Introduction
For marriage in India, there are personal laws that govern the same. And respectively they have their divorce procedure but several questions arises that what happens when a couple moves abroad and due to some problem in their marital life files for a divorce decree abroad. Is a foreign divorce decree applicable in India? The author in this article will explain the legal provision as well as the generic possible scenarios that may arise.
The concept of the Comity of Court is very important in this regard as it means that the decree given by any court in the world is based on the rights of the parties and they should show mutual regards in this way. Further, a question may arise that why the matrimonial laws of the foreign land applicable where the couple resides? The answer to this question lies in the jurisdiction under section 1 of the Hindu Marriage Act 1955.
There are two scenarios under which a foreign divorce decree is conclusive
- When the divorce is decreed upon the mutual consent of both parties.
- When a person who is contesting the divorce, attends court proceeding (if not the case is decided on merits), the divorce decree is granted upon grounds of divorce under the Hindu Marriage Act
There are two ways in which this divorce decree can be used in India, it can be applied for execution or it can be used as evidence in a fresh suit.
Applicable law and rules
Code of Civil Procedure,1908
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;
In Dinesh Singh Thakur vs. Sonal Thakur, Both the parties were permanent residents of the USA and the appellant himself was living there since 2007. Therefore the USA court has concurrent jurisdiction. [1]If that is not the case then both the parties voluntarily and unconditionally submits to its jurisdiction.
(b) where it has not been given on the merits of the case;
The divorce decree given by a foreign court must be on the grounds mentioned under the Hindu Marriage Act. No other ground like No-Fault Divorce- irretrievable breakdown which is a ground for divorce in USA will not suffice. The parties must accept the jurisdiction of the court and must contest the divorce proceeding.
(c) where 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;- The applicable law in India is Hindu Marriage act.
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
The principles of the fair trial such as an unbiased judge, proper hearing of both sides and non-admission of evidence without a justifiable cause.
(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.
The Supreme Court laid down the rule regarding foreign divorce decree in Y. Narasimha Rao v. Y. Venkata Lakshmi.[2]
The grounds, as well as the jurisdiction of the foreign court, must be incompetent with the matrimonial law under which the parties are married. Three exceptions were given to this rule.
- When the divorce is by mutual consent.
- Where the divorce decree is filled is the place where the respondent is domiciled habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married;
- Where the respondent submits to the jurisdiction of that court and contests the decree on grounds available in the specific matrimonial Law under which they married.
Possible scenario
- Mutual Consent
When a divorce decree is granted by mutual consent then the Indian Court will refrain from differing from it based on the principle of the Comity of courts and public policy. If a person has accepted the jurisdiction of certain court and attended the proceeding of the court. They are not at liberty to contest the same in India.
There is no need for validation of such divorce decree and the person is free to remarry. But there are often situations where Divorce application is filled by one party and the other doesn’t appear in the proceeding, It may be due to any reason involving no summons issue or party not available in the country.
- Proceedings Not attended and not actively participated.
The law laid down is very clear in this regard- For a decree to be conclusive the court must have a competent jurisdiction and the grounds should be that of the matrimonial law under which they married. As a foreign court is not acceptable in the Hindu Marriage Act. The exception of domicile habitually or permanently reside can be used but even then the domicile has to be proved and the proceedings must be according to the Matrimonial law under which parties married. Therefore in this situation, the Indian courts are more likely to not accept the foreign decree. And when the court has not served a notice than in that case the proceedings will be taken in law to be a nullity.
- Proceeding attended and Actively Participated
When a proceeding is attended in a foreign court it implies that the one attending it has accepted its jurisdiction. In this situation when a court gives a decision on merits based on grounds mentioned in the specific matrimonial law under which the couple married than it is valid. The contention of the party not being heard will be of no avail as the party attending the proceeding is free to raise any contention or alternative plea.
The consequence of an Invalid Divorce decree
- In the case of re-marriage, the person can be charged for bigamy.
- If any party dies intestate then the property will go to the First wife or husband. The second wife or husband will not get anything as their marriage is invalid.
- The other party can file for maintenance and issues regarding custody of the child may arise.
- Claims of share in the property may be raised
Conclusion
One should not draw comfort from the inaction of the person who did not participate in divorce proceedings. The implications of an invalid divorce may appear many years later and even may arise after the death of the person who got an invalid divorce from a foreign court. Therefore it is suggested to get a divorce from Indian court only as the things will be less complicated.
[1]Dinesh Singh Thakur vs. Sonal Thakur, AIR2018SC2094.
[2]Y. NarasimhaRao v. Y. Venkata Lakshmi,1991 SCC (3) 451.
This article has been written by Arpit Jhanwar, a second-year student at Symbiosis Law School Pune
Read Also: Discuss various grounds of Divorce under Hindu Marriage Act 1955
