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JW (HW)     20 August 2009

NRI Divorce

I am an NRI residing in US and want to file a mutual consent divorce in my city jurisdiction I want to know if it and will be recognised by the Indian Hindu law if it falls under Section 13 of CPC. I have read about it but couldnt understand many things involved in it. What needs to be done to satisfy Section 13 CPC
 
Me and my wife are Indian citizens, married in India two years ago and want a divorce with mutual consent. I want to file a divorce petition in the US . We have lived in US since we got married. I will be staying back in US, but she wants to go back to India after signing the divorce response in US.
 
So, my question is what procedure in India needs to be taken by my wife while in India to nullify our marriage under Indian Hindu law. Can she re-marry , if so what needs to be done and how soon ? Or we have to go through all the court procedures
 
I am trying to avoid going to India twice to the courts during 1) filing and 2) court order after six months or so.
 
Thanks in advance for your time and advice.


 16 Replies

R.R. KRISHNAA (Legal Manager)     20 August 2009

You and your wife can file divorce petition in US itself.  Judgment rendered by US court would be considered as foreign judgment in India.  But foreign judgments are valid in India. So you need not worry. 

Both of you try to apply for mutual consent divorce in US, so that there would not be any complications in future. It will also save time.

If your wife applies divorce in India, and if you are not able to come to India, then court proceedings will be conducted via video conferencing ( family courts are empowered to conduct proceedings via video conferencing ) and divorce will be granted to the parties.

So you need not worry.  After divorce you or your wife may remarry anybody.

Raman ( )     20 August 2009

I too am currently living in the USA, and have recently seen such case being a witness in the court. Mr. Krishna is absolutely correct that there won't be any conflict as per HMI, once you're divorced in the USA. All I would suggest you is, make sure your US attorney clearly understand that you both are seeking divorce on a mutual consent, and don't let him charge more than $600.00 otherwise he would fix you showing stupid reasons :)

Raman ( )     20 August 2009

Sorry a typo mistake!  HMA - "Hindu Marriage Act"

JW (HW)     20 August 2009

Thanks to Mr. Krishna and Mr. Raman for your suggestions. That helps me a lot. The court order in US takes a minimum of 60 days which is better than filing it in India. Since there is no contest between us, it makes life a lit bit simpler.

1. So, if any spouse wants to remarry in India and register their second marriage, they have to present the divorce court order and should be good to go ?

2.  How will the court nullify the first marriage, does it get automatically updated or some forms have to be filled out.

3. What is the procedure if the first and second marriage took place in different cities. Are they connected ?

 

 

KANDE VENKATESH GUPTA (ADVOCATE)     20 August 2009

Decree of divorce will not nullify the marriage itself.  The decree of divorce only terminates the relationship of wife and husband w.e.f. the date of decree.  The  moment the court passes an order granting decree of divorce, the relationship of wife and husband severes and no other formalities are required

KANDE VENKATESH GUPTA (ADVOCATE)     20 August 2009

Yes, if you want to get the second marriage registered, you have to produce the copy of the order of decree of divorce before the registering authorities.

veenzar (Advocate)     21 August 2009

Only if the husband or wife challenges the US court divorce decree on the ground that the same is not obtained on merits or by fraud etc, the decree becomes bad in India. Otherwise, the US decree is valid in India.  

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com)     21 August 2009

Mr.JW,

Nodoubt you can file the case in US and got the divorce over there also but to imply the same in India you have to file the case in India also. Coz you enter into the marriage in India and it is Indian court only who can make divorce also. So the best way is attend the indian court else even getting divorce from US, you have again file a case in india to validate and execute the order in India and there are very few lawyers who act on International law and treaties. Further without executing the divorce of first wife you cannot arrange second wife in India inrespect of any city. It will amount to biagamy and you will be proceeded with criminal charges.

Good luck

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com)     21 August 2009

Plz go through the judgment on this point

Court

Supreme Court of India



Brief

This is the famous judgment where the SC held that a divorce obtained from a foreign court was invalid in India unless the basis was in accordance with provisions of the Indian divorce laws and not obtained fraudulently.



Citation

1991 SCR (2) 821 1991 SCC (3) 451 JT 1991 (3) 33 1991 SCALE (2)1



Judgement

PETITIONER:


Y. NARASIMHA RAO AND ORS.


Vs.


