In my practice life, I frequently face clients who married in India as per the provisions of either Hindu Marriage Act or Special Marriage Act and went to foreign country and stayed some time as husband and wife there. Thereafter disputes arose between them and one of them filed divorce petition in Foreign Court and obtained order for dissolution of marriage either on mutual consent basis or on contest basis. Now their question remains whether such order of foreign court has any validity or recognition in India!

Before going into the depth of the subject, I want to reproduce the some provisions of law for easy understanding of the issue:

Section 13 and Section 14 of Code of Civil Procedure, 1908 deals with the foreign judgment:

13. When foreign judgment not conclusive.-

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of {Subs. by Act 2 of 1951, s.3, for "the States".} [India] in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in {Subs. by Act 2 of 1951, s.3, for "the States".} [India].

14. Presumption as to foreign judgments.-

The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment' that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

Therefore, Section 13 of the CPC clearly states that foreign judgment shall be conclusive as to any matter thereby directly adjudicated subject to certain exceptions. So from a bare reading of this section alone one can come to the conclusion that judgment by a foreign court for dissolution of marriage which was solemnised in India is a valid one.

However, before forming any opinion, various decisions of the Hon'ble Courts should be read from which different conclusion might arrive at.

In this matter, the observation of the Hon'ble Supreme Court in Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr on 9 July, 1991 was as follows:

12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted 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 th sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life. 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. We are of the view that 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.

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 ignored and deemed inappropriate.

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 b 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 we find 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 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, (supra) 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.

13. .................. the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the 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.

So first of all, we can say that the judgment of foreign court in connection with mutual divorce are above the question of challenge as in these cases both the parties give consent 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. This consent of jurisdiction comes under the provisions of Contract Act whereby parties can decide mutually over the jurisdiction or waive the jurisdiction of one court and they can choose one forum for deciding their disputes.

Now the question comes when the dispute is a contested one i.e. in the cases of contested divorce. For a contested divorce for the marriage solemnised in India, the grounds of divorce should that of the available as per the provisions of Indian Law. For example in USA irretrievable break down of marriage is one of the ground for contested divorce which ground is not recognised in the Hindu Marriage Act or Special Marriage Act. So divorce decree from a foreign Court on this ground shall have no effect in India.

Secondly if the plaintiff purposefully started residing in a country out of India to file a case after months residing (for example if a person resides continuously for a period of six months or so in any province in USA, as per USA law he becomes entitled to file a divorce case in USA) in order to create a hurdle for the respondent to contest the case and gets divorce without leaving any scope for the respondent to contest the case, in these cases that divorce decree shall no recognition in India.

Hon'ble Madras High Court while deciding a case between Balasubramanium Guhan vs T. Hemapriya observed that to constitute domicile, two factors are essential i.e., (i) residence and (ii) intention to make a home. Domicile shall be classified into three categories i.e., (i) domicile by birth or origin (ii) by choice and (iii) by operation of law. The domicile of choice is acquired by combination of fact and intention. A man acquires a new domicile by taking up residence in a Country, which is not that of his domicile or origin and it is so with the intention that his residence should be permanent. To establish a change from domicile of origin to one of choice, cogent evidence is necessary and mere expression of intention is not sufficient. Hence, in the case on hand, the dispute regarding domicile can be decided only in the extensive trial of the suit.

