Recognition Of Foreign Decree Of Divorce In India
Let’s start with the question as to how to get recognition of foreign decree of divorce granted by a foreign court with regard to a Hindu couple married in India?” This question is becoming a familiar question with all of us.
The foremost answer that would surface with us would be, that, the Hindu couple residing/working in a foreign land ought to be governed by the matrimonial laws in force at that place. As a corollary, the decree of divorce granted by the foreign court should be valid.
However, the pride of the place is taken by Section 1 of the Hindu Marriage Act, 1955 It is for this reason that Hindus married as per Hindu Rights in India, although settled abroad, are primarily required by law to process divorce proceedings only as per the said Act i.e. applying the Hindu Marriage Act, 1955.
The other emphasis of the Indian law is the mandate of Section 13 of the Hindu Marriage Act, 1955. The said Section mentions that divorce can be taken exclusively on the stated grounds. When the grounds have been specifically elucidated, it excludes the scope of granting a divorce on any other ground. Few grounds mentioned in the said Act are as follows:
(I) petitioner has been treated with cruelty;
(ii) petitioner has been deserted;
(iii) respondent has ceased to be a Hindu; and
(iv) respondent has been of an incurable unsound mind.
To complete the narration of codified law on the subject, the reference to Section 13 of the Code of Civil Procedure, 1908 is essential which reads as under:
- 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;
(b) where it has not been given on the merits of the case;
(c) 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;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud; and
(f) where it sustains a claim founded on a breach of any law in force in India.
The above provisions were considered in detail by the Supreme Court of India in Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr, Supreme Court of India
This Court ruled that: Foreign Decree Divorce India
(a) Court of competent jurisdiction would be the one which the law under which parties are married, recognizes. Any other court would be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that Court.
Also Read: Cruelty As Ground of Divorce Foreign Decree Divorce India
(b) It was held that the decision must be given on the “merits” of the case i.e.:
(I) The ground of divorce in the decision of the foreign court should be a ground available under the Hindu Marriage Act, 1955. For instance, if the ground of the foreign decree was cruelty on the applicant, this would be acceptable, as “cruelty” is a stated ground under the Hindu Marriage Act, 1955. But the same cannot be said for “irretrievable breakdown of marriage”, as this is not a ground under the Hindu Marriage Act, 1955.
(ii) The decision should be a result of a contest between the parties. The non-applicant should have unconditionally submitted to the jurisdiction of the foreign court and contested the claim or agreed to the passing of the decree. The concept of acquiescence to jurisdiction would not suffice.
(c) Refusal to recognize the law of India, is covered by saying that the ground for divorce in the foreign decree is a ground available under the Hindu Marriage Act, 1955. Foreign Decree Divorce India
(d) The foreign judgment was obtained as opposed to natural justice. The concept of natural justice is the provision of fair hearing; absence of bias of Judge and following the elementary principles of fair play. This is a larger concept but shortly can be stated as essential trappings in order to have a fair adjudication. Where for instance respondent was denied documents filed by the other side or where the respondent was denied the opportunity to cross-examine witnesses of the other side, without a justifiable cause, these would be opposed to the principles of natural justice.
(e) Where the foreign decree was obtained by fraud. Fraud at any stage vitiates legal proceedings. It is often said that law and fraud cannot co-exist. Foreign Decree Divorce India
Also Read: Dowry Laws in India
In Satya Versus Teja Singh, when the respondent had instituted a foreign court proceeding, in a court in whose jurisdiction the applicant has never lived, the respondent had made a false representation that respondent was a bona fide resident of that State. It was held that the respondent had practiced a fraud on the foreign court by concealing this fact. Therefore, that foreign court had no territorial jurisdiction. That foreign court decree was declared invalid by the Supreme Court of India.
