Validity of Foreign Divorce Decree in India ? Does your UK/US divorce stand ?

This article attempts to bring some clarity on the law relating to recognition of foreign divorce decrees in India, in what circumstances they are valid, and when not ? I’ve also tried throwing light on the process and procedure of challenging or upholding the same in India ….read on 

DIVORCE

 A Happy marriage is a harbour in the tempest of life – an unhappy one a tempest in the harbour of life…..A Marriage that is devoid love, care and affection deserves, in my firm view to be done away with, whether or not either party wants to stick with it. It is sad that Indian Law is still pretty rigid in that regard primarily because of the notion of marriage being a sacrament. Obtaining a Divorce in India is an ordeal unless both parties consent to it. To get a contested divorce one needs to prove grounds such as cruelty/adultery/desertion etc, which is extremely difficult and time consuming. (The process & procedure of getting a contested divorce in India is explained in my article http://bharatchugh.wordpress.com/2012/10/23/divorce-in-india-all-you-need-to-know-about-contested-and-mutual-divorce/).  Indian Law does not recognise ’Irretrievable breakdown/Irreconcilable differences’ as ground for divorce.

 FOREIGN DIVORCE

As a Divorce Lawyer, day in day out I’ve been getting queries on the validity of a Foreign Divorces in India. This is an area fraught with many conflicting opinions and judgments full of legalease, let me articulate the basics of foreign divorces in India.

We take the example of a couple married in India as per the Indian Law (Special Marriage Act or Hindu Marriage Act). Now since the couple married in India, wherever they go – they take their personal law with them. Hence even if they subsequently settle in some other part of the world – their marriage and consequently their divorce would still be governed by Indian Law.

 

GENERAL PRINCIPLE – FOREIGN DIVORCE HOLDS GOOD IN INDIA

Contrary to a lot of misconceptions, as per the General Principle of Law (Section 13 CPC) A foreign decree is conclusive in India in normal circumstances. This is based on principle of res judicata – meaning that when a dispute has been adjudicated by a court it should not be re-agitated again & again – to prevent wastage of judicial time & expense and more importantly to ensure finality and certainty in human relations. Hence we start with the presumption that a foreign divorce is valid in India.

 

EXCEPTIONS – WHEN FOREIGN DIVORCE WON’T BE RECOGNISED IN INDIA

The Indian Law would refuse to recognise it – when any of the following conditions are present :-

a) When Granted by Court not authorised by Indian Law to grant the same – When the decree is passed by a court having no jurisdiction (meaning authority to decide) as per the Indian Law; which leads us to the question which courts have jurisdiction as per the Indian Law, normally the court of place where marriage is solemnised (normally India) or where the parties last resided together as husband and wife, and where the opposite party resides (non applicant). Courts of all these places shall have jurisdiction.

b) When one side is not heard or his/her submissions not taken on record : That the decree is not passed on merits – ‘on merits’ in layman terms means the court took both side’s submissions into consideration before deciding the case – if it is not done – then decree does not hold good in India. The problem arises when one spouse serves a divorce summon on the other and the other spouse leaves the country and comes back to India, and a decree is passed ex parte (in absence of that party). In these cases if it is established that party left jurisdiction just to avoid the divorce proceedings and was otherwise there, the decree should be valid in India, for no court should allow such fraud to take place ;

c) On a ground not recognised by Indian Law –  When the Divorce is granted on grounds not recognised in India – for those who arrived late – Cruelty/Adultery/Desertion/Impotency are grounds that Indian Law recognises, so if the divorce is granted on these grounds – The decree is valid in India. Please note that in such a case it need not be validated in India by filing a suit or anything.  It is the burden of person challenging the decree to discredit it.

Now the basic problem is encountered here – Indian Diaspora is increasingly getting divorces on the ground of ‘irreconcilliable differences/irretrievable breakdown of marriage’  which is also known as no fault divorce. In this species of divorce – cruelty/adultery need not be established. If the court feels without going to faults/allegations etc – that the couple cannot be expected to live together now and their bond seems to be broken irreparably – Court grants divorce. Normally in such cases the court would grant a decree nisi (temporary) that is turned into absolute (permanent divorce) after 6 months or so (depending on state law). Within these six months the opposite party gets a right to oppose or consent to divorce, in either case it is normally granted.

