Hindus married under Hindu laws in India, even if they live overseas, are compelled by law to file divorce procedures solely under the Act, i.e. under the Hindu Marriage Act, 1955. There might be a lot of questions in your mind when it comes to getting a divorce from a spouse who is living overseas. Is it possible to get a divorce in other country? Can a Foreign Court Grant a Divorce to a Couple Married in India? Keep scrolling to get answers to all your doubts.
Divorce Grounds In India Under Hindu Marriage Act
The requirement of Section 13 of the Hindu Marriage Act, 1955 is another point of attention in Indian law. According to the abovementioned Section, divorce can be obtained solely on the listed grounds. When the reasons for divorce are expressly stated, it precludes the possibility of granting divorce on any other basis.
Few grounds mentioned in the said Act are as follows:
i. Bigamy committed by the respondent;
ii. petitioner has been treated with cruelty;
iii. petitioner has been deserted;
iv. respondent has renounced the world;
v. respondent has a venereal disease in a communicable form;
vi. respondent has ceased to be a Hindu; and
vii. respondent has been of an incurable unsound mind.
Are you wondering about the efficacy of a divorce decree granted by a foreign court? Or are you looking to contest, in India, a divorce decree granted by a foreign court?
Foreign Divorce Decree Validity In India
Section 13 of the Code of Civil Procedure talks about the scenarios when a foreign judgment is not conclusive. It states that:
“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 recognise 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;
f. where it sustains a claim founded on a breach of any law in force in India.”
Furthermore, Section 14 of the CPC, 1908, talks about presumption as to foreign judgments in the following words:
“The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment 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.”
To be considered binding, the foreign judgement must pass the six exceptions listed above, namely, it must have been pronounced by a court of competent jurisdiction, it must have been delivered on the merits of the case, it must be founded on a correct view of International law or Indian law wherever applicable, the proceedings in which it was delivered must have been in conscience with the principles of natural justice, and it must not have been obtuse.A foreign decision will be considered res judicata if it successfully meets all six standards outlined as exceptions to Section 13 of the Code, as well as other circumstances outlined in Section 11 of the Code. It is also critical to notice that the regulations outlined in Section 13 are substantive law norms, not only procedural standards. This provision expresses the principles of private international law that a decision rendered by a competent foreign court can be enforced by an Indian court and will function as res judicata.
In numerous cases, Indian courts have had to deal with circumstances in which Hindu couples who were married in India under Hindu Law moved to a foreign country, developed marital issues, and sought the assistance of a foreign court. This circumstance necessitated a determination by Indian courts as to whether the orders issued by foreign courts as a result of marriage disputes between Hindu spouses settled abroad had any effect in India.
Comity of Courts:
Courts in many nations provide probity to foreign court rulings under the idea of “comity of courts.” The notion is that courts all over the globe decide the rights of the parties and, as a result, demonstrate mutual respect. The Court of England established this theory, which was later confirmed by the Hon’ble Supreme Court of India in ElizabethDinshaw v. Arvand M. Dinshaw, wherein it stated 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.”
Furthermore, the Hon’ble Supreme Court of India in the case of Alcon Electronics (P) Ltd. v. Celem SA of FOS 34320 Roujan, stated that:
“The principles of comity of nation demand us to respect the order of 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 of the CPC. Hence we feel that the order in the present case passed by the English Court does not fall under any of the exceptions to Section 13 of the CPC and it is a conclusive one.”
In a different context, namely, child custody in an inter-country dispute, the Supreme Court of India opined in Ruchi Majoo v. Sanjeev Majoo. It should be noted that the custody of a kid is to be treated entirely differently from the dissolution of a marriage. This is due to the fact that the Court prioritises the child’s wellbeing in custody cases. In a different context, namely, child custody in an inter-country dispute, the Supreme Court of India opined in Ruchi Majoo v. Sanjeev Majoo. It should be noted that the custody of a kid is to be treated entirely differently from the dissolution of a marriage. This is due to the fact that the Court prioritises the child’s wellbeing in custody cases. The Court further opined that recognition of decrees and orders issued by foreign courts is an everlasting quandary since, when called upon to do so, courts in this nation are obligated to assess the legitimacy of such decrees and orders in accordance with Section 13 CPC. Simply because a foreign court has adopted a certain position on any element of the minor’s welfare does not preclude the courts in this country from considering the subject independently. In such instances, objectivity, rather than complete surrender, is the motto. Judicial pronouncements on the matter are not new territory. Because there is no system of private international law that may claim universal acceptance on this topic, Indian courts must assess the legitimacy of the decision in line with Indian law. Comity of courts just requires that any such order issued by a foreign court be considered, not necessarily enforced.
Participation Of The Parties In Foreign Court Proceedings:
i. Did Not Attend Nor Actively Participated:
The non-applicant has the option of not attending or actively participating in the foreign court proceedings at any time. This would imply that the non-applicant did not submit to the foreign court’s jurisdiction. This does not, however, imply that the non-applicant is not needed to be served in the foreign court proceedings. Non-service would imply a rejection of the right to be heard. Because the non-applicant did not submit to the jurisdiction, it is further stated that this non-applicant did not risk a favourable ruling. In such a case, the Indian courts may hear a challenge to the foreign court’s decree. It cannot, however, be stated that the non-applicant, having participated, submitted to the jurisdiction, and made representations before the foreign court, is now appealing the judgement in the Indian court since the verdict of the foreign court is against him.
