INTRODUCTION

It is an important aspect of conflict of laws or Private International Law to find out the legal position
regarding recognition of foreign divorce decrees in India. Foreign divorce decrees have become very
common these days in India. It is very necessary for these foreign divorce decrees to get recognition in
India for their implementation. There are many implications after divorce like change in legal
documents and for these after effect it is necessary to get these foreign divorce decrees enforced in
India. So, the question is whether divorce decree given by foreign court would be valid in India and
binding on the parties? It is very necessary to know whether particular foreign divorce decree is
recognised by Indian court or not. It is even better if such opinion is taken before seeking a divorce in a
foreign court so that such foreign divorce decree can be enforced in India with minimum hassles. Once
a foreign divorce decree is refused to be recognised in India by a lower court, it becomes very
cumbersome and time consuming to get a positive result out of such divorce decree.

Under Indian law it is not only the forum which have jurisdiction to entertain proceedings under the
Hindu Marriage Act, 1955 is competent to pass a decree of divorce but relationship of marriage
governed by the Hindu Marriage Act, 1955 can also be dissolved by foreign decree of divorce. The
courts can refuse to apply a rule of foreign law or recognise a foreign document 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.

Section 13 of the CPC, 1908 and section 41 of Indian Evidence Act dealt with the recognition of
foreign divorce decree in India. It can also be recognised on the basis of existence of a real and
substantial connection between the parties and the court which exercised the divorce jurisdiction.
Section 14 of CPC is an exception to section 13 and combined reading of both section 13 and 14 makes
the position of law clear that if a certified copy of a foreign judgment is produced in a court of law
directly adjudicating upon any matter between the same parties, the same shall be presumed by a court
to have been pronounced by a court of competent jurisdiction unless the contrary is proved.

Important case in this regard is Y. Narasimha Rao v. Y. Venkata Lakshmi1 which talks about the rules
of private international law pertaining to recognition of foreign divorce decree in India.

1
(1991) 3 SCC 451
These dual proceedings of divorce decree and its enforcement in India are because in India marriage is
considered to be a sacrament and divorce is not easily obtainable. Where one party is interested in
divorce whereas the other is not, it takes years for the party seeking divorce to get the same. Some
individuals have devised a mechanism of forum shopping and they seek divorce from jurisdiction
where it can be obtained easily. So for the enforcement of foreign divorce decree Supreme Court has
made constructive interpretation of the existing laws and provision of India to decide when such a
foreign divorce decree can be held to be valid and legal in India. For the recognition of foreign decree
in India these decrees must complies with all conditions mentioned in section 3 of CPC, 1908.

JURISDICTION 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 has “sufficient contact” with the territorial jurisdiction of
that court, or
(b) Either party 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 court, either
expressly or impliedly, etc.

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, Indian succession act, Indian divorce act, the
special marriage act etc. In addition some rules have been evolved by judicial decisions. The Indian
courts have generally tried to follow in jurisdictional matters the English Rules of private
International laws. The dependence on English law even in matters which are purely personal is not
a sound judicial strategy. This is the need of the hour because nothing much has been done to
remedy the situation by the legislature.

NEED OF THE HOUR --A SOUND INTERPRETATIVE THEORY/ DOMICILE ISSUE

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 judgements in
personal and family matters, and particularly in matrimonial disputes has surged to the surface.
Many a man and women of the land with different personal laws have migrated and are migrating
to different countries either to make their permanent home there or for temporary residence.
Likewise there is also immigration of the nationals of the other counties. It is not uncommon to
come across cases where citizens of this country have been contracting marriages either in this
country or abroad with nations 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 order of the day. The minimum rules of guidance for securing
the certainty need not await legislative initiative. The constitutional court can accomplish the
modest job within the framework of the present statutory provisions if they are rationally
interpreted and extended to achieve the purpose.

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 sections 13, clause (d) may be held to have been satisfied. Clause (d) of
section 13 makes a foreign judgement unenforceable on the ground that proceedings in which it is
obtained are opposed to natural justice. 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 alterum 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 him/her 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 provision for the
respondent to defend including the cost of travel, residence and litigation where necessary, it should
be held that the proceedings are in breach of the principle 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 judgement of such forum is recognised. If, therefore, the courts in this
country also insist as a matter of rule that foreign matrimonial judgment will be recognised only if
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.
It is interesting at this point to discuss a case2 where a man domiciled in India moved to USA, got a
divorce from a court at Nevada, USA by pleading domicile of Nevada even though he had not lived in
Nevada and never lived in Nevada after the divorce. The wife challenged the divorce in India on the
ground that the jurisdiction of the Nevada court was obtained by fraud. Supreme Court of India
accepted the plea of the wife and refused to recognize the divorce obtained in Nevada. The following
extract from the judgment makes the position very clear.