RESPONDENT:


Y. VENKATA LAKSHMI AND ANR.


DATE OF JUDGMENT 09/07/1991



BENCH:


SAWANT, P.B.


MISRA, RANGNATH (CJ)



CITATION:


1991 SCR (2) 821 1991 SCC (3) 451


JT 1991 (3) 33 1991 SCALE (2)1



ACT:



Hindu Marriage Act, 1955: Section 19. Dissolution of


marriage-Court to which petition should be presented-Parties


marrying in India under Hindu Law-Husband's petition for


dissolution of marriage in Foreign Court-Fraud-Incorrect


representation of jurisdictional facts-Husband neither


domiciled nor had intention to make the foreign state his


home but only technically satisfying the requirement of


residence of 90 days for the purpose of obtaining divorce-


Divorce decree by foreign court on a ground not available


under the 1955 Act-Enforceability of.



Civil Procedure Code, 1908: Section 13. Matrimonial


dispute-Foreign judgment-When not conclusive.



Clause (a)-``Court of competent jurisdiction''-Which is.



Clause (b)-Judgment on merits-What is.



Clause (c)-Judgment founded on a ground not recognised


by Law of India-Effect of.



Clause (d)-Judgment obtained in proceedings opposed in


principles of natural justice-Effect of-Principles of


natural justice-Scope of.



Clause (e)-`Fraud'-Scope of-Judgment obtained by fraud-


Effect of.



Clause (f)-Judgment founded on a breach of law in force


in India-Effect of.



Section 14-Presumption as to foreign judgments-


Expression ``Certified copy of a foreign judgment''-Should


be read consistent with requirement of Section 86 of Indian


Evidence Act.



Indian Evidence Act, 1872. Section 41-``Competent


court''-Which is.



Section 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and 86.


Foreign judgment-Photostat copy-Admissibility of.


Private International Law-Matrimonial dispute-


Recognition of foreign judgment-Rules for recognition of


foreign matrimonial judgment laid down-Hague convention of


1968 on the recognition of divorce and legal separations-


Article 10-Judgment Convention of the European Community.


Words and phrases ``Residence-Meaning of''.



HEADNOTE:



The first appellant and the first respondent were


married at Tirupati on 27.2.1975 according to Hindu Law.


They separated in July 1978. The appellant-husband filed a


petition for dissolution of the marriage in the Sub-Court of


Tirupati stating that he was a resident of South Claiborn


Avenue, New Orleans, Louisiana, and that he was a citizen of


India and that he and his wife last resided together at New


Orleans, Louisiana. Subsequently he filed another petition


for dissolution of marriage in the Circuit Court St. Louis


Country, Missouri, USA alleging that he has been a resident


of the State of Missouri for 90 days or more immediately


preceding th filing of the petition by refusing to continue


to live with the appellant in the US and particularly in the


State of Missouri. But from the averments made by him in the


petition before the Sub-Judge, Tirupati it was obvious that


he and his wife had last resided together at New Orleans,


Louisiana and never within the jurisdiction of th Circuit


Court of St. Louis Country in the State of Missouri.


The respondent-wife filed her reply raising her


objections to the maintainability of the petition. She also


clearly stated that her reply was without prejudice to her


contention that she was not submitting to the jurisdiction


of the foreign court.



The Circuit Court Missouri assumed jurisdiction on the


ground that the 1st Appellant had been a resident of the


State of Missouri for 90 days next preceding the


commencement of the action in the Court. In the absence of


the respondent-wife the Circuit Court, Missouri passed a


decree for dissolution of marriage on the only ground that


the marriage has irretrievably down. Subsequent to the


passing of the decree by the Circuit Court, Missouri, the


appellant filed an application for dismissal of his earlier


petition before the Sub-Court of Tirupati and the same was


dismissed.




On 2nd November 1981 the last appellant married appellant


No. 2. Thereafter, the 1st-respondent filed a criminal


complaint against the appellants for the offence of bigamy.


The appellants filed an application for their discharge in


view of the decree for dissolution of marriage passed by the


Circuit Court, Missouri. The Magistrate discharged the


appellants by holding that the complainant-wife had failed


to make out a prima facie case against the appellants. The


respondent preferred a Criminal Revision Petition before the


High Court which set aside the order of the Magistrate by


holding (i) that a photostat copy of the judgment of


Missouri Court was not admissible in evidence; (ii) since


the Learned Magistrate acted on the photostat copy of the


judgment, he was in error in discharging the accused.


