Validity of a Divorce granted by foreign court in India

29/07/2020 - NRIs settled abroad usually look for appropriate match for the marriage of their sons / daughters from their native place in India. The marriage of their sons / daughters in India suffices this very purpose of being connected to the roots.

As family members of either husband or wife are residing in India, regular visits to meet & greet the family on different occasions creates a natural bond with their motherland.

Even though NRI marriages are prevalent from long time yet like any other marriage these NRI marriages are prone to usual cycle of divorce and separation.

The bigger question which needs attention is “ whether the marriage solemnized in India can be dissolved outside India” and if so, will the divorce permitted in foreign court is valid in India

A decree of a foreign court is normally recognized by a court in another jurisdiction as a matter of comity and public policy. But No country is bound to recognise and give effect to a divorce decree by a foreign court if it is repugnant to its own laws. In absence of compliance of any of the provisions of Section 13 of the Code of the Civil Procedure, 1908, the foreign decree will not be conclusive and will have no legal binding in India.

As the matrimonial laws are different in different countries, the issue arises if the couple have domicile of one country and the divorce is obtained in a foreign country.

A couple who has moved to foreign country may wish to get divorced due to certain reasons, if the divorce is by mutual consent, there is hardly any involvement of legal issues.

However, if the divorce is contested by one of the parties, the petitioner may prefer to get divorced in country of his/her residence and more so due to simpler, easier and less time consuming divorce procedures of that country as compared to India.

As per Section 13 of Code of Civil Procedure, divorce granted by foreign court is conclusive in India on the basis of Res Judicata – which means when a matter has been adjudicated by the court, it should not agitated or repeated time and again in order to save time, money and resources of judiciary. Thus a divorce decree granted by foreign court (if the same is with the consent of both the parties) should be considered valid in India.

It is pertinent to mention here that a foreign divorce decree can be treated Invalid In India( at the instance of one of the parties) in following exceptional circumstances

• If the foreign court grants a divorce on a ground that is not recognized by Indian Courts like Irreconcilable difference or irretrievable breakdown of marriage.
• If both parties are not given the right of hearing in the court, which violates the basic principle of natural justice.
• If the divorce decree is obtained by misrepresentation of facts and through fraud.
• When the divorce decree is granted by a court which does not have the jurisdiction as per Indian laws. For instance the courts where marriage was solemnized, where both parties resided as husband and wife or where the party that has not filed for divorce applies resides, would have jurisdiction
• If the foreign court grants ex-parte divorce decree, which means the submissions of one of the party are not taken into account. If the petitioner is able to prove that the other party evaded the divorce proceedings deliberately, then such a decision on divorce will be considered valid by Indian courts.
• If the foreign court grants a divorce on a ground that is not recognized by Indian Courts like Irreconcilable difference or irretrievable breakdown of marriage.

In nutshell, it is not the foreign divorce decree but the circumstances of the case that decides whether the divorce granted by foreign court will be considered Valid in India or not.