Recognition of foreign divorce decree in India is a complicated conflict of law principle. This is because the marriage is solemnised in one country and the divorce is obtained from another country. In the Indian context, a marriage is solemnised in India and a divorce decree is obtained from a foreign jurisdiction, especially United States or United Kingdom. The reason for this dual proceedings is because in India marriage is considered to be a sacrament and divorce is not easily obtainable. Of course, where mutual consent is involved, there is little trouble in dissolution of a marriage in India.
However, where the fault theory is invoked or where one party is interested in divorce whereas the other is not, it takes years for the party seeking divorce to get the same. Some individuals have devised a mechanism of forum shopping and they seek divorce from jurisdictions where it can be obtained easily.
The Supreme Court of India has given a constructive interpretation to the existing laws and provisions of India to decide when such a foreign divorce decree can be held to be valid and legal in India. This is so because the matrimonial laws are not common everywhere in the world and they differ from country to country. The problem arises when the parties have their domicile in one country and one of them obtains matrimonial relief in a foreign country. A large number of foreign decrees in matrimonial matters are becoming the order of the day. Similarly, illegal domicile certificates are also very common these days to get benefits of conflict of laws in areas like inheritance, taxation and divorce.
India’s social, moral and religious conditions, along with the “public policy”, will be decisive for determining the matrimonial law, including jurisdictional aspects, applicable in India and the harmonisation of law cannot be achieved at the cost of their ignorance and sacrifice. The courts can refuse to apply a rule of foreign law or recognise a foreign judgment or a foreign arbitral award if it is found that the same is contrary to the public policy of the country in which it is sought to be invoked or enforced.
Under Section 13 of the the Code of Civil Procedure, 1908 (Code), a foreign judgment is not conclusive as to any matter thereby “directly adjudicated upon” “between the parties” if:
(a) it has not been pronounced by a Court of competent jurisdiction; or
(b) it has not been given on the merits of the case; or
(c) it is 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; or
(d) the proceedings are opposed to natural justice, or
(e) it is obtained by fraud, or
(f) it sustains a claim founded on a breach of any law in force in India.
It is thus clear that in order to make a foreign judgment conclusive in India; it must be shown that it complies with all the abovementioned six conditions. If there is no compliance of any one of these conditions, the foreign judgment will not be conclusive and consequently not legally effective and binding. A decree of a foreign Court is normally recognised by a Court in another jurisdiction as a matter of comity and public policy. But no country is bound to recognise and give effect to a decree of a foreign Court if it is repugnant to its own laws and public policy. So far as India is concerned, a judgment of a foreign Court creates estoppel or res judicata between the same parties provided such judgment is not subject to attack under any of the Clauses (a) to (f) of section 13 of the Code.
Ultimately, it is a question of fact that decides whether a foreign divorce decree can be enforced in India or not. Further, advent of information and communication technology (ICT) has added further complications for recognition of foreign divorce decrees in India. Thus, only trained legal professionals who are well versed in marriage and divorce, conflict of laws principles and techno legal issues can best help in this regard.
If you are interested in our techno legal expertise regarding solving your conflict of laws issues, please establish a client attorney relationship so that we can assist you in your matters.