Under Section 13(e), Civil Procedure Code, the foreign judgment is open to challenge "where it
has been obtained by fraud". Fraud as to the merits of the respondent's case may be ignored and
his allegation that he and his wife "have lived separate and apart for more than three (3)
consecutive years without cohabitation and that there is no possibility of a reconciliation" may
be assumed to be true. But fraud as to the jurisdiction of the Nevada court is a vital
consideration in the recognition of the decree passed by that court. It is therefore relevant that
the respondent successfully invoked the jurisdiction of the Nevada court by lying to it on
jurisdictional facts.

The lesson from the above case for NRI’s is that he is lying about domicile and trying to obtain a
divorce from a foreign court is a futile exercise.

TYPICAL CONDITIONS

The following conditions are typically relevant for such cases:

a) Both husband and wife are Hindus

b) Both are born and brought up in India
c) Both move abroad after they reach childhood
d) Marriage takes place in India as per Hindu marriage customs and traditions.
e) One of the two (husband/wife) files for divorce in a foreign court.
f) The divorce is not by mutual consent.

Given the above conditions there are two possibilities-

2
Satya v Teja Singh, AIR 975 SC 105
 (i) The person who did not apply for divorce did not attend the divorce proceedings in the
foreign court; and,
(ii) The person who did not apply for the divorce attended and actively participated in the
divorce proceedings in the foreign court.

Divorce Proceedings Not Attended

It is not uncommon to hear about cases either the husband or the wife filed for divorce in a foreign
court, while the spouse did not attend the proceedings either due to notice not being served or due to
some other reason. In such a situation, the case of Y Narasimha Rao3 is relevant.
Y. Narsimha Rao and Y. Venkata Lakshmi were married in Tirupati, India as per Hindu customs in
1975. They separated in July 1978. Mr. Rao filed a petition for dissolution of marriage in the Circuit
Court of St. Louis County Missouri, USA. Mrs. Lakshmi sent her reply from India under protest. The
Circuit Court passed a decree for dissolution of marriage on February 19, 1980 in the absence of Mrs.
Lakshmi. Mr. Rao had earlier filed a petition for dissolution of marriage in the Sub-Court of Tirupati.
Later, he filed an application for dismissing the petition in view of the decree passed by the Missouri
Court.

On 2 November 1981, Mr. Rao married another woman. Hence, Mrs. Lakshmi filed a criminal
complaint against Mr. Rao for the offence of bigamy. The Supreme Court refused to accept the divorce
decree granted by the court at Missouri, USA. While deciding the case the Supreme Court laid down
the law for foreign matrimonial judgments in this country. The relevant extract from the judgment is as
follows:

The jurisdiction assumed by the foreign court as well as the ground 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 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

3
Y. Narashimha Rao and others v Y. Venkata Lakshmi,
of the matrimonial law of the parties.

The key rule laid by the Supreme Court can be summed up as follows: If a couple is married under
Hindu law, (a) the foreign court that grants divorce must be acceptable under Hindu law; and (b) the
foreign court should grant divorce only on the grounds which are permissible under Hindu Law. The
two conditions make it almost impossible for a Hindu couple married in India to get a legally valid
divorce from a foreign court since no foreign court is an acceptable one under Hindu Marriage Act and
also because no foreign court is likely to consider the provisions of Hindu Marriage Act before
granting divorce.

The exceptions that Supreme Court has permitted to the above rule laid by it are as follows in a case
where husband has filed for divorce in a foreign land:

A) The wife must be domiciled and permanently resident of that foreign land AND the foreign
court should decide the case based on Hindu Marriage Act.

B) The wife voluntarily and effectively attends the court proceedings and contests the claim on
grounds of divorce as permitted under Hindu Marriage Act.

C) The wife consents to grant of divorce

Exception A seems almost impossible. Exception B is examined in the next section. Exception C
means that the divorce is obtained by mutual consent and therefore the courts of India do not want to
interfere with it.

In a recent case (March 2012), Sunder and Shyamala tied the knot in Vellore district in 1999, Sunder
went to the USA within a year and did not communicate with Shyamala after that. In 2000, she
received summons from Superior Court of California, which subsequently granted divorce despite the
wife’s defence statement. Madras High Court held that the Superior Court of California was not a court
of competent jurisdiction to decide the matrimonial dispute in this case.

