Article on Recognition and enforcement of foreign divorce decrees in India

 Recognition of foreign divorce decrees in India is a complex legal issue that involves the interplay of private international law, Indian family law, and the concept of comity of nations.

Comity of Nations

Comity of nations is a principle of international law that requires courts to respect and give effect to the judgments and decrees of foreign courts, subject to certain conditions. This principle is based on mutual respect and cooperation between nations and aims to avoid legal conflicts and promote international harmony.

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Whether court should extradite an accused to his homeland if criminal prosecutions against him are pending in India?

  The common refrain in all statutes and treaties thus appears to be that if the person, sought to be extradited, is accused of an offence in the requested state, or has been convicted in the requested state, then either the extradition proceedings itself are postponed/ adjourned, or the surrender is postponed until the conviction is undergone, or the criminal proceedings have resulted in a final conclusion/ termination.{Para 30}

1 S. Bedi, Extradition in International Law & Practice, (1991, Discovery Publishing House) Vol.1 [282]

31. A perusal of Section 31(1)(d) of the Act shows that there are two situations that are contemplated within this provision where the fugitive is not to be surrendered by the Union of India. First, if the person is accused of an offence, which is not the offence in respect of which he is sought to be extradited, and secondly if the person is convicted of an offence in India. In either of these cases, until and unless there is a finality to the said criminal proceedings, either by means of a discharge of the accused - by acquittal or due to the complete sentence having been undergone, the surrender cannot be processed. The phrase “or otherwise” appears as a subset of the word discharge, and hence the same would have to be interpreted ejusdem generis and would only be deemed to mean any other form of discharge, which has a finality attached to it. For e.g., discharge by the trial court under Section 227 of the CrPC., the allowing of a mercy petition conclusively discharging the accused, the grant of a pardon, or any other relief where the criminal proceedings against the accused are concluded/terminated, and a final decision has been rendered, which would no longer require the accused’s presence in India. Mere temporary release on bail would not be sufficient.

32. Applying this rationale to the facts of the present case where the Petitioner is an accused in three FIRs, has been granted bail in all the said three FIRs, and has even been permitted to travel abroad in two of the FIRs, the Petitioner may even be able to seek permission to travel abroad in the third FIR. However, as the pendency of all these three FIRs is not disputed and the fact is that the Petitioner is still being tried for the said offences under the three FIRs, it is clear that the criminal proceedings against him have not concluded and he has not been conclusively discharged. The charges which have been levelled against him in the said FIRs are still under investigation, and he has not been acquitted or discharged in the same. Thus the grant of bail or the permission to travel abroad in pending cases/ FIRs would not be covered by the phrase “discharged, whether by acquittal or on expiration of his sentence or otherwise” under Section 31(1)(d) of the Act. Section 31(1)(d) of the Act, restricting the surrender of an accused fugitive squarely applies to the case of the Petitioner as he is still an accused in India, with cases and charges pending to be investigated and determined against him. An order of bail or an order permitting him to travel abroad would not constitute `discharge’ under Section 31(1)(d), and the said prohibition would therefore be applicable.

33. It is the settled position in law, as held in the case of State of West Bengal v Jugal Kishore More, 1969 (1) SCC 440, that the procedure of handing over or surrender of an accused fugitive would be determined by the domestic law or municipal law. Further it has also been recognized by the ld. Supreme Court of India in Bhavesh Jayanti Lakhani v. State of Maharashtra, 2009 (9) SCC 551, while holding that the Extradition Treaty between the United States of America and India is subject to the provisions of the Extradition Act, 1962, observed:

“58. The Act as also the treaties entered into by and between India and foreign countries are admittedly subject to our municipal law. Enforcement of a treaty is in the hands of the Executive. But such enforcement must conform to the domestic law of the country. Whenever, it is well known, a conflict arises between a treaty and the domestic law or a municipal law, the latter shall prevail.”

Both these judgments of the ld. Supreme Court have been considered by the Division Bench of this court in Brij Bhushan Bansal (supra).

34. Accordingly, this court is of the opinion that in view of the above position, the request of the Petitioner- accused, for an expedited surrender and extradition, cannot be allowed, until the Petitioner continues to be an accused in the three FIRs lodged against him in Goa, India, and the said cases are pending before the domestic fora.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 1541/2021 & CM APPL. 8482/2021

MILEN IVANOV DAVRANSKI Vs  UNION OF INDIA 

CORAM:

JUSTICE PRATHIBA M. SINGH

Date of decision: 7th April, 2021

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Whether court can permit accused to return to his country even though there is no extradition treaty between India and that country?