Sadly this divorce is not valid in India because ‘irreconcilliable differences/irretrievable breakdown of marriage’  is not recognised in India as a ground for divorce, though a bill to that effect is pending in Indian Parliament and may be passed in the future. But as of today such decrees are not binding in India.

Hence a word of advise instead of going in for a no fault divorce – a fault divorce (cruelty) etc should be obtained, which is somewhat difficult, but unimpeachable in India.

d) When the proceedings are against principles of Natural Justice ?  Now in simple terms principles of natural justice are certain principles which broadly make the judicial proceedings fair and just. For eg : both parties should know allegations levelled and be given a fair opportunity to be put forth their case, judge being impartial is also a facet of natural justice.

Again the question comes –  if on filing a divorce the other party leaves jurisdiction and runs back to India (normally wives tend to do that) in such a case, it would again be a question of intention and the decree cannot be said to be against natural justice if party herself evades the court when otherwise a permanent resident was established there. In a matter which I am consulting currently the woman is fighting child custody/property matters in US and is a permanent resident, but we know it for sure when the man files the divorce –  in order to prevent that she would run back to India – in such a case I feel the divorce decree granted even in her absence should be valid. Though this is a grey area but when she had adequate opportunity to defend – any attempt to frustrate judicial process by running away should be dealt with stern hands.

There may be another situation where the spouse is in India and the other spouse files for divorce outside India, in such situation even after the spouse in India is served (notice is sent and received) any decree passed in absence won’t be valid in India, unless the court feels that the other party had ample opportunity to go, engage counsel and defend in that country. Normally in decrees passed against women in India, Indian Courts have refused to recognise them.

 

e) If it is obtained by fraud – if a decree is obtained by misrepresentation of facts or fraud – then the same is not valid in India.

The above are the cases where a foreign divorce won’t be recognised in India, and may lead to a situation where a person may be divorced(and single) in one country yet married in Indian law, and this can spell disaster in case of subsequent marriage as bigamy proceedings may be initiated against such person.

If your divorce is valid in India as per the above test – it is not a requirement of law for you to validate it, however you may still do so in order to start from a clean slate and avoid belated disputes.

If your divorce is not valid in India – it has to be challenged by filing a suit for declaration as to your marital status and invalidity of such a foreign decree, burden of proof being on the person who challenges.

I hope I’ve been able to clear some airs on the question of foreign divorce decrees and their validity in India.

My next article would be on validity of child custody decrees passed in foreign courts.

*The Author Bharat Chugh is a Supreme Court advocate. This article flows from his experience in jurisprudence relating to foreign divorces (bharat.law06@gmail.com)

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28 thoughts on “Validity of Foreign Divorce Decree in India ? Does your UK/US divorce stand ?

  1. Dear Mr. Chugh,

    Appreciate your time in detailing out the provisions of CPC Sec 13 with respect to validity of foreign divorce. While rest of the sub-sections are clear and lucid, regarding (c), it seems that the law is mute if the two parties voluntarily agree to submit to foreign jurisdiction where they have:

    1. Established their marital home right after marriage and have stayed there for multiple years
    2. domiciled by getting foreign residency (viz green card in US or permanent work permit in UK) while maintaining Indian citizenship.

    and proceed with the divorce by participating in process as required by the local law. In the event, even though such a divorce is obtained under say for example “irreconcilable differences”, shouldn’t such a divorce be valid in India for the sake of, to quote you, “to prevent wastage of judicial time & expense and more importantly to ensure finality and certainty in human relations”? Would it help if the Marriage settlement agreement (but not in the judgement form) clearly mentions that the two parts have agreed to get a divorce by Mutual consent, in order to bring this divorce within the realm of validity in India?

    1. The Question here is not about jurisdiction it’s about the decree being given on a ground alien to Indian Law, the parties cannot create their own law. However in the facts that you state – if we can construe it as a mutual consent decree – then it is indeed valid in India. Furthermore another line of argument would be since it was pretty mutual is that since the spouse has invoked the jurisdiction of the court, he/she cannot challenge it in India, and is bound by the principles of estoppel.

    2. @W.R : If it can be construed as a mutual consent divorce – it would definately sustain in India. As regards the other part of your question – The Supreme Court judgment in Narasimha is clear – that even though parties submit – a divorce won’t sustain if it is not on a ground recognised by Indian Law – they by their submission cannot make their own law.

