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Nikitha (PA)     26 November 2010

Divorced in Australia

Hi lawyer sirs,

A guy married in India according to Hindu marriage customs got divorce in Australia. He is an Australian citizen now. How do we know the below clarifications-----

-whether that divorce is legal and valid in India?

-Authenticity of the divorce reason mentioned by him?

-It seems to be a divorce granted based on ex-parte (as we call in India), because the ex-wife didnt accept the summons and didnt attend the hearings. IS there any limitation that the ex-wife can defend as a set-aside ex-parte?

Please guide me as we have got this groom's alliance for my divorcee friend who is very close to me.

Thanks

-Nikitha



 7 Replies

Saurabh..V (Law Consultant)     26 November 2010

@Nithika

 

This is a simple case based on material facts. As per my understanding of your facts and the relevant provisions in the Hindi Marriage Act, 1986:

- The gentleman is NOT entitled for Divorce in a foreign country and shall be bound by Indian Laws and Hindu customs for post marital obligations till a decree of Divorce is not granted by a competent Court in India.

 

- As the wife has not attended the hearings and always defied the Summons, it was a fit case for the grant of Divorce by the court.

 

- Now if your friend wants to marry this gentleman, then I feel there arises a necessity to take formal divorce by this gentleman in an Indian court for perfectly valid seperation which cannot be questioned in future.

 

- Technically, the gentleman is lawfully wedded even today as per law and in special circumstances the so called divorced wife could go to an Indian Court to challenge the validity of the said divorce and say that she did not had sufficient means to attend the hearings or honor the summons.

 

//peace

/Saurabh


(Guest)

I totally agree with Saurabh and especially with the last para.  As it is an ex-parte divorce decree obtained in foreign land, the wife can challenge the decree in Indian court on various grounds including her inability to contest the same in a foreign land.

Tajobsindia (Senior Partner )     27 November 2010

While agreeing to above two writers I say the situation is bit of complex cause now ! Reason being your friend is getting eligible match request as you say at the end of your brief but is not legally having valid divorce decree in hand hence can’t remarry. Second reason being he is in a foreign land where he got some ex-party decree.


Suggest to discuss matter with a senior divorce lawyer who knows international family law of the concerned jurisdiction of court from where he has taken that ex party decree. He will let you know the limitation period of such ex party Judgment of the Jurisdiction. Challenge it in concerned foreign court with prayer to allow return conveyance money (incl. boarding and lodging) for your friend along with a companion to be present to concerned jurisdiction of the court and request for a pleader in foreign court.


However, as my alternate opinion you may also challenge the ex party order in a Indian Court where your friend ordinarily resides and or where marriage took place and or where if she is petitioner in the appeal resides (all these are within the HMA jurisdiction possible) with expeditious trial disposal request sitting reason of remarriage proposal of your friend and as the case moves (if and but) she may be further guided accordingly. 

1 Like

Nikitha (PA)     29 November 2010

Thank you all for your timely advice and guidance.

As Tajobsindia has mentioned in second para, Would anybody pls refer a lawyer who knows international family law of the concerned jurisdiction? I tried my level best to search a lawyer who is aware of such scenarios but i could not.

Any experienced advocate who could guide me with this would be appreciated.

 

Thanks in advance.

Jamai Of Law (propra)     29 November 2010

Nikita ji,

 

You wrote: " the ex-wife didnt accept the summons.........." It gives a clear message..........why ex-parte.......

 

You wrote: "IS there any limitation that the ex-wife can defend as a set-aside ex-parte?"

 

In India ex-parte has been set aside in many cases.......but only for cogent reasons shown by the ex-spouse.........and if the the ex-parte winner hasn't already tied marital knot with another person.

 

I believe the ex-wife may not have any cogent reasons to pray in 'set aside petition'....in addition to limitation period which is probably lapsed.

