RECOGNITION OF FOREIGN DIVORCE DECREES – LEGAL POSITION IN INDIA

Introduction
The matrimonial laws are not same around the world and it differs from country to country.
When marriages and their dissolution were performed in the same country, then it poses no threat
with regard to the validity of them. But the present day scenario is that the parties have their
domicile in one country and one of them obtains matrimonial relief in a foreign country.
Grounds for Refusal:
Also, the 1971 Act has laid down two exhaustive grounds under which a foreign divorce decree
would be denied recognition under English Law. They are:1.When there is violation of principles
of natural justice[5], or[6] 2. When the recognition would manifestly be contrary to public
policy[7].
Indian Law:
Foreign divorce decrees have become widespread phenomenon in India in recent times. Once the
divorce decree is obtained, either parties or both of them may approach Indian authorities to
make necessary changes in the legal documents like passport so that they can either remarry or
avail the benefits of being a single and unmarried individual. However, the Indian Law has
implemented stringent measures as to rules pertaining to change or deletion of the name of a
spouse. Now, for removing the name of a spouse from the passport of the other spouse can be
done only if the foreign divorce decree has been first recognised by an Indian court.
Civil Procedure Code, 1908: In general, section 13 and 14 of the Civil Procedure Code, 1908
governs the recognition of foreign judgement. Section 13 of the CPC renders a foreign
judgement unenforceable and inconclusive in 6 circumstances, when the judgement or decree is;
 pronounced by a court of incompetent jurisdiction;
 not based on the merits of the case;
 founded on an incorrect view of international law or a refusal to recognise the law of
India in cases in which such law is applicable;
 obtained in the proceeding which has violated the principles of natural justice;
 obtained by fraud;
 based on a claim founded on a breach of any law in force in India.
On a plain reading of this section, it reflects that a foreign judgement become conclusive and
enforceable when it complies with all the above-mentioned conditions. Even if any one of these
grounds has not been fulfilled then the decree would be inconclusive and ultimately would be
legally invalid and not binding. For instance, in the case of Satya v. Teja[8], while dealing with a
matrimonial dispute, the Supreme Court held that the challenge under S. 13 cannot be restricted
to disputes in civil nature but also to disputes in criminal nature. In this case a foreign decree of
divorce was obtained from the Nevada State Court in USA by the husband in absentum of the
wife without her submitting to its jurisdiction was held to be not binding and valid upon a
criminal court in proceedings for maintenance[9]. This case categorizes itself lucidly under s.13
(a) in which the Court is not competent and thereby the decree was denied recognition.

Divorce decree granted by Foreign Courts can be split into two types:

