Is Foreign Divorce valid in India?
Today, the question “Whether the divorce granted in abroad is valid in India?” is becoming common in society. Often it is seen, the people having different temperament could not settle as happily married couple and therefore they tend to part from each other and opt for the decree of Divorce. Now, the difficulty arises when one of the parties has their domicile in one county and one of them obtains matrimonial relief in other country. However, if the divorce is by mutual consent, there are hardly any legal issues involved.
Matrimonial Laws
The Matrimonial Laws are not common everywhere in the world and they differ from country to country. In India, the marriages are solemnized through customary or statutes laws of law. Now, the question involved is whether decree of divorce granted in some other country would be valid in India. Generally, foreign court judgment is not conclusive proof and binding of Indian court because every marriage of India are solemnized under personal/customary ritual or provision of civil statute so as question of divorce are determined concerned statute. Therefore, foreign court has no jurisdiction to entertain the petition according to the concerned Indian Act under which admittedly the parties were married.
Provisions Involved
The provision involved in such matters is section 13 of Code of Civil Procedure, which says a foreign judgment is not conclusive as to any matter thereby “directly adjudicated upon” “between the parties” if:
(a) it has not been pronounced by a Court of competent jurisdiction; or
(b) it has not been given on the merits of the case; or
(c) it is 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; or
(d) the proceedings are opposed to natural justice, or
(e) it is obtained by fraud, or
(f) it sustains a claim founded on a breach of any law in force in India.
It is thus clear that in order to make a foreign judgment conclusive in India; it must be shown that it complies with all the above mentioned six conditions. There is no compliance of any one of these conditions; then, foreign judgment will not be conclusive and consequently not legally effective and binding in India.
Now, let’s consider which law would prevail to the Hindus who married as per Hindu Rites & Rituals. As per section 1 of the Hindus Marriage Act, 1955, the act extends to the whole of India except the State of Jammu and Kashmir and applied also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.
It is for this reason that Hindus married as per Hindu Rites in India, although settled abroad are primarily required by law to process divorce proceeding only as per the said Act i.e. Hindu Marriage Act, 1955.
A decree of a foreign Court is normally recognised by a Court in another jurisdiction as a matter of comity and public policy. But no country is bound to recognise and give effect to a decree of a foreign Court if it is repugnant to its own laws and public policy. So far as India is concerned, a judgment of a foreign Court creates estoppel or resjudicata between the same parties provided such judgment is not subject to attack under any of the Clauses (a) to (f) of section 13 of the Code.
Law Settled by Hon’ble Supreme Court of India
Is Foreign Divorce valid in India?
Similar question what is being discussed in this Article came before the Hon’ble Supreme Court of India in the case titled as Y. Narsimha Rao vs. Y. Venkata Lakshmi. And the Hon’ble Supreme Court settled the law which has been followed in number of judgments across India. It held that
- that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court
- It was further held that the decision must be given on merits of the case i.e.
- that the decision of the foreign court should be on a ground available under the law under which the parties are married, and
- 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.
- Refusal to recognize the law of India, is covered by saying that the ground for divorce is the foreign decree is a ground available under the Hindu Marriage Act, 1955.
- The foreign judgment was obtained as opposed to natural justice. The concept of natural justice is the provision of fair hearing; absence of bias of Judge and following the elementary principles of fair play. This is larger concept but shortly can be stated as essential trappings in order to have a fair adjudication. Where for instance respondent was denied documents filed by the other side or where the respondent was denied the opportunity to cross-examine witnesses of other side, without a justifiable cause, these would be opposed to the principles of natural justice..
- Where the foreign decree was obtained by fraud. Fraud at any stage vitiated legal proceedings. It is often said that law and fraud cannot co-exist.
Broadly two Categories of Cases arises.
- Where the opposite party appeared and participated.
- Where the opposite party did not appear before the court and did not participate.
Apart from above, the third category also arises i.e. the divorce by mutual consent. As already discussed above, that would hardly have any legal issues, since its by mutual consent.
- Where the opposite party did not appear before the court and did not participate. :-
In such a case, it would be taken as that the party did not submit to the jurisdiction of the foreign court, however it will not mean that the party is not required to be served which would amount to denial of opportunity to be heard. Such decrees passed can be challenged before the Indian Courts.
- Where the opposite party appeared and participated. :-
In such a situation, the party cannot assail that he/she was not heard, if the respondent had voluntarily submitted to the jurisdiction of the foreign court. However, the party is free to make an alternative plea under the jurisdiction of the foreign court for the grant of alimony or monthly maintenance.
CONSEQUENCES OF INVALID DECREE OF DIVORCE.
If a man has obtained divorce decree from foreign court without proper ways:-
- Prosecution for Bigamy if remarried;.
- Wife (divorced as per foreign law) may file for maintenance.
- In case the man dies without making a will, the first wife will have the right to her share in the property of the man while the second wife will get nothing because her marriage will not be considered legitimate.
The Author (Anoop Verma) is practicing Advocate in Punjab and Haryana High Court Chandigarh.