Overseas divorce for Indian marriages: a guide to legal procedures and considerations


July 10, 2023, 7:36 pm | Updated July 10, 2023, 7:37 pm IST
Overseas divorce for Indian marriages: a guide to legal procedures and considerations
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Marriage is a socially and legally recognized partnership, typically involving a man and a woman. It is governed by laws, traditions, conventions, and beliefs that specify the rights and obligations of the partners towards one another. Marriage is regarded as a particularly sacramental act and is thought to be a coming together of all life's challenges and stages.

The process of ending a marriage is just as difficult and complicated as making one, and if one spouse lives abroad, there must be many questions about divorces. Numerous queries, such as "Can a foreign court grant a divorce to a couple who is married in India?" must be included.

To find this solution, let's dig deep into the subject.

What are the Grounds of Divorce under Hindu Marriage Act in India?

Section 13 of the Hindu Marriage Act, 1955, divorce can be obtained solely on the listed grounds and when the reason for divorce is directly expressed, the court can preclude the probability of granting divorce on any other grounds.

Some of the grounds as per mentioned in the act are as follow: -

  • Petitioner has been treated with cruelty
  • Bigamy committed by the respondent
  • Respondent has renounced the world
  • Petitioner has been deserted
  • Respondent is suffering from a venereal disease in a communicable form
  • Respondent is of an unsound mind
  • Respondent has ceased to be a Hindu

Validity of foreign divorce decree in India

According to Section 13 of the Code of Civil Procedures, 1908, a foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any or any of them claim litigating under the same title except: -

  • Where it has not been pronounced by a court of competent jurisdiction
  • Where it has not been given on the merits of the case
  • 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
  • Where the proceedings in which the judgement was obtained are opposed to natural justice
  • Where it has been obtained by fraud
  • Where it sustains a claim founded on a breach of any law in force in India.

 

Section 14 of the Code of Civil Procedures, 1908, details this discussion as it brings in the box about presumption of foreign judgements. It states that

“the court shall presume upon the production of any document purporting to be a certified copy of a foreign judgement, that such judgement was pronounced by a court of competent jurisdiction, unless the contrary appears on the record, but such presumption may be displaced by proving want of jurisdiction.”

Or in other words we can say that the foreign judgements must pass the six exceptions which are as follows: -

  • It must be pronounced by a court of competent jurisdiction
  • It must be delivered on the merits of the case
  • It must be established on a correct view of International law or Indian law whichever applicable which means that the proceedings in which it was delivered must be in conscience with the principles of natural justice
  • It must not be slow- witted

If a foreign decision successfully meets all the above standards which is outlined as exceptions to Section 13 of CPC, then it would be considered res judicata thereafter.

There can be a situation where Hindu couples who got married in India and later settled in a foreign land and might develop matrimonial disputes. They can approach a foreign court but this situation would demand the Indian courts to determine whether the decrees passed by the foreign court in this situation had any efficacy in India.

Execution of a Foreign decree

A foreign divorce judgement may be executed in accordance with Section 44-A. It is as follows:

Execution of Court Orders in Reciprocating Territories, Section 44A-

(1) A decree may be carried out in India as if it had been issued by the District Court where a certified copy of the decree from one of the superior Courts of any reciprocating territory has been filed in the District Court.

(2) A certificate from the superior Court that details the extent, if any, to which the decree has been satisfied or adjusted must be filed with the certified copy of the decree. This certificate will serve as conclusive proof of the extent of such satisfaction or adjustment for the purposes of any proceedings under this section.

(3) The District Court shall refuse execution of any such decree if it is demonstrated to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of Section 13 and the provisions of Section 47 shall apply as of the filing of the certified copy of the decree to the proceedings of a District Court executing a decree under this section.

Explanation 1: "Reciprocating territory" refers to any nation or territory outside of India that the Central Government may designate as a reciprocating territory for the purposes of this section by publication of a notification in the Official Gazette. When referring to any such territory, "superior Courts" refers to the Courts that may be listed in the aforementioned notification.

Explanation 2- "Decree" with reference to a superior Court means any decree or judgement of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty. However, an arbitration award shall never be deemed to be a decree or judgement, even if it is enforceable as such.

Role of The Indian Evidence Act in overseas divorce

A final judgement rendered by a court with matrimonial jurisdiction in accordance with Section 41 of the Indian Evidence Act is considered conclusive evidence. However, the decision must be made by a "competent Court," which means a court with jurisdiction over both the parties and the dispute. It is possible to demonstrate that a judgement that is relevant under Section 41 "was delivered by a court not competent to deliver it, or was obtained by fraud or collusion," according to Evidence Act Section 44.

After citing the aforementioned rules, it was noted in Satya v. Teja Singh, AIR 1975 SC 105, (1975) 1 SCC 120, that it was incorrect to believe that judgements rendered in real property are inviolable and that fraud, in any situation involving jurisdictional facts, invalidates all judicial acts, whether in rem or in personam. In Satya v. Teja Singh, the Supreme Court of India pronounced the foreign decree illegal because the husband-respondent had brought the case under the false pretence that he was a lawful resident of that State.

Foreign court proceedings and participation of parties

There can be broadly two categories of participation of parties in a foreign court which are as follows: -

  1. Did not attend nor Actively Participated

    The opposite party always has the option of not attending or actively participating in the foreign court proceedings. In this situation the opposite party would be considered as non-submission in the jurisdiction of foreign court and this could lead to denial of opportunity to be heard. This can again be challenged in the Indian courts by the opposite party.

  2. Did Attend and Actively Participated

    In this situation, the opposite party cannot complain that she was not heard or was not given the opportunity for the same. The foreign court can imply its own law in case of demand of maintenance or grant of alimony.