Divorce Proceedings Attended

In general, it can be said that if the partner contesting the divorce actively attends the divorce
proceedings in the foreign court, the chances of his or her being able to later successfully approach
Indian courts against an unfavourable judgment of the foreign court are very low. Indian courts, or for
that matters courts anywhere in the world, do not wish to encourage court-shopping.

The well-accepted universal principle of law can be stated as – If someone has accepted the authority
of a court, it cannot be open to the person to later question the authority of the court.

A similar matter came up before Supreme Court of India in the matter of Mrs. Anoop Beniwal4. The
lady attended the court proceedings in UK and later contested the divorce granted by the UK court.
Supreme Court refused to grant her any relief. Relevant extract from the judgment is as follows:

Factually the plaintiff herein and the respondent in the proceedings in England did have the
opportunity to defend the suit held against her. She led evidence in those proceedings. She just
happens to have failed to have a decision in her favor. An opportunity of hearing having been
granted, it is not right to assert that the proceedings in England were opposed to natural justice.
Nor is it proper to say that the judgment by a Court of England has not been given on the merits
of the case. In my view, the assertions made in the "Particulars" annexed to the petition, it has
been shown to me, and reproduced here above, could be made under S. 13(l) (ia) of the Hindu
Marriage Act regarding treatment of the petitioner with cruelty. The claim in the proceedings in
England cannot Therefore, be said to be founded on the breach of law in force in India.

There is no assertion that the judgment has been obtained by fraud.

The notable point in the above case is that (a) the women had accepted the authority of the Court of
England and (b) the Court of England had granted divorce on grounds which are akin to the ground of
cruelty as provided in Hindu Marriage Act. Hence, both the conditions necessary for being an
exception B as provided under Y.

Validity/ Recognition of Foreign Divorce Decree in India

Recognition of foreign divorce decrees in India is dealt with under the provisions of section 13 of the

4
Mrs. Anoop Beniwal v Dr. Jagbir Singh Beniwal
CPC. 1908 and section 41 of the Indian Evidence Act. A Foreign divorce is also recognised on the
basis of existence of a real and substantial connection between the parties and the court which
exercised the divorce jurisdiction.5 A large number of foreign decrees in matrimonial matters are
becoming order of the day. A time has come to ensure certainty in the recognition of foreign
judgements in these matters. Thus, the judicial intiative to provide the necessary changes to the eisting
situation in the form of “minimum rules of guideance for securing certainity” is indeed a welcome
move. The court has rightly pointed out that the provision of section 13 CPC are capable of appropriatr
interpretation “to secure the required certainity in the sphere of this branch of law in conformity with
public policy, justice, equality and good conscience, and the rules so evolved will protect the sancity of
the institution of marriage and the unity of family which are the corner stones of our societal life.” 6
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 above mentioned 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.
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

5
Marggarate v Chacko, AIR 97 Ker 1
6
Y. Narasimha Rao v Y. Venkata Lakshmi.
jurisdiction over the proceedings. A foreign divorce decree is therefore, subject to collateral attack
for lack of jurisdiction. 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”.
A foreign judgement is conclusive in any matter which has been adjudicated by a court of
competent jurisdiction except in certain circumstances. Also section 42 of Indian Evidence Act,
1872 provides that a final judgement of a competent court in the exercise of matrimonial
jurisdiction is conclusive proof that the legal character which it confers or takes away accrued or
ceased at the time, declared in the judgements for that purposes.

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
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 Indian 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.
That means only on the grounds under which the divorce can be pronounced in India the
Divorce Decree is valid. Cruelty/adultery/ desertion are some of the grounds recognized
in Indian Law. However Irretrievable breakdown of marriage/ No fault divorce is not a
good recognised in India law, thus a divorce decree on this ground amongst others which
are not recognized would be invalid in India. 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 it must be
understood that the fraud need not be only in relation to the merits of the mater but may
also is in relation to jurisdictional facts.
In the final analysis, it may be pointed out that the SC has advocated a newer approach to
the question of recognition of foreign divorce decrees in India. indeed it is not necessary
for introduction of any new theories on the lines of “ real and substantial connection of
the parties to the forum” or any new specific legislation altogether for the purposes. As
the SC has rightly pointed out what is needed is a contextual interpretation within the
existing legal framework. The law stated in the word of their Lordships: “the Jurisdiction
assumed by the foreign court as well as the grounds on which the relief is granted must
be accordance with the matrimonial law under which the parties are married. The
alternative jurisdiction must be based on consent and voluntary submission by the parties
concerned. The apex court while adapting the prevalent general law on recognition and
enforcement of foreign judgements in India under section 13 clauses (a) to (f) to the
specific needs of divorce decrees, has certainly made the beginning. The law now needs
to be developed, perhaps, by future judgements.

