11/10/2014

IMC India - RECOGNITION OF FOREIGN DIVORCE DECREE IN INDIA

English |
Publish!
Post your video, audio,
pictures and texts directly
from your browser.

RECOGNITION OF FOREIGN DIVORCE DECREE

IN INDIA

News
Immediate covering of the
events from the new
movements.

The aim of this article is to analyse the legal position regarding recognition
of foreign divorce decrees in India.

Editorial Policy
Learn about this IMC's
editorial policy

ARBITRATOR, CONSULTANT AND ADVOCATE, SCI.

Be a volunteer
Join this project of media
democratization
Contact
Send a message to us.
Help
How to publish your news
in all different formats
About IMC
Learn about the principles
of the Independent Media
Center
IMC chat
Get on our chat channel.
Learn how.
Support Indymedia
See other IMC projects and
support independent media
Hidden Stories
Stories published twice,
stories without content and
stories violating the
Editorial Policy.

Search

Find

Words
all

By Praveen Dalal 07/12/2005 At 12:17

The aim of this article is to analyse the legal position regarding recognition of
foreign divorce decrees in India. The same is an important aspect of Conflict of
Laws or Private International Law, which has not yet been developed in India. An
attempt has been made to provide holistic aspects of this branch, so that the
same may be used for various purposes. The article is primarily based upon the
updating and purposive interpretation of the Conflict of Laws, as applicable in
India. Thus, it will inevitable tread beyond the contemporary line of thought that
is not only limiting this branch to narrow confines but is equally restricting its
growth in India.
I. Introduction
The law regulates the conduct of the society in its most desirable and benign
form. It maintains the order in the society and eliminates unhealthy
delinquencies and deviations. Thus, law plays an important role in developing a
civilised society. The law of a country is generally based on its social, economic,
and political ideologies and notions. These ideologies and notions are essentially
different in various societies. This usually gives rise to conflict of laws which is
generally taken care of by the Private International Law. An important aspect
of the Private International Law is that it is territorial oriented and society
specific. Thus, the laws of the country in question prevail, if there is a conflict
between the two laws of the different sovereign States. The Public International
Law on the other hand primarily encompasses within its ambit the Treaties and
conventions which are required to be uniformly followed by the Member
Countries[1]. To appreciate the concept better it is inevitable to analyse the
concept of International law in some detail. The expression International law is
synonymously used for the term Public International Law. It is different from
Private International Law that is a law of different States. The rules of Private
International Law have been formulated to avoid conflicts that arise due to
conflicting laws of different States. The Public and Private International Law
differs in many crucial aspects that primarily decide which law will govern the
situation. The chances of sovereignty clash are more in case of Private
International Law as compared to its counterpart. The following differences
between Private International Law and Public International Law are worth
noticing:

with images
with audio
with video

Search
Other IMCs

[an error occurred

while processing this
directive]

(1) Subjects: The Public International Law primarily deals with the States and to
some extent with the individuals; Private International Law primarily deals with
the individuals of two States.
(2) Scope: The rules of Private International Law are made by the concerned
sovereign State whereas it is not so in case of Public International Law.
(3) Applicability: The Public International Law is applied uniformly to all States
with few concessions attached to it whereas Private International Law differs
from State to State.
(4) Source of law: The Public International Law is formulated through the mode
of Treaties and Conventions whereas the Private International Law is formulated
by the legislature of the sovereign States.

