A Divorce is a legal action between married couple to terminate their
marriage relationship.
A Foreign Divorce is a divorce granted in a different jurisdiction or
country from the one in which a spouse resides or where the marriage was
solemnized.
The Supreme Court of India in the matter of Smt. Satya
Versus Shri Teja Singh held that:
“We cannot adopt mechanically the rules of Private
International Law evolved by other countries. These principles vary greatly and
are molded by the distinctive social, political and economic conditions
obtaining in these countries. Questions relating to the personal status of a
party depend in England and North America upon the law of his domicil, but in
France, Italy, Spain and most of the other European countries upon the law of
his nationality. Principles governing matters within the divorce jurisdiction
are so conflicting in the different countries that not unoften a man and a
woman are husband and wife in one jurisdiction but treated as divorced in
another jurisdiction”.
If you shifted to a foreign country after solemnizing
your marriage in India or during residing abroad you have performed your
marriage under India Laws, and further due to communication gap & other
reasons you approach the family Court of the country of your residence for
getting divorce, then before getting the divorce Decree of a foreign country,
you should know that mostly decree of divorce granted by the Foreign Court is
not valid in India.
Further, if the divorce granted by the Foreign Court is
not based on the grounds as mentioned in Indian law, then the decree of divorce
granted by the Foreign Court would not be recognized in India, and the marriage
between the parties will remains active and effective in India , and legally
they will considered as husband and wife.
When Foreign Divorce Decree Recognized in India:
The
following two Divorce Decree granted by Foreign Courts is valid, legal and
binding in Indian Court:
👉Foreign Mutual Consent Divorce Decree
👉Foreign Contested Divorce Decree
Foreign
Mutual Consent Divorce Decree:
Mutual
Divorce is a legal process of separation, where the husband and wife mutually
agree to separate and end the marriage, and then they file a joint petition in
the Court for getting divorce Decree.
A
Mutual Consent Divorce granted by the Foreign Court is considered as valid,
legal and binding in Indian Courts by virtue of the Section 13 & 14 of the
Civil Procedure Code and also on account of community of Nations.
This
Mutual Divorce Decree granted by the Foreign Courts is not required to be
further validated in India.
Further,
after getting the Mutual Divorce Decree from the Foreign Court, no party can
challenge the Decree /Judgment in Indian Court, and the said Decree/Judgment
passed by the Foreign Court is final, and the parties are free to remarry.
Foreign
Contested divorce decree:
If
one party files a contested divorce petition in the Court of a Foreign country,
and the other party contested after appearing before the said Court, and
further after due adjudication and trial , Divorce is granted by that Court ,
then such Decree of Divorce is valid and binding in India .
A
similar matter with the title of Mrs. Anoop Beniwal Versus Dr. Jagbir Singh
Beniwal was filed by the wife Mrs. Anoop Beniwal before the Supreme Court of
India to declare the Divorce Decree granted by the UK Court as null and void,
but the Supreme Court refused to grant any relief to her on the ground that:
“
When the husband filed a contested divorce petition in the UK Court, then the
wife attended the Court proceedings and defends the suit filed against her and
led her evidence, and further an opportunity of hearing was granted to her,
then it is not right to assert that the proceedings in UK were opposed to
natural justice, and it also not proper to say that the Decree of Divorce
granted by the UK Court has not been given on merits of the case, and further
the claim in the proceedings in UK cannot be said to be founded on the breach
of law in force in India, and hence there is no assertion that the judgment has
been obtained by fraud”.
When
Foreign Divorce Decree Not Recognized in India:
➣Ex- Parte Decree of
Divorce granted by the Foreign Court is not recognized by the Indian Court
➣Uncontested Divorce
Decree: If one party files a divorce case in the foreign Court and the summon
of the Court serves on the other party in that country but he comes back to
India, and does not participate in the divorce proceeding before the foreign
Court, and that foreign Court passes Decree of Divorce after relying upon the
case filed by one party, then Indian Court may refuse to recognize that Decree
of Divorce.
➣When no opportunity given
to parties : If one party files a divorce case in the foreign Court , but the
other party does not get the notice and not given the opportunity to defend the
case before that foreign Court , then the Divorce Judgment passed by that Court
is not valid and also not recognized by the Indian Court.
➣Ground of divorce not
recognized by India Divorce Law: when the foreign Court granted divorce on the
ground of irreconcilable difference or irretrievable breakdown of marriage or
no fault ground, then the Decree of Divorce granted by the foreign Court is not
valid in India.
➣Divorce Decree obtained
by playing fraud: If an Indian Court finds that either of the parties has
obtained the Divorce decree after misleading and misrepresenting the facts,
then the Decree of Divorce granted by the foreign Court is not recognized in
India.
Your
questions reply:
Can
I get divorce from another country?
Yes,
if you are an India and residing in another country, then you can file the
divorce petition in that country where you are residing presently. However if
both spouses are not residing in that country then the decree of divorce
granted by that country Court will not valid in India.
Is
divorce taken in US valid in India?
Yes,
a mutual consent divorce granted by foreign Court is considered as valid, legal
and binding in Indian Courts by virtue of section 13 and 14 of Code of Civil
Procedure and also on account of community of Nations. Hence if the divorce
decree is granted by the US Court on the ground of mutual consent then it is
valid, and out of this a contested divorce decree is also valid in India.
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