two minor children. She prayed
that he should be directed to pay a sum of Rs. l OOOi- per month for
their maintenance.
Respondent appeared through a counsel and demurred that his
marriage with the appellant was dissolved on December 30, 1964 by
a decree of divorce granted by the 'Second Judicial District Court of the
State of Nevada and for the County of Washoe, U.S.A.'. He contended
that the appellant had ceased to be his wife by virtue of that decree
and, therefore; he was not liable to maintain her any longer. He expressed his willingness to take charge of the children and maintain
them.
The Judicial Magistrate First Class, Ju!lundur held by her judgment
dated December 17 1966 that the decree of divorce was not binding on
the appellant as th~ respondent had not "permanently settled" in tl)e
State of Nevada and that the marriage between the appellant and. the
respondent could be dissolved only under the Hindu Marriage Act,
1955. The learned Magistrate directed the respondent to pay a sum
of Rs. 300/- per month for the maintenance of the appellant
and
Rs. 100/- per month for each child.
This order was confirmed in
revision by the Additional ·Session Judge, Jullundur. op the gro!1nd
that the marriage could be. dissolved only under the Hindu Marriage
Act.
200
SUPREME COURT REPORTS
(1975] 2 s.~·R·
In the third round of litigation, the husband succeeded in a Revi·
1ion Application filed by him in the High Court of Punjab and Haryana.
A learned single Judge of that Court found that "at the crucial time
of the commencement of the proceedings for divorce before the Court
in Nevada, the petitioner was domiciled within that State in United
States of America". This finding is the corner-stone of the judgment
of the High Court. Applying the old English rule that during marriage
the domicil of the wife, without exception, follows the domicil of the
husband, the learned Judge held that since the respondent was domi·
ciled in Nevada so was the appellant. in· the eye of law. The Nevada
court had, therefore, jurisdiction to pass the decree of divorce. In
coming to this conclusion the learned Judge relied. principally on the
decisions of the Privy Council in (i) Le Mesurier v. Le Mesurier,( 1}
and (ii) Attorney General for Alberta v. Cook;(2) and of the House of
Lords in (i) Lord Advocate v. Jaf]ray,( 8) and (ii) Salvesen or .Von
Lorang v. Administrator of Austrian Property.(•) In Le MJ!surier's
case which is often referred to, though not rightly, as the "starting
point", it was held that. "according to international law, the domicil
for the time being of the married .pair affords the only true test of
jurisdiction to dissolve their· marriage".
The High Court framed the question for consideration thus : "whether a Hindu marriage solemnised within this country can be validly
annulled by a decree of divorce granted by a foreign court". In one
sense, this frame of the question narrows the controversy by restricting
the inquiry to Hindu marriages. In another, it broadens the inquiry
by opening up the larger question whether marriages solemnised in this
country can at all be dissolved by foreign courts. In any case, the
High Court did not answer the question and preferred to rest its decision on the Le Mesurier doctrine that domicil of the spouses affords
the only true: test of jurisdiction. In order to bring out the real point
in controversy, we would prefer to frame the question for decision
thus : Is the decree· of divorce passed by the Nevada Court in U.S.A.,
entitled to recognition in India ? The question is a vexed one to decide
and it raises issues that transcend the immediate interest wl:lich the
parties have in this litigation. Marriage and divorce are matters of
social significance.
The answer to the question as regitrds the recogn.ition to be accord·
ed to the Nevada decree must depend principally on the rules of our
Private Internaticinal Law. It -is a well-reco!!lliud principle that "Private international law is not the same in all countries". (5) There i$
no system of private internatio11al law which· can claim universal re·
cognition and that explains why... Cheshire, for example, says that his
book is concerned solely with that system which obtains in Emdand,
that is tn say, with the rules that guide an Emdish court whenever it
is seized of a case that contains some foreitm element. The same em·
phasis can be seen in the works of other celebrated writers like Graveson, Dicey & Morris, and Martin Wolff, Speaking of the "English
(l) [1895) .\. C. 517.
(2) 1926 A.C. 444.
