The litigants based in foreign countries are generally doubtful about the validity of foreign divorce decree in India. We often receive queries asking whether a divorce decree passed by a foreign court is valid or not in India. This question arises when one of the partners lives in India and the other partner seeking divorce lives in other country like USA, UK, Australia, Canada etc. The provisions related to this matter are provided in the Code of Civil Procedure (CPC), 1908 which is the main procedural law of India.
The answer is yes, if the divorce decree is passed by a competent court and on grounds recognized by Indian laws. The relevant provision is contained in Section 14 of the CPC which provides presumption as to foreign judgments. According to this section, 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.
However, to safeguard the rights of Indian citizens, the law has provided them some important provisions by which they can challenge the validity of divorce decree passed by a foreign court. According to Section 13 of the CPC a foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties except-
- where it has not been pronounced by a Court of competent jurisdiction;
- where it has not been given on the merits of the case;
- where it appears on the face of the proceedings to be 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;
- where the proceedings in which the judgment was obtained are opposed to natural justice;
- where it has been obtained by fraud;
- Where it sustains a claim founded on a breach of any law in force in India.
Thus, the presumption is in favour of validity of the foreign decree or judgement which of course is open to being challenged by the other party to the divorce. There are various grounds on which a divorce decree can be challenged. The party to a case can approach a court in India and plead for declaring the decree invalid on the basis of one or more of the grounds mentioned above.
It has been seen that the courts in India are generally unhappy where the divorce decree has been passed by a foreign court ex parte or without giving fair opportunity to the other party. Further, the grounds on which the divorce has been granted will also be considered while deciding on the validity of the decree. The Indian courts also expect that the judgement should be given on the merits of the case.
In most cases the jurisdiction of the foreign court itself is challenged which is a basic requirement in legal matters. For instance, a marriage took place in India and comes under the provisions of Hindu Marriage Act. The petition under the Act shall be filed with the District Court(Family Courts) within the local limits of whose ordinary civil jurisdiction:
- The Marriage was solemnized, or
- The respondent at the time of the presentation of the petition resides, or
- The parties to the marriage last resided together, or
- In case wife is the petitioner, where she is residing on the date of presentation of the suit, or
- The petitioner is residing, in case respondent is out of the territory of which the Act applies or has not been heard for 7 years.
- The husband can file the petition before the district court where he resides if the Respondent living separately outside the territory of the Act.
Thus, if the Respondent had been living in the foreign country with the Petitioner, it would be easier to convince the court. In case the marriage was solemnized in the foreign country, it will again be a positive factor.
Legal Consultation: It would not be possible to mention all the details here as the circumstances of all the cases are not similar. In case you need consultation before you file a case in foreign court we can be of help to you. We have long experience and knowledge of dealing in international civil matters. We have an in-house legal team which can explain you all the relevant details and remove your doubts. Please call us or email us at [email protected] for appointment.