Validity of Foreign Decree of Divorce in India | Foriegn Divorce Decree

NRIs staying abroad and in matrimonial disputes often wonder whether to file a divorce in a foreign country. There needs to be more understanding around the same. This article attempts to capture under which conditions a decree obtained in a foreign court is valid in India. It does not try to venture into the domain of whether an NRI should file a case in a foreign country or not.

Like most developed/ developing countries, the Indian Judicial System has a reasoned and internationally acceptable approach to validating foreign judgments and decrees. Under Sec 13(a) of the Civil Procedure Code, 1908, a foreign judgment is conclusive in any matter that a court of competent jurisdiction has adjudicated except in certain circumstances. Also, Sec. 41 of the Indian Evidence Act, 1872, provides that a final judgment of a competent Court in the exercise of matrimonial jurisdiction is conclusive proof that the legal character which it confers or takes away accrued or ceased at the time, declared in the judgment for that purpose.

However, a judgment based upon an incorrect view of International Law or a refusal to recognise the law of India, where such law is applicable, needs to be more conclusive.

The position is similar in other countries with developed matrimonial jurisprudence, which considers foreign judgments conclusive between the parties if a court of competent jurisdiction pronounces them. A foreign decree of divorce is denied recognition in American Courts if the judgment is without jurisdiction or is procured by fraud or if treating it as valid would offend against public policy. Before passing the Recognition of Divorces and Legal Separation Act of 1971, English law on the subject has grown out of a maze of domiciliary wilderness. Still, English Courts have, by and large, adopted the same criteria as the American Courts for denying validity to foreign decrees of divorce.

In India also, the Supreme Court, in many cases and in particularly in Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr, Supreme Court (1991 SCR (2) 821, 1991 SCC (3) 451) observed that if a foreign judgment has not been given on the merits of the case, the courts in India will not recognise such a judgment. A foreign judgment must have been given on the merits of the case; a judgment is said to have been given on the merits when, after taking evidence and after applying his mind regarding the truth or falsity of the plaintiff’s case, the judge decides the case one way or the other.

In the above case, the Hon’ble Supreme Court interpreted each subsection. Anyone wanting a detailed understanding should read the judgment thoroughly.

Section 13. When foreign judgment is 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 to prosecute under the same title except—

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

From the above, it can be deduced that for a Foreign Divorce Decree, the following conditions should be present:

1. A Competent Court should grant it– This means the court where marriage is solemnized or where the parties last resided together as husband and wife and where the Respondent resides. Courts of any other place won’t be courts of competent Jurisdiction. Jurisdiction. A person can not travel to any foreign country/ alien country to get a divorce as it is easy.
2. It should be decided on merits. This means that evidence should be led. Without a reply, the case is not decided on merits. Ex-parte divorce decrees, thus, would not be recognized in Indian Courts.
3. It should be on grounds recognized by Indian Law. That means only a divorce decree is valid in India on the grounds under which the divorce can be pronounced. Cruelty, Adultery, and desertion are some of the grounds recognized in Indian Law. However, Irretrievable Breakdown of Marriage or Fault Divorce is not a ground recognized in Indian Law. Thus, a divorce decree on this ground, among others unrecognized, would be invalid in India.
4. It should be in accordance with the principles of Natural Justice. Natural Justice is what makes judicial proceedings fair and just. For Example, there can be a situation when the Respondent is in a foreign country and is not available to join the case. In such a situation, the Divorce Decree is not valid in India. The same is the case with the Ex-Parte Decree.
5. It should obtained by fraud/ Coercion– Same grounds as in India, any judgment Decree obtained by Fraud/ Coercion is not valid in India.
6. It should not Breach any Law in India. For example, Indian Muslim Law does not recognize Mutha Marriage (Marriage for a limited Duration), which is valid in Iran and some other pockets of Shia-dominated areas.

This is illustrated by the Landmark Judgment of Pritam Ashok Sadaphule vs Hima Chugh MANU/DE/0946/2013: The Delhi High Court held that the following rule can be deduced for recognizing foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court, as well as the ground on which the relief is granted, must be by the matrimonial law under which the parties are married. The exceptions to this rule may be as follows:

1. where the matrimonial action is filed in the forum where the respondent is domiciled habitually and permanently resides, and the relief is granted on a ground available in the matrimonial law under which the parties are married.
2. where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim, which is based on a ground available under the matrimonial law under which the parties are married.
3. where the respondent consents to the grant of the relief although the jurisdiction of the forum is not by the provisions of the matrimonial law of the parties