Introduction
India is a multicultural nation with a variety of legal systems. In India, where marriage is seen as a holy institution, the idea of divorce has only lately become socially acceptable. But as times have changed, divorce has grown more prevalent, and more couples are opting to dissolve their unions for a variety of reasons.
In some situations, one or both of the spouses may have nationalities that are different from one another, and they may have acquired a divorce decision abroad. In these situations, the issue of whether the foreign divorce decision is recognized in India arises.
The validity of a foreign divorce decree in India is determined by the Indian legal system, which is governed by the Indian Constitution, various statutes, and judicial precedents. The Indian legal system recognizes the principle of comity of nations, which means that foreign judgments and decrees are recognized and given effect to, subject to certain conditions.
Under Indian law, a foreign divorce decree will be recognized if it meets the following conditions:
- Jurisdiction: The foreign court must have had jurisdiction over the parties and the subject matter of the case. The jurisdiction of the foreign court must be determined according to the rules of Indian law.
- Validity: The foreign divorce decree must be valid according to the law of the country where it was granted.
- Compliance: The parties to the divorce decree must have complied with the procedures and requirements of the foreign court.
- Public policy: The recognition of the foreign divorce decree must not be contrary to public policy in India.
The foreign divorce decree will be regarded as a legal divorce in India if it satisfies these requirements. To get a divorce order from an Indian court, the parties must present a foreign divorce decision that satisfies certain requirements; otherwise, it will not be recognised in India.
The conditions of the divorce decree, such as alimony or child custody, may not automatically be enforced in India just because the country recognises a foreign divorce decree. Only if they are in accordance with Indian law and public policy will the conditions of the foreign divorce order be given effect in India.
In conclusion, a number of factors affect whether a foreign divorce decree is recognised in India.
Scope of Section 13 of Civil Procedure Code, 1908
Section 13 of the Code of Civil Procedure, 1908, deals with the extent of conclusiveness of foreign judgments in India. By foreign judgments, we imply that the judgments that are pronounced by a foreign court, i.e. a court situated outside the territory of India over which the central govt. has no authority. As per the wordings of Section 13, a foreign judgement shall be conclusive, meaning final and binding, as to any matter directly adjudicated upon between the same parties or between parties under whom or any of them claim to be litigated under the same title. However, this conclusiveness of a foreign judgement has 6 exceptions mentioned in clauses (a) to (f) to that section.
Hence, to be deemed of a binding character, the judgement will need to pass through the 6 tests mentioned as exceptions, i.e. it must have been pronounced by a court of competent jurisdiction, it shall have been delivered as per merits of the case, it shall be founded on a correct view of International law or Indian law wherever applicable, proceedings in which it was delivered must have been in conscience with the principles of natural justice, it shall not have been obtained by fraud and there should have been no breach of any Indian law which is in force at the time. A foreign judgement will act res judicata if it successfully passes through all 6 tests laid down as exceptions to Section 13 and subject to other conditions laid down in Section 11 of the Code.
It is also very important to note that the rules laid down under Section 13 are rules of substantive laws and not only procedural rules. This section embodies the principles of the private international law that a judgement pronounced by a foreign court of competence can be enforced by an Indian court and will operate as res judicata.
However, if the decree fails to pass through the tests laid down as exceptions to Section 13, then also it cannot be executed. Also, Section 11 regarding Res Judicata must be completely followed and hence a foreign judgement would not be entertained if there are conflicting Indian judgments on the same issue between the same parties. Briefly, the expression “where it has not been given on merits of the case” was commented upon by the Supreme Court of India in International Woollen Mills v. Standard Wool (UK) Ltd. The view taken was when evidence was led by the plaintiff applicant in the foreign court, even though the opposite side may have been served but not appearing, the decision would be “on merits”. This Court concurred with the law laid down in another case which stated that: A decision on the merits involves the application of the mind of the Court to the truth or falsity of the plaintiff’s case and therefore though a judgement passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex parte, a decision passed without evidence of any kind but passed only on his pleadings cannot be held to be a decision on the merits.
Judicial Standpoint
The Hon’ble Supreme Court of India in Y. Narasimha Rao Vs. Y. Venkata Lakshmi, (1991)3 SCC 451, held that:
“12…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 defendant 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 order 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…”
The Hon’ble Apex Court in the another case of Satya Vs. Teja, 1975 AIR 105 discussed the implications of Section 13 of C.P.C and explained the meaning of the term “competent court”. The relevant portion of the judgement is reproduced below:
“15. 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.”
Conclusion
The question of validity of foreign divorce decree involves elements of both Private International Law as well as Indian domestic law. The complex interplay of both domestic as well as international law gives rise to some practical problems. As different countries of the world have different laws related to marriage and divorce, marriage in one country and divorce in another might prove detrimental to the interests of one of the spouses. The Supreme Court of India has cleared the stand of India in a number of cases while addressing such concerns. Hence, the law in India recognizes only such foreign divorce decrees in which both the parties have submitted to the jurisdiction voluntarily. Further, another important requirement is that the case must have been decided on grounds which are permitted under the applicable personal law. This view of the Supreme Court has not seen any change since a long time and somehow helps in simplification of nuances surrounding foreign divorce decrees.
Written by Advocate Husain Trivedi & Pratishtha Mansinghka, Student of GLS Law College, Ahmedabad
