Undeniably most of the Indians from the states such as Punjab, Haryana, and Gujarat have immigrated to foreign counties including Canada, Australia, US, and UK, etc. The majority of these NRI litigants find it difficult to travel to India for the sole purpose of matrimonial litigation; therefore, they opt to initiate legal proceedings in their country of living. However, this practice is mostly preferred in divorce cases, legal separation and child custody, etc. Without a doubt, the breakdown of the matrimonial institution may land a person into a complex situation due to various associated things with this institution. In the case of an NRI couple, the matter could be more complicated because Indian citizens staying abroad and facing matrimonial issues often find themselves in the dilemma of whether to file a divorce in a foreign country or not.
What is provided under the law?
Like other developed nations Indian law also has an optimistic and internationally acceptable approach for legalizing foreign judgments. As per Section 13 (a) of the Civil Procedure Code, 1908 hereinafter referred to as ‘CPC’, a foreign judgment is conclusive which is adjudicated by any foreign court of competent jurisdiction subject to certain conditions. Now the question arises what are those conditions? These conditions are explained below: –
It should be pronounced by the court having competent jurisdiction: – The court of competent jurisdiction would be a place where the parties have performed marriage or where the parties last resided together, or where the person is residing against whom the proceedings have been initiated.
It must be adjudicated on the basis of merits: – If the opposite party has not been given an opportunity to appear or lead the evidence, it will not be considered decided on merits. Thus, the ex-parte foreign decree will not be recognized by the Indian courts.
It should be delivered on the basis of grounds recognized by the Indian law: – Meaning thereby only on the grounds under which the divorce can be granted in India the foreign divorce decree must be founded on those grounds. To illustrate, cruelty, adultery, desertion are some grounds for divorce in India. In Narsimha Rao and Ors. Versus Y. Venkata Lakshmi and Anr.,1991 SCR (2) 821, the Hon’ble Supreme Court held that “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.”
Proceedings of the judgment must be in accordance with natural justice: – The best example of this is a situation where the respondent is in a foreign country and could not join the proceedings. Under these circumstances, the foreign divorce decree is not valid in India.
It should not be obtained by fraud: – Judgement or decree obtained by fraud or coercion could not be executed in India.
It must not breach any law in force in India: – If any part of the judgment is found to be in breach of any law enforceable in India then it will not be recognized in India.
Presumption regarding the foreign judgment
As per Section 14 of CPC, the court shall presume a certified copy of the foreign judgment to be a judgment pronounced by a court of competent jurisdiction unless any evidence in contrary is produced on the record. However, such presumption could be shifted by proving want of jurisdiction.
What if the parties actively attend the proceedings?
When divorce proceedings are going on in a foreign land and both the parties actively participated in the same, then the chances of an Indian court entertaining the same matter are very less. In Mrs. Anoop Beniwal Versus Dr. Jagbir Singh Beniwal, AIR 1990 Delhi 305, the Hon’ble Delhi High Court refused to entertain the matter by considering the fact that both the parties had ample opportunities to present their case before the UK Court and the case was not against the natural justice.
What if parties do not attend the proceedings?
There are chances that one of the parties does not attend the divorce proceedings owing to some reasons such as non-service. This would imply that the non-applicant did not submit to the foreign court’s jurisdiction. In such a scenario, an Indian Court may hear a challenge to a foreign court’s divorce decree.
Doctrine of Comity
According to this principle, all courts around the globe decide the rights of the parties and, as a result, demonstrate mutual respect. This principle originated by the Courts of England, which was later recognized by the Hon’ble Apex Court. In a case titled Alcon Electronics (P) Ltd Versus Celem S.A. of FOS 34320 Roujan, France, 2016 SCC Online SC 1444, the Hon’ble Supreme of India observed that “the principles of comity nation demand us to respect the order of the English Court. Even in regard to an interlocutory order, Indian Courts have to give due weight to such order unless it falls under any of the exceptions under Section 13 of the CPC.”
Execution of foreign divorce decree in India
There are two ways to enforce a foreign divorce decree. Firstly, if a judgment has been passed by a court of reciprocating territory then an execution petition can be filed under Section 44-A of the CPC. Secondly, by filing suit upon the foreign judgment/decree if such judgment/decree is passed by any non-reciprocating territory.
Reciprocating territories means any country or territory outside India which has been declared a reciprocating territory by Central Govt. by notification in Official Gazette for the purpose of foreign judgments. The countries such as the United Kingdom, Singapore, Bangladesh, United Arab Emirates (UAE), Malaysia, New Zealand, etc. come under the list of reciprocating territories.
In which court an execution of a foreign divorce decree can be filed in India?
As per the provisions of CPC, a judgment from a reciprocating territory seeking enforcement in India can be filed before the district court having jurisdiction to entertain the matter. If the judgment or decree has been passed by a court of a non-reciprocating territory, then a suit must be filed before the competent Indian Court.
From the above discourse, it can be concluded that a divorce decree passed by the foreign court has either to be executed under Section 44-A of CPC or a fresh suit has to be filed based on the foreign judgment. However, a foreign divorce degree is considered to be conclusive under Section 14 of CPC only if it fulfills the conditions specified under Section 13 of the Code.
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali