Recognition of Foreign Divorce Decrees – Legal Position in India

Introduction

“Marriages are settled in heaven and they are performed on earth.”

The matrimonial laws are not same around the world and it differs from country to country. When marriages and their dissolution were performed in the same country, then it poses no threat with regard to the validity of them. But the present day scenario is that the parties have their domicile in one country and one of them obtains matrimonial relief in a foreign country. So, it becomes significant to know the legislative position in India as to the recognition of foreign divorce decrees.

The Concept of Domicile

The word ‘domicile’ is defined as,” The country that a person treats as their permanent home, or lives in and has a substantial connection with.”[1] The concept of domicile plays a role of paramount importance in the shoes of validity not only of divorce decrees but also all other decrees. The general principle is that a person, who has got domicile in a particular country, is governed by the laws of that country. Though this sounds as a normal paradigm, it turns itself to be a complicated picture, when a person who is domiciled in one country obtains a foreign divorce decree and claims for an execution. It all depends upon the consent of the parties. Even though, the divorce decree is passed by a foreign Court without the jurisdiction in accordance with the provisions of the Matrimonial law of the parties it would not be invalidated when the wife consents to the jurisdiction.

Recognition under English Law

Before focussing on the position of Indian Law in recognising foreign divorce decree, it is more logical to look into English Law, since Indian Law had been taking up roots from English Law in this regard. English law had regulated the recognition of foreign divorce decrees by enactment of the Recognition of Divorces and Legal Separations Act, 1971. Prior to the enactment of the said act, the general practice of the English Courts was that the Courts would not accord the status of recognition to the decrees passed by the foreign court unless the parties where domiciled in the Country whose Court passed the divorce decree[2]. But after the passing of the 1971 Act this state of affairs has been modified. Accordingly, the Act has laid down additional two grounds under which a foreign divorce decree is recognised in English Law. So, the grounds under which a foreign divorce decree would be recognised under English Law are:

• Both the parties were domiciled in the country where divorce was obtained at the time of the institution of the suit,[3]
• One of them was domiciled there and the other country in which the other party domiciled recognised it as a valid divorce.[4]
• The divorce is recognised as valid in the country of the common domicile of the parties, or where the parties have different domicile in the country of domicile of each party
• At the time of the institution of the proceedings either spouse was a national of the country where divorce was obtained.

Grounds for Refusal:

Also, the 1971 Act has laid down two exhaustive grounds under which a foreign divorce decree would be denied recognition under English Law. They are:

• When there is violation of principles of natural justice[5], or[6]
• When the recognition would manifestly be contrary to public policy[7].

Indian Law:

Foreign divorce decrees have become widespread phenomenon in India in recent times. Once the divorce decree is obtained, either parties or both of them may approach Indian authorities to make necessary changes in the legal documents like passport so that they can either remarry or avail the benefits of being a single and unmarried individual. However, the Indian Law has implemented stringent measures as to rules pertaining to change or deletion of the name of a spouse. Now, for removing the name of a spouse from the passport of the other spouse can be done only if the foreign divorce decree has been first recognised by an Indian court. Henceforth, it has become immensely important to get the foreign divorce decree to be legally recognised in India so as to avail the benefits conferred in India. But there has been no specific legislation devoted toward the recognition of foreign divorce decrees in India.

Civil Procedure Code, 1908:

In general, section 13 and 14 of the Civil Procedure Code, 1908 governs the recognition of foreign judgement. Section 13 of the CPC renders a foreign judgement unenforceable and inconclusive in 6 circumstances, when the judgement or decree is;

• pronounced by a court of incompetent jurisdiction;
• not based on the merits of the case;
• 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;
• obtained in the proceeding which has violated the principles of natural justice;
• obtained by fraud;
• based on a claim founded on a breach of any law in force in India.

On a plain reading of this section, it reflects that a foreign judgement become conclusive and enforceable when it complies with all the above-mentioned conditions. Even if any one of these grounds has not been fulfilled then the decree would be inconclusive and ultimately would be legally invalid and not binding.

For instance, in the case of Satya v. Teja[8], while dealing with a matrimonial dispute, the Supreme Court held that the challenge under S. 13 cannot be restricted to disputes in civil nature but also to disputes in criminal nature. In this case a foreign decree of divorce was obtained from the Nevada State Court in USA by the husband in absentum of the wife without her submitting to its jurisdiction was held to be not binding and valid upon a criminal court in proceedings for maintenance[9]. This case categorizes itself lucidly under s.13 (a) in which the Court is not competent and thereby the decree was denied recognition.

