I. N. v. M. M. N.

FCMC 4561/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4561 OF 2008

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J U D G M E N T

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1.  This is a hearing on the respondent husband (hereinafter called “the husband”)’s summons dated 27 February 2009 in which he asked for all further proceedings in this action be stayed under the inherent jurisdiction of the Court on the ground that the marriage has already been dissolved in India.

2. The petitioner wife (hereinafter called “the wife”) opposes such application by saying that although a decree of divorce has been granted by the Family Court in Hyderabad, India on 18 April 2008 (“the Indian Decree”), it is her case that that decree should not be recognised by this Court, by relying on s.61(2) of the Matrimonial Causes Ordinance, Cap. 179 (“MCO”).

Brief History

3. Before I go to the relevant statue, it may be useful if I should set out the brief history of these proceedings.

4. Both parties in these proceedings are Indian nationals.  The husband is now aged 51, an Associate Professor at a local university.  He started his teaching career in Hong Kong as from 1990.

5.  The wife is now aged 45.  She is also highly educated and obtained a Master’s Degree in Computers and Integrated Circuits from an Indian University.  She has worked as a civil servant in the Ministry of Defence in the Indian Government.  She came to Hong Kong in the year of 2000 under a domestic helper’s contract signed with the husband. 

6.  There is a dispute on when the parties started their marital relationship.  The wife said they went through a customary ceremony in India in the year of 2000 and has since lived as husband and wife.  The husband said their romantic relationship only started in one or two years after the wife’s arrival in Hong Kong as his domestic helper.  For all practical purposes, I do not think this is a very important issue for the adjudication of the husband’s summons.

7.  From this relationship, 2 children were born.  The elder son was born on 23 June 2002 and he is now aged 7.  The younger daughter was born on 30 August 2004 and she is now aged 5.  Both of them are now residing with the wife.

8.  It is not in dispute that the parties formally married in 2004 in Hyderabad, India.  After marriage, the family returned to Hong Kong with the husband continued with his teaching career whilst the wife stayed at home in looking after the 2 children.

9.  Starting from about 2006, the parties’ relationship began to deteriorate.  During an incident in October 2007, there was an allegation from the wife that she was being assaulted by the husband and so she left the former matrimonial home with the 2 children and later sought refuge in a battered women’s shelter. 

10.  On the other hand, the husband denied the assault and said it was the wife who has deserted the family by moving out with the 2 children without notifying him at all.

11.  Subsequent to the October incident, the wife has successfully applied for legal aid and a firm of solicitors was assigned to her for the purpose of petitioning for a divorce.  However, there was some delay in the petition because the wife could not get a valid copy of the marriage certificate.

12.  While the wife and her solicitors were figuring out how to overcome the hurdle of not having a valid marriage certificate, the husband was able to file a petition for divorce in Hong Kong based on the behaviour of the wife (FCMC 649/2008).  The husband’s petition was filed on 16 January 2008, but was immediately withdrawn on the next day, i.e. 17 January 2008.  According to the husband, he withdrew the petition because he thought the process for divorce would take a long time here and so he decided to petition for divorce in India instead.  He flew to India and a petition for divorce was filed on 1 February 2008 at the Family Court in Hyderabad, India (O.P. No.72 of 2008).  Upon the issuance of the petition, a “Notice to Show Cause (General Form)” was also issued with the return date fixed on 21 February 2008.  In other words, if the wife should want to show cause against the application, she had to appear at that hearing failing which the husband’s application would be heard and determined in her absence.

13.  Copies of the Indian petition and other papers were posted directly by the Indian Court to the wife who was then residing at the women’s shelter.  After the husband’s return from India, he also tried to serve on the wife through a social worker of the centre (Mr.Tam) who later confirmed that the court papers were handed to the wife but she refused to sign on them.  The wife did not dispute that she was aware of the husband’s petition.  She explained that she refused to accept service because a staff of the Indian Consulate told her that all Indian Court documents had to be served through the Consulate.

14.   In any event, the Indian Court was satisfied that the wife was properly notified and as no cause was shown by the wife on the return date, a decree for divorce was eventually granted on 18 April 2008.

15.  The wife finally managed to file her present petition for divorce in Hong Kong (based on the husband’s behaviour) on 23 April 2008, i.e. 5 days after the Indian Decree.  In the petition, she asked for the dissolution of their marriage, together with a list of ancillary relief orders and costs.

