P L D 1963 (W (PLP)

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of the States in cases in which such law is applicable ; (d) where the proceedings in which the judgment was obtained are opposed to natural justice ; (e) where it has been obtained by fraud ; (f ) where it sustains a claim founded on a breach of any law in force in the States. Under section 14 of the Civil Procedure Code it is provided that‑ "the Court shall presume, upon the 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 the contrary appears on the record ; but such presumption may be displaced by proving want of jurisdiction." In view of the above provisions of law, both Mr. Minwalla and Mr. Dorab Patel have urged that the judgment of the Bombay High Court cannot be considered to be of a Court of competent jurisdiction. Mr. Dorab Patel contended that the judgment of the Bombay High Court is not a judgment‑in‑rem and therefore both under section 14, C. P. C. and section 44 of the Evidence Act it m as open to the petitioner to show that it was delivered by a Court not competent to deliver it.

6. Mr. Patel's main argument is that judicial separation between spouses does not change the marital status of the parties. In support of his contention he referred me to two English decisions : Armytage v. Armytage (1898 Pr. Div. 178) and Niboyet v. Niboyet ((1878) IV Pr. Div. 1). In the first case it was observed at page 196 of the report that the effect of judicial separation was to leave the legal status of. the parties unchanged. In the second case James, L. J. discussed the principle of International Law in respect of the jurisdiction of Courts in cases of a decree for restitution, for separation a mensa et thoro or for alimony. The learned Judge found it impossible to suppose that an English Court would lose it or not have jurisdiction because the guilty party consorted with his or her paramour outside the territorial limits of the diocese or on a journey. He held that the Court of the matrimonial home, in which the parties reside, the party of which was under the watch and ward of the Church there, would be competent to grant relief to the aggrieved party. According to this view the English Courts exercise jurisdiction in cases for judicial separation on the ground of residence of the parties. In order to support his contention the learned counsel further referred me to Halsbury's Laws of England, Volume 7, in paragraph 187 it is stated that‑ "suits for judicial separation in ‑ 1857 took the place of divorce a mensa et thoro instituted in the old ecclesiastical Courts for the protection of the wife or husband without dissolving the marriage ; and it was provided that relief by judicial separation must be given on principles and rules as nearly as may be conformable to those on which the eccle siastical Courts had acted." It is further stated in paragraph 188 that‑ "the domicile of the parties in England at the commence ment of the suit will give jurisdiction irrespective of their nationalities or places of residence, but as no change of status of either party is involved by the making of the decree, jurisdiction may also be based on residence." Thus on this view it is clear that in English Courts judicial separation is not considered to make any change in the marital status of the parties. Mr. Patel strongly urged that any judgment on such questions obtained from a foreign Court will be treated as a judgment in personam and not a judgment‑in‑rem.

7. Mr. Patel further referred me to a decision of the Judicial Committee in Gurdyal Singh v. Raja of Faridkot (I L R 22 Cal. 222) and to a decision of this Court in the case of Ghulam Ahmed and another v. Dr. Sarosh Rattanji Wadia (P L D 1959 Kar. 624). In the case before their Lordships of the Privy Council, Lord Selborne observed as under :‑ "Under these circumstances, there was, in their Lordships' opinion, nothing to take this case out of the general rule, that the plaintiff must sue in the Court to which the defendant is subject at the time of suit ("Actor sequitur forum rei"), which is rightly stated by Sir Robert Phillimore (International Law, Vol. 4, section 891) to `lie at the root of all international and of most domestic, jurisprudence on this matter'. All juris diction is properly territorial, and `extra territorium jus dicenti, impune non paretur.' Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory, while they are within it ; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory, and it may be exercised over movables within the territory ; and, in questions of status or succession governed by domicile, it may exist as to persons domiciled, or who when living were domiciled, within the territory. As between different provinces under one sovereignty (e.g. under the Roman Empire) the legislation of the sovereign may distribute and regulate jurisdiction ; but no territorial legislation can give jurisdiction which any Foreign Court ought to recognise against foreigners who owe no allegiance or obedience to the Power which so legislates. In a personal action, to which none of these causes of jurisdiction apply, a decree pronounced in absentem by a Foreign Court, to the jurisdiction of which the defendant has not in any way submitted himself, is by International Law an absolute nullity. He is under no obligation of any kind to obey it, and it must be regarded as a mere nullity by the Courts of every nation, except (when authorised by special local legislation) in the country of the forum by which it was pronounced." On this view their Lordships held that a decree in a personal action pronounced in absentem by a Foreign Court against a resident of Jhind who owed no allegiance to the State of Faridkot was by International Law a nullity. Similarly in P L D 1959 Kar. 624 a Bench of this Court comprising Ortcheson and Khamisani, JJ. held that a foreign Court must be a Court of competent jurisdiction in international sense. They further held that if the defendant is absent from the foreign country, neither having place of business there nor voluntarily submitted to the decision of the Court, the decree and judgment of the Foreign Court is incompetent. On this view the Division Bench held that the Bombay Court passing decree against persons resident in Karachi having no place of business in Bombay who never submitted to the jurisdiction of the Bombay Court was without jurisdiction. In England also the rules in which foreign Courts judgments are recognised to be internationally of com petent jurisdiction in regard to suits of personal nature have been stated by Fry, L. J. in Rousillon v. Rousillon ((1880) 13 Ch. Div. 351). The learned Judge has included the following classes of cases in which the foreign Courts are recognised internationally ; (a) Where the defendant is the subject of the foreign country in which the judgment has been obtained ; (b) Where he was resident in the foreign country when, the action began ; (c) Where he in the character of plaintiff has selected the forum in which he is afterwards sued ; (d) Where he has voluntarily appeared ; and (e) Where he has contracted to submit himself to the forum in which the judgment was obtained. To this, Scrutton, J. in the case of Phillips v. Batho ((1913) 3 K B D 25) has added a further class of cases namely, where the Court pro nouncing and the Court enforcing judgment are Courts of the some Sovereign, enforces ancillary orders in the nature of a judgment in personam ancillary or accessory to a judgment‑in -rem, regularly pronounced by the law of the Courts which have given it. Scrutton, J. in this connection observed as under "I do not think the Sovereign has failed to do justice here. Judgments as to status in matters within the jurisdiction of the Court are in rem and bind all the world. Marriage and the dissolution of marriage are matters of status, and the judgments of the Indian Court in this matter are in rem and bind the world : Bater v. Bater (006, p. 209). Ancillary and accessory to the judgment as to status is the power to give damages against the person causing the marriage to be dissolved. This power is recognised both by the English Courts and the Indian Courts. The English Courts will recognise and enforce the judgments as to status of the Indian Courts in matters within their jurisdiction, and I think they will also recognise and enforce the ancillary orders as to damages, such as they themselves make in similar cases. For these reasons I think that, in the case at any rate of Courts within the British Empire, a sixth case must be added to the list in Emanuel v. Symon (1908) 1 K B

