JOAO GLORIA PIRES V. MRS. ANA JOAQUINA RODRIGUES E PIRES AIR 1967 GOA 113

JOAO GLORIA PIRES V. MRS. ANA JOAQUINA RODRIGUES E PIRES AIR 1967 GOA 113

 

FACTS

  • Joao Gloria Pires, residing in Kampala, Uganda, seeks confirmation of a divorce decree from the High Court of Uganda against Ana Joaquina Rodrigues, residing in Goa, India.
  • Pires and Joaquina are Roman Catholics, originally residents of Goa, married in Old Goa on April 23, 1957.
  • Pires has become a British citizen and lives in Uganda; Joaquina has remained in Goa since their marriage.
  • The High Court of Uganda granted the divorce on April 10, 1963, based on adultery committed by Joaquina.
  • Joaquina opposed the confirmation of the divorce decree in Goa on grounds of lack of proper notice of the proceedings and the indissolubility of their marriage under the prevalent laws in Goa.

 

ISSUE

  • Whether the divorce decree obtained by Pires from the High Court of Uganda can be confirmed in Goa, India, under Section 1100 of the Portuguese Civil Procedure Code.
  • Whether the law governing Roman Catholic marriages in Goa permits divorce and if the High Court of Uganda's decree conflicts with the principles of Portuguese public order.

 

RULE

  • Under Section 1102(6) of the Portuguese Civil Procedure Code, a foreign judgment cannot be confirmed if it conflicts with principles of Portuguese public order.
  • Sections 13 and 44A of the Civil Procedure Code of 1908 provide two methods for enforcing foreign judgments in India. The first involves filing a suit based on the foreign judgment in an Indian court, while the second allows for direct execution by a District Court in India if there is a reciprocal arrangement. Section 13 states that a foreign judgment is conclusive on matters directly adjudicated upon between the parties, except in the six cases mentioned therein.

 

HELD

R.S. Bindra, A.J.C.

  • The Decree of 1946, based on a treaty between the Portuguese Government and the Holy See, made Roman Catholic marriages indissoluble in Goa.
  • The earlier Decree of November 3, 1910, which allowed divorce, was replaced by the 1946 Decree and thus does not apply post-liberation of Goa by India.
  • The Court considered that the indissolubility of Roman Catholic marriages in Goa represents a principle of Portuguese public order.
  • The issue of service was contested, with the Court finding that Joaquina had been duly served, as evidenced by her written statement submitted to the Kampala court.
  • The court in Nalla v. Mahomed (ILR 20 Mad 112) stressed that a foreign judgment should not contravene the public policy of India. If a judgment is repugnant to the fundamental principles or public policy of India, it will not be enforced.
  • The judgment emphasized that for a foreign judgment to be recognized and enforceable in India, there must be a reciprocal relationship between India and the country where the judgment was passed. (Section 44A of CPC 1908 also provides the same)
  • C. Cheshire outlines the defenses available against the enforcement of foreign judgments. These are: -
    • Fraud: A judgment obtained by fraud is not enforceable.
    • Natural Justice: If the judgment was delivered in proceedings where the principles of natural justice were not observed (e.g., the defendant was not given a fair hearing), it cannot be enforced.
    • Public Policy: A judgment that is contrary to the public policy of the forum (the country where enforcement is sought) will not be recognized.
  • The decree of the High Court of Uganda is in conflict with the principles of Portuguese “public order”, specifically the indissolubility of Roman Catholic marriages.
  • Therefore, the divorce decree cannot be confirmed in Goa.
  • The petition by Pires is dismissed, and he is ordered to pay minimal costs to the respondent, Joaquina.

Supplementary Views by Alvaro Dias A.J.C.:

  • Even though Pires changed his nationality, under the Second Hague Convention of 1902, the national law applicable remains Portuguese law, which does not permit divorce for Roman Catholic marriages post-Concordat.
  • Joaquina, holding Indian nationality, is still bound by the provision of Portuguese law, which does not allow divorce for canonical marriages (i.e., Contracted in accordance with Church law).

 

COMMENTARY

  • Satya v Teja Singh,the parties were Indian citizens domiciled in India and married according to Hindu rites. About four years later, the husband went to USA for higher studies. Five years later, the wife moved an application for maintenance for herself and her children under section 488 of the Code of Criminal Procedure (after 1973 section 125). The husband was represented by his counsel who stated that the marriage had been dissolved by decree of divorce by a Nevada Court and since the appellant ceased to be his wife by virtue of divorce decree, he was not liable to maintain her.[1]. After a detailed analysis of the legal position in the UK and USA; the court held that, in order to give jurisdiction to a court, the residence in the foreign jurisdiction must answer “a qualitative as well as qualitative test”. The court observed:[2].

The respondent went to Nevada forum hunting, found a convenient jurisdiction which would easily purvey a divorce to him and left it even before the ink on his domiciliary assertion was dry. Thus, the decree of the Nevada court lacks jurisdiction. It can receive no recognition in our Courts.

The court was well aware of the enigmatic situation and observed:

Unhappily, the marriage between the appellant and the respondent has to limp. They will be treated as divorced in Nevada but their bond of matrimony will remain unsnapped in India, the country of their domicile.