Position in other countries

The position is similar in other countries with developed matrimonial jurisprudence which
considers foreign judgements conclusive between the parties if it is pronounced by a court of
competent jurisdiction. A foreign decree of divorce is denied recognition in American Courts
if the judgement is without jurisdiction or is procured by fraud or if treating it as valid would
offend against public policy.
The English law on this subject, prior to the passing of the recognition of Divorces and Legal
separations Act, 1971, has grown out of a maze of domiciliary wilderness but English Court
have by and large, adopted the same criteria as the American Courts for denying validity to
foreign decrees of divorce.
In India also, the Supreme Court in the many cases and in particularly in Y. narashimha Rao
v Y. Venkata Lakshmi observed that if a foreign judgement has not been given on the merits
of the case, the courts in India will not recognise such a judgement. A foreign judgement
must have been given on the merits of the case; a judgement is said to be have been given on
the mertis when, after taking evidence and after applying his mind regarding the truth or
falsity of the plaintiff’s case, the judge decides the case one way or the other.

Consequences of Invalid Decree of Divorce

It is not unusual for one of the partners to obtain a decree of divorce from a foreign court
while the other partner is either in India or in some other part of the world. The partner who
has obtained divorce may feel comfortable in the thought that the other partner has neither
protested not contested the decree of divorce. However this comfort may be a false one.
Assuming that the husband has obtained the decree of divorce from a foreign court, some
consequences that may be faced by the man in due course are as follows:

1. If he remarries, he may be prosecuted for bigamy. There is no time limit for the
first wife to file a complaint with the police against the husband in the matter of
bigamy. We have seen in the case of Y Narasimha Rao that the couple separated in
1978, the man remarried in 1981 and ten years later, Supreme Court ordered for
bigamy proceedings to be started against the man. Bigamy is punishable under section
494 of Indian Penal Code with imprisonment of seven years.
2. Wife (divorced as per foreign law) may file for maintenance.
3. In case the man dies without making a will, the first wife will have the right to her
share in the property of the man while the second wife will get nothing because her
marriage will not be considered legitimate.

It may be noted that the above may be faced by the man even though he may have acquired
the citizenship of the foreign country (assuming that his domicile or his heart remains
Indian).

If a women gets divorce from a foreign court and remarries, her new husband may be
prosecuted under section 497 of Indian Penal Code under which he may face imprisonment
of five years. The wife will, of course, be liable for punishment under section 494 of Indian
Penal Code for bigamy.

To sum up one can say that exceptions aside, a Hindu couple married in India must seek
divorce from an Indian court only.

The two notable exceptions (when a foreign decree of divorce is valid) are (a) when the
couple decides to take divorce by mutual consent and (b) when the person who is contesting
divorce attends divorce proceedings and the foreign court grants divorce on grounds that are
permitted grounds of divorce under Hindu Marriage Act.

One should not draw comfort from inaction of the person who did not participate in divorce
proceedings. The implications of an invalid divorce may appear many years later and even
may arise after the death of the person who got the invalid divorce from a foreign court.
CASE LAWS:

A. Where the judgment is passed disregarding the Indian Law or the International
Law.

The case of Anoop Beniwal v. Jagbir Singh Beniwal7 relates to a matrimonial dispute
between the parties. The facts of the case are that the plaintiff had filed a suit for divorce in
England on the basis of the English Act that is the Matrimonial Causes Act, 1973. The
particular ground under which the suit was filed was “that the respondent has behaved in such
a way that the petitioner cannot reasonably be expected to live with the respondent.” This
ground is covered by S. 1(1)(2)(b) of the Matrimonial Causes Act, 1973. The decree was
obtained in England and came to India for enforcement. The respondent claimed that since
the decree was based on the English Act, there was refusal by the English Court to recognize
the Indian Law. The Court 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. Therefore
the English Act, only used a milder expression for the same ground and therefore there was
no refusal to recognize the law of India. Thus the decree was enforceable in India.

2. Y. Narasimha Rao v Y. Venkata Lakshmi8:

This case concerns with the issue of granting recognition to a divorce decree passed by the
Missouri Court in the U.S.A, in favour of the appellant- husband.

