Validity of Foreign Decree of Divorce in India

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

Like most developed/ developing countries Indian Judicial System has a reasoned and internationally acceptable approach for validating foreign judgments and decrees. Under Sec 13(a) of Civil Procedure Code, 1908 a foreign judgment is conclusive in any matter which has been adjudicated by a court of competent jurisdiction except in certain circumstances. Also Sec. 41 of 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, is not conclusive.

The position is similar in other countries with developed matrimonial jurisprudence which considers foreign judgments conclusive between the parties if it is pronounced by a court of competent jurisdiction. 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. The English law on the subject, prior to the passing of the Recognition of Divorces and Legal Separation Act, 1971, has grown out of a maze of domiciliary wilderness but 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 the 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, Hon’ble Supreme Court interpreted each of the subsection mention therein. Anyone wanting to have detailed understanding should read the judgment completely.

Section 13. When foreign judgment 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 litigating under the same title except,—

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

(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:

a) It should be granted by a Competent Court – 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 court of competent Jurisdiction. jurisdiction. A person just can not travel to any foreign country/ alien county to get divorce as it is easy.

b) It should be decided on merits – This means that evidence should be led. Without reply the case is not decided on merits. Ex-parte divorce decrees thus would not be recognized in Indian Courts.

c) It should be on grounds recognised by Indian Law – That means only on the grounds under which the divorce can be pronounced in India the Divorce Decree is valid. Cruelty/ Adultery/ Desertion are some of the grounds recognized in Indian Law. However Irretivable Breakdown of Marriage/ No Fault Divorce is not a ground recognized in Indian Law, thus a divorce decree on this ground amongst others which are not recognized would be invalid in India.

d) It should be in accordance with principles of Natural Justice – Natural Justice is what makes the judicial proceedings fair and just. For Example, there can be a situation when the Respondent is in foreign country and is not available to join the case. In such situation the Divorce Decree is not valid in India. Same is the case with Ex-Parte Decree.

e) It should obtained by fraud/ Coercion – Same grounds as in India, any judgment Decree obtained by Fraud/ Coercion is not valid in India.

f) It should not Breach any Law in India – For example Indian Muslim Law does not recognize Mutha Marriage (Marriage for limited Duration) which is valid in Iran and some other pockets of Shia Dominated areas.