The Hon'ble Madras High Court while deciding a case between Bhashyam Ramesh @ Rajagopalan vs R.Saroja @ K.K.Saroja on 24 February, 2012 came across the fact that the husband filed divorce case in USA and the wife on receiving notice of the same sent letter to the Hon'ble USA Court to Honour the notice of the court where she expressed in inability financially and otherwise to come and contest the suit in USA and also challenged the jurisdiction of the Court in USA. Now the vital question arose as to whether sending letter to the concerned USA court amounts to submitting herself to the jurisdiction of the USA court! The Hon'ble Madras High Court observed that " .... If the written submissions are considered then it would be evident that the wife has offered a proposition challenging the very jurisdiction of the court for consideration. It will not amount to submitting herself to the jurisdiction of the court. 7.6. What is crucial is that the wife has challenged jurisdiction of the Foreign Courts. Only, if a party applies for leave to participate in the proceedings without challenging the jurisdiction one can infer that the party has submitted to the jurisdiction of the Court. But, in this case, the wife on receipt of summons has challenged the jurisdiction of the Foreign Court. While so challenging the wife has categorically stated that due to financial and legal constraints her access to justice has been denied. The contents of written submissions made by the wife to the Superior Court of California itself would clearly go to show that the respondent/wife neither wanted to participate in the proceedings nor subjected herself to the jurisdiction of the Foreign Court, either voluntarily or involuntarily. Under such circumstances, the contention that she has submitted herself to the jurisdiction of the Foreign Court cannot be accepted.If the written submissions are considered then it would be evident that the wife has offered a proposition challenging the very jurisdiction of the court for consideration. It will not amount to submitting herself to the jurisdiction of the court. 7.6. What is crucial is that the wife has challenged jurisdiction of the Foreign Courts. Only, if a party applies for leave to participate in the proceedings without challenging the jurisdiction one can infer that the party has submitted to the jurisdiction of the Court. But, in this case, the wife on receipt of summons has challenged the jurisdiction of the Foreign Court. While so challenging the wife has categorically stated that due to financial and legal constraints her access to justice has been denied. The contents of written submissions made by the wife to the Superior Court of California itself would clearly go to show that the respondent/wife neither wanted to participate in the proceedings nor subjected herself to the jurisdiction of the Foreign Court, either voluntarily or involuntarily. Under such circumstances, the contention that she has submitted herself to the jurisdiction of the Foreign Court cannot be accepted.If the written submissions are considered then it would be evident that the wife has offered a proposition challenging the very jurisdiction of the court for consideration. It will not amount to submitting herself to the jurisdiction of the court. 7.6. What is crucial is that the wife has challenged jurisdiction of the Foreign Courts. Only, if a party applies for leave to participate in the proceedings without challenging the jurisdiction one can infer that the party has submitted to the jurisdiction of the Court. But, in this case, the wife on receipt of summons has challenged the jurisdiction of the Foreign Court. While so challenging the wife has categorically stated that due to financial and legal constraints her access to justice has been denied. The contents of written submissions made by the wife to the Superior Court of California itself would clearly go to show that the respondent/wife neither wanted to participate in the proceedings nor subjected herself to the jurisdiction of the Foreign Court, either voluntarily or involuntarily. Under such circumstances, the contention that she has submitted herself to the jurisdiction of the Foreign Court cannot be accepted.If the written submissions are considered then it would be evident that the wife has offered a proposition challenging the very jurisdiction of the court for consideration. It will not amount to submitting herself to the jurisdiction of the court. 7.6. What is crucial is that the wife has challenged jurisdiction of the Foreign Courts. Only, if a party applies for leave to participate in the proceedings without challenging the jurisdiction one can infer that the party has submitted to the jurisdiction of the Court. But, in this case, the wife on receipt of summons has challenged the jurisdiction of the Foreign Court. While so challenging the wife has categorically stated that due to financial and legal constraints her access to justice has been denied. The contents of written submissions made by the wife to the Superior Court of California itself would clearly go to show that the respondent/wife neither wanted to participate in the proceedings nor subjected herself to the jurisdiction of the Foreign Court, either voluntarily or involuntarily. Under such circumstances, the contention that she has submitted herself to the jurisdiction of the Foreign Court cannot be accepted......."

In Pritam Ashok Sadaphule vs Hima Chugh the brief facts was the husband got ex parte divorce decree from a UK court and the wife challenged the same in India and the matter came up before the Hon'ble Delhi High Court when Hon'ble Court observed that the divorce granted by the Ilford County Court in UK is an ex parte divorce decree. Respondent never submitted herself to the jurisdiction of the said court. Respondent lodged a representation dated 15.6.2011 before the Ilford County Court informing that she was in India when the divorce petition was filed. She also informed that she was in acute financial difficulty to come to London to contest the divorce case. She wrote in detail about her financial condition and also informed that she had already filed a divorce petition in India. She requested the Ilford County Court not to make the divorce decree "absolute". Respondent also filed CS(OS)2610/2010 before this court praying for grant of a decree of permanent injunction against the petitioner from continuing with the divorce petition before the court in UK. In these circumstances, it cannot be said that she had submitted to the jurisdiction of the foreign court and decree of dissolution of marriage granted by the Ilford County Court, Essex, UK cannot be recognised as the facts of the case fall within the purview of the exceptions of Section 13 of CPC.

Anubha v Vikas Aggarwal was a case in which the issue was whether the decree of 'no fault divorce' obtained by the husband from a Court of the United States of America (USA) could be enforced on the wife when their marriage was solemnised as per the Hindu rites and the wife had not submitted to the jurisdiction of the Court in USA and had not consented to grant of divorce. The facts of this case were that the plaintiff, the young wife, was seeking decree of declaration that she was entitled to live separately from her NRI husband, the defendant, and also for a decree for maintenance in her favour besides the pendente lite expenses as she had been deserted and abandoned by him very soon after the marriage, after being subjected to cruelty. During the pendency of the suit when the wife learnt of divorce petition having been filed by the husband in the USA, she also approached the court to restrain that action from proceeding in the USA whereupon the Court passed the order restraining the defendant from proceeding further in the Court in the State of Connecticut, USA for a period of thirty days. However, inspite of the order the husband proceeded with the "No Fault Divorce Petition" proceedings in the US. When this fact was brought to the notice of the Court in India, the Indian Court passed an order asking the defendant for recording of the statement under Order X of the CPC and on his failure to appear, his defence was struck off and contempt proceedings were initiated. After the husband obtained the decree of divorce despite all these, the question that arose foremost for determination was whether the decree of divorce obtained from the Court at Connecticut in the USA during the pendency of the proceedings of the case in India in the given facts and circumstances was enforceable in law or not.