Accordingly the High Court directed the Magistrate to


dispose of the petition filed by the appellants for their


discharge afresh in accordance with law. Aggrieved by the


decision of the High Court the appellants filed appeal in


this Court.



Dismissing the appeal, this Court,



HELD: 1. The decree dissolving the marriage passed by


the foreign court is without jurisdiction according to the


Hindu Marriage Act as neither the marriage was celebrated


nor the parties last resided together nor the respondent


resided within the jurisdiction of that Court. Further,


irretrievable breakdown of marriage is not one of the


grounds recognised by the Act of dissolution of marriage.


Hence, the decree of the divorce passed by the foreign court


was on a ground unavailable under the Act which is


applicable to the marriage. Since with regard to the


jurisdiction of the forum as well as the ground on which it


is passed the foreign decree in the present case is not in


accordance with the Act under which the parties were


married, and the respondent had not submitted to the


jurisdiction of the court or consented to its passing, it


cannot be recognised by the courts in this country and is


therefore, unenforceable. [828H, 829A, 828E, 834H, 835A]


2. Residence does not mean a temporary residence for the


purpose of obtaining a divorce but habitual residence or


residence which is intended to be permanent for future as


well. Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971, referred to.



3. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract Act, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. Today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial


disputes has surged to the surface. A large number of


foreign decrees in matrimonial matters is becoming the order


of the day. A time has, therefore, come to ensure certainty


in the recognition of the foreign judgments in these


matters. The minimum rules of guidance for securing the


certainty need not await legislative initiative. This Court


can accomplish the modest job within the frame-work of the


present statutory provisions if they are rationally


interpreted and extended to achieve the purpose. Though the


proposed rules of guidance in this area may prove inadequate


or miss some aspects which may not be present to us at this


juncture, yet a begining has to be made as best as one can,


the lacunae and the errors being left to be filled in and


corrected by future judgments. [829H, 830A, 831C, F-H]


4. The relevant provisions of Section 13 of the CPC are


capable of being interpreted to secure the required


certainty in the sphere of this branch of law in conformity


with public policy, justice, equity and good conscience,


and the rules so evolved will protect the sanctity of the


institution of marriage and the unity of family which are


the corner stones of our social life. [



4.1 On an analysis and interpretation of Section 13 of


CPC the following rule can be deduced for recognising a


foreign matrimonial judgment in this country. 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 and contests the


claim which is based on a ground 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.



5. The High Court erred in setting aside the order of


the learned Magistrate only on the ground that the


photostat copy of the decree was not admissible in evidence.


3


YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007


In the instant case photostat copies of the judicial record


of the Court of St. Louis is certified for th Circuit Clerk


by the Deputy clerk who is a public officer having the


custody of the document within the meaning of Section 76 of


the Indian Evidence Act also in the manner required by the


provisions of the said section. Hence the photostat copy per


se is not inadmissible in evidence. It is inadmissible


because it has not further been certified by the


representative of our Central Government in the United


States as required by Section 86 of the Act. Therefore the


document is not admissible in evidence for want of the


certificate under Section 86 of the Act and not because it


is a photostat copy of the original as held by the High


Court.



6. The Magistrate is directed to proceed with th matter


pending before him according to law as expeditiously as


possible, preferably within four months.



JUDGMENT:


CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 385


of 1991.



From the Judgment and Order dated 18.4.1988 of the


Andhra Pradesh High Court in Crl. Revision Petition No. 41


of 1987.



M.C. Bhandare and Ms. C.K. Sucharita for the Appellants.



C.N. Sreekumar and G. Prabhakar (for the State) for the


Respondents.



The Judgment of the Court was delivered by SAWANT, J. Leave is granted. Appeal is taken oj board for final hearing by consent of parties.



The 1st appellant and the 1st respondent were married ar


Tirupati on February 27, 1975. They separated in July 1978.


The 1st appellant filed a petition for dissolution of


marriage in the Circuit of St. Louis Country Missouri, USA.


The 1st respondent sent her reply from here under protest.


The Circuit Court passed a decree for dissolution of


marriage on February 19, 1980 in the absence of the 1st


respondent.