http://india.indymedia.org/en/2005/12/211173.shtml

1/6

11/10/2014

IMC India - RECOGNITION OF FOREIGN DIVORCE DECREE IN INDIA

As a general rule the Public International Law is usually used to give effect to
municipal laws of a State but there may be occasions where Private
International Law may become rules of Public International Law. This happens
when the rules of Private International Law are incorporated in the international
treaties[2].
II. Indian Private International law
The rules of Private International Law in India are not codified and are scattered
in different enactments such as the Civil Procedure Code, the Contract Act, the
Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In
addition, some rules have also been evolved by judicial decisions. The problem
in India is complicated by the fact that there exist different personal laws and no
uniform rule can be laid down for all citizens. The distinction between matters
which concern personal and family affairs and those which concern commercial
relationships, civil wrongs etc. is well recognised in other countries and legal
systems. The law in the former area tends to be primarily determined and
influenced by social, moral and religious considerations, and public policy plays
a special and important role in shaping it. Hence, in almost all the countries the
jurisdictional procedural and substantive rules that are applied to disputes
arising in this area are significantly different from those applied to claims in
other areas. That is as it ought to be. For, no country can afford to sacrifice its
internal unity, stability and tranquility for the sake of uniformity of rules and
comity of nations which considerations are important and appropriate to
facilitate international trade, commerce, industry, communication, transport,
exchange of services, technology, manpower etc. This glaring fact of national
life has been recognised both by the Hague Convention of 1968 on the
Recognition of Divorce and Legal Separations as well as by the Judgments
Convention of the European Community of the same year. Article 10 of the
Hague Convention expressly provides that the contracting States may refuse to
recognise a divorce or legal separation if such recognition is manifestly
incompatible with their public policy. The Judgments Convention of the European
Community expressly excludes from its scope the following:
(a) status or legal capacity of natural persons,
(b) rights in property arising out of a matrimonial relationship,
(c) wills and succession,
(d) social security and
(e) bankruptcy[3].
Thus, Indias social, moral and religious conditions, along with the public
policy, will be decisive for determining the matrimonial law, including
jurisdictional aspects, applicable in India and the harmonisation of law cannot be
achieved at the cost of their ignorance and sacrifice. The principles governing
public policy must be on proper occasion, capable of expansion or modification.
The practices which were considered perfectly normal at one time have today
become obnoxious and oppressive to public conscience. If there is no head of
public policy, which covers a case, then the Court must in consonance with
public conscience and in keeping with public good and public interest declare
such practice to be opposed to public policy. Above all, in deciding any case,
which may not be covered by authority, our courts have before them the beacon
light of the Preamble to the Constitution. Lacking precedent, the Court can
always be guided by that light and the principles underlying the Fundamental
Rights and the Directive Principles enshrined in our Constitution[4]. The courts
can refuse to apply a rule of foreign law or recognise a foreign judgment or a
foreign arbitral award if it is found that the same is contrary to the public policy
of the country in which it is sought to be invoked or enforced[5].
III. The jurisdictional dilemma
Only court of competent jurisdiction can entertain a matrimonial suit. A court is
competent if:
(a) either party or both parties to the suit had sufficient contact with the
territorial jurisdiction of that court, or
(b) either party was or both parties were domiciled in its territorial jurisdiction
at the time of filing of the suit, or
(c) the parties were married under a law that confers jurisdiction upon that
http://india.indymedia.org/en/2005/12/211173.shtml

2/6

11/10/2014

IMC India - RECOGNITION OF FOREIGN DIVORCE DECREE IN INDIA

court, either expressly or impliedly, etc.

