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Judgment
F. M. Reis, J.—Both the above Applications are taken up together for final disposal as both seek relief to confirm the Order dated 21st November, 2008 of the Superior Court of Justice at Ontario, Canada, and necessary direction be issued to the Civil Registrar, Tiswadi, at Panaji, to cancel the registration of the marriage under entry no.657/2000 of the Marriage Registration Book dated 23.11.2000. The Petitioner in MCAM no.608/2009 is the husband while the Petitioner in MCAM no. 934/2009, is the wife. It is the contention of the Petitioners that their marriage which was registered at Panaji, came to be dissolved in view of the divorce granted to them by the Superior Court of Justice at Ontario, Canada, in view of the fact that they were residing in the City of Toronto, State of Ontario in Canada. The said Petition for divorce was filed by the husband against his wife before the Superior Court of Justice at Ontario, Canada. It is further their contention that they were domiciled in Canada and that the said Decree for divorce came to be passed by the Court in Toronto on 21st November, 2008, in accordance with law as per the prevailing law at the place of their said domicile. As such, the Petitioners have filed the present Application in terms of Article 1101 of the Portuguese CPC read with Section 13 of the Civil Procedure Code, 1908, praying that the said Decree be confirmed and recognized by this Court before the entry of Registration at Civil Registrar''s Office, is cancelled.
The learned Counsel appearing for the Petitioner in MCAM no. 608/2009, in support of the above application, relied upon the Judgment of this Court reported in 2000 (2) G.L.T. 361 in the case of Saturnino Epifanio Ralph Barros vs. Tina Noronha a Barros & anr. On perusal of the said Judgment, the Division Bench of this Court has held at paras 11 and 12 thus :
In this background, can it be said that the Judgment of German Court cannot be recognized on the ground that it is an incorrect view of international law. The law applicable would be the law of domicile of the Country. The appellant''s/respondent no.1''s application for dissolution of marriage could have been entertained by this Court. IT was so entertained and decided. Private International Law recognizes that in such maters, it is the law of domicile of the parties that would be applicable. In the instance case, it would be the law as prevailed in Germany. The ground for divorce by mutual consent is available both in Germany as well as Goa. The procedure for dissolution may be different. Even if it is held that the provision of conciliation process is part of substantive law, that is immaterial. See R. Viswanthan & Ors. v. Abdul Wajid (supra).
That leads us to a last question whether the marriage is founded on a breach of any law in force in India. We find no discussion except for the contention that the procedure in granting a divorce is different. That cannot be said to be founded on the breach of any law in force in India. That would require consideration whether the dissolution of marriage would be contrary to the public policy of India. Public policy of India is not merely a breach of law, but something much more. Considering what is public policy, the Apex Court observed in Renusagar Power Co. Ltd. v. General Electric Co. (supra) as under :
While observing that "from the very nature of things, the expressions ''public policy'' ''opposed to public policy'' or ''contrary to public policy'' are incapable of precise definition" this Court has laid down -
"Public policy connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time." (See Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly (1986) 2 SCR 278. 372: AIR 1986 SC 157, 1612.
The need for applying the touchstone of public policy has been thus explained by Sir William Holdsworth -
"In fact, a body of law like the common law, which has grown up gradually with the growth of the nation, necessarily acquires some fixed principles, and if it is to maintain these principles it must be able, on the ground of public policy or some other like ground, to suppress practices which, under ever new disguises, seek to weaken or negative them". (History of English Law, Vol. III.P.55)
In these circumstances, we are of the view that it could not be said that the claim was founded on the breach of a law in force in India. The ground for divorce was available although by mutual consent both in Goa and Germany. Section 13(f), therefore, was not attracted.
In view of the said Judgment of the Division Bench, I find that there is no reason not to confirm the said Decree obtained by the Petitioners from the Superior Court of Justice at Ontario, Canada. It is stated that the ground for divorce was by mutual consent and the same has been obtained after complying with the process of law as prevailing in Canada. There is no dispute on this factual position.
In view of the above, the Misc. Civil Applications (Main) filed by the Petitioners are allowed. The Decree of divorce passed by the Superior Court of Justice at Ontario, Canada, dated 21st November, 2008, is final/conclusive. The Civil Registrar, Tiswadi, Panaji, is directed to cancel the registration of the marriage under entry no. 657/2000 of the Marriage Registration Book dated 23.11.2000, in accordance with law. Both the Applications stand disposed of accordingly.