Mentoassociates.com – Legal Articles

With the increasing number of cases, where Indian nationals married in India, trying to get divorce and other matrimonial reliefs from foreign courts, it is interesting to know the legal position regarding the applicability of foreign judgments in India. In normal circumstances, the courts in India treat foreign judgments to be conclusive regarding any matter which is directly adjudicated upon between the same parties. However in the following instances, Indian courts do not recognize foreign judgments.

a) When the foreign judgment is not pronounced by a court of competant jurisdiction.
b) When the judgment is not given based on the merits of the case.
c) When it is based on an incorrect view of International law.
d) When it has not recognized Indian Laws where such laws are applicable.
e) When the proceedings are opposed to natural justice.
f) When it is obtained by fraud.
g) Where it sustains a claim founded in a breach of any law in India.

Article 226 of the constitution confers the High Courts wide powers to issue orders and writs to any person or authority. Before a writ or an order is passed, the party approaching the court has to establish that he has a right and that right is illegally invaded or threatened. High court can issue writ and directions, to any Government, authority or person even beyond its territorial jurisdiction, if the cause of action partly arises within its territorial jurisdiction.

Wherever questions of facts are involved normally High Court does not exercise its power under article 226.Similary when an alternative remedy is available to the Petitioner, the Courts do not entertain petitions under Article 226.Also when there is an inordinate delay in approaching the court, the court may not give relief acting under this Article.

There are various types of Writs: – Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. Supreme Court under Article 32 of the Constitution can exercise similar Powers.

The basic idea in conferring powers under Article 226 upon High Court is to see that the rule of law is maintained in the society. The executive Authorities are to be corrected whenever they transgress the limits of their power and encroach upon the rights of the citizen. Violations of human rights, natural rights etc., are instances where the High courts interfere using this powerful article of the constitution.

Caveat is a preventive relief available to citizens. This gives them the immediate intimation from the court whenever an opposite party approaches the Court with some prayer. When an application is made in a suit or proceeding or a proceeding to be instituted, any person claming a right to appear before the court on the hearing of such application may lodge a Caveat. A person can avail this right if he anticipates filing of a suit or other proceedings by any other person affecting his interests.

A person lodging a caveat (Caveator) shall serve a notice of the Caveat by registered post, on the person by whom the proceeding may be initiated. After the caveat has been lodged, if any application is filed, the Court shall serve a notice of the application on the Caveator.

A Caveat shall remain in force only for ninety days, after which a fresh Caveat can be filed. A caveat cannot be filed in criminal matters.

High Courts exercising the power under Article 226 of the Constitution can issue writs of Habeas Corpus. It is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal jurisdiction for the imprisonment. An application for Habeas Corpus can be filed by the near and dear of the individual detained or even by a stranger or a social worker.

Under Article 226, a petition for Habeas Corpus would lie not only when a person is detained by the state, but also when he is detained by another private individual. The custody of a minor child can be obtained by a rightful parent under a Habeas Corpus proceeding. Similarly, Habeas Corpus is available to a husband to regain the custody of his wife.

Where it is shown that the petitioner was arrested and imprisoned with mischievous and malicious intent, the court shall have the power to compensate the petitioner by awarding suitable monetary compensation or exemplary costs.

To decline to give effect to an order of release passed on an application for Habeas Corpus amounts to contempt of court punishable by imprisonment and attachment.