2. The 1st appellant had earlier filed a petition for


dissolution of marriage in the Sub-Court of Tirupati being


O.P. No. 87/86. In that petition, the 1st appellant filed an


application for dismissing the same as not pressed in view


of the decree passed by the Missouri Court. On August 14,


1991 the learned sub-Judge of Tirupati dismissed the


petition.



3. On November 2, 1981, the 1st appellant married the


2nd appellant in Yadgirigutta, 1st respondent filed a


criminal complaint against the appellants for the offence of


bigamy. It is not necessary to refer to the details of the


proceedings in the said complaint. Suffice it to say that in


that complaint, the appellants filed an application for


their discharge in view of the decree for dissolution of


marriage passed by Missouri Court. By this judgment of


October 21, 1986, the learned Magistrate discharged the


appellants holding that the complainant, i.e., the 1st


respondent had failed to make out a prima facie case against


the appellants. Against the said decision, the 1st


respondent preferred a Criminal Revision Petition to the


High Court and the High Court by the impugned decision of


April 18, 1987 set aside the order of the magistrate holding


that a photostat copy of the judgment of the Missouri Court


was not admissible in evidence to prove the dissolution of


marriage. The Court further held that since the learned


Magistrate acted on the photostat copy, he was in error in


discharging the accused and directed the Magistrate to


dispose of the petition filed by the accused, i.e.,


appellants herein for their discharge, afresh in accordance


with law. It is aggrieved by this decision that the present


appeal is filed.



4. It is necessary to note certain facts relating to the


decree of dissolution of marriage passed by the Circuit


Court of St. Louis Country Missouri, USA. In the first


instance, the Court assumed jurisdiction over the matter on


the ground that the 1st appellant had been a resident of the


State of Missouri for 90 days next preceding the


commencement of the action and that petition in that Court.


Secondly, the decree has been passed on the only ground that


there remains no reasonable likelihood that the marriage


between the parties can be preserved, and that the marriage


is, therefore, irretrievably broken''. Thirdly, the 1st


respondent had not submitted to the jurisdiction of the


Court. From the record, it appears that to the petition she


had filed two replies of the same date. Both are identical


in nature except that one of the replies begins with an


additional averment as follows: ``without prejudice to the


contention that this respondent is not submitting to the


jurisdiction of this hon'ble court, this respondent submits as follows''. She had also stated in the replies, among


other things, that (i) the petition was not maintainable,


(ii) she was not aware if the first appellant had been


living in the State of Missouri for more than 90 days and


that he was entitled to file the petition before the Court,


(iii) the parties were Hindus and governed by Hindu Law,


(iv) she was an Indian citizen and was not governed by laws


in force in the State of Missouri and , therefore, the Court


had no jurisdiction to entertain the petition, (v) the


dissolution of the marriage between the parties was governed


by the Hindu Marriage Act and that it could not be dissolved


in any other way except as provided under the said Act, (vi)


the Court had no jurisdiction to enforce the foreign laws


and none of the grounds pleaded in the petition was


sufficient to grant any divorce under the Hindu Marriage


Act.



Fourthly, it is not disputed that the 1st respondent was


neither present nor represented in the Court passed the


decree in her absence. In fact, the Court has in terms


observed that it had no jurisdiction ``in personam'' over


the respondent or minor child which was born out of the wedlock and both of them had domiciled in India. Fifthly, in