 

Ground of divorce:

Before going into the "ground of divorce"...........whether it is also supported by Indian Laws or not.....the mode of decree i.e. "ex-parte" due to refusal to accept summons is supported in both countries.......

 

You wrote: "Please guide me as we have got this groom's alliance for my divorcee friend who is very close to me."

 

 

Take precautions this time (but don't be suspecious also...........have balanced and pragmatic as well as practical approach....... since the essence of a union is trust..................but it needn't be a blind one.................. especially after previous bitter experience by both parties......................be awake with eyes open........say no to things.............. where someone feels marginalised).........document it properly without hurting anyone.............have prenup .............if allowed in australia and other party agrees to it open heartedly........DV, 498a or any other deterant laws............. aren't enforceable on foreign citizens in foreign land.

 

In Matrimonial cases...cross boundry Jurisdiction is really a confusing arena and evolving.

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     06 December 2012

 

 

Validity of Foreign Divorce Decree in India ? Does your UK/US divorce stand ?

 

 

This article attempts to bring some clarity on the law relating to recognition of foreign divorce decrees in India, in what circumstances they are valid, and when not ? I’ve also tried throwing light on the process and procedure of challenging or upholding the same in India ….read on 

DIVORCE

 A Happy marriage is a harbour in the tempest of life – an unhappy one a tempest in the harbour of life…..A Marriage that is devoid love, care and affection deserves, in my firm view to be done away with, whether or not either party wants to stick with it. It is sad that Indian Law is still pretty rigid in that regard primarily because of the notion of marriage being a sacrament. Obtaining a Divorce in India is an ordeal unless both parties consent to it. To get a contested divorce one needs to prove grounds such as cruelty/adultery/desertion etc, which is extremely difficult and time consuming. (The process & procedure of getting a contested divorce in India is explained in my article https://bharatchugh.wordpress.com/2012/10/23/divorce-in-india-all-you-need-to-know-about-contested-and-mutual-divorce/).  Indian Law does not recognise ’Irretrievable breakdown/Irreconcilable differences’ as ground for divorce.

 FOREIGN DIVORCE

As a Divorce Lawyer, day in day out I’ve been getting queries on the validity of a Foreign Divorces in India. This is an area fraught with many conflicting opinions and judgments full of legalease, let me articulate the basics of foreign divorces in India.

We take the example of a couple married in India as per the Indian Law (Special Marriage Act or Hindu Marriage Act). Now since the couple married in India, wherever they go – they take their personal law with them. Hence even if they subsequently settle in some other part of the world – their marriage and consequently their divorce would still be governed by Indian Law.

 

GENERAL PRINCIPLE – FOREIGN DIVORCE HOLDS GOOD IN INDIA

Contrary to a lot of misconceptions, as per the General Principle of Law (Section 13 CPC) A foreign decree is conclusive in India in normal circumstances. This is based on principle of res judicata – meaning that when a dispute has been adjudicated by a court it should not be re-agitated again & again – to prevent wastage of judicial time & expense and more importantly to ensure finality and certainty in human relations. Hence we start with the presumption that a foreign divorce is valid in India.

 

EXCEPTIONS – WHEN FOREIGN DIVORCE WON’T BE RECOGNISED IN INDIA

The Indian Law would refuse to recognise it – when any of the following conditions are present :-

a) When Granted by Court not authorised by Indian Law to grant the same - When the decree is passed by a court having no jurisdiction (meaning authority to decide) as per the Indian Law; which leads us to the question which courts have jurisdiction as per the Indian Law, normally the court of place where marriage is solemnised (normally India) or where the parties last resided together as husband and wife, and where the opposite party resides (non applicant). Courts of all these places shall have jurisdiction.