The Court held that the ground on which the marriage of the defendant was dissolved is not available in the Hindu Marriage Act. The parties were Hindus, their marriage was solemnised according to the Hindu rites. Their matrimonial dispute or relationship was, therefore, governable by the provisions of Hindu Marriage Act. Since the plaintiff did not submit to the jurisdiction of the USA Court nor did she consent for the grant of divorce in the US Court the decree obtained by the defendant from the Connecticut Court of USA was held to be neither recognisable nor enforceable in India.

In Paul Tushar Biswas vs Addl. Dist. Judge and another the Hon'ble Gauhati High Court observed that decree dissolving the marriage passed by the foreign Court is without jurisdiction according to the Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. The decree is also passed on a ground, which is not available under the Act, which is applicable to the marriage.

In Hemavathi Shivashankar vs Dr Tumkur S Shivashankar the Hon'ble Karnataka High Court observed that the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the 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 Hon'ble Court further observed that having regard to the subsequent events, whereby the appellant has instituted further proceedings before the American Courts over a period of several years and has derived the benefit of the decree of divorce, she had impliedly accepted the decree of divorce and submitted to the jurisdiction of the forum, although, the jurisdiction of that forum was not in accordance with the provisions of the matrimonial law of the parties. It would clearly fall within the exception to the rule that the jurisdiction assumed by the 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 were married. This is one of the exceptions as pointed out by the apex Court in the case of Y.Narasimha Rao.

Dwelling on the elemental rules of Private International Law and noticing the absence of any enacted rules therefor in the country, the Apex Court, to ensure certainty in the matter of recognition of foreign judgment in India, laid down the guidelines for elucidation of Section 13, CPC. It held the view that the principles of interpretation so evolved were called for to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience as well as to protect the sanctity of the institution of marriage and the unity of family, the cornerstones of our social life.

In Prachi Narayan vs Lalit Narayan the Hon'ble Delhi High Court observed that moot question which falls for consideration in this petition is whether foreign judgment is based on a ground, which is not recognized as valid ground for grant of divorce in this country. A bare perusal of foreign judgment makes it amply clear that divorce has been granted on the ground that marriage in question has broken down irretrievably with no possibility of reconciling. Thus, foreign judgment relied upon by petitioner is not recognized by the Courts in this country as the instant case comes within the ambit of Second Part of Clause C of Section 13 of CPC.

Stay Issued upon plaintiff in the suit instituted in Foreign Court by Indian Court to proceed with the case:

In Harmeeta Singh vs Rajat Taneja the Hon'ble Delhi High Court after relying upon the observation of the Hon'ble Apex Court in Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr observed as follows: "it is in the above circumstances, till the next date of hearing, I restrain the Defendant (Husband) from continuing with the proceedings in the United States of America arising out of File No. 2-3-06139-1SEA pending in the Superior Court of Washington County of King, Judge / Commissioner Richard D. Eadi / Richard A. Jones. I further direct the Defendant to place a copy of this Judgment before the Judge of the Superior Court of Washington County of King for his worthy perusal."

Cases referred to:

1. Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr on 9 July, 1991 by the Hon'ble Supreme Court of India.

2. Pritam Ashok Sadaphule vs Hima Chugh on April 22, 2013 by Hon'ble Delhi High Court;

3. Harmeeta Singh vs. Rajat Taneja decided on 23.01.2003 by the Hon'ble Delhi High Court;

4. Balasubramanium Guhan vs T. Hemapriya decided on 25 February, 2005 by the Hon'ble Madras High Court;

5. Bhashyam Ramesh @ Rajagopalan vs R.Saroja @ K.K.Saroja on 24 February, 2012 decided by the Hon'ble Madras High Court;

6. Anubha v Vikas Aggarwal decided on 27.09.2002 by the Hon'ble Delhi High Court;

7. Paul Tushar Biswas vs Addl. Dist. Judge and another decided on 21.11.2005 by the Hon'ble Gauhati High Court

8. Prachi Narayan vs Lalit Narayan on 25 November, 2014 Delhi High Court

For further study, reading of the following judgments is suggested;

9. Hemavathi Shivashankar vs Dr Tumkur S Shivashankar on 5 July, 2012 Karnataka High Court

10. Ms.Dorothy Thomas vs Mr.Rex Arul on 27 July, 2011 Madras High Court

11. Rupak Rathi vs Anita Chaudhary on 9 April, 2014 Punjab-Haryana High Court

12. Smt. Ivy Sarkar (Majumdar) vs Sri Sandip Majumdar on 14 July, 2010 Calcutta High Court

13. 219Th Report On Need For Family Law Legislations For Non-Resident ... Law Commission Report

14. David C. Arumainayagam vs Geetha C. Arumainayagam on 23 November, 1994 Madras High Court

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.