(3) [192111 A. C. 146.
(4] [1927) A.C. 641.
(S) Cheshire's Private International Law, Eighth Ed., (1970) p. 10.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
SATYA v. TEJA SINGH- (Chandrachud, J.)
201
conflict of laws" Graveson says : "Almost every country in the modern
world has not only its own system of municipal law differing materially
from those of its neighbours, but also its own system of contlict of
laws, .... "('') According to Dicey & Morris. "The conflict of laws
exists because there are different systems of domestic law. But systems
of the conflict of laws also differ".( 2 )
Martin Wolf advocates the same
point of view thus : "Today undoubtedly Private International Law is
National law.
There exists an English private international law as
distinct from a French, a German, an Italian private international law.
The mies on the conflict of laws in the various countries differ nearly
as much from each other as do those on internal (municipal) law".(3)
It is thus a truism to say that whether it is a problem of municipal law
or of Conflict of Laws, every case which comes before an Indian court
must be decided in accordance with Indian law. It is another matter
that the India_n conflict of laws may require that the Jaw of a foreign
country ought to be applied in a given situation for deciding a case
which contains a for.eign element. Such a recognition is accorded not
as an act of eourtesy but on considerations of justice.(') It is implicit
in that process, that the foreign law must not offend against our public
policy.
We cannot therefore adopt mechanically the rules of Private International Law evolved by other countries. These principles vary greatly
and are moulded by the distiJ!ctive social, political and economic. conditions obtaining in these countries. Questions relating to the personal
status of a party depend in England and North America upon the law
of his domicil, but in France, Italy, Spain and most of the other European countrie~ upon the law of his nationality. Principles governing
matters within the divorce jurisdiction are so conflicting in the different
countries that not unoften a man and a woman are husband and wife
in one jurisdiction but treated as divorced in another jurisdiction. We
have before us the problem of such a limping marriage.
'
The respondent petitioned for divorce in the Nevada court on
November 9, 1964. Paragraph I of the petition which has a material
bearing on the matter before us reads thus :
"That for more than six weeks preceding the commencement of this action plaintiff has been, and now is, a bona fide
resident of and domiciled in the County of Washoe, State of
Nevada, with the intent to make the State of Nevada his
home for an indP.finite period of time. and that he has bP-en
actually, physically and ~really present in said County
and State for more than six weeks."
By Para IV, the respondent alleged :
"That plaintiff is a student who has not yet completed
his education, that by defendant's choice s~e and the minor
(1) ,'The Conflict of Laws, R.H. Grave~on, Sixth Ed., (1969) pp. 3, 5, 6.
H .
(2) "The Conflict of Laws", Dicey & Morris, Eighth Ed., (1967) p. 10.
(3) "Private International-Law", Martin Wolf!' Second Ed., (1950) p. 11.
(4) See G. Melville Bigelow's Note to Story's "Commentaries on the Conflict
of Laws" Eightll Ed. (1883) p. 38.
202
SUPREME COURT REPORTS
[ 197 5] 2 s.c .R.
children the issue of the marriage reside with her parents and
are supported by her parents; that at the place in India where
defondant and the minor children reside, seven and 50/10{).
(7 .50) Dollars per month per child is more than adequate to
support. maintain and educate a child in the best style; and
that plaintiff should be ordered to pay to defend~nt the sum
of 7.50 per month per child for the support, maintenance and
education of the aforesaid two minor children . . . . "
The cause of action is stated in Para VI of the petitio!1 in these words :
·'That plaintiff alleges for his c1use of action against
defendant that he and defendant have lived separate and apart
for more than three (3) consecutive years without cohabitaA
B
tion; and that there is no possibility of a reconciliation."
c
The relief asked for by the respondent is :
"That the bonds of matrimony now and heretofort existing between plaintiff and defendant be forever and ccmpletely
dissolved, and that each party hereto be freed and released
from all of the responsibilities and obligations thereof and
restored to the status of an unmarried person."
D
The judgment of the Nevada court consists of four parts : ( i) The
preliminary recitals; (ii) "Findings of Fact"; (iii) "Conclusions of
Law"; and (iv) The operative portion, the "Decree Of Divorce".