b) When one side is not heard or his/her submissions not taken on record : That the decree is not passed on merits – ‘on merits’ in layman terms means the court took both side’s submissions into consideration before deciding the case – if it is not done – then decree does not hold good in India. The problem arises when one spouse serves a divorce summon on the other and the other spouse leaves the country and comes back to India, and a decree is passed ex parte (in absence of that party). In these cases if it is established that party left jurisdiction just to avoid the divorce proceedings and was otherwise there, the decree should be valid in India, for no court should allow such fraud to take place ;

c) On a ground not recognised by Indian Law -  When the Divorce is granted on grounds not recognised in India – for those who arrived late – Cruelty/Adultery/Desertion/Impotency are grounds that Indian Law recognises, so if the divorce is granted on these grounds – The decree is valid in India. Please note that in such a case it need not be validated in India by filing a suit or anything.  It is the burden of person challenging the decree to discredit it.

Now the basic problem is encountered here – Indian Diaspora is increasingly getting divorces on the ground of ‘irreconcilliable differences/irretrievable breakdown of marriage’  which is also known as no fault divorce. In this species of divorce – cruelty/adultery need not be established. If the court feels without going to faults/allegations etc – that the couple cannot be expected to live together now and their bond seems to be broken irreparably – Court grants divorce. Normally in such cases the court would grant a decree nisi (temporary) that is turned into absolute (permanent divorce) after 6 months or so (depending on state law). Within these six months the opposite party gets a right to oppose or consent to divorce, in either case it is normally granted.

Sadly this divorce is not valid in India because ‘irreconcilliable differences/irretrievable breakdown of marriage’  is not recognised in India as a ground for divorce, though a bill to that effect is pending in Indian Parliament and may be passed in the future. But as of today such decrees are not binding in India.

Hence a word of advise instead of going in for a no fault divorce – a fault divorce (cruelty) etc should be obtained, which is somewhat difficult, but unimpeachable in India.

d) When the proceedings are against principles of Natural Justice ?  Now in simple terms principles of natural justice are certain principles which broadly make the judicial proceedings fair and just. For eg : both parties should know allegations levelled and be given a fair opportunity to be put forth their case, judge being impartial is also a facet of natural justice.

Again the question comes –  if on filing a divorce the other party leaves jurisdiction and runs back to India (normally wives tend to do that) in such a case, it would again be a question of intention and the decree cannot be said to be against natural justice if party herself evades the court when otherwise a permanent resident was established there. In a matter which I am consulting currently the woman is fighting child custody/property matters in US and is a permanent resident, but we know it for sure when the man files the divorce –  in order to prevent that she would run back to India – in such a case I feel the divorce decree granted even in her absence should be valid. Though this is a grey area but when she had adequate opportunity to defend – any attempt to frustrate judicial process by running away should be dealt with stern hands.

There may be another situation where the spouse is in India and the other spouse files for divorce outside India, in such situation even after the spouse in India is served (notice is sent and received) any decree passed in absence won’t be valid in India, unless the court feels that the other party had ample opportunity to go, engage counsel and defend in that country. Normally in decrees passed against women in India, Indian Courts have refused to recognise them.

 

e) If it is obtained by fraud – if a decree is obtained by misrepresentation of facts or fraud – then the same is not valid in India.

The above are the cases where a foreign divorce won’t be recognised in India, and may lead to a situation where a person may be divorced(and single) in one country yet married in Indian law, and this can spell disaster in case of subsequent marriage as bigamy proceedings may be initiated against such person.

If your divorce is valid in India as per the above test – it is not a requirement of law for you to validate it, however you may still do so in order to start from a clean slate and avoid belated disputes.

If your divorce is not valid in India – it has to be challenged by filing a suit for declaration as to your marital status and invalidity of such a foreign decree, burden of proof being on the person who challenges.

I hope I’ve been able to clear some airs on the question of foreign divorce decrees and their validity in India.

My next article would be on validity of child custody decrees passed in foreign courts.

*The Author Bharat Chugh is a Supreme Court advocate specializing in Divorce Laws in India, particularly jurisprudence relating to foreign divorces, and can be reached at bharat.law06@gmail.com

Shannon Beard   01 March 2018

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