16.  The husband filed his acknowledgment of service in which he indicated his objection to the jurisdiction of the Hong Kong Court in hearing this case.  On 27 February 2009, the husband, through his solicitors, issued the present summons asking for a stay of the wife’s matrimonial proceedings on the ground that their marriage has already been dissolved by the Indian Decree.

17.  As this Court has the jurisdiction to recognize an overseas divorce, it has become vital for the wife to resist the recognition of the Indian Decree, failing which her matrimonial proceedings in Hong Kong can not proceed simply because there is no longer any marriage to be dissolved.  Another consequence is that she would not be able to maintain her claim for ancillary relief under the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”) because any ancillary relief order to be made for her benefit can only take effect as from the granting of a decree absolute of divorce (s.25(2) of MPPO refers).

The Law

18.  It is clear that the Court in Hong Kong has the jurisdiction to recognize the validity of an overseas divorce under s.56 (1) of the MCO, which states:

   “56.   Grounds for Recognition

(1)   The validity of an overseas divorce or legal separation shall be recognized if, at the date of the institution of the proceedings in the country in which it was obtained-

(a)    either spouse was habitually resident in that country; or

(b)   either spouse was a national of that country.”

19.  However, recognition may be refused, pursuant to s.61(2) of the MCO if:

   “61.   Exceptions from recognition

    …

(2)   Subject to subsection (1), recognition by virtue of this Part or of any rule preserved by s.59 of the validity of a divorce or legal separation obtained outside Hong Kong may be refused if, and only if-

(a)   it was obtained by one spouse-

(i)  without such steps having been taken for giving notice of the proceedings to the other spouse as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or

(ii)    without the other spouse having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as , having regard to the matters aforesaid, he should reasonably have been given; or

    (b)   its recognition would manifestly be contrary to public policy.”

20.  Therefore, under s.62 (2) of the MCO, recognition may be refused under one or more of the following 3 situations:

(1) no reasonable steps have been taken to give proper notice of the overseas proceedings to the other spouse;

(2) no reasonable opportunity has been given to the other spouse to take part in the overseas proceedings (“the reasonable opportunity issue”); or

(3) the recognition would manifestly be contrary to public policy (“the public policy issue”).

Issues

21. It is now clear from the wife’s evidence, and her counsel does not attempt to argue otherwise, that the wife has received actual notice of the Indian proceedings.  Therefore, her present arguments in resisting the recognition of the Indian Decree (and therefore, the husband’s application for stay) are only confined to the reasonable opportunity issue and the public policy issue.  

The Case for the Wife

22.  The wife has filed a number of affirmations in the proceedings so far but only one affirmation is directly relevant to the present issues, i.e. her 7^th Affirmation, dated 20 May 2009 (pp.47- 57 of the Hearing Bundle).

23.  In her affirmation, the wife said she was introduced to the husband through a matrimonial institution in India shortly after her 1^st divorce.  At that time, the husband’s 1^st marriage was still in subsistence and therefore, they only went through a marriage ceremony but without formal registration.  After marriage, she came to Hong Kong to live with the husband and in order to facilitate her visa application, she signed a domestic helper’s contract upon the husband’s direction.  It was, and still is, her intention to settle in Hong Kong permanently.  The 2 children were born in Hong Kong in the respective years of 2002 and 2004.  After the birth of the first child, they decided to register their marriage, which was done in February 2004 in India.

24.  As to the Indian Decree, she admitted that the husband did try to serve the documents on her but she was advised by a senior officer of the Indian Consulate that she needed not accept the service as all documents from the Indian Court had to be served through the Consulate.  Therefore, there was no question of her not having received notice of the proceedings before the granting of the Indian Decree.

25. So far as her main grounds of opposition is concerned, they are contained in paragraphs 2, 25 and 26 of the affirmation:

“2. I strongly opposed to the application for stay of the present proceedings based on the ground that the [husband] has already obtained a decree of dissolution in Hyderabad, India.  I crave leave to refer to my previous affirmation including a letter to this Honourable Court dated 5 September 2008 and produced to HH Deputy Judge C.K. Chan at the hearing on 5 September 2008 in connection with the issue of the Indian proceedings.  I had already raised my objection to the [husband] relying on Indian proceedings with the intent to defeat my petition for a divorce and claims for ancillary relief for the children and myself there and then.  There is now produced and shown to me marked “IN 7” a copy of the letter dated 5 September 2008 to this Honourable Court.