The preliminary recitals show that the respondent appeared person.ally and through his attorney, that the appellant "failed to appear
or to file her answer or other responsive pleadings within the time
required by law after having been duly and regularly served with process by publication and mailine: as required by 'law", that the case came
on for trial on December 30, 1964 and that evidence was submitted to
the court for its decision.
The next part of the judgment, "Findings of Fact'', consists of five
paragraphs wh,ich, with minor modifications, are ii verbatim reproduction of the averments contained in the respondent's petition for
divorce. The relevant portion of that petition is extracted above. The
first paragrnph of this part may usefully be reproduc1~d :
"That for more than six weeks preceding the commencement of this action, the plaintiff was. and now is, a bona fide
resident of and domiciled in the County of Washoe, State
of Ni::vada with the intent to make the State of Nevada his
home for an indefinite period of time, and that he ha~ been
actually, physicallv and c?rporeally present in said county
and Stvte for more than six weeks."
The second paragraph of the part refers to the factum of marria~e
between the appellant and the respondent, the third
contains
the
. finding that 7.50 Dollars per month for each of the two minor children
was a "reasonable sum for plaintiff to pay to defendant as and fnr the
support, care, maintenance and education of the said minor children",
E
F
G
H
SATYA v. TEJA SINGH (Cha11drachud, 1.r·-
>203
A
the fourth recit~s that there was no COJll!llUnity property to be adjudicated by the Court and the fifth contains the findings :
B
c
E
F
G
H
·
"That the plaintiff and defendant have lived. separate and
apa~t f?r more than three (3) consecutive years without cohabnat10n; and that there is no possibility of a reconciliation
between them."
The part of the Judgment headed "Conclusions Of L~w" consists
of two paragraphs. The first paragraph states :
"That this Court has jurisdiction over tbe plaintiff and
over th~ subject matter of this section."
The second pr.ragraph says :
"That the plaintiff is entitled to the relief hereinafter
granted."
The operative portion of the Judgment, "Decree Of Divorce" says
by its first paragraph :
·
"That plaintiff, Teja Singh, be and . he hereby is, given
• and granted a final and absolute divorce from defendant,
Satya Singh on the ground of their having lived separate and · .
apart for more than thre.e (3) consecutive years. without cohabitation, there being no possibility of reconciliation between
them ..... .- . ".
'(he ~econd paragraph contains the provision for the payment of maintenance to the minor children.
It is clear from the key recitals of the petition and the judgment
that the Nevada Court derived jurisdiction to entertain and hear the
divorce petition because it was alleged and held that the respondent
was "a bona fide resident of and domiciled in the County of Washoe,
State of Nevada, with the intent to make the Staw of Nev&da his home
for an indefinite period of time".
Since we ate concerned with recognition of a divorce
decree
granted by an American court, a look at the American law in a similar
jurisdiction would be useful. It will serve a two-fold purpose: a perception of principles on which foreign decrees of divorce are accorded
recognition in America and a brief acquaintance with the divorce
jurisdiction in Nevada.
·
The United States of America has its own peculiar problems of the
conflict of laws arising from the co-existence of 50 States each with its
own •autonomous. legal systell).
The domestic relations of husband
and wife constitute a subject reserved to the individual States and does
not belong to the United States under the American Constitution.
Article IV; section 1, of that Constitution requires that "Full Faith
and Credit shall be given in each State to the public Acts, Reco1ds,
and judical Proceedings of every other State". The Validity of a di~ ·
vorce decree passed by a State court is in other States tested at if it
were a decree granted by foreign court. In general, a foreign decree
204
SUPREME COURT REPORTS
[1975] 2 s.c.R.
of divorce is recognised in any other jurisdiction either on the groun.d,
in the case of a decree of a sister State, that the decree is entitled
to full faith and credit under Article IV, Section 1, or in the case of a
decree of a foreign court and in some instances a decree of a Stoate
court, on, the ground of 'comity'. ( 1)
The phrase "comity of nations"
which owes its origin to the theory of a Dutch jurist, John Voet, has,
however, been widely criticised as "granting to the ear, when it pro'.
ceeds from a court of justice"'.(2)
Comity, as said by Livermore is a
matter for sovereigns, not for Judges required to decide a case -according to the rights of parties.