The Indian Courts have generally tried to follow in jurisdictional matters the
English rules of Private International Law, whether common law rules or
statutory rules. The dependence on English Law even in matters which are
purely personal is not a sound judicial strategy. Even the British were
circumspect and hesitant to apply their rules of law in such matters during their
governance of this country and had left the family law to be governed by the
customary rules of the different communities. It is only where there was a void
that they had stepped in by enactments such as the Special Marriage Act, Indian
Divorce Act, Indian Succession Act etc. In spite, however, of more than 58 years
of independence the legislature has not thought it fit to enact rules of Private
International Law in this area and in the absence of such initiative from the
legislature the courts in India derived their inspiration from the English rules.
Even in doing so they have not been uniform in practice with the result that we
have some conflicting decisions in the area. The courts, however, cannot be
blamed for this sardonic situation. The courts are helpless because either they
have to rely upon foreign precedents or they have to develop the Private
International Law in India within the parameters of already exiting and scattered
law. The same can only be done by adopting an updating, purposive and
futuristic interpretation of the existing laws. That is a need of hour because
nothing much has been done to remedy the situation by the legislature. Further,
since the matter is before the courts the same can also be taken care by the
courts in India. Legislatures are not best fitted for the role of adapting the law to
the necessities of the time, for the legislative process is too slow and the
legislatures often divided by politics, slowed down by periodic elections and
overburdened with myriad other legislative activities. This task must, therefore,
of necessity fall upon the courts because the courts can by the process of judicial
interpretation adapt the law to suit the needs of the society[6]. Thus, Courts in
India can provide a much better solution to this situation by adopting the
purposive and updating modes of interpretation of the provisions of the various
laws. It is presumed that the Parliament intends the court to apply to an ongoing
Act a construction that continuously updates its wordings to allow for changes
since the Act was initially framed. While it remains law, it has to be treated as
always speaking[7]. This means that in its application on any day, the language
of the Act though necessarily embedded in its own time, is nevertheless to be
construed in accordance with the need to treat it as a current law[8]. This must
be more so since the efforts of the Law Commission reflected in its 65th Report
on this very subject have not fructified since April 1976, when the Report was
submitted.
IV. Need of the hour-A sound interpretative theory
The matrimonial laws are not common everywhere in the world and they differ
from country to country. The problem arises when the parties have their
domicile in one country and one of them obtains matrimonial relief in a foreign
country. We cannot also lose sight of the fact that today more than ever in the
past; the need for definitive rules for recognition of foreign judgments in
personal and family matters, and particularly in matrimonial disputes has surged
to the surface. Many a man and woman of this land with different personal laws
have migrated and are migrating to different countries either to make their
permanent abode there or for temporary residence. Likewise there is also
immigration of the nationals of other countries. The advancement in
communication and transportation has also made it easier for individuals to hop
from one country to another. It is also not unusual to come across cases where
citizens of this country have been contracting marriages either in this country or
abroad with nationals of the other countries or among themselves, or having
married here, either both or one of them migrate to other countries. There are
also cases where parties having married here have been either domiciled or
residing separately in different foreign countries. This migration, temporary or
permanent, has also been giving rise to various kinds of matrimonial disputes
destroying in its turn the family and its peace. A large number of foreign
decrees in matrimonial matters are becoming the order of the day. The
minimum rules of guidance for securing the certainty need not await legislative
initiative. The Constitutional Courts can accomplish the modest job within the
framework of the present statutory provisions if they are rationally interpreted
and extended to achieve the purpose[9]. The relevant provisions of Section 13 of
the Code of Civil Procedure, 1908 (Code) are capable of being interpreted to
http://india.indymedia.org/en/2005/12/211173.shtml

3/6

11/10/2014

IMC India - RECOGNITION OF FOREIGN DIVORCE DECREE IN INDIA

secure the required certainty in the sphere of this branch of law in conformity
with public policy, justice, equity and good conscience, and the rules so evolved
will protect the sanctity of the institution of marriage and the unity of family
which are the corner stones of our societal life.
Under Section 13 of the Code, a foreign judgment is not conclusive as to any
matter thereby directly adjudicated upon between the parties if:
(a) it has not been pronounced by a Court of competent jurisdiction; or
(b) it has not been given on the merits of the case; or
(c) it is 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; or
(d) the proceedings are opposed to natural justice, or
(e) it is obtained by fraud, or
(f) it sustains a claim founded on a breach of any law in force in India.
It is thus clear that in order to make a foreign judgment conclusive in India; it
must be shown that it complies with all the abovementioned six conditions. If
there is no compliance of any one of these conditions, the foreign judgment will
not be conclusive and consequently not legally effective and binding. A decree of
a foreign Court is normally recognised 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 decree of a foreign Court if it is repugnant to its own laws and
public policy. So far as India is concerned, a judgment of a foreign Court creates
estoppel or res judicata between the same parties provided such judgment is not
subject to attack under any of the Clauses (a) to (f) of section 13 of the
Code[10].
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. If a decree of
divorce is to be accorded full faith and credit in the courts of another
jurisdiction, it is necessary that the Court granting the decree has jurisdiction
over the proceedings. A foreign divorce decree is therefore, subject to collateral
attack for lack of jurisdiction[11]. 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. A decree passed by a court without jurisdiction will be
void, having no force of law and binding value. In Rafique Bibi v Sayed[12] the
Supreme Court observed: What is void has to be clearly understood. A decree
can be said to be without jurisdiction, and hence a nullity, if the court passing
the decree has usurped a jurisdiction, which it did not have; a mere wrong
exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the
court passing the decree must be patent on its face in order to enable the
executing court to take cognizance of such a nullity based on want of
jurisdiction, else the normal rule that an executing court cannot go beyond the
decree must prevail.
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 respondent 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
decree 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. In this respect the general rules of the acquiescence to the jurisdiction
of the Court, which may be valid in other matters and areas should be ignore
and deemed inappropriate. Thus, an ex-parte decree passed in the absence of
http://india.indymedia.org/en/2005/12/211173.shtml

