Validity & Execution of Divorce Decree Passed by Foreign Court

The matrimonial laws differ from country to country. It has become a very common of late that people after marriage migrate to different country either to stay there permanently or for temporary stay. As per Private International Law, a person always carries his or her personal laws to whichever country he or she travels. If the marriage if solemnized under any particular law/statute, then it has to be dissolved according to that particular law.

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. Though in the case of mutually consented divorce decrees, the complexities are much less compared to contested divorces. However, in a case where a divorce decree is granted by a Foreign Court in a contested divorce, generally the question of validity of the divorce decree arises.

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 the decree is passed in the absence of the other party. Here also, the problem arises when summons are not served on the opposite party, either deliberately or through omission.  
• Secondly, divorce obtained on grounds other than the those enumerated under the marriage laws of India, for example if it is a case of Hindu Marriage, the provisions prescribed under the  Hindu Marriage Act shall be made applicable. This is because 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.
• Thirdly where it has not been pronounced by a Court of competent jurisdiction.
• Fourthly, where it has not been given on the merits of the case.
• Fifthly, if it appears on the face of the proceedings to be based on an incorrect view of international law or a refusal to recognize the law of India, or where the proceedings in which the judgement has been given are opposed to natural law or obtained by fraud.
• If the judgement is passed without giving a fair opportunity of hearing or without considering the relevant evidence, then it is considered as violation of principles of natural justice.

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 parties to the marriage 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.
• The Court dealing with the Divorce proceedings must be a Court of Competent jurisdiction.
• According to the judgment of Hon’ble Supreme Court, when the Respondent had instituted a foreign court proceeding in a court in whose jurisdiction the Applicant has never lived, the respondent had made a false representation that the respondent was a bona fide resident of that state. It was held that the respondent had practiced fraud on the foreign court by concealing this fact.
• It has also been held in another judgement that the expression “given on merits” involves the application of the court’s mind to the truth or falsity of the Plaintiff’s case. Therefore. a judgement passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex-parte.
• There is also a concept evolved or a view taken by the courts, known as the concept of “comity of courts”. This means that the courts in different countries should give respect and recognition to the foreign decrees.

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.