…

…

25. It is apparent that the [husband] wanted to have the control of the divorce and once he knew it is more beneficial for him to proceed in India, he withdrew his Hong Kong Petition and then started it again in India.  He deliberately did all he could to make me to go to India to deal with this.  Honestly speaking, I have no confidence in the Indian court and he feels he could manipulate all his ways over there.  I would say I am here in Hong Kong, I do not want to go back and he is also a permanent residence in Hong Kong, I do not want to go back to India to live at all.  I do not see any reason why the proceedings cannot be done in Hong Kong.

26.    If this matter is not allowed to be resolved in Hong Kong I honestly believe that I would suffer a lot of injustice.  If the proceedings are in India, I will have very little control of the situation.  The Indian proceedings can be prolonged by the [husband] for a long time.  I will suffer great prejudice and I could not get a sufficient maintenance for living in Hong Kong.  I would not be able to have a fair hearing and a fair order to provide for my future maintenance and the children.” 

26. Just to complete the picture, the letter to the court that was referred to in paragraph 2 of the affirmation can be found at p.66A of the Hearing Bundle.  The more relevant parts of the letter are as follows:

“I.    I pray that the court would not recognise the divorce (if indeed) in the Indian Court following the authority of ML v. YJ [HCMC 13/2006].

    The reasons are as follows:

1.  The Husband manipulated court procedures to defeat my claim in Hong Kong.

2.  He first started divorce in Hong Kong on 16^th January, 2008, I enclose his abandoned petition. He then abandoned Hong Kong procedures when he finds that he can completely cut me out if he starts divorce in India as I reside in Hong Kong.

3.  I have never been served any Indian Court papers.

4.  I have never been heard in any ways in the Indian Court.

5.  All orders (if any) made in the Indian court have been made without notice to me.

6.  The parties and the children all reside in Hong Kong.  The children are born in Hong Kong. Hence, the proper forum is Hong Kong.

7.  It is inequitable to recognise the divorce in India as my interests is totally ignored. I reserve the right to query the propriety of the Indian Order.”

27. The wife’s case can be briefly summarized as follows:

(1) The husband deliberately chose to issue the proceedings in India because he wanted to control the proceedings to his benefits;

(2) The fact that the wife was required to go to India to deal with the matter was a hurdle deliberately created by the husband in order to defeat her claim in Hong Kong;

(3) As the wife was residing in Hong Kong, she was “cut out” from the Indian proceedings which was the sole purpose of the husband in discontinuing the proceedings in Hong Kong and started a new set of proceedings in India; 

(4) Both parties and the children reside permanently in Hong Kong and so the natural venue to deal with the matter should be Hong Kong;

(5)  The wife has never been served with the Indian Court papers and was not heard in the Indian Court;

(6) The Indian order was made without notice being given to the wife; and

(7) It is inequitable to recognize the Indian Decree because the interest of the wife was ignored.

The Case for the Husband

28. The husband has filed 2 affirmations in support of his application for a stay of these proceedings (the affirmation dated 27 February 2009 and his 4^th Affirmation dated 10 June 2009).  

29. In his affirmation dated 27 February 2009, the husband said both he and the wife were Indian nationals and he still regarded India as their home.  The husband also gave a rather detailed account on how he tried to serve the Indian Court documents and to bring notice of the proceedings to the wife.  As I do not think the wife’s notice of the Indian proceedings is in issue here, I therefore do not propose to repeat the husband’s evidence in this regard.  But according to the husband, the wife was given more than a fair chance to attend the Indian proceedings.  He has even written to the wife offering to sponsor her trip to attend the Indian Court hearing to be held on 21 February 2008 but the wife gave him no response at all.

30. The husband also said after the granting of the Indian Decree, he has remarried and his new wife is now residing with him in Hong Kong under a dependant visa.  As he has to sponsor his new wife’s stay in Hong Kong, the husband has written to the Immigration Department to cancel his sponsorship of the wife’s dependant visa.  Finally, he said the Indian Decree has already dealt with all the major issues of the marriage, namely the dissolution of the marriage and the welfare of the children.  As to the maintenance of the wife, he said the Indian proceeding are still open and the wife can always ask for a proper maintenance order from the Indian Court.  He undertook to make all necessary financial arrangements for her to apply for maintenance in the Indian Court and he would abide by any orders of the Indian Court in that regard.

