Foreign Courts can not decide on Divorce in India

In landmark judgement Bombay High Court observed, “Admittedly, in this case, the marriage was solemnised in Mumbai and thus merely because the defendant (man) is having a domicile of the UK whether by birth or by choice or otherwise would be of no significance and would not divest the jurisdiction of the court provided under Section 19 of the Hindu Marriage Act, 1955 for the purpose of filing the proceedings under the provisions of the said Act,” Justice Dhanuka said

The Court interpreted that man has sought relief from the court of UK which does not apply to either party as marriage was solemnised by the parties under Hindu Marriage Act and registered under Mira Bhayandar Municipal Corporation. 

A question arises here, “what stand does a divorce decree have for the Hindu couple married in India?  a decree of divorce granted by a foreign court with regard to a Hindu couple married in India?” 

Supreme Court in Y. Narasimha Rao v. Y. Venkata Lakshmi ruled that, Court of competent jurisdiction would be the one which the law under which parties are married, recognises. Any other court would be a court without jurisdiction, unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that Court.

Types:

Divorce decree by Foreign Courts can be divided into two categories:

1. Mutual consent decree granted by Foreign Courts

2. Decree of Contested Divorce

Decree granted by a Foreign Court in mutual divorce is considered to be legal, valid & binding and order of competent jurisdiction by the virtue of Section 13 and Section 14 of the Civil Procedure Code, However, Section 13 enumerates the condition when a foreign judgement would not be considered valid in India and Section 14 states that when the Indian Courts would consider the Foreign judgement to be conclusive. A decree which is not affected by section 13 does not need to be validated in India and will be considered conclusive under Section 14 of the Civil Procedure Act.

However, in a case where a divorce decree is granted by a Foreign Court in a contested divorce the answer to the question of validity of the divorce decree varies.

Foreign Decree Not Conclusive:

When an ex-parte decree is passed. However, such decree shall not be deliberately left to go ex-parte i.e. no summons is served to the opposite party.

A divorce obtained on grounds other than grounds mentioned in Hindu Law.

Foreign Decree Is Valid:

If one partner files the case in foreign and other partner consents to that jurisdiction, the decree will be considered valid.

If parties are contesting a divorce filed in foreign court it implies their consent, hence decree is valid.

To conclude, we can say that a decree passed by a Foreign Court can be executed either under Section 44A or a fresh suit will be filed for its enforcement. A foreign divorce decree is considered to be conclusive under Section 14 of the CPC if the test is passed u/s 13.