“Principles governing matters within the divorce jurisdiction are so conflicting in different countries that not un-often a man and a woman are husband and wife in one jurisdiction but treated as divorced in another jurisdiction.”
The above-mentioned observation made by the Supreme Court of India in the judgment of Satya v. Teja Singh[1] describes the issue which arises when a marriage is formalized under Indian law, but the party seeks divorce in another jurisdiction. Well, Marriage is considered a "sacred institution" in India. When two parties marry, they are usually governed by the laws under which they marry. Two such parties usually marry under their own personal laws, which usually have statutory force. The simple word used in it is "marriage". In India, various personal laws govern marriages. Marriages can be solemnized through statutory or customary laws. However, the jurisdictional issues faced in cases of divorce where two different countries are involved rest largely upon the domicile of the parties. Hence, it becomes pertinent to take a close look at the concept of domicile.
What is domicile? The common law concept of domicile is derived from Roman law. Domicile is basically a connecting factor that links a person with a legal system. It determines what personal laws are applicable on a person and how his legal relationships are to be regulated. Hence, in the matters of marriage and divorce, domicile plays a very important role in determining the legal system which is to be made applicable on a person under conflict of laws rule. This further helps in solving the dilemma of jurisdiction as a person cannot possess two domiciles at the same time.
Now, two different situations might arise – First, where both the parties seek divorce by mutual consent, and second, when one of the parties want divorce while the other one contests it. In case of the first situation, the legal issues are not largely involved. While, in the second situation, the personal laws and other legal aspects come into picture. In addition to this, issues might also arise when one of the parties fails to attend the proceedings in a foreign court. Such cases have arisen in past and clear stand have been taken by the Supreme Court in context of these which are discussed below in detail.
When parties attend and participate in the divorce proceedings:
In cases, when divorce proceedings are undergoing in a foreign jurisdiction and both the parties actively attend and participate the same, the chances of an Indian court entertaining a fresh divorce case between the same parties are very low. In such cases, the parties submit to the authority of a foreign court, and bringing the same matter to another court in case of an unfavorable judgment would amount to "forum shopping". Thus, having attended and having participated, the non-applicant (respondent) in the foreign court cannot complain that he/she was not heard, if the respondent had voluntarily submitted to the jurisdiction of the foreign court. The respondent is free to make an alternative plea under the jurisdiction of the foreign court for grant of alimony or monthly maintenance. To adjudicate the same, the foreign court would be free to follow laws laid by its own land. Another form of “attend and actively participate” is when the non-applicant consents to the passing of the decree of divorce.
In the case of Mrs. Anoop Beniwal v. Dr. Jagbir Singh Beniwal[2], the Delhi High Court faced a similar question. A divorce decree was granted in this case by a UK court. Both the parties actively participated in the proceedings. However, afterward, the wife contested the divorce decree in an Indian court. The Supreme Court observed in this matter that both the parties had ample opportunity to present their case before the UK court and the case was not against natural justice. Further, the element of fraud was not present and the case was decided on merit. Hence, the court took into account that the woman had submitted to the authority of the UK court and refused to entertain the matter afresh.
When parties do not attend the divorce proceedings:
In such cases where the proceedings are going on in a foreign forum, there are chances that one of the parties does not attend due to some reasons including non-service of notice. This would be taken as the non-applicant did not submit to the jurisdiction of the foreign court. This, however, does not mean that the non-applicant is not even required to be served in the foreign court proceedings. Non-service would amount to the denial of opportunity to be heard.
The non-applicant/respondent must be served with notice of the foreign court proceedings. Or else, the proceedings would be taken in law to be a nullity i.e. of no value in law. If this is a situation, Indian courts are likely to declare the entire foreign court proceedings as void.
Such an issue came for consideration before the Supreme Court of India in Y. Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi and Anr.[3]In this case, both the parties were married as per Hindu customary law. Three years later, the husband filed a divorce petition in a Circuit Court in the USA. A reply was sent by the wife from India under protest. The Circuit Court, however, passed a divorce decree in absence of the wife. Some years later, the husband married another woman. Due to this, a criminal complaint was filed by the Mrs. Venkata Lakshmi for bigamy against Y. Narsimha Rao. The court faced the question that whether the first marriage was dissolved in light of the decree passed by the USA court. The Supreme Court answered this issue in negative and refused to recognize the divorce decree granted by the USA court.
In the judgment, the court also cleared the position of Indian law in such matters. The court observed 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.’ The essence of this judgment is that if two people are married as per their personal law, then the divorce and the grounds for divorce must be in accordance with the same personal law.
The court also chalked out exceptions to this. According to the judgment, ‘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 of the matrimonial law of the parties.’ Here, exception (i) finds its basis in the concept of domicile. It can also be observed from the above-mentioned exceptions that in cases where both the parties attend divorce proceedings in a foreign jurisdiction and submit to the same, they fall under exception (ii) chalked out in this case. Similarly, exception (iii) concerns itself with divorces which take place with mutual consent.
Other relevant provisions in Indian law:
As it has already been mentioned, marriages in India are governed in accordance with the personal laws applicable to the parties. As per the view taken by the Supreme Court in a number of judgments, divorce is also to be governed as per the same personal law unless the case falls under any exception.
