Migration is an ongoing process that never stops; as far as India is concerned, its large number of youths and business fellow citizens are looking for overseas opportunities. The special and technical skills of the Indian youth find them lucrative jobs abroad, and when they moves abroad they witness a different culture, lifestyle and the social values but still they get themselves adjusted but when they failed to do so, temperament apart, the inability to accept the new lifestyle often lead to matrimonial disputes, for resolution of such disputes one or the other party avails the remedies as available to them under the legal system of a Country of their dreams. In a large number of cases, one of the parties may return to the country of his or her origin for family support and stability. In cases where the parties are living in different countries and one of the parties file divorce petition in the Court of adoptive Country or say Foreign Court then there arises many issues for adjudication pertaining to the jurisdiction of the Courts, the principle of Comity of Nations and other rules of the Private International Law while adjudicating the petition for divorce.
There are many ways to end a marriage, but the legal process, which is universally accepted, is divorce for which the party applying for it has to approach the Court of Competent jurisdiction. When a couple is mutually agreed to part their ways they can apply for divorce by way of mutual consent but when either party to a marriage is not agreed to take divorce then the process of taking divorce is contested one and the Court has to adjudicate the divorce petition on certain grounds available to the parties under the law which they are governed. So far as the parties to a marriage are living in a Country of their origin and governed by their domestic/municipal laws, the divorce process remains simple but in case of international divorce there are many factors and rules of Private International Law which are required to be taken into consideration by the foreign lawyers and foreign Courts to make the divorce order legally valid and enforceable in India.
In this article, I am considering the concept of marriage solemnized between the parties who are Hindu, Sikh, Budhisht and Jaina by religion, needless to say, that the marriages and divorces etc. of the persons belonging to these religions are governed by the provisions of Hindu Marriage Act, 1955. In case the marriage between the parties has been solemnized according to Hindu rites and ceremonies, they are governed by the Hindu Marriage Act, 1955 and for taking divorce they need to satisfy the Court on the specific grounds mentioned in Section 13 of the Act, in case of contested divorce, whether one or the other party applied for divorce in a Foreign or Indian Court and this is what has been provided in the rules of Private International Law.
The rules of Private International Law provides for appreciation of the laws of India by the Foreign Court while considering the divorce petition filed by a party if he/she is governed by Hindu Marriage Act, 1955, failing which the divorce order may not be valid and enforceable in India and thus it would not terminate the marriage between the parties.
In India, the rules of Private International Law are not codified but there are many statutes in which we can identify such rules such as Civil Procedure Code, Indian Divorce Act, the Special Marriage Act, Indian Succession Act, the Contract Act, and the rules of Private International Law has also been evolved by the High Courts and Supreme Court of India in a catena of judgments.
Validity and enforcement of judgment/order/decree of divorce in India, passed by a Foreign Court
Principle of Comity of Nations requires that the Foreign Judgments should be considered as valid but article 10 of the Hague Convention, 1968 on the recognition of Divorce and Legal Separations as well as the judgments Convention of the European Community of the same year carved out exceptions to this principle by providing that the contracting states may refuse to recognize a divorce or legal separation if such recognition is manifestly incompatible with their public policy.
Under the Indian Law, Section 13 of the Code of Civil Procedure deals with the enforcement of foreign judgments, section 13 states that a foreign judgment shall not be recognized if; it has not been pronounced by a Court of Competent jurisdiction, it has not been given on the merits of the case, the judgment is founded on a refusal to recognize the law of India, the proceedings in which it has been obtained are opposed to natural justice and it has obtained by fraud.
In most of the cases, the divorce orders have been passed by the Foreign Courts on the ground of ‘irretrievable breakdown of marriage’ but under the Indian law, this is not a ground to take divorce. Hence, such judgment of Foreign Courts are contrary to Indian law and cannot be enforced in India, there are cases where one party has sued the other party for offence of bigamy even when the other party has solemnized the second marriage after taking divorce but the Indian Courts have refused to interfere considering the Foreign judgment invalid on the ground that the same has been passed by ignoring the Indian Law under which the parties to marriage are governed.
The Indian Courts have considered the Foreign Judgment as valid and enforceable in India in cases where the both the parties have consented to the jurisdiction of Foreign Courts or the Foreign Courts have considered the Indian Law by which the parties at lis are governed.
The path which is required to be taken by Foreign Lawyers and Foreign Courts
There is no useful purpose to take the divorce from Foreign Courts if you cannot make it enforceable in India rather the same may lead to a multiplicity of litigations between the parties in case the one or other party refuses to accept the same. To make it legally valid and enforceable in India, the Foreign Lawyers should ask the Foreign Courts to appreciate the laws governing the parties at lis, for this, the Foreign Lawyers can use the expert opinions on Indian Law in Foreign Courts.
In some countries, to file a divorce petition, it is a pre-condition that the party filing it must be a domicile of the Country where Court situates. In some cases, it has been seen that one or the other party, who is living temporarily in a Country on a student visa, work visa or any other visa of temporary nature, files the divorce petition claiming himself/herself as a domicile of the Country where Court situates. The rules regarding domicile are not uniform in every country but the basic rule is that you are a domicile of a Country where your heart is, you cannot acquire it merely by way of longer residence in a Foreign Country neither it negates by your absence from your Country of origin. If the jurisdiction of a Foreign Court has been invoked by taking a false plea of domicile of that Country then certainly it amounts to playing fraud upon the Court and it makes such divorce order unenforceable in India. So the Lawyers of a Country, where domicile is pre-condition for filing divorce, must check as to whether the party filing divorce is a domicile of the Country where Court situates and they must ensure that the law by which the parties are governed have not been ignored by the Foreign Court.
The rules of Private International Law are required to be adhered to when parties at lis are governed by the law of Country of their origin, the non-compliance of such rules would render the foreign judgments unenforceable in India.
The author can also be reached at solicitor.nara@gmail.com
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