General Principle of Law (Section 13 CPC). A foreign divorce decree is recognized and is considered final and valid in courts in India, unless the decree is legally flawed under general and divorce laws.
When Foreign Divorce Decree Not Recognized
1. Where foreign court not authorized to grant divorce decree. Example: the divorce decree is passed by a court that does not have jurisdiction (meaning authority to decide) over the divorce matter, and the parties under divorce laws in India. This is the question of law, and requires careful examination of divorce laws of foreign country and India.
Generally, the court of place where marriage is solemnized (normally India) or where the parties last resided together as husband and wife, and where the opposite party resides (non applicant) has jurisdiction to decide the divorce.
2. Parties to the divorce must had opportunity to represent their case in the foreign court. If either party could not and did not get notice and full and fair opportunity to present their case before the foreign court, then the divorce judgment is improper and invalid and will not be recognized by courts in India.
When one party files the divorce case and serves divorce summon on the other party and the other party goes away to India, does not participate in the divorce proceeding before the foreign court, and the foreign court passes divorce decree based on the case present by only one party before the foreign court, then the courts in India will recognize the divorce decree passed by foreign court. However, the court in India may refuse to recognize the foreign divorce decree if there is any evidence that party could not be present in foreign court because of hardship or other problem. The court in India will look for evidence of fairness, good faith, and diligence of each party.
3. Foreign court granted divorce on a ground not recognized by Indian divorce law. Where the foreign court has granted divorce based on ” ‘irreconcilable difference or irretrievable breakdown of marriage or similar no fault ground’ then court in India will not recognize the foreign divorce because this is not a ground for divorce under Indian divorce law. Therefore, people from India getting no fault divorce in US can find that their foreign divorce may not be recognized by court in India and still married to the other party.
4. When the foreign divorce proceedings are against principles of Natural Justice. The principles of natural justice require that each party should have full, fair and legal opportunity to present their divorce case before the competent foreign court.
Let’s consider the situation where a party is in India and the other party files for divorce in a foreign court. So where a party in India is served with the summons of the divorce case (i.e. notice of case filing is sent and received by party in India), and the foreign court passes divorce decree, then such foreign divorce generally is recognized by courts in India unless there is clear evidence the party in India did not have ample opportunity to go to foreign court, and present the case in the foreign court. The court in India examines each foreign divorce decree closely to ensure parties had full and fair opportunity to participate in the case in the foreign court.
5. If there is fraud committed by a party to get the foreign divorce. If the examination of the foreign decree by court in India finds that one party in foreign court misrepresented facts on which foreign court granted the divorce decree then such decree will not be recognized by court in India. This can lead to a situation where a party may be divorced (and single) in foreign country yet be legally considered married under Indian law which can lead to bigamy charges against the foreign divorced party.
1. It is common that the party not pleased with foreign divorce decree will contest the foreign decree in court in India.
2. Proper court procedure should be initiated and followed to get every foreign divorce recognized in by divorce court in India.
3. Validity of foreign decree by courts in India is a complex and difficult matter and involves thorough examination of all facts.
The information in the blog is very general and is not a legal advice for any situation of foreign divorce decree. Always seek legal opinion of a lawyer.