Now, in addition to these, Section 13 of Code of Civil Procedure is also relevant in such cases. The said provision deals with the conclusiveness of a foreign judgment. As per Section 13, 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 recognize the law of 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; and
f) Where it sustains a claim founded on a breach of any law in force in India.
The provision mandates that a foreign judgment has to pass the 6 tests laid down. In cases of divorce obtained from a foreign court, if the decree does not fall under the six above-mentioned heads, it can be said to be conclusive. One of the important effects of this provision on such divorce decrees is that it makes it mandatory to be decided on merits of the case. In the case of Y. Narasimha Rao v. Y. Venkata Lakshmi[4], the court reiterated the importance of this requirement.
Briefly, the expression “where it has not been given on merits of the case” was commented upon by the Supreme Court of India in International Woollen Mills v. Standard Wool (UK) Ltd.[5] The view taken was when evidence was led by the plaintiff applicant in the foreign court, even though the opposite side may have been served but not appearing, the decision would be “on merits”. This Court concurred with the law laid down in another case which stated that: A decision on the merits involves the application of the mind of the Court to the truth or falsity of the plaintiff's case and therefore though a judgment passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed ex parte, a decision passed without evidence of any kind but passed only on his pleadings cannot be held to be a decision on the merits.
Probable consequences of an invalid divorce decree:
Under the domain of conflict of laws, a divorce decree can be held to be invalid due to a number of reasons. A number of questions then arise regarding the status of marriage. Some consequences arising from the invalidity of a foreign divorce decree are as follows:
a. Subsistence of marriage: due to invalidity of the divorce decree, the marriage subsists and hence, the parties have a marital relation with each other. Invalidity of divorce decree renders the marriage as valid in eyes of the law.
b. In event of second marriage: in such cases, the charges of bigamy can be successfully leveled against the party remarrying. Further, the second marriage would be invalid.
c. Share in property: the wife would be entitled to get a share in the property of the husband.
These are some of the probable consequences arising due to an invalid divorce decree. It can be said that implications of an invalid divorce decree can arise many years later too.
Execution of a foreign divorce decree:
A foreign court decree can be executed in 2 ways in India which are as follows:
A. Filing for the execution of foreign court decrees passed in reciprocating territories under Section 44Aof the CPC read with Section 13 of the CPC:
Section 44A states that a decree passed by Courts in reciprocating territories can be executed in India as if the decree was passed by the Indian Courts. These “reciprocating territories” are notified by the Central Government in the official gazette by way of notification.
The Supreme Court held that a foreign judgment which does not arise from the decree of a superior court of a reciprocating territory cannot be executed in India. It ruled that a fresh suit will have to be filed in India on the basis of the foreign judgment. For the purpose of this, a “superior court” is a court that has both civil and criminal jurisdiction, and also has the jurisdiction to hear appeals.
B. Filing for the execution of foreign court decrees passed in non-reciprocating territories:
In Marine Geotechnics LLC v.Coastal Marine Construction & Engineering Ltd.[6], the Bombay High Court observed that in case of a decree from a non-reciprocating foreign territory, the decree-holder should file, in a domestic Indian court of competent jurisdiction, a suit on that foreign decree or on the original, underlying cause of action, or both.
The decree-holder cannot simply execute such a foreign decree. He can only execute the resulting domestic decree. In case of a non-reciprocating territory, the decree-holder must file a suit on the foreign decree. Only once the suit is allowed can it be executed as a domestic decree in terms of Order 21 of the Code of Civil Procedure. To obtain that decree, he must show that the foreign decree, if he sues on it, satisfies the tests of section 13 of the CPC as earlier discussed.
A suit on a foreign judgment/decree must be filed within a period of three years from the date of the judgment/decree under Article 101 of The Limitation Act, 1963.
Conclusion:
The question of validity of foreign divorce decree involves elements of both Private International Law as well as Indian domestic law. The complex interplay of both domestic as well as international law gives rise to some practical problems. As different countries of the world have different laws related to marriage and divorce, marriage in one country and divorce in another might prove detrimental to the interests of one of the spouses. The Supreme Court of India has cleared the stand of India in a number of cases while addressing such concerns. Hence, the law in India recognizes only such foreign divorce decrees in which both the parties have submitted to the jurisdiction voluntarily. Further, another important requirement is that the case must have been decided on grounds which are permitted under the applicable personal law. This view of the Supreme Court has not seen any change since a long time and somehow helps in simplification of nuances surrounding foreign divorce decrees.
This research work for this article is done by Ms. Nimisha Srivastava (5th Year student pursuing B.A. LL.B(Hons.) from National Law University, Orrisa), and Mr. Pushpit Singh (2nd Year student pursuing B.B.A. LL.B. from Symbiosis Law School, Hyderabad), during their internship with S&D Legal Associates.
[1] AIR 1975 SC 105. [2] AIR 1990 Del 305. [3] (1991) 3 SCC 451. [4] Ibid. [5] (2001) 5 SCC 265. [6] Marine Geotechnics LLC v. Coastal Marine Construction & Engineering Ltd., 2014 (2) Bom. C.R. 769. (Image Source: usatoday.com)