What if foreign decree of divorce is being held invalid?

Just because the divorce proceeding is going through overseas the opposite party cannot neglect it. There can be consequences anytime in the future like: -

  • If the respondent remarries, he may be prosecuted for bigamy
  • Issue of custody of children can be escalated
  • Respondent can file for alimony
  • Respondent may claim share in property of the petitioner

When will a foreign decree be held Valid?

A foreign decree is held valid and a foreign court is considered competent if :-

(i) The matrimonial

  1. action is brought in the forum where the respondent resides and
  2. the foreign court is competent, then the foreign decision is legitimate.

(ii) Both parties

  1.  willingly and unconditionally submitted themselves to the jurisdiction of that court and
  2.  contest the claim that is based on a ground available under the matrimonial law under which the parties are married; or

(iii) the respondent consents to the grant of the relief.

A foreign divorce decree's legality is dependent on the following circumstances:

  • Whether or whether the divorce decree is approved
  • Ex-parte proceedings, Contested processes, or Consented (Mutual or other) proceedings.

The following status of the parties may also affect the legality of a foreign divorce decree:

  • Indian nationals
  • Previous Indian citizens who are now foreigners.
  • Individuals with dual citizenship.

The validity could also be affected by:

The matrimonial legislation that applied to the couples' marriage and the location of the union; specifically, if the union occurred in India (in accordance with Indian law).

The primary requirement for accepting a foreign matrimonial judgement is that the remedy was awarded in conformity with the marital legislation of the country where the parties were married. According to Section 13 of the Civil Procedure Code, whether a foreign judgement is recognised depends on whether it was rendered by a court with the necessary authority.

Related case laws

  • In one of the famous case of Narsimha Rao and Y. VenkataLaxmi, the couple were married in Tirupati as per Hindu customs in the year 1975. Later after 2 years, in the year 1978, the couple got separated and Mr. Rao filed a petition for dissolution of marriage in the USA. The foreign court passed the decree for dissolution of marriage in February, 1980.
  • In the year 1981, Mr. Rao married another woman to which Mrs. Laxmi filed a case of bigamy against Mr. Rao.

The Indian court did not recognize the decree passed by the US court and considering the situation passed certain exceptions to which divorce decree would not be recognized in India which are: -

  • In cases where decree is granted by courts which is not authorized by Indian courts to grant the same.
  • When the opposite party is not heard or taken on record
  • When the divorce is granted on the ground not recognized under Indian laws.
  • When the decree is obtained by any misconduct or fraud

But in situations where the divorce matter does not fall within any of the ambits of these exceptions, then it can be proceeded unbridled in any foreign court despite the fact marriage was conducted in India

  • The Kerala High Court held in Augustine Kalathil Mathew v. The Marriage Officer, 2016-4 Ker LT 415 that even though the UAE Personal Status Court's jurisdiction over the parties to a marriage is not consistent with the provisions of the matrimonial law that applies to them, the divorce certification issued by the UAE Personal Status Court in such cases is valid as the marriage was consented. In Rince Marin Ninan v. Registrar, Kerala Registration of Marriage, 2022, the Kerala High Court followed suit.
  • In ShilpaSachdev v. Shri. AnandSachdev, 2017-5 AIR Bom R 607, RCR (Civil) 2017-4 258, Hindu LR 2017-3 178, All MR 2018-5 628, the Bombay High Court held that the Dubai Court was not a competent foreign court by applying the rules established in Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991- 3 SCC 451.
  1. Pleadings make no mention of the respondent-husband asserting that the petitioner wife is a resident or domicile of Dubai in order to invoke the jurisdiction of the Dubai Court.
  2. The petitioner-wife's permanent residence being in Dubai does not appear to have constituted an abandonment of her place of birth in the pleadings.
  3. There are no claims that the Dubai Court was authorized to consider the divorce petition due to the petitioner-wife's status as a permanent resident of Dubai.
  4. The Dubai Court's ruling likewise makes no mention of the wife's Dubai residency or her plans to stay in Dubai indefinitely.
  5. Contrarily, the documents show that the wife had returned to India on June 21, 2008, and that she has been permanently residing in India since that time.
  6. The respondent-husband's permanent home in Dubai is not alleged in the Law Suit submitted to the Dubai Court.

The assumption under section 14 of the Code of Civil Procedure is invalidated since both spouses are Indian citizens and there are no averments or supporting evidence for the allegation that Dubai is the couple's domicile.

Further, it was determined that the Dubai court's decision could not be regarded as a ruling on the case's merits because it failed to address the fundamental dispute between the parties. The court made the following observations:

The irretrievable breakdown of a marriage is not recognized under the Hindu Marriage Act.

According to the Dubai Court, desertion was used as the justification for the divorce.

According to Section 13(1)(ib) of the Hindu Marriage Act, a spouse may be declared destitute for a continuous period of not less than two years prior to the filing of the petition in order to obtain a divorce and dissolve the marriage.

According to the Hindu Marriage Act, the reality of separation and a desire to desert or stop cohabitation are necessary conditions for desertion. It is clear that the Dubai Court did not take into account the principle of animus deserendi and granted divorce based only on the fact that the couples had been living apart for more than two years.

Conclusion

The debate above just serves to highlight how convoluted the situation is with regard to a foreign court's divorce order being valid. Perhaps it can be said that a Hindu couple who was married in India would be wise to exclusively apply to an Indian court for a divorce. The passage of time since the foreign court's ruling and the opposing party's actions are neither consoling nor encouraging. Consequences could manifest years down the road.
If you are facing any issues related to divorce, you must consult a divorce lawyer to streamline the process.

 

 

Written By:
Vidhikarya

Vidhikarya


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