Validity of Foreign Divorce Decree in India

Dear Client,
In reference to Section 13 of the Code of Civil Procedure,(CPC) 1908, 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 means the law under which parties are married, recognises. Any other court would be court without jurisdiction, unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that Court. Further, the ground of divorce in the decision of the foreign court should be a ground available under the Hindu Marriage Act, 1955. Cruelty is a settled ground amongst other for a decree of divorce under Section 13 of the Hindu Marriage Act, 1955. But the same cannot be said for “irretrievable breakdown of marriage”, as this is not a ground for divorce under the Hindu Marriage Act, 1955. Section 44A of CPC deals with the execution of decrees passed by courts in reciprocating territory means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and “superior Courts”, with reference to any such territory, means such Courts as may be specified in the said notification. So, in the absence of such notification, execution of foreign court's decree is not admissible for execution in India. Further, as per sub-section 3 of Section 44A CPC, the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13 of CPC that outlines the conditions under which a foreign judgment is not considered conclusive in India. The division bench of Hon'ble Gujarat High Court relied on the Supreme Court's 1991 landmark decision in Y. Narasimha Rao v. Venkata Lakshmi, held that a Hindu marriage conducted in India in accordance with religious ceremonies and customs will always be governed by the provisions of the Hindu Marriage Act, 1955 (HMA) and cannot be governed by any other law even if the parties acquire a new domicile or citizenship of any country in the world. Further, in the case of "Sheenam Raheja v. Amit Wadhwa" (2012, 131 DRJ 568), the Delhi High Court in reference to the aforementioned Supreme Court's ruling in "Y. Narmasimha Rao (1991, 3 SCC 451), concluded that if a marriage was solemnized and registered under the Hindu Marriage Act, 1955, its dissolution must be carried out in accordance with the provisions of the same Act. So, considering the complexity of validity or enforceability of a foreign decree of divorce and the averments of the Courts, it is always recommended to a Hindu couple married in India to seek a divorce from an Indian court only. Hope the query stands clarified.