1. The present Application is filed under Article 1102 of the Portuguese Civil Procedure Code, 1939 read with Sections 13 and 14 of the Civil Procedure Code, seeking confirmation of judgment dated 8th July 2019 passed by Family Court at Bury St. Edmunds, in matter No. BV18D19153.

2. Applicant contends that Applicant is originally a resident of Moira, Bardez Goa. She married to Respondent No.1 on 24th August 1996, and the marriage is registered before the Sub-Registrar, Mormugao vide Certificate bearing No.402/1996. Applicant and Respondent No.1 have resided in the United Kingdom since 3rd March 1997. Thereafter, in the year 2007, they started residing in Goa. Since 2013, they have been separated from each other.

3. Since the Applicant and Respondent No.1 are British Nationals and overseas citizens of India, Applicant filed petition for dissolution of marriage before the Family Court at Bury St. Edmunds, United Kingdom on the ground of irretrievable broke down of marriage and they have lived apart for continuous period of five years immediately preceding presentation of petition. Eventually, a Certificate of entitlement to a decree dated 30th March 2019 was issued, and finally a decree dated 8th July 2019 has been passed (hereinafter referred to as 'Decree of Foreign Court'). Respondent No.1 has not challenged the decree before the Appellate Court. As such, it has attained finality. According to Applicant, the decree is passed by competent Court of jurisdiction by following due procedure of law on the grounds which are available under Portuguese Law. Applicant therefore urges to ratify and confirm the Decree of Foreign Court.

4. Per contra, it is the contention of Respondent No.1 that decree does not comply with the requirements of Section 13 of CPC. Hence, it is not conclusive. According to Respondent, judgment is not based on the merits of case and the proceedings in which the judgment was obtained were opposed to natural justice.

5. Ms Maria Collasso, learned Advocate appearing for Applicant, would submit that difference between Applicant and Respondent No.1 could not be settled. They lived apart for continuous period of more than five years. Both of them are citizens of United Kingdom. Applicant instituted proceedings before the Family Court at Bury St. Edmunds, who had jurisdiction in terms of the Council Regulation (EC) No.2201/2003 dated 27th November 2003 in Matrimonial matters. Respondent No.1 avoided service of notice. Hence, Applicant adopted process of deemed service as permissible under Family Procedure Rules 2010. After following procedure for dispensation of service, decree has been validly passed. In absence of challenge to decree, the Respondent No.1 cannot contest the claim for confirmation alleging procedural laches. She would urge that once notice was sent by registered post on correct address, there is presumption of valid service. In support of her contentions, she relies upon observations of Supreme Court in case of Alcon Electronics Private Limited Vs Celem S. A. of Fos 34320 Roujan, France and another, reported in (2017) 2 SCC 253, C. С. Alavi Haji Vs Palapetty Muhammed and Another reported in 2007(14) SCC 750 and Trilochan Choudhury Vs Dayanidhi Patra reported in 1960 Supreme (Ori) 111.

6. Per contra, Mr Vibhav Amonkar, learned Advocate appearing for Respondent No.1 would submit that judgment of Foreign Court cannot be ratify or treated as conclusive if it is not on merits of case or contrary to principles of natural justice. In support of his contentions, he relies upon observations of Supreme Court in case of Y. Narasimha Rao and others Vs Y. Venkata Lakshmi and another reported in (1991) 3 SCC 451 and International Woollen Mills Vs Standard Wool (U.K.) Ltd. reported in (2001) 5 SCC 265.

7. Having considered submissions advanced by learned Advocates appearing for respective parties, question that arises for consideration in this application is as to whether Foreign Judgment deserves confirmation in terms of parameters laid down under Section 13 of Civil Procedure Code which reads thus:-

                    13. When foreign judgment not conclusive- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

                    (a) where it has not been pronounced by a Court of competent jurisdiction;

                    (b) where it has not been given on the merits of the case;

                    (c) 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;

                    (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 [India].

8. Undisputedly, judgment of Foreign Court is passed by Competent Court of Jurisdiction. However, Respondent contends that proceeding in which judgment is obtained was opposed to natural justice. There is no contest on point that judgment sought to be confirmed has been passed by Family Court at Bury St. Edmunds. Proceedings of Court records that Respondent No.1 was deemed to have been served on 5th August 2018. Applicant could not file acknowledgement of service of notice upon Respondent nor she took steps for service by private mode. It is further recorded that as neither the Court nor solicitors have received any acknowledgment of service and prospects of service for personal service were uncertain, Applicant submitted an application to dispense with service of divorce petition upon Respondent so that divorce can progress.

9. Applicant claims that the Foreign Court in exercise of powers under Family Procedure Rules of 2010, passed order of deemed service which cannot be objected by Respondent. Perusal of Rule 6.15 and 6.16 which deal with Deemed service which reads thus:-

                    Deemed service-receipt of acknowledgment of service 6.15-(1) Subject to paragraph (2), an application is deemed to be served if the acknowledgment of service, signed by the party served or the solicitor acting on that party's behalf, is returned to the court office.