In determining whether a divorce decree will . be recognised in
another jurisdiction as a matter of comity, public policy and good
morals may be considered.
No country is bound by comity to give
effect in its courts to divorce Jaws of another country which are repungnant to its own laws and public policy. Thus, where a "mail-order
divorce" granted by a Mexican court was not based on jurisdictional
finding of domicile, the decree was held to have no extraterritorial effect
in New Jersey.( 11 ) American courts generally abhor
the
collusive
Mexican mail-order divorces and refuse to recognise them. (4 )
Mailorder divorces are obtained by correspondence by a spouse not domiciled in Mexico. Lately, in his well-known book on divorce says that
"The facilities afforded by the Mexican courts to grant divorces to
all and sundry whatsoever their nationality or domicile have become
even more notorious than those in Reno, Nevada".( 0 ) Recognition
is denied to such decrees as a matter of public policy.
Foreign decrees of divorce including decrees of sister States save·
been either accorded recognition or have been treated as invalid,
· cjepending on the circumstances of each particular case.
But if a
·decree of divorce is to be accorded full faith •and credit in the courts
of another jurisdiction it is necessary that the court granting the decree
has jurisdiction over the proceedings. A decree of divorce is thus
treated as a conclusive adjudication of all matters in controversy except
the jurisdictional facts on which it is founded. Domicil is such a jurisdictional fact. A foreign divorce decree is therefore subject to collateral attack for lack of jurisdiction even where the decree contains the
findings or recitals of jurisdiction facts.(6)
To confer jurisdiction on the groll1).d of plaintiff's residence and
entitle the decree to extraterritorial recognition, the residence must
be actual and genuine, and accompained by an intent to make the
State his home. A mere sojourn or temporary residence as distinguished
from legal domicile is not sufficient. (7 )
In U11terma1111 v.
·--·-· -------
(1) Corpus Juris Secundum, Vol. 27B, Paragraph 326, pp. 786-787.
(2\ De Nova (1964). 8 American Journal of Legal History pp, 136, citing the
American author, Livermore.
(3) State vs. Najjar. 2 N. J. 208.
(4) Langner vs. Langner. 39 N. Y. S. 2d. 918.'
(5) Latey : "The Law and Practice in Divorce and Matrimonial Causes" ISth
Ed. (1973) p, 461.
(6) Corpus Juris Secundu-.n, Vol. 27B. paraaraph 335, pp, 796, 797.
(71 Harrison vs. Harrison. 99 I.. Ed. 704.
A
B
c
D
E
F
G
H
;
SATYA v. TEJA SINGH (Chandrachud, ! . .)
205
A · Untermann, <1') a divorce decree obtained by a husband in Mexico
after one day's residence therein, was held invalid.
B
c
D
E
F
G
H
A foreign decree of divorce is subject to collateral attack for fraud
or for want of jurisdiction either of the subject m.atter or of the parties
provided that the attacking party is not estopped from doing so.(2)
A foreign decree of divorce obtained by fraud is void.