 Undoubtedly, as observed by the learned Revisional Court vide the impugned order dated 30.5.2020 in CR No. 881/2019 there is no extradition treaty between India and the Republic of Kyrgyzstan. However, placed on record is the Treaty between the Republic of India and the Kyrgyz Republic on Mutual Legal Assistance in Criminal Trials with Article 1 thereof relating to the obligation to grant mutual legal assistance with paragraph 1.4 dealing specifically with criminal matters including investigations or proceedings relating to criminal offences concerning taxation, duties, customs and international transfer of capital or payments, including those for perpetuating terrorism. As per Clause 1.6 of this Treaty, assistance that is to be provided mutually between India and the Kyrgyz Republic relate to clause 1.6.8 to making persons in custody and others, including experts, available to evidence or to assist investigations through Clause 1.6.10 taking measures to locate, identify, restrain, seize and confiscate funds meant for the purposes of terrorism, thus as it has been undertaken by the Embassy of the Kyrgyz Republic through its Attache Counsel vide clause 6 of its verified document dated 6.3.2020 to the effect:

"6. In view of the above fact we undertake that under the circumstance M. Aida Askarbekova may get a leave from this Hon'ble Court to travel (to) her home, we shall ensure her presence in India as and when required by the Courts or Custom Department.",

subject to the petitioner No. 1 depositing a sum of Rs. 10,00,000/- in the form of an FDR in the Court of the Chief Metropolitan Magistrate, New Delhi, the release of which amount would be subject to the adjudication of any appeal against the order C. No. VIII (AP) 10/P&I/Adj./346/2019/1594-75 dated 6.7.2020, ORDER-IN-ORIGINAL No. 69/ADJ./2020 if any, filed by the petitioner No. 1, the petitioner No. 1 is allowed to travel to Kyrgyzstan for a period of 45 days to get her child operated with the direction to the petitioner No. 1 to return to India on the 46th day of her leaving India with the request to the Embassy of Kyrgyz Republic in India in Delhi, to ensure that the petitioner no. 1 Ms. Aida Askerbekova, holder of Kyrgyzstan Passport No. AC 3167256 returns back to India on the 46th day from the date when she leaves India to Kyrgyzstan for the operation of her son which she is permitted to go only after the deposit of the sum of Rs. 10,00,000/- in the form of an FDR as directed hereinabove, which on deposit is directed to be converted into an auto renewal mode. Furthermore, in the event of the petitioner no. 1 not returning back on the 46th day of her leaving India to Kyrgyzstan, the said amount of Rs. 10,00,000/- deposited in the form of an FDR as directed hereinabove, would stand forfeited.

Ratio: Court allowed a Kyrgyzstani national who was undergoing trial to visit her country to take care of pressing personal obligations on the basis that even though there was no extradition treaty between India and Republic of Kyrgyzstan, there was indeed a treaty between the countries on mutual legal assistance in criminal trials, the provisions of which could be resorted to ensure the return of the person concerned with the attendant undertaking of the concerned Embassy in this regard.

 IN THE HIGH COURT OF DELHI

Crl. M.C. 1529/2020

Decided On: 31.08.2020

Aida Askerbekova Vs.  Department of Customs

Hon'ble Judges/Coram:

Anu Malhotra, J.

Citation: MANU/DE/1642/2020

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Basic concept of doctrine of specialty

 In Day a Singh Lahoria v. Union of India and Ors.:MANU/SC/0260/2001 : (2001) 4 SCC 516, the Supreme Court had explained the 'Doctrine of Speciality' as follows:

"The doctrine of specialty is yet another established rule of international law relating to extradition. Thus, when a person is extradited for a particular crime, he can be tried for only that crime. If the requesting State deems it desirable to try the extradited fugitive for some other crime committed before his extradition, the fugitive has to be brought to the status quo ante, in the sense that he has to be returned first to the State which granted the extradition and a fresh extradition has to be requested for the latter crime. The Indian Extradition Act makes a specific provision to that effect. In view of Section 21 of the Indian Extradition Act, 1962 an extradited fugitive cannot be tried in India for any offence other than the one for which he has been extradited unless he has been restored to or has had an opportunity to return to the State which surrendered him. The doctrine of specialty is in fact a corollary to the principles of double criminality and the aforesaid doctrine is premised on the assumption that whenever a State uses its formal process to surrender a person to another State for a specific charge, the requesting State shall carry out its intended purpose of prosecuting or punishing the offender for the offence charged in its request for extradition and none other. (See M. Cherif Bassiouni-International Extradition and World Public Order.) In the book International Law of D.P. O'Connell, the principle of specialty has been described thus:-According to this principle the State to which a person has been extradited may not, without the consent of the requisitioned State, try a person extradited save for the offence for which he was extradited. Many extradition treaties embody this rule, and the question arises whether it is one of international law or not."

 IN THE HIGH COURT OF DELHI

W.P. (Crl.) 562/2019 and Crl. M.A. 3920/2019

Decided On: 18.08.2020

Vinay Mittal Vs. Union of India and Ors.

Hon'ble Judges/Coram:

Vibhu Bakhru, J.

Citation: MANU/DE/1573/2020

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Whether Indian courts should recognize certificate of civil status is issued by Swiss Confederation to prove bride marital status?

 Ext.P5 certificate of civil status is issued by the

Swiss Confederation, to prove the bride marital status,


attested by a notary in terms of Hague Convention,

abolishing the requirement of legalisation for foreign public

documents (Apostille Convention).        India has declared its

accession to above Convention on 05/10/1961.                The

Switzerland has not objected to accession of India as

Contracting State under article 12 of the Convention. Thus,

the Indian Court and the Public Authorities are bound to

recognise such certification of the notaries of the foreign

country.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT:

                   THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

 Dated:  27TH DAY OF NOVEMBER 2015

                                  WP(C).No. 35928 of 2015 (M)
                                      

            ABDUL MANAF.P.A.,
Vs

        STATE OF KERALA,
           

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When court should not issue Writ of Mandamus to Government of India to raise claim before International Court of Justice on behalf of its national?

 From the above discussion, it is clear that

International Law recognized both direct International

wrong        and indirect International wrong.     The present

being          not a case of        direct International wrong

committed by a foreign State, claim has been stated to

be covered under the           heading "indirect International

wrong".          Indirect International   wrong can include a

situation where National of A State caused injuries to

the National of State B.          States responsibility can be

fastened           only when there are circumstances  of   the

State being involved in causing injury to a foreign

National.           The State liability has not to be readily

inferred unless there are materials to show.

       45. There        is  one  more  aspect of  the  matter.

Any claim for compensation can always be laid according

to the municipal            law of the Country where cause of

action           arose.   Greigh while    considering indirect

International wrong          in "Chapter X" has referred to a



principle, viz., exhaustion of legal remedies.                                    It is

useful to extract the                        principle as stated in the

following words:

                  ""It is a well-established principle of international law that a

        state cannot succeed in a claim on behalf of its national before an

        international tribunal unless all the remedies available under the

        local law have been tried and found wanting. However, while this

        general proposition of the rule, and from the reasons behind it, are

        capable of being resolved by reference to such a proposition."

In the present case it is clear that although the

Emabassy of India, Riyadh, KSA had taken the claim of

the petitioner with the Ministry of Foreign Affairs,

KSA, no relief could be obtained diplomatically.                                  It is

true that in all cases                   it is not necessary that a claim

under      local            laws     be    raised.         But    the        aforesaid

principle is also a principle                            while considering            a

State to raise a claim before the International Court of

Justice.            There is one more aspect of the matter which

needs       consideration.                 As        per      the    Statute        of

International Court of Justice it is the State which can

be     a      party         to      the     dispute         raised       before     the



International            Court of Justice.                   Article 34(1) as

noted above provides              "only States may be parties in the

case before the Court."                 The decision as to             whether a

particular claim is to be raised in the International

Court of Justice            is primarily in the discretion of the

State.               Strake      in    his    International           Law    while

discussing State's responsibility under Chapter X noted

that State practice shows that most States                                  regard

sponsoring of the claim is entirely                                within their

discretion.          The following        is stated          by Strake in this

context:

                 "Sometimes it is expressed that this right corresponds to an

       administrative duty of the state towards such of its nationals as

       have suffered injury.      But state practice (for example, of the

       Department of State of the United Stats) shows that most       states

       regard the sponsoring of claims by nationals as entirely within their

       discretion.."