4/6

11/10/2014

IMC India - RECOGNITION OF FOREIGN DIVORCE DECREE IN INDIA

the wife will not satisfy the requirements of this clause. In M/S International
Woolen Mills v M/S Standard Wool (UK) Limited (2001) the Supreme Court, while
dealing with the validity of an ex-parte decree observed: Section 114 merely
raises the presumption, under illustration (e) thereof, that judicial acts have
been regularly performed. To say that a decree has been passed regularly is
completely different from saying that the decree has been passed on merits. An
ex-parte decree passed without consideration of merits may be decree passed
regular if permitted by the rules of that Court. Such a decree would be valid in
that country in which it is passed unless set aside by a Court of Appeal.
However, even though it may be a valid and enforceable decree in that country,
it would not be enforceable in India if it has not been passed on merits.
Therefore for a decision on the question whether a decree has been passed on
merits or not, the presumption under Section 114 would be of no help at all.
The first part of clause (c) of Section 13 recognises that if a decision is based on
an incorrect view of International Law by a foreign court, that judgment will not
be recognised in India. The second part of clause (c) of Section 13 states that
where the judgment is founded on a refusal to recognise the law of this country
in cases in which such law is applicable; the judgment will not be recognised by
the courts in this country. The marriages, which take place in this country, can
only be under either the customary or the statutory law in force in this country.
Hence, the only law that can be applicable to the matrimonial disputes is the one
under which the parties are married, and no other law. When, therefore, a
foreign judgment is founded on a jurisdiction or on ground not recognised by
such law, it is a judgment, which is in defiance of the law. Hence, it is not
conclusive of the matters adjudicated therein and therefore, unenforceable in
this country. For the same reason, such a judgment will also be unenforceable
under clause (f) of Section 13, since such a judgment would obviously be in
breach of the matrimonial law in force in this country.
Clause (d) of Section 13, which makes a foreign judgment unenforceable on the
ground that the proceedings in which it is obtained are opposed to natural
justice, states no more than an elementary principle on which any civilised
system of justice rests. However, in matters concerning the family law such as
the matrimonial disputes, this principle has to be extended to mean something
more than mere compliance with the technical rules of procedure. If the rule of
audi alteram partem has any meaning with reference to the proceedings in a
foreign court, for the purposes of the rule it should not be deemed sufficient that
the respondent has been duly served with the process of the court. It is
necessary to ascertain whether the respondent was in a position to present or
represent himself/herself and contest effectively the said proceedings. This
requirement should apply equally to the appellate proceedings if and when they
are file by either party. If the foreign court has not ascertained and ensured
such effective contest by requiring the petitioner to make all necessary
provisions for the respondent to defend including the costs of travel, residence
and litigation where necessary, it should be held that the proceedings are in
breach of the principles of natural justice. It is for this reason that the rules of
Private International Law of some countries insist, even in commercial matters,
that the action should be filed in the forum where the defendant is either
domiciled or is habitually resident. It is only in special cases, which is called
special jurisdiction where the claim has some real link with other forum that a
judgment of such forum is recognised. This jurisdiction principle is also
recognised by the Judgments Convention of this European Community. If,
therefore, the courts in this country also insist as a matter of rule that foreign
matrimonial judgment will be recognised only it is of the forum where the
respondent is domiciled or habitually and permanently resides, the provisions of
clause (d) may be held to have been satisfied.
The provision of clause (e) of Section 13, which requires that the courts in this
country will not recognise a foreign judgment if it has been obtained by fraud, is
self-evident. However, in view of the decision of this Court in Smt. Satya v Teja
Singh[13] it must be understood that the fraud need not be only in relation to
the merits of the mater but may also be in relation to jurisdictional facts.
V. Conclusion
From the aforesaid discussion the following rule can be deduced for recognising
foreign matrimonial judgment in this country. The jurisdiction assumed by the
http://india.indymedia.org/en/2005/12/211173.shtml