Whereas in the case of Anoop Beniwal v. Jagbir Singh Beniwal[10] recognition was granted on the ground that the decree is in accordance with law of the land. This case relates to a matrimonial dispute between the parties. The suit was filed under S. 1(1)(2)(b) of the Matrimonial Causes Act, 1973 before the English Court on the ground that the petitioner cannot be reasonably expected to live with the respondent due to his behavior. When the decree was obtained in England, it was subsequently brought before the Indian Bench for enforcement. The contention of the respondent was that the Indian court should refuse enforcement as the decree was based on English law. The Court denied such contention and held that under the Indian Hindu Marriage Act under S. 13(1)(ia), there is a similar ground which is “cruelty” on which the divorce may be granted, and the decree of the foreign court is entitled to recognition under the Indian Court.

In general terms, a decree of a foreign Court is recognised by a Court in another jurisdiction as a matter of comity[11] and public policy. But this principle of comity would not compel any country to recognise the decree of a foreign court if it is repugnant to its own laws and public policy. When it comes to the concern of India, a judgment of a foreign Court creates estoppel or res judicata between the same parties, but with a prerequisite that such judgment is not attacked under any of the Clauses (a) to (f) of section 13 of the Code.

Classification of Foreign Divorce Decree:

Divorce decree granted by Foreign Courts can be split into two types:
1. Divorce which was obtained by mutual consent, granted by foreign Courts.
2. Decree granted in Contested Divorce.
The divorce decree granted by a Foreign Court which arouse out of mutual consent is considered to be legal, valid and binding in the Indian Courts by the virtue of Section 13 and Section 14 of the Civil Procedure Code. A decree which is not hit by section 13 necessitates no separate validation as it will be considered conclusive under Section 14[12] of the Civil Procedure Act.

However, when a divorce decree is granted by a Foreign Court which was contested by either of the parties, then it will lead to the question of validity which varies in different circumstances.

The Cases in Which the Foreign Divorce Decree Would Not Be Contemplated as Conclusive:

i. Firstly, when an ex-parte decree is passed by a Foreign Court which was intentionally left to go ex-parte i.e. no summons are served on the opposite party then the Indian Courts would not permit this fraud and would not recognise such decree.
ii. Secondly, divorce obtained on grounds other than the grounds enumerated under the Hindu Marriage Act if the parties were married under Hindu Law, as a divorce matter is governed by the law under which one gets married and does not be governed by the law of the land in which one resides.

A Foreign Divorce Decree Shall Be Contemplated as Valid and Conclusive In The Following Case:

i. It is a general rule that if one of the partners contests divorce filed in Foreign Land it would be said that he/she consented to the jurisdiction of that Court, in such a case that would lead to a conclusive decree.
ii. Where the wife consents to the grant of the relief by the foreign Court although the jurisdiction of the foreign Court is not in accordance with the provisions of the Matrimonial Law of the parties, the judgement of such foreign courts will be deemed as valid and conclusive.

Conclusion:

Though, the need for recognition of foreign divorce decrees in India has been on a boom, yet the legislation remains silent as to regulating the same. What is the need of the hour is a separate enactment with regard to the recognition and execution of the foreign divorce decrees in India. With Private International Law being a subject of underdeveloped affair, this branch of the law though demanding a rapid development still continues to be at back in the queue. Henceforth, even when a separate enactment is not possible it is of utmost importance to the amendment of the existing laws so as to properly regulate the recognition of the foreign divorce decrees in India.

References

[1] (Jan 13,2020,17.05 PM) en.oxforddictionaries.com › definition › domicile

[2] PARAS DIWAN& PEEYUSHI DIWAN, PRIVATE INTERNATIONAL LAW INDIAN AND ENGLISH 280-290 (4 ed. Deep and Deep Publications 1998)

[3] Le Mesurier v. Le Mesurier, (1895) A.C. 517

[4] Armitage v. A.G., (1906) p.135

[5] S.8(2)(a) of the Recognition of Divorces and Legal Separations Act, 1971

[6] Vardy v. Vardy (1932) 48 T.L.R. 661

[7] S.8(2)(b) of the Recognition of Divorces and Legal Separations Act, 1971

[8] AIR 1975 SC 105.

[9] Ibid. at p. 117 para 49.

[10] AIR 1990 Del. 305 at 311.

[11] This principle was first laid by the Court of England and subsequently approved by the Supreme Court of India in Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42, 47’” The Court recorded the observation that: 9. … 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”

[12]Section 14 of the Code of Civil Procedure,1908: Presumption as to foreign judgments. 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.

Author Details: M.Sri Nikila and S.Mohamed Abbas are students at School of Excellence in Law.