31. In the husband’s 4^th Affirmation, a significant part of it was just a repetition of his earlier affirmation apart from the following 3 points:

(1) He explained that he withdrew the Hong Kong proceedings on 17 January 2008 because he learnt that the Hong Kong proceedings would take a longer time and more legal costs to process.

(2) He believed the wife and the children were bound to return to India given that the wife could not stay in Hong Kong on an dependant visa and all her family ties were in India.  He said the children would have better social and emotional support in India because they had many uncles, aunties, cousins and friends from both sides of the family there. 

(3) He believed that there was no injustice or prejudice against the wife in the Indian proceedings and he had even obtained an Indian legal opinion that the wife was still entitled to claim for maintenance for herself under s.24 of the Hindu Marriage Act.

32.  Finally, he asked this Court to recognise the Indian Decree and grant an order that the present proceedings be stayed and dismissed, with no order as to costs.

Discussion

33. In her submissions, Ms. Irving, counsel for the wife urged this court not to recognize the Indian Decree based on s.61(2)(a)(ii) and (b) of the MCO, namely that the divorce in India was obtained without the wife having been given a reasonable opportunity to take part in it; and its recognition would manifestly be contrary to public policy.

The Reasonable Opportunity Issue

34. As submitted by Ms. Irving, although the husband did write to the social worker on 14 February 2008 offering to pay for the wife’s trip to attend the Indian proceedings, that offer did not afford the wife a real opportunity to take part in the proceedings, and this fact must have been known to the husband.  The wife had at that time the sole care of 2 young children, then aged 5 ½  and 3 ½ who were residing with her in a battered women’s shelter.   The hearing was supposed to take place on 21 February 2008 which was only 7 days away.  There was no offer for her trip to include the 2 children.  If she should decide to go, should she also take the 2 young children with her?   If not, who was going to take care of the 2 children in Hong Kong?  That was the dilemma that she was facing, thus making the so-called offer not a realistic one to be taken up.  

35. Ms. Chan, counsel for the husband complained that there was never any evidence on this so-called dilemma.  In her affirmation, the wife has never mentioned about her difficulty in taking the children with her, or by leaving them in Hong Kong.  Therefore, there is just no evidential basis for the wife’s counsel to make this submission on the wife’s so-called dilemma.

The Court’s View

36. It may be true that in the wife’s affirmation, she has not expressly stated her dilemma in the words as submitted by counsel.   However, it is my view that if one should look at all the circumstances of the case, the wife’s then difficult position would be quite obvious.

37. The wife came to Hong Kong in the year of 2000 and was thereafter totally dependant on the husband’s support.  There is no evidence to suggest that she had her own relatives here to give her support or otherwise there was no need for her to go to a battered women’s shelter.  She was assisted by a social worker but there was no evidence to suggest that there was support from any family members or friends.  She had 2 very young children who were totally dependant on her care and were receiving education in Hong Kong.  She was given 7 days’ notice (by the husband’s offer dated 14 February 2008) that she could go to India, alone presumably because no offer was given for her to go with the children, to attend a court hearing, on her own again because there was no way she could get legal representation because of the shortage of time even if we should put aside for a moment her financial inability to instruct a lawyer of her own. 

38.  Based on these indisputable facts, I agree with Ms. Irving’s submission that the wife’s dilemma was so obvious that this Court should not ignore.  

39. During the course of submissions, counsel for both sides had cited various authorities of which I do not intend to recite here.  The general principles of law as contained in those cases are clear and undisputed.  But as to whether a party has a reasonable opportunity to participate in a foreign divorce proceeding, it is a question of fact depending on the evidence of the particular case.  A lengthy recitation of legal authorities would not be helpful.

40. On the particular facts of this case, I accept that the wife was facing a dilemma on whether she should attend the Indian proceedings.  Despite the so-called offer of the husband, it was not really an option which one would reasonably expect the wife to take it up.  Therefore, it is my ruling that the wife was not given a reasonable opportunity to participate in the Indian proceedings.

