Distress of Divorcing a Foreign National in India

Love knows no boundaries, no reason, and no distance. When two people wish to be together, all they have on their mind is a future where love is in the air 24*7. They ignore the fact that the air is full of Nitrogen, Oxygen, and other gases. Love remains in the marriage until the people respect each other, along with their boundaries. A marriage can not survive unless both the spouses are willing to give all what it takes to continue together as a couple. When it breaks, it not only brings emotional breakdown, but also attracts legal processes which often take a back seat in the “love is in the air” phase. 

Suppose an Indian and a foreign national are madly in love and tie the knot on a foreign land. Now the question arises is - whose legal provisions need to be followed in case of a divorce?

Why is Divorcing a Foreign National Troublesome?

Divorce is a tough nut to crack for everyone. But when it comes to divorcing a foreign spouse, the trauma is twofold. The usual reasons behind such difficulty are enunciated below: 

• People do not know whether an international lawyer in India will deal with the matter in India, or a foreign court.
• There is confusion on whether the law governing divorce in India is the same as that on the foreign land where the other spouse resides, or where the marriage was solemnised. 
• Absence of husband and wife at a common place is also a barrier, not in law but among people with lack of knowledge.

Jurisdiction in International Divorce

There are two types of international law: public international law focuses upon the relations of two or more countries. Private international law is also termed as conflict of laws. The conflict arises when parties belonging to different countries are involved in a matter and the applicable law is to be designated for deciding the dispute. Every country has different laws and their specific jurisdiction. Indian laws are applicable in the Indian territory. But marriage laws apply to people of India. So if a Hindu boy marries a Hindu girl who is a citizen of the United Kingdom, will the Hindu Marriage Act, 1955 apply? It's a yes as per the law in India, but is it acceptable as per UK laws? 

Regarding jurisdiction in a divorce with foreign elements, usually the principle of ‘lex loci celebrationis’ is followed. It means the law of the land whereby the contract was made, i.e. the marriage was celebrated. The laws of domicile, i.e. laws of countries in which the parties to marriage are nationals, or residing for a long time also govern the legal aspects of their divorce. 

How to Divorce a Foreign Spouse Abroad?

Divorcing a foreign national on a foreign land can be tricky, especially for a spouse who has no idea regarding the legal process to be followed. Things may be easily sorted if it is a mutual consent divorce. However, if it is a contested one for reasons like cruelty or infidelity, it is paramount to understand the legal process to be followed, the international divorce cost, etc. Also, application of suitable laws also needs to be understood for grant of relief, which should not be done without expert advice from divorce lawyers. It is also advisable to contact the Indian embassy in such a country to get an idea of rules on recognition of foreign divorce in India. 

In case of Y. Narasimha Rao & others v. Y. Venkata Lakshmi & another (1991) SCR (2) 821, the following rule was deduced by the apex court for deciding the validity of decision for divorcing a foreign national overseas:

“The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows: 

(i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; 

(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on grounds for divorce in India available under the matrimonial law under which the parties are married; 

(iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.”

Divorcing a Foreign National in India

If you are a resident of Kolkata who married a foreign national, in India or abroad, consult with a divorce lawyer in Kolkata to understand the legal aspects before divorcing a foreign spouse. Knowing the general rules may not be the best for your case specific facts. 

The general rule is that in case one of the parties to marriage is an Indian, while the other may or may not be a foreign national, whereby marriage took place in another country, the Foreign Marriage Act, 1969 applies. As per section 18 (3) (a) of Foreign Marriage Act, application for dissolution of a foreign marriage is particularly allowed in the following scenarios:

1. Parties to the marriage are domiciled in India at the time of divorce petition.
2. The petitioner wife was domiciled (permanently residing) in India before marriage, and has been residing in India for past 3 years immediately before applying for divorce. 

As per the Act, provisions of divorce in a foreign marriage are governed by the Chapter 6 of Special Marriage Act, 1954. Such a divorce petition is allowed only when the petitioner is residing in India. 

If the above conditions are satisfied, one needs to send legal notice for divorce to the spouse through their lawyers. The divorce process is then initiated as per applicable laws in the court of appropriate jurisdiction. 

Notes before Divorcing a Foreign Spouse

While marrying a foreign national, people should take note of the following aspects so that divorcing a foreign national does not become the worst nightmare of their lives:

• Settle on a social marriage ceremony and publicise it on social media;
• Registration of marriage in India;
• Keep the original or copy of the marriage registration certificate along;
• Be prepared with all the paperwork for issuance of VISA;
• Contact details of Indian embassy in foreign country;
• Contact details of local Indian associations;
• Be in the network of Indian citizens in foreign;
• Keep in contact with friends and family in foreign country for emergency purposes;
• Never ever agree to forging any official documents;
• Do not fall for traps like green card or easy migration schemes;
• Try to avoid marriage in a foreign country, or else, at least register in India under the Foreign Marriage Act, 1969;
• Do not keep your passport and other crucial documents in someone else’s custody, including your spouse;
• If there is a possibility for reconciliation, go for marriage counselling instead.

General Queries for Divorcing a Foreigner Spouse 

Q-  Can I get a divorce if my spouse is in another country?

A- Yes, if you are in India, and the marriage also took place in India itself, then you may file a petition in the appropriate court specifying the reasons for divorce in India. The court may bring the other spouse back to India for divorce hearings, or even pass an ex-parte decree if the other spouse ignores court’s summons and notices. 

Q- Is foreign divorce valid in India?

A- If the principle of natural justice is duly followed in the court proceedings while divorcing a foreign national, such a foreign decree of divorce is accepted in the Indian courts. Only in case there is some illegality, non-competence of court, or non-consideration of the true facts in the trial, or an ex-parte divorce decree is passed against the petitioner, Indian courts do not interfere. The idea is to avoid through the doctrine of res judicata which means relitigation among the same parties for the same matter. 

Q- What are the rules on recognition of foreign divorce?

A- The general practice is that unless there is some patent illegality on the face of the matter, courts do not touch foreign decree of divorce in India.