There are certain instances where a person marries in India and takes divorce in a foreign country. Although the law of land that governs the spouses has the authority to decide whether and how to dissolve a marriage but, marriage laws vary from nation to nation and are not universally recognised. The issue is that when one of the parties seeks divorce abroad while the other party has their residence in one of the two countries. So, it becomes difficult for the spouse living in the India to participate in the proceedings of the foreign court.
In such circumstances a person may be regarded as a divorcee in another country, but the Indian courts refuse to recognise this decision on the grounds that it is outside the scope of the foreign court’s jurisdiction. In such a situation, the issue of private international law becomes very obvious. Therefore, even though the person can remarry in the other nation, bigamy charges could still be brought against them in India.
VALIDITY OF DIVORCE IN ABROAD
These cases made the Indian courts to deal with the situations where Hindu couples who were married in India in accordance with Hindu law and who moved abroad, sought the assistance of a foreign court for the decree of divorce. Therefore Indian Courts were in obligation to decide whether foreign court rulings resolving marriage issues involving Hindu spouses living in abroad had any bearing on India.
According to the General Principle of Law, a foreign judgement should be conclusive in India as per Section 13 of the Code of Civil Procedure, except for certain circumstances mentioned in this section. An international divorce should therefore be recognised in India. But this provision is understood in general phraseology and when it comes to specific laws like the Hindu Marriage Act, 1955, this provision seems to have little application because of the overriding effect of the HMA act over this provision of CPC.
WHEN THE FOREIGN JUDGMENT IS NOT CONCLUSIVE ; DIVORCE NOT RECOGNISED
The instances where foreign judgment is not conclusive are provided under section 13 the Code of Civil Procedure some of which are given as follows:
When the principles of natural justice are not followed by the foreign court.
Where the decree of foreign court has been obtained by fraud.
When an incorrect view of international law has been taken by the foreign court.
When the foreign court passing the decree refuse to recognise the Indian law in cases where such law is applicable.
Where the judgement or decree has been passed by a court which is incompetent to do so.
CASE LAW: Y. Narasimha Rao v. Y. Venkata Lakshmi.
The Supreme Court in this case said that Court of competent jurisdiction would be the one which is recognised by the law under which parties are married. Unless both parties freely and unconditionally submit themselves to the jurisdiction of that court, the said court would not have jurisdiction in that case.
In this case, the Supreme Court ruled that the court that the legislation that recognises the couples’ marriage recognition would be the one with competent authority.
CONSEQUENCES OF TAKING DIVORCE ABROAD
It is not necessary that if a person gets a divorce decree in a foreign court then it will be valid in India as well and therefore that individual having the divorce decree must not take it for granted that the foreign decree of divorce will be applicable in India. If in lieu of that divorce decree the individual remarries he may still be guilty of bigamy in India. In such a situation the other spouse can apply for the cancellation of the foreign decree in an Indian court.
The consequences that might follow from the invalidation of a foreign decree for divorce are as follows:
If the person having the foreign divorce decree remarries, he can be prosecuted for bigamy in India
The other spouse who has filed the case in Indian Court against the foreign decree may claim maintenance or even claim share in the property.
CASE LAW: Harmeeta Singh v. Rajat Taneja,
In the foreign court, the wife’s husband had initiated legal action for divorce. At the same time wife has filed a civil in the Delhi High Court. The wife was not having a spouse visa, therefore she might not have been able to defend her case in the foreign court, and thus the High Court prevented the husband from continuing with the proceedings there. Naturally, the wife had no reason to submit to the jurisdiction of the foreign Court as she neither resided there nor she had any means to go there.
CONCLUSION
Therefore, any party may petition for divorce abroad; nevertheless, the specifics of the case will determine whether or not the foreign court’s judgement will be enforceable in Indian courts.
As we have observed that how complex the situation is with regard to the validity of a foreign court’s divorce order. Therefore, it can be said that a Hindu couple who was married in India should prefer to exclusively apply to an Indian court for a divorce.