the petition which was filed by the 1st appellant in that


Court on October 6, 1980, besides alleging that he had been


a resident of the State of Missouri for 90 days or more


immediately preceding the filing of the petition and he was


then residing at 23rd Timber View Road, Kukwapood, in the


Country of St. Louis, Missouri, he had also alleged that the


1st respondent had deserted him for one year or more next


preceding the filing of the petition by refusal to continue


to live with the appellant in the United States and


particularly in the State of Missouri. On the other hand,


the averments made by him in his petition filed in the court


of the Subordinate Judge, Tirupati in 1978 shows that he was


a resident of Apartment No. 414, 6440, South Claiborn


Avenue, New Orleans, Louisiana, United States and that he


was a citizen of India. He had given for the service of all


notices and processes in the petition, the address of his


counsel Shri PR Ramachandra Rao, Advocate, 16-11-1/3,


Malakpet, Hyderabad-500 036. Even according to his averments


in the said petition, the 1st respondent had resided with


him at Kuppanapudi for about 4 to 5 months after th


marriage. Thereafter she had gone to her parental house at


Relangi, Tanuka Taluk, West Godawari District. He was,


thereafter, sponsored by his friend Prasad for a placement


in the medical service in the United States and had first


obtained employment in Chicago and thereafter in Oak Forest


and Greenville Springs and ultimately in the Charity


Hospital in Louisiana at New Orleans where he continued to


be employed. Again according to the averments in the said


petition, when the 1st respondent joined him in the United


States, both of them had stayed together as husband and wife


at New Orleans. The 1st respondent left his residence in New


Orleans and went first to Jackson, Texas and, thereafter, to


Chicago to stay at the residence of his friend, Prasad.


Thereafter she left Chicago for India. Thus it is obvious


from these averments in the petition that both the 1st


respondent and the 1st petitioner had last resided together


at New Orleans, Louisiana and never within the jurisdiction


of the Circuit Court of St. Louis Country in the State of


Missouri. The averments to that effect in the petition filed


before the St. Louis Court are obviously incorrect.


5. Under the provisions of the Hindu Marriage Act, 1955


(hereinafter referred to as the ``Act'') only the District


Court within the local limits of whose original civil


jurisdiction (i) the marriage was solemnized, or (ii) the


respondent, at the time of the presentation of the petition


resides, or (iii) the parties to the marriage last resided


together, or (iv) the petitioner is residing at the time of


the presentation of the petition, in a case where the


respondent 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 of more by those persons


who would naturally have heard of him if he were alive, has


jurisdiction to entertain the petition. The Circuit Court of


St. Louis Country, Missouri had, therefore, no jurisdiction


to entertain the petition according to the Act under which


admittedly the parties were married. Secondly, irretrievable


breakdown of marriage is not one of the grounds recognised


by the Act for dissolution of marriage. Hence, the decree of


divorce passed by the foreign court was on a ground


unavailable under the Act.



6. Under Section 13 of the Code of Civil Procedure 1908


(hereinafter referred to as the ``Code''), a foreign


judgment is not conclusive as to any matter thereby


directly adjudicated upon between the parties if (a) it has


not been pronounced by a Court of competent jurisdiction;


(b) it has not been given on the merits of the case; (c) it


is 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) the proceedings are opposed to


natural justice, (e) it is obtained by fraud, (f) it


sustains a claim founded on a breach of any law in force in


India.



7. As pointed out above, the present decree dissolving


the marriage passed by the foreign court is without


jurisdiction according to the Act as neither the marriage


was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. The decree is also passed on a ground which is not available under the Act which is applicable to the marriage. What is further, the decree has been obtained by the 1st appellant by stating that he was the resident of the Missouri State when the record shows that he was only a bird of passage there and was ordinarily a resident of the State of Louisiana. He had, if at all,


only technically satisfied the requirement of residence of


6


YN-Rao-DivorceInForeignCourtsNotValid.txt 4/11/2007


ninety days with the only purpose of obtaining the divorce.


He was neither domiciled in that State nor had he an


intention to make it his home. He had also no substantial


connection with the forum. The 1st appellant has further


brought no rules on record under which the St. Louis Court


could assume jurisdiction over the matter. On the contrary,


as pointed out earlier, he has in his petition made a false


averment that the 1st respondent had refused to continue to


stay with him in the State of Missouri where she had never


been. In the absence of the rules of jurisdiction of that


court, we are not aware whether the residence of the 1st


respondent within the State of Missouri was necessary to


confer jurisdiction on that court, and if not, of the


reasons for making the said averment.



8. Relying on a decision of this Court in Smt. Satya v.


Teja Singh, [1975] 2 SCR 1971 it is possible for us to


dispose of this case on a narrow ground, viz., that the


appellant played a fraud on the foreign court residence does


not mean a temporary residence for the purpose of obtaining


a divorce but habitual residence or residence which is


intended to be permanent for future as well. We remain from


adopting that course in the present case because there is


nothing on record to assure us that the Court of St. Louis


does not assume jurisdiction only on the basis of a mere


temporary residence of the appellant for 90 days even is such


residence is for the purpose of obtaining divorce. We would,


therefore, presume that the foreign court by its own rules


of jurisdiction had rightly entertained the dispute and


granted a valid decree of divorce according to its law. The


larger question that we would like to address ourselves to


is whether even in such cases, the Courts in this country


should recognise the foreign divorce decrees.



