Validity and execution of Divorce Decree passed

Article posted by: office@indialawoffices.com

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The matrimonial laws differ from country to country. The issue of divorce decree not being valid crops up when the domicile of the partied is in one country and one of them obtains matrimonial relief in a foreign country. It has become a very common this of late that people after marriage migrate to different country either to stay there permanently or for temporary stay.

Analysis of divorce decree granted by Foreign Courts:

Divorce decree granted by Foreign Courts can be divided into two categories:

1. Mutual consent divorce grated by Foreign Courts.

2. Decree granted in Contested Divorce.

In the case of mutual consent divorce decree, the decree granted by a Foreign Court is considered to be legal, valid and binding in the Indian Courts by the virtue of Section 13 and Section 14 of the Civil Procedure Code, wherein Section 13 enumerates the condition when a foreign judgment would not be considered valid in India and Section 14 states that when the Indian Courts would consider the Foreign judgment to be conclusive. A decree which is not affected by section 13 does not need to be validated in India and will be considered conclusive under Section 14 of the Civil Procedure Act.

However, in a case where a divorce decree is granted by a Foreign Court in a contested divorce the answer to the question of validity of the divorce decree varies.

The cases in which the foreign divorce decree would not be considered conclusive:

  • First, when an ex-parte decree is passed by a Foreign Court, it would not be valid and conclusive in India. A decree would be considered ex-parte if summons are not served on the opposite party.  However, if such decree was deliberately left to go ex-parte i.e. no summons are served on the opposite party then the Indian Courts would not allow this fraud.
  • Secondly, divorce obtained on grounds other than the grounds enumerated under the Hindu Marriage Act if the parties were married under Hindu Law, as a divorce matter is governed by the law under which one gets married and not the law of the land where the party is residing.

A Foreign divorce decree shall be considered to be valid and conclusive in the following case:

  • It is a general rule that if one of the partners contests divorce filed in Foreign Land it would be said that he/she consented to the jurisdiction of that Court, in such a case the decree would be considered to be a conclusive one.
  • Where the wife consents to the grant of the relief by the foreign Court although the jurisdiction of the foreign Court is not in accordance with the provisions of the Matrimonial Law of the parties, to be valid and the judgment of such foreign Court to be conclusive.

Execution of a foreign divorce decree:

A foreign judgment can be executed in two ways in India. The ways are as follows:

  • First, by filing an execution under Section 44A of the Civil Procedure Code. Section  44A states that a decree passed by Courts in reciprocating territories can be executed in India as if the decree was passed by the Indian Courts only.
  • Secondly, by filing a suit upon the foreign judgment/decree. For instance, the decree does not pertain to a reciprocating territory or a superior Court of a reciprocating territory, as notified by the Central Government in the Official Gazette, the decree is not directly executable in India. Here the decree passed by the foreign court shall be considered as another piece of evidence.                                                                                                                                Conclusion:

To conclude we can say that a decree passed by a Foreign Court has either to be executed under Section 44A or a fresh suit has to be filed for its enforcement. A foreign divorce decree is considered to be conclusive under Section 14 of the Civil Procedure Code if it passes the test under Section 13 of the said Code.

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