With the increase in immigration, the number of foreign overseas marriages is also constantly increasing. Marriage is considered as an important event or a milepost in human life. Marriage connects and binds different cultures together. Every marriage goes through some ups and downs and some disputes arise. In India one can get divorced easily under the law, he got married through. But what about the Indian matrimonial disputes in a foreign country?
Can an Indian marriage be divorced abroad, as in the USA?
Yes, one can get the decree of divorce of an Indian marriage in the USA. But the system is not only governed by the Indian legal system, but also by private international laws, rules and principles different from that of the Indian legal system.
Since the court all over the world arbitrate in the right of parties in order to ensure that no wrongdoer gains an advantage of his wrongdoings hence show mutual respect. Even Indian courts have to respect such order unless the order doesn’t fall under section 13 of the code of civil procedure. In some cases, Indian courts have to decide the order in accordance with the Indian laws. Such as the cases of a family dispute, matrimonial dispute, child custody, maintenance, etc. However, a foreign decree is recognized and is considered valid in Indian courts, unless the decree is legally invalid under general principles and divorce laws.
Can a divorce decree passed by the USA court be recognized in India?
Yes, a foreign judgment or a divorce decree passed by a USA court can be executed in India by filing an execution of the decree. One can file and execution of the decree under section 44a of CPC. According to section 44a of CPC, a decree of any Superior Court of a reciprocating territory shall be executed in India as a decree passed by the Indian district court. However, the USA is not declared a reciprocating territory by the Government of India. Hence, one cannot file the execution under section 44a of CPC. A decree from a non-reciprocating country can only be executed by filing a civil suit in Indian Court. The limitation period provided to file and execution under section 44a of CPC is within 3 years.
However, there are certain principles considered by Indian courts before the execution of a decree. The decree is considered conclusive under section 14 of CPC. Section 13 of CPC laid down the test for the conclusiveness of a foreign judgment or a decree. A foreign judgment can only be conclusive if:
1. The judgment is pronounced by a court of competent jurisdiction. If the divorce decree is passed by a court that does not have jurisdiction over the divorce matter, and the parties under the divorce laws in India, the foreign divorce decree would not be recognized. Generally, the jurisdiction to decide the divorce is where the marriage was solemnized, or where the parties have last resided together as husband and wife, or where the opposite party resides.
2. Parties must have the opportunity to represent their case in foreign Courts. If either of the parties could not represent their case with full and fair opportunity before the foreign Court, then the judgment is improper and invalid and will not be recognized by the courts in India. The court will look for fair evidence, good faith. In case, Harmeeta Singh v. Rajat Taneja[1], the husband filed the proceedings for divorce in the foreign Court. The wife approached the Delhi High Court for an injunction on continuing with the proceedings in foreign Court, as she didn’t have the spouse Visa, thus she can’t defend the proceedings in foreign Court. The court provided her relief.
3. The judgment is not pronounced on a breach of any law in force in India. If the foreign court granted a decree of divorce on a ground that is not recognized by Indian divorce laws, then the decree cannot be executed. For example, if the foreign Court has granted the divorce on the basis of an irretrievable breakdown of the marriage, then the Indian Court will not recognize the same because this ground has not been mentioned for divorce under the Indian divorce law. In case, Narasimha Rao & others v. Y. Venkatalakshmi[2], both husband and wife were married in India under the Hindu marriage act. After marriage, the husband went back to the USA and obtained a decree of divorce on the ground that the marriage has been irretrievably broken down. The Supreme Court of India held that the ground on which the decree was passed was not in accordance with the Hindu marriage act under which the marriage took place and hence the decree was not enforceable in India.
4. The judgment is not pronounced in violation of the principle of natural justice. According to the principle of natural justice, each party should have a full, fair and legal opportunity to present their case before the competent court. Indian Court examines is foreign judgment in order to make sure that parties handful and fair opportunities to present their case. If the judgment is given in violation of such condition then decree cannot be executed.
5. The judgment has not been obtained by fraud. If during the examination of the foreign decree in India find that one party has presented the facts on which the foreign court has granted the decree then such degree will not be recognized by the Indian Court. In case, Satya v. Teja Singh[3], the respondent filed for divorce proceedings in a court in whose jurisdiction the applicant has never lived, concealing the fact from the court. Thus, the respondent committed fraud. The foreign Court passed the decree of divorce, having no territorial jurisdiction. That foreign Court divorce decree was declared invalid by the Supreme Court of India.
In case, Neerja Saraph v. Jayant Saraph and Another[4], Neerja married Jayant, an NRI husband. After the returned to the USA, the husband filed a case for annulment of marriage. The wife filed a suit for damages against her husband and father in law and obtained an ex parte decree for Rs 22 lakh. A pending appeal against the ex-parte decree, the Supreme Court directed the NRI husband to make an interim deposit of Rs 4 lakh in favour of the wife.
Further the following general rights were also given by the Court.
- Right to get orders by Indian courts enforced.
- Right to approach the Court for an injunction for interim orders against the husband travelling abroad or taking the children abroad.
- Right to claim damages through a suit for damages.
- Right to claim property shares from husband and in-laws.
Conclusion
Indian marriage can be divorced in the USA. But the decree is needed to be executed under section 44a of the CPC, in case of reciprocating territory, or a suit has to be filed for execution. If decree passes the test given in section 13 of the CPC, then the decree is considered conclusive under section 14 CPC.
References:
- Harmeeta Singh v. Rajat Taneja 2003, IIAD Delhi 14
- Narasimha Rao & others v. Y. Venkatalakshmi 1991 3 SCC 451
- Satya v. Teja Singh (1975) 1 SCC 120
- Neerja Saraph v. Jayant Saraph and Another 1966 6 SCC 641
- Code of Civil Procedure, 1908
- https://mea.gov.in/images/pdf/marriages-to-overseas-indians-booklet.pdf
[1] 2003, IIAD Delhi 14
[2] 1991 3 SCC 451
[3] (1975) 1 SCC 120
[4] 1966 6 SCC 641
This Article is Authored by Naveeta, 2nd Year B.A. LL.B Student at Vevekananda Institute of Prefessional Studies.
Also Read – Can A Muslim Divorced Couple Marry Again?