                    (2) Where the signature on the acknowledgment of service purports to be that of the other party to the marriage or civil partnership, the applicant must prove that it is the signature of that party by-

                    (a) giving oral evidence to that effect at the hearing; or

                    (b) if the application is undefended, confirming it to be so in the affidavit the applicant files under rule 7.19(4).

                    Deemed service by post or alternative service where no acknowledgment of service filed

                    6.16- (1) Subject to paragraph (2), if

                    (a) an application has been served on a respondent by post or other service which provides for delivery on the next business day;

                    (b) no acknowledgment of service has been returned to the court office; and

                    (c) the court is satisfied that the respondent has received the application, the district judge may direct that the application is deemed to be served,

                    (2) Where-

                    (a) the application alleges 2 years' separation and the respondent consents to a matrimonial or civil partnership order being granted; and

                    (b) none of the other facts mentioned in section 1(2) of the 1973 Act (42) or section 44(5) of the 2004 Act, as the case may be, is alleged, paragraph (1) applies only if-

                    (i) the court is satisfied that the respondent has received notice of the proceedings; and

                    (ii) the applicant produces a written statement, signed by the respondent, containing the respondent's consent to the grant of an order.

10. The record tendered before this Court is not sufficient to infer that there was deemed service in terms of Clause 6.15 on Respondent as no acknowledgment of service was received to Court. Although Clause 6.16 provides Court's power to pass order of deemed service, this Court will have to record satisfaction as to compliance of natural justice while passing judgment which is sought to be confirmed in terms of law/procedure as recognised in India.

11. In the aforesaid backdrop, it would be expedient to refer to the observations of Supreme Court in Para 18 in case of Y. Narasimha Rao (supra), which reads thus:-

                    "18. Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdictional principle is also recognised by the Judgments Convention of the European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) may be held to have been satisfied."

12. In light of aforesaid exposition of law, if the facts of present case are considered, it can be observed that Respondent No.1 was not served with notice of proceedings in Foreign Court. The Foreign Court did not ascertain and ensure effective contest by requiring Applicant to make all necessary provisions for Respondent No.1 to defend. The order of deemed service is mechanically passed which cannot be countenanced by this Court to record satisfaction as to observance of mandate of principles of natural justice as approved in India. Hence this Court holds that, Foreign Court's judgment is non-compliant of Clause (d) of Section 13 of CPC.

13. Now turning to second contention of Respondent that judgment of Foreign Court is not given on merits of case. It is apposite to refer to observations of Supreme Court in Para No.16 in case of Y. Narasimha Rao (supra) which reads thus:-

                    "16. Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate."

In light of aforesaid observations, if the Foreign Court's judgment is perused, it is discernible that there was no contest on the part of Respondent No.1 and decree has been passed recording no contest by Respondent No.1. Although the judgment records that Applicant has made out ground for divorce on the basis of material produced, it does not employ reason for such conclusion.

14. In case of International Woollen Mills (supra), Supreme Court observed that section prescribes the conditions to be satisfied by a foreign judgment in order that it may be accepted by an Indian Court as conclusive between the parties thereto or between parties under whom they or any of them litigate under the same title. One such condition is that the judgment must have been given on the merits of the case. Whether the judgment is one on the merits, must be apparent from the judgment itself. It is not enough if there is a decree or a decision by the foreign Court. In fact, the word 'decree' does not find a place anywhere in the section. What is required is that there must have been a judgment. What the nature of that judgment should be is also indicated by the opening portion of the section where it is stated that the judgment must have directly adjudicated upon questions arising between the parties. The Court must have applied its mind to that matter and must have considered the evidence made available to it in order that it may be said that there has been an adjudication upon the merits of the case. Even where the defendant chooses to remain ex parte and to keep out, it is possible for the plaintiff to adduce evidence in support of his claim so that the court may give a decision on the merits of his case after a due consideration of such evidence instead of dispensing with such consideration and giving a decree merely on account of the default of appearance of the defendant. A foreign Court may have its own special procedure enabling it to give a decision against the defendant who has failed to appear in spite of the summons served on him and in favour of the plaintiff. Such a judgment may be conclusive between the parties so far as that jurisdiction is concerned, but for the purpose of Section 13 of the Indian Civil Procedure Code such a judgment cannot be accepted as one given on the merits of the case and to that extent the law in India is different from the law in other jurisdictions where foreign judgments given for default of appearance of defendants are also accepted as final and conclusive.

15. In the present case, Certificate of entitlement to a decree merely refers that Applicant has sufficiently proved the contents of petition and she is entitled to a decree of divorce on the grounds that marriage has irretrievably broken down, the facts found proved being five years' separation. However, aforesaid certification is not supported by reasons emanating from pleadings and evidence tendered before the Court. In that view of the matter, this Court finds that the Foreign Judgment cannot be treated as conclusive. In the facts of present case, firstly for reason that the proceedings in which judgment was obtained are contrary to natural justice. Secondly, it has not been given on the merits of case.

16. In result, application stands rejected.