9. The rules of Private International Law in this


country are not codified and are scattered in different


enactments such as the Civil Procedure Code, the Contract


Act, the Indian Succession Act, the Indian Divorce Act, the


Special Marriage Act etc. In addition, some rules have also


been evolved by judicial decisions. In matters of status or


legal capacity of natural persons, matrimonial disputes,


custody of


830


children, adoption, testamentary and intestate succession


etc. the problem in this country is complicated by the fact


that there exist different personal laws and no uniform rule


can be laid down for all citizens. The distinction between


matters which concern personal and family affairs and those


which concern commercial relationships, civil wrongs etc. is


well recognised in other countries and legal systems. The


law in the former area tends to be primarily determined and


influenced by social, moral and religious considerations,


and public policy plays a special and important role in


shaping it. Hence, in almost all the countries the


jurisdicational procedural and substantive rules which are


applied to disputes arising in this area are significantly


different from those applied to claims in other areas. That


is as it ought to be. For, no country can afford to


sacrifice its internal unity, stability and tranquility for


the sake of uniformity of rules and comity of nations which


considerations are important and appropriate to facilitate


international trade, commerce, industry, communication,


transport, exchange of services, technology, manpower etc.


This glaring fact of national life has been recognised both


by the Hague Convention of 1968 on the Recognition of


Divorce and Legal Seperations as well as by the Judgments


Convention of the European Community of the same year.


Article 10 of the Hague Convention expressly provides that


the contracting States may refuse to recognise a divorce or


legal separation if such recognition is manifestly


incompatible with their public policy. The Judgments


Convention of the European Community expressly excludes from


its scope (a) status or legal capacity of natural persons,


(b) rights in property arising out of a matrimonial


relationship, (c) wills and succession, (d) social security


and (e) bankruptcy. A separate convention was contemplated


for the last of the subjects.


10. We are in the present case concerned only with the


matrimonial law and what we state here will apply strictly


to matters arising out of and ancillary to matrimonial


disputes. The Courts in this country have so far tried to


follow in these matters the English rules of Private


International Law whether common law rules or statutory


rules. The dependence on English Law even in matters which


are purely personal, has however time and again been


regretted. But nothing much has been done to remedy the


situation. The labours of the Law Commission poured in its


65th Report on this very subject have not fructified since


April 1976, when the Report was submitted. Even the


British were circumspect and hesitant to apply their rules


of law in such matters during their governance of this


country and had left the family law to be governed by the


customary rules of the different communities. It is only where was a void that they had stepped in by enactments such as the Special Marriage Act,Indian Divorce Act, Indian Succession Act etc. In spite, however, of more than 43 years of independence we find that the legislature has not thought it fit to enact rules of Private International Law in this area and in the absence of such initiative from the legislature the courts in this country their inspiration, as stated earlier, from the English rules. Even in doing so they have not been uniform in practice with the result that we have some conflicting decisions in the area.



11. We cannot also lose sight of the fact that today


more than ever in the past, the need for definitive rules


for recognition of foreign judgments in personal and family


matters, and particularly in matrimonial disputes has surged


to the surface. Many a man and woman of this land with


different personal laws have migrated and are migrating to


different countries either to make their permanent abode


there or for temporary residence. Likewise there is also


immigration of the nationals of other countries. The


advancement in communication and transportation has also


made it easier for individuals to hop from one country to


another. It is also not unusual to come across cases where


citizens of this country have been contracting marriages


either in this country or abroad with nationals of the


other countries or among themselves, or having married here,


either both or one of them migrate to other countries. There


are also cases where parties having married here have been


either domiciled or residing separately in different foreign


countries. This migration, temporary or permanent, has also


been giving rise to various kinds of matrimonial disputes


destroying in its turn the family and its peace. A large


number of foreign decrees in matrimonial matters is becoming


the order of the recognition of the foreign judgments in


these matters. The minimum rules of guidance for securing


the certainty need not await legislative initiative. This


Court can accomplish the modest job within the framework of


the present statutory provisions if they are rationally


interpreted and extended to achieve the purpose. It is with


this intention that we are undertaking this venture. We


aware that unaided and left solely to our resources the


rules of guidance which we propose to lay down in this area


may prove inadequate or miss some aspects which may not be


present to us at this juncture. But a begining has to be


made as best as one can, the lacunae and the errors being


left to be filled in and corrected by future judgments.