The Public Policy Issue

41.  In the recent Hong Kong Court of Appeal case of  ML v. YJ  CACV 89/2008 (Date of Judgment: 17 June 2009), Le Pichon JA has given an introduction to the doctrine of public policy by reciting the judgment of Wood J in the English case of  Chaudhary v. Chaudhary [1985] Fam 19 at 29B-E:

    “The doctrine of public policy is a creature of the common law and prior to the commencement of the Recognition of Divorces and Legal Separations Act 1971 (1 January 1972) English courts have always reserved to themselves a residual discretion whether or not to recognise foreign decrees and orders. I have no doubt that the principles of the common law as they affect the residual discretion of English judges to refuse the recognition of foreign decrees and orders, continues and is unaffected by the provisions of the Act of 1971…I am content to base my decision upon the principles enunciated by the Court of Appeal (Lord Denning M.R. and Donovan L.JJ) in Gray (orse. Formosa) v. Formosa [1963] P.259 and, in particular, where Donovan L.J. said, at p.271:

“If the courts here have, as I think they have, a residual discretion in these matters, they can be trusted to do whatever the justice of a particular case may require, if that is at all possible.”

  The combination of circumstances which a court in this country may need to consider when exercising its discretion under the head of public policy are limitless and I would not seek to define any limits. To those who say that such a wide discretion brings uncertainty into the law, I would reply that in many branches of the Family jurisdictions today there is an extremely wide discretion given to the court.”

42. From the above passage, one can see that whether a court would recognise a foreign decree or order is a matter of the court’s residual discretion.  As to how to exercise that residual discretion, Her Ladyship had this to say at para.49 of  ML v. YJ :

    “49. What is immediately obvious is that the exercise of the residual discretion is fact-sensitive and all the circumstances of the particular case need to be considered. That emerges from two of the leading cases on the subject, namely the House of Lords’ decision in Quazi v. Quazi [1980] AC 744 and the judgment of the Court of Appeal in Chaudhary.”   

43. In the same judgment of ML v. YJ, Cheung JA has listed out the following factors to be considered in the exercise of this discretion at para. 125 of the judgment:

“125.   In considering how the discretion should be exercised in the context of public policy, the following is a summary of the relevant factors:

1) The power to refuse recognition should be exercised sparingly;

2) The principle of comity is a relevant consideration;

3) Section 62(1)(b) confers a residual discretion;

4) The conduct of the parties leading up to the divorce may be a relevant factor;

5) Motivation (such as in the exceptional circumstances of Chaudhary v. Chaudhary [1985] Fam 19 may also be relevant;

6) The consequences to the parties of a refusal of recognition may also be considered.

See H v. H (Validity of Japanese Divorce) [2007] 1 FLR 1318. The parties accepted these factors.”

Conduct and Motivation

44.  In this case, the parties separated in October 2007 when the wife and the children moved into a battered women’s shelter.  There were allegations by both parties on behaviour but this is not the proper occasion to resolve that issue.  However, one thing was clear and that was the wife wanted a divorce.  She applied for, and successfully obtained legal aid.  She requested the husband to provide a copy of the marriage certificate so that she could take out divorce proceedings in Hong Kong. 

45.  The husband also wanted a divorce and that was why he issued a petition for divorce on 16 January 2008 (FCMC 649/2008) which was withdrawn on the next day.  He explained that he found the Hong Kong proceedings to be time consuming and more costly and that was why he decided to take out the proceedings in India instead.

46.  I find the husband’s explanation hardly convincing.

47. Both parties have been residing in Hong Kong for a long time.  The husband started to live in Hong Kong since 1990 and the wife since 2000.  The husband has a secured and reputable career as an associate professor in Hong Kong, the same job he has been doing for the past 19 years.  Both children were born and receiving education here.  It would be most natural for the divorce proceedings to take place in Hong Kong and I simply cannot understand why the husband would say it would be less time consuming and costly for the proceeding to be conducted in India.

48. For the parties to conduct the proceedings in India, both parties have to fly back to India (together with the children because they were under the care of the mother) from time to time just to attend the hearings.  If there should be disputes on the children and maintenance, which is most likely in view of their very different stances adopted in this case, the proceedings in India would likely to last for quite sometime.  Therefore, I do not think any time or money would be saved by the parties conducting the proceedings in India. 

49. The wife’s need to travel to India from time to time just to attend the hearings making this not a viable option open to her.  The husband was well aware of this fact.  Under these circumstances and in particular, the lack of any reasonable explanation for him to take out the Indian proceedings, I am inclined to accept the wife’s submission that this was a deliberate attempt by the husband to “cut her out” (by adopting the words of the wife) in the divorce proceedings.

