IS FOREIGN DIVORCE DECREE VALID IN INDIA

Whether a decree of divorce granted by the foreign Court is valid in India?

This question is frequently asked by a husband who is living abroad so here is an effort to give them the correct passion of the law.

Matrimonial Laws with respect to the divorce of NRIs who are living in different countries vary as a common question arises here as to whether a person who is married in India as per the Hindu Marriage Act or under other personal Laws, is allowed to get dissolved said marriage by initiating a divorce proceeding in the foreign court where he or she resides? 

Or if such marriage has been dissolved by the foreign Court, the decree of divorce issued by the foreign Court is valid in Indian Laws and applicable in Indian Courts?

There are three types of decree of divorce granted by the foreign Court:-

1. A decree of divorce granted on the grounds of mutual consent 

2. Ex-Parte decree of divorce 

3. Contested decree of divorce

Decree of divorce granted on the ground of mutual consent: The decree of divorce granted on mutual consent of the parties is valid and legally enforceable in Indian Courts as per Sections 13 & 14 of the Civil Procedure Code. It is to be noted that under section 13-B of the Hindu Marriage Act 1955, a decree of divorce is allowed to be granted, therefore, the decree of divorce granted by the foreign Court on the basis of mutual consent of the parties, is fully applicable and valid in the Indian Courts.

Ex-Parte decree of divorce: The Ex-Parte decree of divorce, if granted by the foreign court in the absence of the other party, is not valid in India and such decree of divorce is un-executable in Indian Courts.

Contested decree of divorce: The contested decree of divorce is also not applicable in India and it has many legal complications such as jurisdictional issues, laws governed to the parties, and the grounds on which the decree of divorce is granted because the grounds which are available under Hindu Marriage Act or under other personal laws, may not be available in the foreign laws. For example ‘No-fault divorce’ is allowed in some countries but it is not available in Indian Laws.

In Civil Appeal no.2660/2002 decided by the Hon’ble Supreme Court, similar issues were decided as under:- The plaintiff/wife was seeking a decree of declaration that she was entitled to live separately from her NRI husband/defendant. In addition, she also sought a decree for maintenance in her favour besides the pendent-lite expenses in view of the fact that she had been deserted and abandoned by him very soon after the solemnization of marriage and that too after being subjected to cruelty and harassment. During the pendency of the suit when the wife came to know about the divorce petition having been filed by the husband in the USA, she immediately approached the court to restrain the proceeding of the divorce case in the USA. The Court in India passed an injunction order restraining the defendant/ husband from proceeding further in the divorce case in the State of Connecticut, USA for a period of thirty days. However, in spite of the injunction order passed by the Indian court, the husband proceeded with the divorce case "No-Fault Divorce Petition" in the US. When this fact was brought to the notice of the Court in India, the Indian Court passed an order asking the defendant/husband to record his statement under Order X of the CPC and directed him to appear in person in the court with the direction that if he failed to appear, his defence would be struck off and contempt proceedings to be initiated. Even though the husband had obtained a decree of divorce from the US court, the question arose for a determination as to whether a decree of divorce obtained from the Court in Connecticut in the USA during the pendency of the proceedings of the case in India was valid as per law in India. The Court held that the ground on which the marriage of the defendant and plaintiff was dissolved is not available in the Hindu Marriage Act as the parties were Hindus, and their marriage was solemnized according to the Hindu rites as such their matrimonial disputes are absolutely governed by the provisions of the Hindu Marriage Act. It is further held that the husband failed to inform the foreign court about the proceeding pending in India and also the decree of divorce granted by the foreign court is not as pre-law which is applicable to the parties, the decree of divorce obtained by the husband not valid in India and it is not enforceable in India.

Conclusion:- In these circumstances and having analyzed the respective laws, a divorce decree granted by the foreign Court on the basis of mutual consent is applicable in India in view of the fact that under the Hindu Marriage Act 1955, a decree of divorce is allowed to be obtained on the basis of mutual consent. Another form of decree of divorce is not applicable in Indian Courts and the same is always questionable on various legal grounds.