832



12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure


the required certainty in the sphere of this branch of law


in conformity with public policy, justice, equity and good


conscience, and the rules so evolved will protect th


sanctity of the institution of marriage and the unity of


family which are the corner stones of our societal life.


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.



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


respondent 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 decree 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 this respect the general rules of the


acquiescence to the jurisdiction of the Court which may be


valid in other matters and areas should be ignored and


deemed inappropriate.



The second part of clause (c) of Section 13 states that


where the judgment is founded on a refusal to recognise


the law of this country in cases in which such law is


applicable, the judgment will not be recognised by the


courts in this country. The marriages which take place in


this country can only be under either the customary or the


statutory law in force in this country. Hence, the only law


that can be applicable to the matrimonial disputes is the one under which the


parties are married, and no other law. When, therefore, a


foreign judgment is founded on a jurisdiction or on ground


not recognised by such law, it is a judgment which is in


defiance of the Law. Hence, it is not conclusive of the


matters adjudicated therein and therefore, unenforceable in


this country. For the same reason, such a judgment will


also be unenforceable under clause (f) of Section 13, since


such a judgment would obviously be in breach of the


matrimonial law in force in this country.



Clause (d) of Section 13 which makes a foreign judgment


unenforceable on th ground that the proceedings in which it


is obtained are opposed to natural justice, states no more


than an elementary principle on which any civilised system


of justice rests. However, in matters concerning the family


law such as the matrimonial disputes, this principle has to


b extended to mean something more than mere compliance with


the technical rules of procedure. If the rule of audi


alteram partem has any meaning with reference to the


proceedings in a foreign court, for the purposes of the rule


it should not be deemed sufficient that the respondent has


been duly served with the process of the court. It is


necessary to ascertain whether the respondent was in a


position to present or represent himself/herself and


contest effectively the said proceedings. This requirement


should apply equally to the appellate proceedings if and


when they are file by either party. If the foreign court has


not ascertained and ensured such effective contest by


requiring the petitioner to make all necessary provisions


for the respondent to defend including the costs of travel,


residence and litigation where necessary, it should be held


that the proceedings are in breach of the principles of


natural justice. It is for this reason that we find that the


rules of Private International Law of some countries insist,


even in commercial matters, that the action should be filed


in the forum where the defendant is either domiciled or is


habitually resident. It is only in special cases which is


called special jurisdiction where the claim has some real


link with other forum that a judgment of such forum is


recognised. This jurisdiction principle is also recognised


by the Judgments Convention of this European Community . If,


therefore, the courts in this country also insist as a


matter of rule that foreign matrimonial judgment will be


recognised only it it is of the forum where the respondent


is domiciled or habitually and permanently resides, the


provisions of clause (d) may be held to have been satisfied.


The provision of clause (e) of Section 13 which


requires that the


courts in this country will not recognise a foreign judgment


if it has been obtained by fraud, is self-evident. However,


in view of the decision of this Court in Smt. Satya v. Teja


Singh, (supra) it must be understood that the fraud need not


be only in relation to the merits of the mater but may also


be in relation to jurisdictional facts.



13. From the aforesaid discussion the following rule


can be deduced for recognising foreign matrimonial judgment


in this country. 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 a


ground 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.



The aforesaid rule with its stated exceptions has the


merit of being just and equitable. It does no injustice to


any of the parties. The parties do and ought to know their


rights and obligations when they marry under a particular


law. They cannot be heard to make a grievance about it


later or allowed to bypass it by subterfuges as in the


present case. The rule also has an advantage of rescuing


the institution of marriage from the uncertain maze of the


rules of the Private International Law of the different


countries with regard to jurisdiction and merits based


variously on domicile, nationality, residence-permanent or


temporary or ad hoc forum, proper law etc. and ensuring


certainty in the most vital field of national life and


conformity with public policy. The rule further takes


account of the needs of modern life and makes due allowance


to accommodate them. Above all, it gives protection to


women, the most vulnerable section of our society, whatever


the strata to which they may belong. In particular it frees


them from the bondage of the tyrannical and servile rule


that wife's domicile follows that of her husband and that it


is the husband's domicilliary law which determines the


jurisdiction and judges the merits of the case.