Notice of the foreign court proceedings must be provided to the non-applicant. Otherwise, the proceedings would be deemed null and void, i.e. of no legal significance. In such a case, Indian courts are likely to declare the whole foreign court proceedings null and void.
ii. Did Attend And Actively Participated:
When compared to the previous response, this question explains itself. The non-applicant (respondent) before the foreign court cannot argue that he or she was not heard if the respondent freely consented to the jurisdiction of the foreign court. Under the jurisdiction of the foreign court, the respondent is able to file an alternative plea for alimony or monthly maintenance. To decide the case, the foreign court would be allowed to use the laws of its own country. Another example of “attend and actively engage” is when the non-applicant agrees to the divorce decree being issued.
Important Judgements
i. Rupak Rakhi versus Anita Chaudhary
Hindu Couple married in India according to Hindu Rights and set up a matrimonial home in United Kingdom. Whether foreign court can grant decree of divorce to Hindu couple married under HMA?
Held – Hindu Couple married under Hindu Marriage Act – settled in a foreign country – foreign court can grant decree of divorce on ground available under HMA with consent of the parties. A decree of divorce by foreign court on ground irretrievable breakdown of marriage is not valid in India because this is no ground of divorce under HMA. No decree of divorce can be obtained from foreign court on ground not available under HMA. Where parties confer jurisdiction on the foreign court, the said court will assume jurisdiction available to matrimonial court in India and would remain confined to adjudicate the action in accordance with matrimonial law of the parties. Detailed guidelines have been issued by this judgment to the court in India dealing with the execution of the foreign court decree.
ii. Satya versus Teja, 1975 AIR 105
The Hon’ble Supreme Court of India discussed the implications of Section 13 of C.P.C and explained the meaning of the term “competent court”. The relevant portion of the judgment is reproduced below:
“15. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise.”
iii. Smt. Anubha versus Shri Vikas Aggarwal And Ors., 100 (2002) DLT 682
The Hon’ble Delhi High Court held that:
“19. According to the provisions of the Hindu Marriage Act, 1955 only the District Court within the local limits of whose original civil jurisdiction-(i) the marriage was solemnized, or (ii) the defendant, at the time of the presentation of the petition resides, or (iii) the parties to the marriage last resided together, or (iv) the plaintiff is residing at the time of the presentation of the petition, in a case where the defendant is, at the time, residing outside the territories to which the Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive, has jurisdiction to entertain the petition.”
iv. Y. Narasimha Rao versus Y. Venkata Lakshmi, (1991)3 SCC 451
The Hon’ble Supreme Court of India in Y. Narasimha Rao versus Y. Venkata Lakshmi, (1991)3 SCC 451, held that: “12…Clause (b) of Section 13 states that if a foreign has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the defendant is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the order with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case…”
In a case where the plaintiff did not submit himself/herself to the foreign court’s jurisdiction, and the order was passed without taking the plaintiff’s evidence and only on plaintiff’s pleadings in view of the absence of the petitioner to appear and defend the case. Therefore, the final order passed by the foreign Court cannot be considered as a judgement on merits, under Section 13(b) of the Code of Civil Procedure, 1908.
Where a foreign judgment is not on merits or violates any of the provisions of sub-clauses (a) to (f) of Section 13, it is not conclusive, even though it may accord with the domestic procedure of the country in which it was passed and is valid and enforceable in that country. However, even if there is a disposal of the case under some special statutory provision that obviates an examination of the merits and the taking of evidence, such a decree is not executable in India. Therefore, in such a case, the order by the foreign Court at Darwin cannot be said to have been given on merits.
v. R.M.V. Vellachi Achi versus R.M.A. Ramanathan Chettiar, AIR 1973 Mad 141
In R.M.V. Vellachi Achi versus R.M.A. Ramanathan Chettiar, AIR 1973 Mad 141, the Hon’bleMadras High Court held that: “28. It is clear from Section 13(b) Civil Procedure Code that the foreign judgment will be conclusive only if there was an adjudication between the same parties on the merits of the case. In other words, if the foreign judgment is not based upon the merits, whatever the procedure might be in the foreign country in passing judgments, those judgments will not be conclusive.”
A perusal to the above-mentioned judgement would reveal that irrespective of the procedure established and followed in the foreign court, an order cannot be held to be on merits if it was passed without leading evidence. In A case where the order was passed even after the plaintiff’s refusal to submit himself/herself voluntarily to the court’s jurisdiction and without the defendant leading any evidence and the order was passed after the divorce application was uncontested and no evidence was led by the defendant, the same cannot be conclusive and held valid in India. A decision on merits involves the application of the mind of the Court to the truth or falsity of the case, and therefore a decision passed without evidence of any kind but passed only on the plaintiff’s pleadings cannot be held to be a decision on the merits.
Executability of Foreign Court Divorce Decree:
In Indian law, there is a provision for the implementation of foreign court judgements. This is stated in Section 44-A CPC in conjunction with Section 13 CPC. Although Section 44-A CPC is couched in wide phraseology and would seem to extend to the implementation of foreign orders in general. However, when it comes to particular legislation i.e. the Hindu Marriage Act, 1955 or the problem of custody of the kid, Section 44-A seems to have limited effect. These particular Acts have a suffocating impact on Section 44-A of the CPC. This is obvious from sub-section (3) of Section 44-A, which states that the decree is susceptible to any of the exclusions listed in Section 13 CPC.
Furthermore, Section 14 of the CPC, 1908, talks about presumption as to foreign judgments in the following words:
“The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment 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.”
The Supreme Court of India in Surinder Kaur Sandhu v. Harbax Singh Sandhu stated that “10. … The modern theory of conflict of laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case.… Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage.…”