Fraudulent
simulation of domicile is impermissible. A spouse who goes to a State
or country other than that of the matrimonial domicile for the sole
purpose of obtaimng a divorce perpetraces a founo, and the judgment
is not binding on the courts of other States.( 3 )
In regard to the divorce law in force in Nevada it is only necessary to State that though the plaintiff .in a divorce action is required
to "reside" in the State for more than six weeks immediately preceding
the petition, the requirement of residence is construed in the sense
of domicil.( 4 ) In Lane v. Lane(~) it was held that under the Nevada
law, intent to make Nevada plaintiff's home .is a necessary jurisdictional fact without which the decreeing court is P.owerless to act in
divorce action. Accordingly, a husband who did not become a bona
fide resident of Nevada; who continued lease of his New Jersey apartment, who failed to transfer his accounts, who continued his business
activities in New York City, and who departed from Nevad·a almost
. immediately after entry of divorce decree, was held never to have
intended to estabilish a fixed and permanent residence in Nevada, and,
therefore any proof, which he submitted to Nevada court in his divorce
action, and on· which such finding by court of bona fide residence was
based was held to constitute a fraud on such court, (6)
A survey of American law in this jurisdiction would be incomplete
without reference to a decision rendered by the Americaμ Sur.:eme
Court in Williams v. State of North Caro/ina,( 1) the second Williams
case. Mr. Williams and Mrs. Hendrix who were long-time residents
of North ·Carolina went to Nevada, stayed in an tuto court for transients; filed suits for divorce against their respective spouses immediately
after a six weeks' stay, married one another as soon as the divorces
were obtained and promptly returned to North Carolina. They were
prosecuted for bigamous c.ohabitation under section 14-183 of the
General Statutes of North Carolina (1943).
Their defence to the
charge of bigamy was that at the time of their marriage they were
each lawfully divorced from the bond of their respective first marriages ..
The question which arose on this. defence was whether they were
"Jawfuily divorced", that is, whether the decrees of divorce passed by
the Nevada court were lawful.
Those decrees would not be lawful
(1) 19 N. J. 507.
(2) Cohen vs. Randall, 88 L. Ed. 480.
(3) Corpus Juris Secundum, Vol. 27B, ParaiJlaph 361, p. 847.
(4) Cohen vs. Cohen, 319 Mass. 31: Corpus Juris Secundum, .Vol. 27B, p. 799
-Footnote 29 : 'Residence', 'domlcll'.
(5) 68 N. Y. S. 2d. 712.
. .
(6) ldleman vs. Edelman, 161 N. Y. S. 2d 717.
(7) 89 L. Ed. 1577.
206·
SUPREMb COURT REPORTS
[1975] 2 s.c.R.
I unless th~ Nevada court had jurisdiction to pass them.
The jurisdicA
tion of the Nevada court depended on whether Mr. Williams and
Mrs. Hendrix were domiciled in Nevada at the time of the divorce
proceedings. The existcm,ce o:E domicil in Nevada thus became the
decJS1ve issue.
While upholding the conviction recorded in North Carolina, Frankfurter J., speaking for the majority, said, (i) a judgment in one State
B
is conclusive upon the merits in every other State, only if the court
· of the first State h•ad jurisdiction to render the judgment; (ii) a decree
of divorce passed .in one State can be impeached collaterally in another
State on proof that the court had no jurisdiction even when the record
purports to show that it had jurisdiction; (iii) under the American
syotPm of law.. judicial power of iuri~diction to grant a divorce is
foumled on domicile; and (iv) domicile implies a nexus between person
C
ana place of such permanence' as to control the creation of legal relati()ns and responsibilities of the utmost significance.
The
learned
Judge observed:
"We conclude that North Carolina was not required
to yield her State policy because a Nevada court found that petitioners
were domiciled in lievada when it granted them decrees of divorce.
North Carolina was entitled to find, as she did, that they did not
acquire domiciles in Nevada and that the Nevada court was therefore
D
without p<>wer to liberate the petitioners from amenability to the laws
of North Carolina governing domestic relations."
Murphy J. in his
concurring judgment said:
"No justifiable purpose is served by imparting constitutional sanctity to the efforts of petitioners to establish
a false and fictitious domicile in Nevada .... And Nevada has no interest that we can respect in issuing divorce, decrees with extraterritorial
effect to those who are domiciled elsewhere and who secure sham
E
domicils in Nevada solely for divorce purposes."
Those then are the principles on which American courts grant or
refuse to grant recognition to divorce decrees passed by foreign courts
which includes the courts of sister States. Shorn of confusing refinements, a foreign decree of divorce is denied recognition in American
courts if the judgment is without jurisdiction or is procured by fraud
F
or if treating it as valid would offend against public policy.