      1. Thanks, Mr. Chugh.

        Well you mention “if it can be construed…” which makes this a very subjective statement open to varied interpretation but I think I get your point in the sense that if both parties are mutually agreeing to divorce it would sustainable in India and more so if the “Marriage Settlement Agreement” explicitly mentions “divorce by Mutual consent” then I would assume that the intent is quite evident.

        The reason I brought up the domicile and residency points is that with increasing Indian diaspora living in various parts of the world, it becomes very challenging to guarantee that a foreign divorce decree covers all the aspects of CPC sec 13 and point (c) in particular because while the end result is the same i.e. a mutually agreed upon divorce, the legal term used in various countries could be different. Trying the check for its validity in India hence is very frustrating.

  2. Respected Bharat Chugh,
    I am India citizen and my husband is a british Citizen(UK citizen).
    My visia is expiring next week and my husband has given me divorcee petition.
    I am unemployed and my husband has abandon me and I have no funds to support myself.
    My Visia says no Recouse to public funds.
    if I reply back to the court in UK and say my grounds of objection will i be submitting to jurisdiction of UK.

    Grounds of objection
    a. Parties to the present dispute are Hindus by religion and therefore governed by their personal law i.e. Hindu law in the present case;
    b. The marriage was solemnized in Mumbai (State of Maharashtra – India) as per rites and rituals of Hindu law;
    c. The Respondent is domiciled in India and is a citizen of India;
    d. Dissolution of the marriage is governed by the Hindu Marriage Act, 1955 and it cannot be dissolved in any way except as provided under the said Act;

    If I apply for indefinite leave to remain in UK on domestic violence ground will i be again submitting to the jurisdiction of UK.

    What should I do now?
    Should I return back to India?
    What my rights are in this situation?
    Please advice me.
    Please reply back I need help and advice.

    Thanks,

    1. @Ms.Hasmeet : Whether you submit to the jurisdiction of the court or not, what is important is what is the ground on which he has sought the divorce. If it is a no fault divorce, it won’t be recognised in India, if it’s a fault one (cruelty, adultery, desertion etc) then it would be so recognised. In either case it would not sustain in India if you are not able to carry out a decent defence – It’s surprising that you are not entitled to free legal aid, and any trial held without you being possessed of such means would be violative of principles of natural justice and hence not recognised in India. Consult some Indian Organisation/Consulate there for more information.

      Good Luck !

      1. Respected Bharat Chug,

        My husband has filed the divorcee on unreasonable behaviour grounds, that the marriage has broken irretrievably and irreconcilable.
        Instead of I submitting to the jurisdiction in UK.
        Can I challenge the jurisdiction in uk that no such grounds are available in India and I want to start this case in India
        Because of financial constraints, I am unable to engage a solicitor from UK, therefore, I crave leave of this Court in UK.
        Or else Uk court should provide me all the necessary
        provisions to defend including the costs of travel,residence and litigation where necessary,
        Is this possible?
        Please reply back and advice.
        Thanks

    2. Hi Hasmeet
      I am in a similar situation as you were in uk.My husband have desserted me by doing dv n my visa expired.
      could you please help me. If you read this post please reply and I will provide you my contact details. I am in urgent need of your help.
      Thanks.

  3. Hi Hasmeet,
    If u are victim of domestic violence you should make an application for Indefinite leave to remain in UK on those basis. Based on that you would be entitled to legal aid and all other social security benefits until your immigration case status is decided. The help is also available from Indian high commission for destitudes wife’s of NRI’s if there is DV. AND as per decision in Mrs. Anoop Beniwal vs Dr. Jagbir Singh Beniwal decree of divorce granted on the basis of unreasonable behaviour grounds is accepted as an equavelent ground of cruelty. The same should be valid under hague convention 1970 if it is not in clash with CPC SC 13 and Indian evidence act sc.41.
    Mr.Chugh -Please correct me if this law is overturned by any latest decision of supreme court.
    AND ONE QUERY FOR MR. CHUGH: what if decree nisi is passed by england court of competent jurisdiction where both parties have lived for five years, immediately before initiating divorce , both parties have renounced Indian citizenship after getting foreign citizenship. AND now after representing himself through a solicitor and personally in UK court, respondent has decided for judicial adventurism and filed divorce in India to avoid financial settlement in UK and has now stopped appearing in courts but is still corresponding with court via letters and faxes.!!!! please advise as i have a very interesting case recently

  4. Hi, I was married in India but divorced in the US (my ex-wife did contest the case in the US)…I’ve applied for a new passport (as my existing one is expiring) at the Chicago consulate and they are asking me to “legalize divorce decree” in India. How do I go about it? Thanks.