14. Since with regard to the jurisdiction of the forum


as well as the ground on which it is passed the foreign


decree in the present case is not in accordance with the Act under which the parties


were married, and the respondent had not submitted to the


jurisdiction of the court or consented to its passing, it


cannot be recognised by the courts in this country and is,


therefore, unenforceable.



15. The High Court, as stated earlier, set aside the


order of the learned Magistrate only on the ground that the


photostat copy of the decree was not admissible in evidence.


The High Court is not correct in its reasoning. Under


Section 74(1)(iii) of the Indian Evidence Act (Hereinater


referred to as the "Act") documents forming the acts or


records of the acts of public judicial officers of a foreign


country are public documents. Under Section 76 read with


Section 77 of the Act, certified copies of such documents


may be produced in proof of their contents. However, under


Section 86 of the Act there is presumption with regard to


the genuineness and accuracy of such certified copy only if


it is also certified by the representative of our Central


Government in or for that country that the manner in which


it has been certified is commonly in use in that country for


such certification.



Section 63(1) and (2) read with Section 65(e) and (f)


of the Act permits certified copies and copies made from the


original by mechanical process to be tendered as secondary


evidence. A photostat copy is prepared by a mechanical


process which in itself ensures the accuracy of the


original. The present photostat copies of the judicial


record of the Court of St. Louis is certified for the


Circuit Clerk by the Deputy Clerk who is a public officer


having the custody of the document within the meaning of


Section 76 of the Act and also in the manner required by


the provisions of the said section. Hence the Photostat


copy per se is not inadmissible in evidence. It is


inadmissible because it has not further been certified by the


representative of our Central Government in the United


States as required by Section 86 of the Act. The expression


"certified copy" of a foreign judgment in Section 14 of the


Code has to be read consistent with the requirement of


Section 86 of the Act.



16. While, therefore, holding that the document is not


admissible in evidence for want of the certificate under


Section 86 of the Act and not because it is a photostat copy


of the original as held by the High Court, we uphold the


order of the High Court also on a more substantial and


larger ground as stated in paragraph 14 above. Accordingly,


we dismiss the appeal and direct the learned Magistrate to


proceed with the matter pending before him according to law


as expenditiously as possible, preferably within four months


from now as the prosecution is already a decade old.



Appeal dismissed.

JW (HW)     21 August 2009

Thanks Mr.Grover for your reply. but we have been living in US in the same city for last two years . And we both have agreed for mutual consent divorce. I am not sure if the case you mentioned above is a contested case. And it was mentions about two places in US, New Orleans and Missouri. I ont expect our case to be fraudulently approved.

S.Seshadri (Advocate)     22 August 2009

 Dear John,

 

Thanks for writing to me after a visit to :

https://blogs.siliconindia.com/Seshadri

where I have suggested some valid process for obtaining divorce. That is how I came to know about this website.Your divorce decree by mutual consent will be valid in USA, Since you will continue to stay there.

You may visit my website www.lawconcern.com about when this US court decree will be valid in India based on a Supreme Court judgment. However, if neither your wife nor you after the US court decree want to challenge the same, then there should be no problem.

S.Seshadri

www.lawconcern.com

helpdesk@lawconcern.com

madraslawyer@yahoo.co.in

 

Kamal Grover (Advocate High Court Chandigarh M:09814110005 email:adv.kamal.grover@gmail.com)     22 August 2009

What if she challange in future?

It is just like mutual consent that you keep mum and i will do the same. But whenever she change her mind or did not found her in the right decision, she will file the case for nullety of your second marriage, coz as per indian law, if marriage is solmnize over here then the Indian court can dissolve the same. No doubt you can get the divorce over there also but for its validation, you have to come to india and apply in Indian court. Mr.Seshdhari, i would like to know the Supreme Court judgment on this point, what you have meniton in your reply.

Regards

b2bhandshake (Consultant)     05 September 2010

You may file for divorce in the state in US where you reside. The divorce will be acceptable in India too as others have mentioned.

However, note, if you have a spouse-name mentioned in your Indian passport, the Passport Officials will not delete it without a divorce certificate from an Indian court. This means, you will have to re-file for divorce in India if you want details in your passport erased. 

Input based on personal experience and research

- Editor NRI Divorce.com

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


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