Except
where the issue of jurisdiction was litigated in the foreign action or the
defendant appeared and had an opportunitv to contest it, a foreign
divorce may be collaterally attacked for lack of jurisdiction, even
though jurisdictional facts are recited in the judgment. Such recitals are
not conclusive and may be contradicted by satisfactory proof. Domicil
is a jurisdictional fact.
Therefore, a foreign divorce decree may be
G
attacked, and its invalidity shown, by .proof that plaintiff did not have,
or that neither party had, a dornicil or bona fide residence in the State
or countrv where the decree 'was rendered. In order to render a foreign
decree subiect to a e-01lateral attack on the ground of fraud, the fraud
in procurement of the judgment must go to the jurisdiction of the court.
Jt i~ necessary and sufficient that there was a fraudulent representation
desiPTied and intended to mislead and re.~ultinl! in damal!ini? deceotion.
H
Jn ATT1erica, in most of the States, the wife can have a separate domicil
for cllvnrce and it is easv eno112h for anyone man or womari to acquire
a domicil of choice in another State.
'
'
A
B
SATYA v. TEJA SINGH (Chandrachud,, J.)
207
.
The English law on the subject has grown out of a maze of domi·
ciliary wilderness but English courts have, by and large, come to adopt
the same criteria as the American courts for denying validity to foreign
'decrees Of divorce. Recent legislative changes have weak~ned the authority of some of the archaic rules of Engli:;h law like the one by whJj:h
the wife's domicil follows that of the husbJnd; a rule described by
Lord Denning M. R. in Formosa v. Formosa(1·) as "the last barbarous
relic of a wife's servitude". The High Court has leaned on that rule
heavily but in the view which we are disposed to take, the rule will
have not relevance.
The wife's choice of a domicil may be fettered by
the husband's domicil bur that means by a real, not a feigned domicil.
c
From Lol/ey's case(2 ) which is the true starting point of the con•
troversy, to lndyka v. lndyka( 8 ) which is treated as the cause ce/ebre,
the law has gone through many phases. The period of over a century
and half is marked by a variety of views showing how true it is that
there is scarcely a doctrine of law which as regards a formal and exact
statement is in a more uncertain condition than that which relat~ to
the question as to what effect should be given by courts of one nation
to the judgments rendered by the courts of another nation.
D
E
"Lol!ey's case was for long considered as having decided that
a
foreign decree of divorce could not ever dissolve a marriage celebrated
in England. "Its ghost stalked the pages of the law reports for much
of the remainder of the nineteenth century before
it
was
finally
laid.(•)" in Dolhpin v. Robbins(5) and Shaw v. Gould,(G) the House
of Lords declined to grant validity to &ots divorces as in the former
case J>arties were not bona fide domiciled in &otand and in the latter,
residence in &otland did not involve the acquisition of a Scots domicil. These were cases of "migratory" divorces and the court applied
the universalist doctrine that questions of personal. status depended,
as a matter of "universal jurisprudence", on the law of domicil.
In this climate, the decision of the Court of Appeal in Niboyt:t v.
Niboyet(7 ) came as a surprise. The majority took the view that if the
spouses actually resided in England and were not merely. present there
F · casually or as travellers, the English courts were competent to dissolve
their marriage even though they were not actually domiciled in England.
Several Christian European Countries had by this time adopted the
test of nationality iri preference to that of domicil in matters "f per.
sonal status. The dissenting Judge, Brett L. J. preferred 'in Niboyt(s
.ca•e to ~tick to the dnniicili~rv test hnt h·~ nerceivetf how o ~tl"ict appJi •
. cation of the test would result in hardship to the deserted wife :
H
G
Le Mesurier v. Mesurier. (8) rm which the iud!!ment of the Hieh
Court rests, is a decision of the Privy Council in an appeal from Ceylon
(I) (19621 (3) A. E. R. 419.
(3) (19671 (2) A. E. R. 689.
(2) R. vs. Lilley (1812) 2 CJ. F. 5~7 n.
(4) "The Old Order Changeth-Travers vs.
Holley Reinterpreted"
by P. R. B. W•hh, International & Comparative Law Quarterly,
16), 'PJ). 997, 1000.