  5. Hi
    Mr.Chugh
    My husband first filed Divorce in India against me based on Irreconcilable differences in India while I was in India. We both got married in India according to hindu Marriage act and I moved to USA in h4 and lived for two yearsin USA and then I went to India when he applied for his divorce case in India first.. Then later he also filed for a petition for divorce in USAIillinois) on the same basis. too while I was still in India. I hired an attorney here in US and fought the case and got his case dismissed based on “forum non Conveniens”. But however I moved to USA to study on F1 Visa and am currently in Texas. My husband again filed a Motion to Reconsider his case which is now granted but however I have been given an Opportunity by the Judge to file a new Amended motion to dismiss my Husband’s divorce case.
    Also note that , my husband claims that he has withdrawn his petition in India. However, I have filed two petitions in India one for restitution of Conjugal rights and the other one for Financial Maintenance. All the cases are still pending in the court in India including his withdrawal case
    My question is can I get a stay order on the US divorce case on the basis that there is case still pending in Indian Court and a foreign court cannot proceed with the case unless the matter has been dismissed or settled in India. A similar case has happened recently where a stay was issued in the US divorce case for 4 years since there was a case in India pending on the same grounds.

    1. Hi Madhu
      is dere any way where i can talk to you.Need some guidance from you as my case is exactly like yours .Kindly help

      thanks in advancE

  6. Dear Cllr Chug,

    I was married in India. My ex husband left me in UK and went away to India and never returned. I have been living alone with my child since. It is now 7+ years since I have separated. UK law allows separation after 5 years. Will this divorce issued in UK be held valid in India? I am currently a UK citizen. Kindly advise.

    Many thanks in advance
    SVG

  7. Mr. Chugh:

    Just over a month ago, my ex-husband & I got a divorce granted to us under grounds of “irreconcilable differences”. Although he filed for it initially, it was eventually “mutually consented for”. A decree for rehabilitative alimony was also passed for him to support me for a period of over 2 years. He is on a H1(work visa) visa and I on F1(student visa). I gather he might be contemplating leaving USA and settling in India for good. Are there mechanisms/provisions in place to safeguard my ability to receive the alimony payments? If he is upto some foul-play and does not intend to pay me the monthly alimony, what are my options to ensure justice per the Hindu Marriage Act, under which we initially got married in 2006?

    Thank you.
    Vidhi

  8. Dear Mr. Respected Bharat Chug,

    1) under which section, a foreign divorce decree is challenged in India ( is it under Sec 13 CPC?)

    2) can we file the divorce challenging suit in family court or district court ?
    if both family court and district courts are there for the same area, in which court we have to file the suit?

    pls reply . many people do not know abt teh procedure.

    thanks in advance.

    Nidi

  9. Dear Mr. Chugh:

    Thank you for your valuable information. I have been married according to Special marriage act in India and i Currently reside in UAE. I have filed a Divorce case in Sharjah Court against my Husband on the grounds of cruelty and seeking custody of children and requested to grant divorce based on Special marriage act. Now the primary Judgement is come after 7 months saying all marriage rights, incubation and expenses for two kids are granted. the judgement is subjected to appeal. we have another 10 days for appeal. But we have come to know that divorce is not according to Special marriage act. Upon asking the lawyer, he said that you cannot be granted the divorce based on special marriage act. now my question is:

    1. Can i get the divorce on the basis of creulty according to Special marriage act in UAE.
    2. will this divorce be valid in India?
    3. If it is not valid in India, What are the procedures to validate in India?
    4. What would be my ex-husband’s position in India if he returns to India (means, can he say take exparte divorce and say that i have kidnapped the kids – he is planning to leave to INdia) ?

  10. Dear Mr. Chugh,

    I am writing to you to seek your guidance to file for a mutual divorce in Florida, USA.

    I am an Indian & on an L1 Visa in Florida, USA since March’13 & we are married as per Hindu Marriage Act in India on March’12.

    We as a couple want to file for mutual divorce in US which is acceptable in India as we both will go back to India by the end of this year. I read your post & realized that any reason of divorce except Cruelty/Adultery/Desertion/Impotency are not recognized in India; So I wanted to seek your help as on which ground shall we file a divorce in US.