The Supreme Court of India in International Woollen Mills v. Standard Wool (UK) Ltd. The view taken was when evidence was led by the plaintiff applicant in the foreign court, even though the opposite side may have been served but not appearing, the decision would be “on merits”. This Court concurred with the law laid down in another case which stated that:
A decision on the merits involves the application of the mind of the Court to the truth or falsity of the plaintiff’s case and therefore though a judgment passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex part, a decision passed without evidence of any kind but passed only on his pleadings cannot be held to be a decision on the merits.
Two Categories of Cases
Broadly speaking two categories of cases can be carved out on the basis whether the opposite party in the foreign court appeared and actively participated or not. Therefore, the subject can be easily stated under the following two heads:
(i) Did Not Attend Nor Actively Participated Foreign Decree Divorce India
The non-applicant always has an option not to attend nor actively participate in the foreign court proceedings. This would be taken as; the non-applicant did not submit to the jurisdiction of the foreign court. This, however, does not mean that the non-applicant is not even required to be served in the foreign court proceedings. Non-service would amount to denial of opportunity to be heard.
As the non-applicant did not submit to the jurisdiction, it is further said that this non-applicant did not chance a judgment in his/her favour. Challenge to the foreign court decree in such a situation may be entertained by the Indian courts. It cannot, therefore, be said that having participated, having submitted to the jurisdiction and having made submissions before the foreign court, now because the verdict of the foreign court is against the non-applicant, he is now challenging the same in the Indian court.
The non-applicant must be served with notice of the foreign court proceedings. Or else, the proceedings would be taken in law to be a nullity i.e. of no value in law. If this is a situation, Indian courts are likely to declare the entire foreign court proceedings as void.
(ii) Did Attend and Actively Participated
This question automatically answers itself, when contrasted with the above answer. Having attended and having participated, the non-applicant (respondent) in the foreign court cannot complain that he/she was not heard, if the respondent had voluntarily submitted to the jurisdiction of the foreign court. The respondent is free to make an alternative plea under the jurisdiction of the foreign court for grant of alimony or monthly maintenance. To adjudicate the same, the foreign court would be free to follow laws laid by its own land.
Another form of “attend and actively participate” is when the non-applicant consents to the passing of the decree of divorce.
- Situation before the Indian Courts
In the above background, Indian courts were confronted with situations wherein Hindu couples married in India as per Hindu Law, settled in a foreign land, develop matrimonial disputes and approach a foreign court. This situation demanded the Indian courts to determine whether the decrees passed by the foreign court as a consequence of the matrimonial disputes between the Hindu couples settled abroad, had any efficacy in India.
Comity of Courts
This is a view taken by the courts, which is known as the concept of “comity of courts”. This means that courts in various countries grant probity to decrees of foreign courts. The understanding being, the courts all over the world adjudicate the rights of the parties and therefore, show mutual respect. This principle was first laid by the Court of England and subsequently approved by the Supreme Court of India in Mrs. Elizabeth Dinshaw vs Arvand M. Dinshaw And Anr The Court recorded the observation that:
it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.
The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond a reasonable doubt that to do so would inflict serious harm on the child.
The Supreme Court of India in another case Alcon Electronics (P) Ltd Versus Celem SA of FOS 34320 Roujan 2017 2 SCC 253 recorded the following:
The principles of comity of the nation demand us to respect the order of the English Court. Even in regard to an interlocutory order, Indian courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 CPC.…
These are the competing considerations before the Indian courts. That is the codified laws and the concept of “comity of courts”. These have to be reconciled by the Indian courts.
Supreme Court of India took the view that
Recognition of decrees and orders passed by foreign courts remains an eternal dilemma inasmuch as whenever called upon to do so, courts in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 CPC. … Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity and not abject surrender are the mantra in such cases. Judicial pronouncements on the subject are not on virgin ground. Since no system of private international law exists that can claim universal recognition on this issue, Indian courts have to decide the issue regarding the validity of the decree in accordance with Indian law. The comity of courts simply demands consideration of any such order issued by foreign courts and not necessarily their enforcement.
