Recognition of Foreign Divorce Decree in India

Matrimonial laws differ from country to country. The issue of divorce decree standing invalid crops up when a party is domicile of one country and obtains matrimonial relief in a different country. People also often migrate to a different country after marriage, either to stay there permanently or temporarily. In the event the marriage doesn’t last, must an Indian couple approach the court of the residential jurisdiction or that of their native city? Will divorce in the foreign state be considered valid and acceptable in both countries or should they get another decree passed in India? In this article, We shall be discussing the validity of foreign divorce decree in India and how to execute them.

Legislative Framework

We shall be closely looking at divorce decree in a foreign state for a Hindu couple. If we read section 1 of Hindu Marriage Act, 1955 (the “Act”) carefully, we find that the Act not only applies in the territory of India, but also wherever the Act may extend and has the Hindu couple domiciled.

Section 13 and 14 of Code of Civil Procedure, 1908 (CPC) elucidate on the validity of a foreign judgement, inclusive of divorce decrees passed outside of India. The sections suggest that a divorce decree shall be conclusive if directly adjudicated between the same parties unless,

(a)    it has not been pronounced by a court of competent jurisdiction;

(b)    it has not been given on the merits of the case;

(c)    it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

(d)    the proceedings in which the judgment was obtained are opposed to natural justice;

(e)    it has been obtained by fraud; and

(f)    it sustains a claim founded on a breach of any law in force in India.

Analysis of Divorce Decree Granted by Foreign Courts

In Y. Narasimha Rao v. Y. Venkata Lakshmi, the Supreme Court of India (SC) considered the above provisions in detail and set down some specifics to clarify on the matters:

(a)    Court of competent jurisdiction must be recognised by the law under which parties are married. Any other court would be a court without jurisdiction, unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court.

(b)    Decision must be given on the “merits” of the case i.e.:

(i)    The ground of divorce in the decision of the foreign court should be a ground available under the Act. Some of the grounds available under the Act include bigamy, cruelty, desertion, adultery, among others. But “irretrievable breakdown of marriage”, is not a ground under the Act and therefore any divorce pronounced on such a ground shall not stand validated in Indian courts.
(ii)    The decision should be a result of contest between the parties. The non-applicant should have unconditionally submitted to the jurisdiction of the foreign court and contested the claim or agreed to the passing of the decree. The concept of acquiescence to jurisdiction would not suffice.

(c)    Refusal to recognise the law of India, is covered by saying that the ground for divorce in the foreign decree is a ground available under the Act.

(d)    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 a larger concept but shortly can be stated as essential trappings 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 the other side, without a justifiable cause, these would be opposed to the principles of natural justice.

(e)    Where the foreign decree was obtained by fraud. Fraud at any stage vitiates legal proceedings. It is often said that law and fraud cannot co-exist.

In Satya v. Teja Singh, when the respondent had instituted a foreign court proceeding, in a court in whose jurisdiction the applicant has never lived, respondent had made a false representation that respondent was a bona fide resident of that State. It was held that the respondent had practised fraud on the foreign court by concealing this fact. Therefore, that foreign court had no territorial jurisdiction. The foreign decree was declared invalid by the SC.

It is important to note that when an ex-parte decree is passed by a foreign court, it would mostly not be valid and conclusive in India. A decree would be considered ex-parte if summons is not served on the opposite party.  However, if such decree was deliberately left to go ex-parte i.e., no summons was served on the opposite party then the Indian courts would not allow this fraud.

A decree’s conclusiveness “where it has not been given on merits of the case” has an interesting precedent. The SC in International Woollen Mills v. Standard Wool (UK) Ltd. commented that the decision would be “on merits” despite the plaintiff leading evidence in a foreign court without the opposing party’s presence. Citing another case, the court concurred that a decision on merits requires applying the mind of the court to the truth or falsity of the plaintiff's claim. Therefore, a judgment passed after a judicial consideration of the matter with evidence may be a decision on the merits, though passed ex-parte. But a decision passed without evidence of any kind and only on a party’s pleadings cannot be held to be a decision on the merits.

Comity of Courts

The concept of “Comity of courts” is that courts in different countries grant probity, i.e., integrity, to decrees of foreign courts. All courts across the world adjudicate the rights of the parties. Therefore, mutual respect is elementary. The Hon’ble Supreme Court of India in Elizabeth Dinshaw v. Arvand M. Dinshaw reiterated the Court of England’s theory, that, all courts in all countries must do all they can to ensure that the wrongdoers do not gain from their own wrongdoing. Therefore, if a divorce is granted in a foreign country, it must not benefit a party that files for divorce based on their own actions. In Alcon Electronics (P) Ltd. v. Celem SA of FOS 34320 Roujan, the SC noted that Indian courts must give due weight to foreign decrees unless they fall under the exceptions of Section 13, CPC.

In Ruchi Majoo v. Sanjeev Majoo, an inter-country dispute with respect to custody of child, the SC opined that custody of child matter is to be viewed completely differently when juxtaposed with dissolution of marriage. In the former, welfare of the child is of paramount consideration for the court. Presumably a foreign court too must have prioritised the welfare of the minor, yet it is not enough for the courts in this country to close an independent consideration of the matter.

Objectivity and not abject surrender is the mantra in such cases.

Since no system of private international law exists that can claim universal recognition on this issue, Indian courts must decide the issue regarding the validity of the decree in accordance with the Indian law. Comity of courts simply demands consideration of any such order issued by foreign courts and not necessarily their enforcement.

A different situation arose before the Delhi High Court in Harmeeta Singh v. Rajat Taneja. Here the husband had filed proceedings in the foreign court. Wife has approached the Delhi High Court by way of a civil suit. High Court restrained the husband for continuing with the proceedings in the foreign court, considering the wife had no spouse visa. There was no occasion for the wife to submit to jurisdiction of the foreign court and she could not contest in those proceedings.

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. This is provided the decree is valid in the court it was passed in. Further, the country or territory outside India must be declared as reciprocating territory by the central government of India.
• 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 CPC if it passes the test under Section 13 of the said Code and if the grounds for divorce granted in the foreign country are valid in accordance with the Act. However, there are important provisos to the conclusive nature under section 13 with multiple interpretations of “on merits” and jurisdiction of the matter.


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