302. It is not necessary for the purpose of this case to do more than say that the new class at least includes judgments in proceedings in personam ancillary or accessory to the dissolution of a marriage of persons domiciled (or otherwise by command of the Sovereign) within the jurisdiction of the Court pro nouncing the decree, where both the Court pronouncing the judgment and the Court enforcing it are Courts of the same Sovereign, and where the Court enforcing it cannot itself grant the relief because it has not jurisdiction over the marriage to whose dissolution the proceedings are ancillary, though it can grant similar ancillary relief in the case of dissolution of marriages which are assigned to its jurisdiction by the Sovereign."

8. On the other hand, Mr. Kotwal has urged that under the principles of comity of nations any judgment obtained in matrimonial matters irrespective of the effect of its nature is a judgment‑ in‑rem. The learned counsel has not referred me to any decision in which such a view has been taken. The decisions cited by Mr. Dorab Patel have taken a contrary view. The best case on which I could lay my hands, and which was not cited at the Bar, in support of Mr. Kotwal's contention is Salvesen's case (1927 A C 641). Viscount Haldane at page 652 of the report was inclined to include in the term "judgment‑in rem" a judgment which determines the status of the supposed husband and wife. It was held by the House of Lords that the essence of such a judgment is that it constitutes an adjudi cation upon status, it follows that certain decrees declaring the status of persons must also be classed as operating in rem. In this connection Viscount Dunedin in a memorable passage observed as under at page 662 of the report "The other point on which I want to say a few words is the question of what is a judgment‑in‑rem. All are agreed that a judgment of divorce is a judgment‑in‑rem, but the whole argu ment turns on the distinction between divorce and nullity. The first remark to be made is that neither marriage nor the status of marriage is, in the strict sense of the word, a `res', as that word is used when we speak of a judgment‑in‑rem. A res is tangible thing within the jurisdiction of the Court, such as a ship or other chattel. A metaphysical idea, which is what the status of marriage is, is not strictly a res, but it, to borrow a phrase, savours of a res, and had all along been treated as such. Now the learned Judges make this distinction. They say that in an action of divorce you have to do with a res, to wit, the status of marriage, but that in an action of nullity there is no status of marriage to be dealt with, and therefore no res. Now it seems to me that celibacy is just as much a status as marriage." In my opinion even on this view the judicial separation obtained by the defendant cannot be brought within the scope of judgment‑in‑rem. It is clear that the judgment obtained from the Bombay Court was not ancillary to any divorce proceedings. Thus, on no basis the ,judgment of the Bombay High Court obtained by the defendant can be considered to be a judgment in‑rem or to be covered by the sixth class of cases enunciated by Scrutton, J in (1913) 3 K B D 25.

9. After hearing the learned counsel for the parties and the counsel appearing as amicus curiae, I am satisfied that the Bombay judgment is not a judgment‑in‑rem and on the principles recognised under the International Law, since the petitioner did not submit himself to the jurisdiction of the Bombay Court and the decree was passed against him in absentem, it cannot be considered to be a decree of a Court of competent jurisdiction.

10. Mr. Kotwal has referred me to the provisions of the Parsi Divorce Act and has urged that the same provisions are enforced in Bombay as are enforceable in these Courts and therefore the provisions under which the Bombay Court has assumed jurisdiction cannot be considered as one of those provisions which are against notions recognised in this Court. He has strongly urged that I should give effect to the judgment of the Bombay Court and hold it as binding between the parties. This contention has no force. The Privy Council decision is binding on us and on the view taken by their Lordships of the Privy Council the contention of the learned counsel cannot be accepted.

11. Even if the judgment under consideration is taken to be a judgment in rem, it is not binding on the petitioner. The well established principle of International Law is that the Court of domicile of the husband alone has jurisdiction in such matters. Admi;teuly tale petitioner is ‑i resident of Pakistan. The parties last resided here as husband and w‑ife and in law the domicile of the parties is Karachi. The Bombay Court decision therefore. cannot be taken as that of competent jurisdiction. From whatever angle the question is considered I am satisfied that the judgment of the Bombay High Court is not binding on the petitioner. It will, therefore, be open to the Delegates to decide the question of desertion by the defendant without taking into consideration the decree for judicial separation obtained by her from the Bombay High Court.

12. In the end I acknowledge with thanks the assistance rendered to this Court by the counsel appearing as amicus curiae. I must place on record my appreciation in this respect.

13. The matter will now be fixed in Court for further hearing. A. H. Order accordingly.