A different situation arose before the Delhi High Court in Harmeet Singh versus Rajat Taneja. Here the husband had filed proceedings in the foreign court. The wife has approached the Delhi High Court by way of a civil suit. High Court restrained the husband from continuing with the proceedings in the foreign court, as the wife had no spouse visa, she possibly could not defend the proceeding in the foreign court. Of course, there was no occasion for the wife to submit to the jurisdiction of the foreign court.
Analysis of divorce decree granted by Foreign Courts:
Divorce decree granted by Foreign Courts can be divided into two categories:
- Mutual consent divorce grated by Foreign Courts.
- The decree granted in Contested Divorce.
In the case of a mutual consent divorce decree, the decree granted by a Foreign Court is considered to be legal, valid, and binding in the Indian Courts by the virtue of Section 13 and Section 14 of the Civil Procedure Code, wherein Section 13 enumerates the condition when a foreign judgment would not be considered valid in India and Section 14 states that when the Indian Courts would consider the Foreign judgment to be conclusive. A decree which is not affected by section 13 does not need to be validated in India and will be considered conclusive under Section 14 of the Civil Procedure Act.
However, in a case where a divorce decree is granted by a Foreign Court in a contested divorce the answer to the question of the validity of the divorce decree varies.
The cases in which the foreign divorce decree would not be considered conclusive:
- First, when an ex-parte decree is passed by a Foreign Court, it would not be valid and conclusive in India. A decree would be considered ex-parte if the summons is not served on the opposite party. However, if such decree was deliberately left to go ex-part i.e. no summons is served on the opposite party then the Indian Courts would not allow this fraud.
- Secondly, a divorce obtained on grounds other than the grounds enumerated under the Hindu Marriage Act if the parties were married under Hindu Law, as a divorce matter is governed by the law under which one gets married and not the law of the land where the party is residing.
A Foreign divorce decree shall be considered to be valid and conclusive in the following case:
- It is a general rule that if one of the partners’ contests divorce filed in Foreign Land it would be said that he/she consented to the jurisdiction of that Court, in such a case the decree would be considered to be a conclusive one.
- Where the wife consents to the grant of the relief by the foreign Court although the jurisdiction of the foreign Court is not in accordance with the provisions of the Matrimonial Law of the parties, to be valid and the judgment of such foreign Court to be conclusive.
Execution of a Foreign Divorce Decree:
A foreign judgment can be executed in two ways in India. The ways are as follows:
First, by filing an execution under Section 44A of the Civil Procedure Code. Section 44A states that a decree passed by Courts in reciprocating territories can be executed in India as if the decree was passed by the Indian Courts only.
Secondly, by filing a suit upon the foreign judgment/decree. For instance, the decree does not pertain to a reciprocating territory or a superior Court of a reciprocating territory, as notified by the Central Government in the Official Gazette, the decree is not directly executable in India. Here the decree passed by the foreign court shall be considered as another piece of evidence.
Executability of Foreign Court Decree
There is a provision in Indian law for the execution of foreign court decrees. This is contained in Section 44-A CPC read with Section 13 CPC.
Although Section 44-A CPC is couched in general phraseology and would seem to apply to the execution of foreign decrees in general. However, when it comes to specific laws i.e. the Hindu Marriage Act, 1955 or the issue of custody of the child, Section 44-A seems to have little application.
These specific Acts have an overbearing effect on Section 44-A CPC. This is clear from sub-section (3) of Section 44-A which makes it clear that this is subject to the decree falling in any of the exceptions contained in Section 13 CPC.
The matrimonial laws differ from country to country. The issue of divorce decree not being valid crops up when the domicile of the partied is in one country and one of them obtains matrimonial relief in a foreign country. It has become very common of late that people after marriage migrate to a different country either to stay there permanently or for a temporary stay.
Conclusion
To conclude we can say that a decree passed by a Foreign Court has either to be executed under Section 44A or a fresh suit has to be filed for its enforcement. A foreign divorce decree is considered to be conclusive under Section 14 of the Civil Procedure Code if it passes the test under Section 13 of the said Code.
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