Source: Supreme Court 

Why in News? 

A bench of Justice Surya Kant and Justice Ujjal Bhuyan held that a foreign judgment violative of Indian law is not conclusive between the parties and thus, the Indian Courts are not bound to follow it.    

• The Supreme Court held this in the case of Rohan Rajesh Kothari v. The State of Gujarat & Ors. 

What is the Background of Rohan Rajesh Kothari v. The State of Gujarat & Ors. Case? 

• In this case a Special Leave Petition was filed in the Supreme Court. 
• The Petitioner was hearing a challenge against the order of Gujarat High Court dismissing the petitioner’s writ of Habeas Corpus seeking repatriation of the minor daughter on the basis of order from the United States (US) Court. 
• The case involved custody of 2 children, both girls who were living with their mother. 
• The issue before the Court was whether the custody can be granted.

What were the Court’s Observations?

• The Supreme Court held that the Indian authorities and Courts should not affect the status of the children or their mother who are staying in India. 
• The Court held that a foreign judgment violative of Indian law is not conclusive between the parties and thus, the Indian Courts are not bound to follow it.  
• Thus, the Court held that the above order is not binding on the respondents or the children.    

What is a Foreign Judgment? 

• Meaning: 
  • Section 2 (6) of Civil Procedure Code, 1908 (CPC) lays down the definition of “foreign judgment” as the judgment of a foreign Court. 
  • Section 2 (5) of CPC lays down that “foreign Court” means a Court situated outside India and not established or continued by the authority of the Central Government. 

What are the Provisions Related to Foreign Judgment in CPC? 

• Section 13 of CPC 
  • As per Section 13 foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between the parties under whom they or any of them claim litigating under the same title. 
  • However there are certain exceptions to the rule laid down in Section 13. These are : 
    • where it has not been pronounced by a Court of competent jurisdiction; 
    • where it has not been given on the merits of the case; 
    • where it appears on the face of the proceedings 
      • To be 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.  
    • where the proceedings in which the judgment was obtained are opposed to natural justice; 
    • where it has been obtained by fraud; 
    • where it sustains a claim founded on a breach of any law in force in  India. 
• Section 14 of CPC 
  • Section 14 lays down presumption regarding the foreign judgments.  
  • Section 14 lays down that the Court 
    • Shall Presume 
    • Upon 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 contrary appears from the record 
    • but such presumption may be displaced by proving want of jurisdiction. 
• Section 86 of Indian Evidence Act, 1872 (IEA) 
  • Section 86 of IEA lays down presumption as to certified copies of foreign judgment. 
  • It provides that the  
    • The Court may presume 
    • That any document purporting to be certified copy of a foreign judicial records 
    • Is genuine and accurate 
    • If the document purports to be certified by any representative of Central Government 
• Section 44 A of CPC 
  • Section 44A provides for procedure of Execution of decrees passed by the Courts in reciprocating territory. 
  • Section 44A (1) provides that : 
    • Where a certified copy of a decree of any of the Superior Courts of any reciprocating territory has been filed 
    • In a District Court 
    • The decree may be executed in India as if it had been passed by the District Court 
  • Section 44 A (2) provides that along with the certified copy of the decree a certificate from the Superior Court shall also be filed, such certificate 
    • State the extent to which the decree has been adjusted and satisfied 
    • It shall be conclusive proof of the extent of such satisfaction or adjustment. 
  • Section 44A (3) provides that: 
    • The provisions of Section 47 of CPC shall as from the filing of the certified copy of the decree apply to the proceedings of the district Court executing a decree under this Section and 
    • The District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13. 
  • Explanation 1 of Section 44A of CPC provides the definition of “Reciprocating territory” and “Superior Courts”. 
    • “Reciprocating territory” means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section. 
    • “Superior Courts” with reference to any such territory, means such Courts as may be specified in the said notification. 
  • Explanation 2 provides that the term “decree” with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.   

What are the Case Laws on Foreign Judgment under CPC? 

• TransAsia Private Capital Ltd v. Gaurav Dhawan (2023) 
  • The Delhi High Court in this case laid down the law as to execution of a foreign decree under Section 44A of CPC which was passed ex parte by the foreign Court. 
  • Firstly, it was held that where summons have been served and the party did not appear it cannot be later claimed by the party that the decree has been passed ex- parte. 
  • The phrase ex parte denotes an action which is continued without due notice or service of summons. It is where a party has been deprived of the right of participation and contestation. 
  • Further, the Court made a distinction between ex parte decree which is passed after giving due consideration to evidence put forward by the plaintiff and the ex parte decree passed merely on the basis of default in appearance of the defendant. 
  • The Court while citing the judgment of Supreme Court in International Wollen Mills v. Standard Woll (2001) held that in the former case talked about above it can be said that the judgment is on merits whereas in the latter case it cannot be said that the judgment is on merits. 
  • The Supreme Court in the above mentioned case held “Thus, it is obvious that the non-appearance of the defendant will not by itself determine the nature of the judgment one way or the other. That appears to be the reason why Section 13 does not refer to ex parte judgments falling under a separate category by themselves.”
• R. Vishwanathan v. Rukn-ul-Mulk Syed Abdul Wajid (1963) 
  • The Supreme Court in this case held that in considering whether a judgment of a foreign Court is conclusive, the courts in India will not inquire whether conclusions recorded thereby are supported by the evidence, or are otherwise correct, because the binding character of the judgment may be displaced only by establishing that the case falls within one or more of the six clauses of Section 13 and not otherwise. 
  • The Court also pointed out the difference between the rule of conclusiveness of foreign judgment and the rule of res judicata.  
  • The rule of Res judicata applies to all matters in issue in a former suit which have been heard and finally decided between the parties and includes matters which might and ought to have been made ground of attack or defence in the former suit, whereas Section 13 applies only to matters directly adjudicated upon.  
  • Further, in case of foreign judgments only judgment is conclusive, and it does not apply to every issue heard and finally decided by the foreign Court. 
  • Further, in case of res judicata competence of the Court should be strictly judged by the municipal law. However, in case of Section 13 competence of the foreign tribunal must satisfy a dual test of competence by the laws of the State in which the Court functions, and also in an international sense. 
• Y. Narasimha Rao And Ors v. Y. Venkata Lakshmi And Anr (1991) 
  • The Supreme Court in this case talked about the competency of the Court which can pass a matrimonial decree. 
  • The jurisdiction assumed by the foreign court and 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: 
    • 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;  
    • 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;  
    • 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. 
  • Thus, it was held that Section 13 (a) should be interpreted to mean the Court of competent jurisdiction which the Act or law under which the parties are married recognizes 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 Indian Evidence Act, 1872 has also to be construed likewise.