Married in India and Divorced Abroad

Married in India and Divorced Abroad


Does a divorce decree of a foreign court hold good in India?

In any such case, the question of Private International Law becomes pretty evident, where a person may be considered a divorcee in the foreign country, however, 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 held liable for bigamy. A court in the USA, for example, does have the authority to determine the marital status of the spouse who is a citizen of USA, even though it may not apply to the other non-citizen spouse.

As per the General Principle of Law (Section 13 of Code of Civil Procedure), a foreign decree is conclusive in India on the basis of Res Judicata- that is when a matter has been adjudicated by the court, it should not be agitated again and again- to save judicial time and expense. Therefore, a foreign divorce should be valid in India.

But in exceptional circumstances, such a decree would be invalid in India and some of these circumstances are as follows:

  • When it is granted by a court that does not have jurisdiction under the Indian Law (those courts where marriage was solemnized, where both parties last resided as husband and wife, or where the party that has not filed for divorce applies resides, would have jurisdiction)
  • When one party’s submissions are not taken into account, and an ex-parte decision is given, if the petitioner can prove that the other party deliberately evaded proceedings, such a decision will be valid and binding on Indian courts.
  • When the foreign court grants a divorce on a ground that is not recognized in India such as ‘irreconcilable differences/irretrievable breakdown of marriage’, it is not a valid divorce in India.
  • If both parties are not given the right to be heard in court, it will be violative of the principles of natural justice, and such a decree is invalid in India.
  • If the decree is obtained from fraud or misrepresentation of facts, it is not valid in India.

Therefore, any party may file for a divorce in a foreign country, however, it is the circumstances of the case that will decide whether the decree of the foreign court will be binding on Indian Courts or not. Nowadays, many people have made a mockery of this pious relationship, where it is mostly the woman who faces most grievances. Thus, the Supreme Court in the case of “Neeraja Sharaph vs. Jayant V. Saraph”, emphasised safeguards for such women, and suggested that no marriage between an NRI and an Indian woman that has taken place in India should be annulled by a foreign court etc. However, the implementation of such provisions is still a far-fetched dream for us.

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