Divorce is the thorough breakdown of the institution of marriage. In India, divorce is something which is heavily scowled upon by religion as well as society. The social disgrace involved with getting a divorce adds to the emotional stress of a person going through such a life changing incident. The procedure of divorce in India is very complex and could take a lot of time depending upon the nature and conflict between the parties. Divorce is nothing but a point of distress owing to the culture and legal duress. People believe that surviving a marriage is easier and better than facing the terrible passages of family courts.The Indian law is very clear and there arejudgments stating that for the marriages performed as per the Hindu Marriage Act,1955 divorces cannot be granted in a foreign country. The provisions of Section 13 of Code of Civil Procedure provide the recognition of Foreign Judgments in India. Supreme Court in various decisions noted that a court would have competent jurisdiction if it recognizes the Indian law under which the parties are married. Further, if any foreign judgment is opposed to Indian Law and natural justice or obtained by fraud; it would not be recognized in India. A person married as per the Indian Laws and divorced as per the foreign Law, the Indian courts do not recognize this decision on the grounds that it is out of the jurisdiction of the foreign court. Thus, the individual may get married again in the other country, but in India, he may be tried for bigamy.As per the General Principle of Law, on the basis of Res Judicataa foreign decree is conclusive in India that is when a matter has been adjudicated by the court, it should not be disconcerted again and again to save judicial time and expense. Though there are few exceptions, such a decree would be invalid in India When it is granted by a court that is not recognized by the nation as per the Indian Law or when one party’s is not given reasonable opportunity of being heard, and an ex-parte decision is given, or when the foreign court grants a divorce on a ground that is not recognized in India.If the decree is obtained by way of fraud or misrepresentation, it is not valid in India.Therefore, any party may file a divorce petition in a foreign country; however, the circumstances of the case decide the validity of the decree passed by the foreign court. There are cases where the NRI husbands were sending divorce notices from abroad to their wives here ostensibly on grounds of incompatibility.The foreign courts were still issuing divorce decreeseven after the women are responding to the divorce notices terming them invalid under the Hindu Marriage Act, 1955. But the NRI husbands, though holding Indian passports, were invoking respective domicile laws and issuing divorce notices to their wives back in India, and the overseas courts are granting divorce decrees.NRI marriage disputes are far more complex than the disputes arising inside India governed by Indian personal laws, personal laws of country of residence and private international law. There was no specific legislation with regard to NRI marriages and the laws should be adapted to changing times.One can file the petition for divorce within the circumference of the Indian Law that provides the power to so. The mutual consent divorce will have to be made in accordance with the laws of the country in which the couple resides. Theforeign courts are governed by their own laws. The foreign court passesthe decree recognizing the divorce in accordance with their procedure of law.If the decree made by the foreign courts is inconclusive under Section 13 of the Civil Procedure Code, 1908 the Indian courts do not recognize the decree passed by the foreign courts .A decree passed by a foreign court may be challenged and declared null and void in an Indian court on the basis of the provisions as mentioned in the code of civil procedure,1908.If a foreign court has the jurisdiction and the decree has fulfilled with the conditions, then the foreign decree is held valid and conclusive by the Indian courts.Divorce in a foreign country and in India, both has their advantages and disadvantages. Therefore, the decision of where to file a divorce petition must be carefully perused by both parties beforehand. It should also be approved upon mutually to ensure that the process is completed quickly and is not dragged around.
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