5/6

11/10/2014

IMC India - RECOGNITION OF FOREIGN DIVORCE DECREE IN INDIA

foreign court as well as the grounds on which the relief is granted must be in
accordance with the matrimonial law under which the parties are married. The
exceptions to this rule may be as follows:
(i) where the matrimonial action is filed in the forum where the respondent is
domiciled or habitually and permanently resides and the relief is granted on a
ground available in the matrimonial law under which the parties are married;
(ii) where the respondent voluntarily and effectively submits to the jurisdiction
of the forum as discussed above and contests the claim which is based on a
ground available under the matrimonial law under which the parties are
married;
(iii) where the respondent consents to the grant of the relief although the
jurisdiction of the forum is not in accordance with the provisions of the
matrimonial law of the parties.
The aforesaid rule with its stated exceptions has the merit of being just and
equitable. It does no injustice to any of the parties. The parties do and ought to
know their rights and obligations when they marry under a particular law. They
cannot be heard to make a grievance about it later or allowed to bypass it by
subterfuges as in the present case. The rule also has an advantage of rescuing
the institution of marriage from the uncertain maze of the rules of the Private
International Law of the different countries with regard to jurisdiction and merits
based variously on domicile, nationality, residence-permanent or temporary or
ad hoc forum, proper law etc and ensuring certainty in the most vital field of
national life and conformity with public policy. The rule further takes account of
the needs of modern life and makes due allowance to accommodate them.
Above all, it gives protection to women, the most vulnerable section of our
society, whatever the strata to which they may belong. In particular it frees
them from the bondage of the tyrannical and servile rule that wife's domicile
follows that of her husband and that it is the husband's domiciliary law, which
determines the jurisdiction and judges the merits of the case[14].
Praveen Dalal. All rights reserved with the author.
* Consultant and Advocate, Supreme Court of India.
Contact at:
pd37@rediffmail.com/
perry4law@yahoo.com
Tele: + 91 9899169611
Profile:
http://www.blogger.com/profile/8339811 .
[1] Praveen Dalal, The mandates of WTO,
http://perry4law.blogspot.com/2005/05/mandates-of-wto.html .
[2] Praveen Dalal, The true face of International law,
http://praveendalal.blogspot.com/2005/06/true-face-of-international-law.html .
[3] Y.Narasimha Rao v Y.Venkata Lakshmi, 1991 (3) SCC 451.
[4] Central Inland Water Transport Corporation Ltd v Brojo Nath Ganguly, AIR
1986 SC 1571.
[5] Renusagar Power Co. Ltd. v General Electric Co., A.I.R. 1994 S.C. 860.
[6] Central Inland Water Transport Corporation Ltd v Brojo Nath Ganguly, AIR
1986 SC 1571.
[7] Praveen Dalal, Law as an instrument of social change
http://perry4law.blogspot.com/2005/06/law-as-instrument-of-socialchange.html .
[8] State of Maharashtra v Dr Praful. B. Desai, (2003) 4 SCC 601.
[9] Y.Narasimha Rao v Y.Venkata Lakshmi, 1991 (3) SCC 451.
[10] Maganbhai v. Maniben, A.I.R. 1985 Gujarat 187.
[11] Satya v Teja Singh, A.I.R. 1975 SC 105.
[12] (2004) 1 SCC 287.
[13] A.I.R. 1975 SC 105.
[14] Y.Narasimha Rao v Y.Venkata Lakshmi, 1991 (3) SCC 451.
pd37@rediffmail.com
http://www.blogger.com/profile/8339811

Email::
URL::

>>Add a comment

http://india.indymedia.org/en/2005/12/211173.shtml

6/6