(S) (1859) 7 H. L. Ca!. 39().
(7) (1878) 4 P. D, t.
(6) (IR68) L. R. 3.H; L .. 55,
(8) [1895] A.C, SI?
1967 (Vot
208
SUPREME COURT REPORTS
[1975] 2 s.c.R.
but it was always treated as laying down the Jaw for England. Observing that there was an "obvious fallacy" in the reasoning in Niboyet's
case, the Privy Council held that although the matrimonial home of the
petitioning husband was in Ceylone, the courts of that country were ·
disentitled fr<>m entertaining his divorce petition because he was not,
in the strict sense, domiciled there. Lord Watson, who delivered the
opinion of the Board said : "Their Lordships have **** come to the
conclusion that, according to international Jaw, the domicil for the time
being of the married pair affords the only true test of jurisdiction to
dissolve their marriage." Later cases like the decision of the House
of Lords in Lord Advocate v. Jafjrey( 11) and of the Privy Council in
Alt. Gen. for Alberta v. Cook,(2) show faith in the 'dominance of the
domicil principle. Under the former decision the wife was incapable of
acquiring a domicil separate from her husband even if he had afforded
her grounds for divorce, while under the latter even a judiciallyseparated wife could not acquire a separate domicil.
'9Jese decisions caused great hardship to ciesert(:d wives for they had
to ·seek the husband in his domicil to obtain against him a decree of
divorce recognizable in England.
During something like a game of
chess between the judiciary and the legislature, the rigour of the rule
regarding the dominance of domicil was reduced by frequent legislative interventions.
A
B
c
D
E
By section 1 of the Law Reforms (Miscellaneous Provisions) Act,
1949, English courts were giv1~n jurisdiction to entertain proceedings
for di.vorce by a wife even if the husband was not domiciled in England,
provided that the wife had resided in England for a period of three
years immediately preceding the commencement of the procc~dings.
In Travers v. Holley (B) the Court of Appeal, drawing on this provision, accepted as valid a de9ree of ,divorce granted to the wife by an
Australian Court though the husband after acquiring a domicil in New
South Wales had reverted to his English domicil at the time of the wife's
petition. This was put on the ground that "what entitles an English
court to assume jurisdiction mi,ist be equally effective in the case of a
foreign court". Section 40(I){a) and (b) of tqe Matrimonh1l Causes
Act, 1965 confer upon a wife the right, in some circumstances, to sue
for divorce in England even if the bus.band is not domiciled there at
the time of the proceedings.
F
The decision in Travers v. Holley( 3 ) was accepted as correct by the
House of Lords in Indyka v. Indyka.( 4 ) The husband, a Czech national
married his first wife, also a Czecp national, 'in Czechoslovakia. He
acquired an English domicil in 1946 but his wife who was continuously
residing in Czechoslovakia obtained in 1949 a decree of divorce in that
country.
In 1949 the husband married his second wife in England
who petitioned fpr divorce on the ground of cruelty. The husband
cross-petitioned for nullity allegin~ that the Czech divorce would not
be recognised in England since England was the country of common
(I) [1921) A. C. 146.
(3) [1953] (2) All. E. R. 794.
(2) (1926] A. C. 444.
(4) (1967] (2) All. E. R. 689.
G
H
SATYA v. TEJA SINGH (Chandrachud, !.)
20 9
A
domicil and the decree of the Czech Court was therefore without juris-
. diction. The House of Lords upheld the validity of the Czech divorce.
Though the decision in Indyka broadened the prevalent rules for recognition of foreign decree and though a new look at the Le Mesurier
doctrine was imperative in a changed world, it is not easy on a reading
of the five judgments in the lndyka case to lay down a definitive act
B · of n,1les as to whe.n an English court will or will not recognise a foreign
decree of divorce. Cheshire says : "One cannot turn from Indyka v.
lnclyka without expressing grav~ concern at decisions of the House of
Lords which, though unanimous, epitomize the adage "tot homines,
q;,:.;,t sententiao' ".