       46. The petitioner in the writ petition has prayed

for     a mandamus directing the Union of India to raise                         a

claim in the International Court of Justice for death

compensation          on account of           the death of petitioner's



husband on 18.05.1985.           In   the present case     the

petitioner in the Writ Petition             had claimed Rs.10

lakhs from the respondents         and under the orders of the

learned           Single   Judge,  petitioner   has   received

compensation of Rs.6,00,000/- as noted above.

       47. In view of the foregoing discussion, we are of

the opinion            that   present is not a case      where

petitioner has made out a case for issuing a writ of

mandamus to the Government of India to raise the claim

before the International Court of Justice.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT:

  

APPELLANT(S)/APPELLANT/PETITIONER IN WPC:
------------------------------


     MARGRET D CRUZ A


Vs
      UNION OF INDIA
   

               ASHOK BHUSHAN, C.J.
                         and
                A.M. SHAFFIQUE, J.
       
                 W.A. No.1271 of 2013
         
     Dated this the 03rd   day of February, 2016

 Citation;AIR 2016 (NOC)303 Kerala

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What is "first strike" principle under international law?

 What are the situations in which an interim or an interlocutory order of a foreign court may be ignored? There are very few such situations. It is of primary importance to determine, prima facie, that the foreign court has jurisdiction over the child whose custody is in dispute, based on the fact of the child being ordinarily resident in the territory over which the foreign court exercises jurisdiction. If the foreign court does have jurisdiction, the interim or interlocutory order of the foreign court should be given due weight and respect. If the jurisdiction of the foreign court is not in doubt, the "first strike" principle would be applicable. That is to say that due respect and weight must be given to a substantive order prior in point of time to a substantive order passed by another court (foreign or domestic).{PARA 56}

Supreme Court of India

Surya Vadanan vs State Of Tamilnadu & Ors on 27 February, 2015

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Whether foreign law is a question of fact?

 It is the pleaded case of the appellant that its legal
obligation as transporter ends on its delivering the goods
entrusted to it at Benapole Customs station. Unloading of
imported goods at any customs station in this country is also
regulated by the provisions of the Customs Act, 1962. We are

sure that it must be equally regulated by the law of
Bangladesh. What exactly the law of Bangladesh is in this
regard and how the factum of delivery of goods allegedly
carried and delivered by the appellant at Benapole is to be
proved are two distinct and different matters. It is a settled
principle of private international law that foreign law is always
a question of fact which is required to be pleaded and proved
by the party whose rights or obligations flow from such foreign
law. There is no pleading or proof in this regard in the instant
case.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1427 OF 2007
M/s Transport Corporation of India Ltd. 
V
M/s Ganesh Polytex Ltd. 
Citation;AIR2015SC 826
Read original judgment here; click here

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Whether Police is liable for negligence to victim of domestic violence?

Michael and others (Appellants) v The Chief Constable of South Wales Police and another (Respondents) [2015] UKSC 2– read judgment

The Supreme Court has rejected a challenge to the long-standing rule that the police owe no duty of care in negligence in the context of protecting victims from potential future crimes.

Background

The background facts to the case are shocking. On 5 August 2009, at 2.29am, Ms Michael dialled 999 from her mobile phone. She told the call handler at the Gwent Police call centre that her ex-boyfriend was aggressive; he had just turned up at her house; he had found her with another man; he had bitten her ear really hard; he then drove the other man home with Ms Michael’s car but, before doing so, told her that he would return to hit her; that he was going to be back “any minute literally” and, according to the recorded transcript of the conversation, that her ex-boyfriend had told her “I’m going to drop him home and (inaudible) [fucking kill you]”.

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Whether child sex abuse expert's testimony is admissible in evidence?

People v. Diaz

20 N.Y.3d 569

New York Court of Appeals

Decided on: March 26, 2013

Prior False Claims Made By Complainant Held To Be Admissible

Summary: Defendant was charged with course of sexual conduct against a child. At trial, the People presented expert testimony of a psychologist with expertise in the field of child sexual abuse. Defense counsel objected, arguing that the testimony was supposed to be about alleged victims not about an alleged suspect The court overruled Defense counsel’s objection and held that it was a legitimate part of a general discussion of child sexual abuse. Defense sought to call Martinez, the complainant’s younger brother’s biological father to testify that the complainant had also made the same false allegations against him prior to the present allegations. The trial court denied the request.

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