    We would really like to get out of our marriage as soon as possible on ground of “irreconcilable differences” but not sure if that would be accepted in India.

    Can you be son kind to please advise me on this.

    With Best Regards
    Ajay

  11. Hello Mr Bharat

    I appreciate your effort for this informative article but I’m confused where you said mutually divorced on no-fault base model is not valid in India.

    I’m in US for last 7years on work visa and got married in Feb 13 2013 in India. I applied H4 for my wife when I was with her for 2 weeks in India and flew to US after that. She was supposed to join me in May after her completion of MBA. As our relation went sour we stopped talking and in June I came to know that she is US on F1 visa and our marriage was never consummated.

    As things didn’t work out we decided to mutually get divorced in Washington state which is my primary resident sate. As it is a no-fault state, divorce is granted on marriage ”irretrievably broken” and no body is faulted for the breakdown. But you mention in your article that Section 13 of CPC doesn’t accept foreign divorce decree on this basis but at the same time you say mutually consented divorce are valid.

    I was ready to start the no-fault procedure by starting co-petition application but I’m confused whether to proceed or not because Washington state family court divorce decree would be granted saying “irretrievably broken” even though it is a uncontested mutually consent divorce.Please advice if I can proceed with this.

    Thanks

    Sandeep

  12. Hello Mr. Bharat,

    How much time does it take to legalise a foreign divorce in India..?
    please share the specifics with me..!

    thanks in advance

  13. Dear Sir

    I have couple of questions relating to this article.

    1. The marriage took place in India. If the petitioner in the foreign court is the wife (Indian national) in the divorce and subsequently divorce settlement filed against the husband (foreign national), is the divorce and settlement (full and final), both being mutual consented, granted by the foreign court will be automatic valid in India?
    2. If both are valid, will/can the ex-wife be entitled redress for any further settlement via the Indian courts? Example claiming stridhan even if this matter was disclosed in the divorce settlement proceedings in foreign court before mutual consented agreement? If there is redress, what are the grounds?

    Any feedback is greatly appreciated.

    Kindly look forward to your reply.

    Thanks.

    Sanil.

  14. A Christian Male and Hindu Female get married in India and their marriage is registered under the Special Marriages Act in 2009. They both travel to UK, the husband first, followed by the wife after a few months. Their marriage was not consummated neither in India nor in the UK. They consulted with marriage counsellor in the UK and were advised to go for annulment. After the 6 years of living together, they have separated and live in separate towns. The couple has mutual respect but as friends, as they were before their marriage. They both have agreed to go for annulment in the City where the wife is residing (the same place where they first and last lived together). Both have obtained UK citizenship recently.
    The ground of annulment viz. unconsummated marriage is present in the British and Indian Laws.
    Kindly advise if they should take annulment decree in the UK or India or both, if so which one first.

    1. In India, as per the Special Marriage Act, annulment can happen only if non-consummation is a result of refusal of the respondent. It can never be joint petition where both the parties give their consent. Such a petition is likely to be dismissed in India, on account of being collusive. You will be well advised to seek a divorce by mutual consent in India. Regards – R.P.Chugh (rpchughadvocatesupremecourt@hotmail.com)

      1. Dear Advocate Mr. Bharat Chugh, Thank you for your valuable advice.Arun Draviam

        From: Advocate Bharat Chugh on the Laws of India To: arundraviam@yahoo.co.in Sent: Tuesday, 11 October 2016 5:53 PM Subject: [New comment] Validity of Foreign Divorce Decree in India ? Does your UK/US divorce stand ? #yiv1313994495 a:hover {color:red;}#yiv1313994495 a {text-decoration:none;color:#0088cc;}#yiv1313994495 a.yiv1313994495primaryactionlink:link, #yiv1313994495 a.yiv1313994495primaryactionlink:visited {background-color:#2585B2;color:#fff;}#yiv1313994495 a.yiv1313994495primaryactionlink:hover, #yiv1313994495 a.yiv1313994495primaryactionlink:active {background-color:#11729E;color:#fff;}#yiv1313994495 WordPress.com R P Chugh commented: “In India, as per the Special Marriage Act, annulment can happen only if non-consummation is a result of refusal of the respondent. It can never be joint petition where both the parties give their consent. Such a petition is likely to be dismissed in India” | |

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