Consequences of Refusal of Recognition

50. Soon after the Indian Decree, the husband has remarried.  His new wife is now living in Hong Kong as his dependant.  According to Ms. Chan, counsel for the husband, if this Court should refuse to recognize the Indian Decree, there would be disadvantages to be faced by the husband and his new wife in that the husband may face a charge of bigamy and that the new wife’s dependency visa may be revoked.

51.  I do not think there is any doubt on the validity of the Indian Decree and the husband’s re-marriage in India.  Therefore, I do not see there is any risk for a prosecution for bigamy by the Indian authority.  Neither does such risk exist in Hong Kong because the re-marriage was not contracted in Hong Kong.  I am of the further view that even if the re-marriage was contracted in Hong Kong which I believe is not the case here, the chance of the husband being prosecuted for the offence of bigamy in Hong Kong is also remote because of the valid divorce in India.  In short, I do not think the worry of the husband in this regard is justified.

52. As to whether the husband’s new wife would lose her dependant status in Hong Kong, I do not see there is any evidence to support such a proposition.  Even if we assume for a moment that the new wife’s dependant visa will be somehow affected, I am sure that the inconvenience to be faced by the husband and his new wife is nothing comparable to the prejudice to be suffered by the wife if her divorce proceedings and claim for ancillary relief can not proceed here.  After all, the inconvenience, if any, will only last for a year or two because no one is advocating that this marriage should continue.  The ending of this marriage is a certainty and the only issue is how this marriage is to be properly wrapped up.

53. On the other hand, the recognition of the Indian Decree would mean that the wife would not be able to proceed with her divorce proceedings in Hong Kong and thus also her claim for ancillary relief for herself and the children.  She would lose the protection of the law of the jurisdiction in which she has been residing for the past 9 years.

54. I understand that it is the argument of the husband that the wife is still entitled to pursue her claim for “maintenance” in the Indian proceedings and he has even produced a legal opinion to that effect.  I am sure there must be some provisions in the Indian statues for a divorced wife to claim for maintenance.  However, I have already ruled that the wife’s frequent travel to India to pursue whatever available claims there is not a real option to her. 

55. Furthermore, one does not know what the term “maintenance” encompasses under the Indian matrimonial legislations.  Does it include a lump sum payment order as in the Hong Kong legislations?  Does it mean that the wife cannot apply for a property transfer order or a sale of property order in India, because “maintenance order” as defined in Hong Kong does not include orders concerning the transfer or sale of properties? 

56. Under such circumstances and with so many uncertainties, I am satisfied that the forcing of the wife to pursue her claim for “maintenance” in India will cause her serious prejudice.

Ruling on the Public Policy Issue

57. The court’s residual discretion in refusing to recognize a foreign decree or order should be exercised sparingly.  But based on the above discussion and the likely prejudice to be caused to the wife, it is my ruling that the Indian Decree should be refused because its recognition would be contrary to public policy. 

The Non-recognition of the Indian Decree

58. As I am satisfied that the wife was not given a reasonable opportunity to take part in the Indian proceedings and the recognition of the Indian Decree would be contrary to public policy, I am minded to exercise my discretion in refusing the recognition of the Indian Decree.

59. In this regard, I would borrow the words of Lane J in Joyce v. Joyce and O’Hare [1979] 2 All ER 156, at p.171h:

    “It is a matter of regret for an English court to refuse recognition of a decree or judgment of a competent foreign court. But in all the circumstances of this case, if I were to recognise the Canadian decree it would indeed jar on my conscience. I find that the wife was not given a reasonable opportunity to take part in the Canadian proceedings and in the exercise of my discretion I hold that the Canadian decree should not be recognise.”

60. In the circumstances of this case, it would indeed jar on my conscience if I should allow the recognition of the Indian Decree.  

Order

61. As it is my ruling that the recognition of the Indian Decree should be refused, therefore, the husband’s application for a stay of the proceedings must fail and his summons dated 27 February 2009 be dismissed.

Costs

62. The wife succeeded in resisting the husband’s application and shall have the costs of the summons, including all costs previously reserved with such costs to be taxed if not agreed.  Both parties have engaged counsel and I will also grant a counsel’s certificate.  This is in the form of an order nisi, to be made absolute after the expiry of 14 days from the handing down of this Judgment.