FACTS: the appellant Narasimha Rao married the respondent (venkata LAKSMI) in 1975 in
India. They resided together for about 4 to 5 months after marriage. Thereafter the appellant
left for a placement in the medical service in the United States. The respondent, who joined
the appellant for some time, returned to India. The appellant in the first instances had filed a
petition for divorce in an Indian Court in 1976. He later obtained a divorce decree from the
court in Missouri (USA) dissolving his marriage with the respondent. He also filed an
application in 1980 in the Indian Court for dismissal of his divorce petitioned earlier in 976 in

7
AIR 1990 Del. 305 at 311.
8
(1991) 3 SCC 451
view of the divorce decree he had obtained from Missouri Court in 1980. The parties were in
fact separated in 978. Having a obtained the divorce decree from the Missouri Court, the
appellant underwent a second marriage in India. The respondent (first wife) soon thereafter
filed a criminal complaint for the offence of bigamy against the husband. The present case is
an appeal arising out of his criminal complaint filed by the first wife-respondent.

The issue before the Supreme Court concerns with the recognition of the decree of
dissolution of appellant’s first marriage from the Missouri court in U.S.A. If the Indian court
recognises the foreign divorce decree, the appellant’s second would have become valid in
India. If not, the appellant-husband would be liable for bigamy under the Indian penal laws
for having contracted a second marriage during the subsistence of his first marriage. Further,
in effect, the appellant and the respondent would be considered as legally webbed in India,
while they are treated as divorced under the Missouri laws in United States.

The SC addressed itself to the larger question as to whether “the courts in this country should
recognise foreign divorce decrees, presuming that the foreign court by its own rules of
jurisdiction had rightly entrained the disputes and granted a valid decree of divorce according
to its law.” The court in the present case is well aware of the primitive and least developed
conditions of the rules of private International Law in India. The court has rightly pointed out
that the provisions of section 13 of CPC are capable of appropriate interpretation “to 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.

Supreme Court observed all the clauses mentioned under section 13 of CPC and for the
recognition of foreign judgements in India, all these conditions mentioned under section 13
must be full-filled.

In the final analysis, it may be pointed out that the Supreme Court has advocated a newer
approach to the question of recognition of foreign divorce decrees in India. Indeed it is not
necessary for introduction of any new theories on the lines of “real and substantial
connections of the parties to the forum” or any new specific legislation altogether for the
purposes. As the Supreme Court has rightly pointed out what is needed is a contextual
interpretation within the existing legal framework.
The law stated in the words of their Lordships: “The jurisdiction assumed by the foreign
court as well as the grounds on which the relief us granted must be in accordance with the
matrimonial law under which the parties are married.”9 The alternative jurisdiction must be
based on consent and voluntarily submission by the parties concerned. The apex court while
adapting the prevalent general law on recognition and enforcement of foreign judgments in
India viz., section 13 clauses (a) to (f) to the specific needs of divorce decrees, has certainly
made the beginning. The law now needs to be developed, perhaps, by future judgements.

Conclusion

Even after Independence, Indian legislation is not able to codify a legislation which can make
certainty with regard to the recognition of foreign decree in India. even today Indian courts
applied the rules and regulations of English court in order to find out whether foreign divorce
decrees are recognised in India or not. There is legal lacunae in Indian legislation on this
point but Judiciary has tried to overcome this problem by interpreting different provisions of
different legislation to find out the solution to the problem whether foreign divorce decree are
recognised in India or not.

The judicial initiative has provided the directions to fill the legal lacunae. These efforts
should now turn to the ever increasing number of deserted Indian wives’ position. They are
married but single. Their marriages are limping. A strict adherence to the observance of the
principle of natural justice in the manner suggested by the Supreme Court in this case holds a
possible solution. An opportunity provided in the positive sense for an appropriate
representation, the respondent wife can at the end of the litigation be sure of her status to be.

To sum up one can say that exceptions aside, a Hindu couple married in India must seek
divorce from an Indian court only.

The two notable exceptions (when a foreign decree of divorce is valid) are (a) when the
couple decides to take divorce by mutual consent and (b) when the person who is contesting
divorce attends divorce proceedings and the foreign court grants divorce on grounds that are
permitted grounds of divorce under Hindu Marriage Act.

9
(1991) 3 SCC 451
One should not draw comfort from inaction of the person who did not participate in divorce
proceedings. The implications of an invalid divorce may appear many years later and even
may arise after the death of the person who got the invalid divorce from a foreign court.

BIBLIOGRAPHY

 Legal status of foreign decree of divorce for Hindu Couple Married in India, Anil
Chawla Law Associates.
 Recognition of foreign divorce Decree In India By Praveen Dayal
 Recognition of Foreign Divorce Decrees in India: A case for contextual
Interpretation, Indian Law Institute.