1. Divorce which was obtained by mutual consent, granted by foreign Courts.
2. Decree granted in Contested Divorce.
The divorce decree granted by a Foreign Court which arouse out of mutual consent is considered
to be legal, valid and binding in the Indian Courts by the virtue of Section 13 and Section 14 of
the Civil Procedure Code. A decree which is not hit by section 13 necessitates no separate
validation as it will be considered conclusive under Section 14[12] of the Civil Procedure Act.
The Cases in Which the Foreign Divorce Decree Would Not Be Contemplated as Conclusive:i.
Firstly, when an ex-parte decree is passed by a Foreign Court which was intentionally left to go
ex-parte i.e. no summons are served on the opposite party then the Indian Courts would not
permit this fraud and would not recognise such decree.
ii. Secondly, divorce obtained on grounds other than the grounds enumerated under the Hindu
Marriage Act if the parties were married under Hindu Law, as a divorce matter is governed by
the law under which one gets married and does not be governed by the law of the land in which
one resides.
A Foreign Divorce Decree Shall Be Contemplated as Valid and Conclusive In The Following
Case:i. It is a general rule that if one of the partners contests divorce filed in Foreign Land it
would be said that he/she consented to the jurisdiction of that Court, in such a case that would
lead to a conclusive decree.
ii. Where the wife consents to the grant of the relief by the foreign Court although the
jurisdiction of the foreign Court is not in accordance with the provisions of the Matrimonial Law
of the parties, the judgement of such foreign courts will be deemed as valid and conclusive.
Conclusion:Though, the need for recognition of foreign divorce decrees in India has been on a
boom, yet the legislation remains silent as to regulating the same. What is the need of the hour is
a separate enactment with regard to the recognition and execution of the foreign divorce decrees
in India. With Private International Law being a subject of underdeveloped affair, this branch of
the law though demanding a rapid development still continues to be at back in the queue.
Henceforth, even when a separate enactment is not possible it is of utmost importance to the
amendment of the existing laws so as to properly regulate the recognition of the foreign divorce
decrees in India.
 ADOPTION AND CUSTODY OF CHILDREN,INTER-COUNTRY ADOPTION
The increasing trend of inter-country adoptions was for, the first time, observed by the United
Nations in 1980s and efforts began to develop laws to regulate the practice. In 1993, a
conference on private international law took place in Hague, Netherlands. Subsequently, the
Hague Convention on Protection of Children and Co-operation in Respect of Inter-country
Adoption was adopted, which is popularly referred to as the Hague Convention of 1993. It came
into force in 1995.
UN Convention on Rights of Child: Adopted in 1989, the convention, among other things,
talks about Inter-country adoption. Article 21© of the convention creates an obligation on the
member states to look for possibilities of enacting certain laws and safeguards with respect to
inter-country adoption. Also Article 21(b) of the convention talks about adopting proper
measures to ensure safe inter-country adoption.
Major Issues with International Laws: The international framework is often considered far
more stringent as compared to several local laws of adoption. Some uniform requirements are
laid down, which is mandatory for member countries to adopt. Some problematic issues are:
State of Residence: The prospective parents need to confirm their state of residence. The
process of confirmation varies from country to country which leads to the possibility of
arbitrariness in the procedure involved. For example, in the United States, for an adopted to get
visa, he/she needs to meet the eligibility criteria of Naturalization and Immigration service of the
state.
Time taking Process As per a UN report, international adoption usually takes more than 15
months to finalize. The state agencies, while working to validate the status of the child as
‘adoptable’, often suffer from unwarranted laxity in the process.
Indian Scenario: Internal adoptions in India are governed by the Hindu Adoptions and
Maintenance Act of 1956 and the guardianship and Wards Act of 1890. With respect to
legislations governing inter-country adoptions, there is no specific statute as of now in the
country even though it is a well known practice and a long line of jurisprudence flow dealing
with the issue. India being signatory to both the conventions are obligated to make certain
safeguards for inter-country adoption in the country.
Judicial Approach to Inter-country Adoption
In the decade of 1980s, India witnessed an unprecedented rise in cases of inter-country adoption.
The lack of any specific statute laying down guidelines or procedures dealing with inter-country
adoption made it an area of much contention between the parties involved. The judiciary has
played a commendable role in providing safeguards in inter-country adoption.
The Supreme Court, for the first time, elaborately dealt with inter-country adoption in the case of
Laxmikant Pandey v Union of India.[1] The case was the result of a petition filed by a Delhi-
based lawyer Laxmikant Pandey, who submitted that various agencies and social organizations
involved in rescuing children and giving them in adoption to foreign parents often indulge in
unscrupulous malpractices which is contrary to the very objective of adoption i.e., betterment of
children. The Supreme Court, taking cognizance of the petition, raised its concern on non-
availability of any comprehensive law dealing with inter-country adoption in the country.
Guidelines laid down:Sponsorship of Adoption
For limiting the role of individuals in providing children to be adopted, the court laid down that
every application by a foreigner for the adoption of an Indian child needs to be sponsored by
child welfare agency that is recognised and licensed by the government of India. Many cases of
child trafficking are reported in India every year where individuals sell of children to foreign
entities. An efficient implementation of this guideline would ensure that no individual is able to
sell a child out to a foreigner.
Application to juvenile courtFurther, the most striking guideline was that no application for inter-
country adoption of a child can directly be entertained by agencies involved in adoption. The
prospective parents need to file an application in the juvenile court of valid jurisdiction and for
the adoption, the application further needs to be validated by the court.
Age of the adopted ChildUpholding the principle of the betterment of the child, the court further
made a recommendatory cap on the age of the children to be given in adoption. The considered it
preferable that the child being given for inter-country adoption is below 3 years of age. Keeping
in mind the change of environment and social settings that a child might encounter in a new
country, it becomes easier for the child to adapt if adoption is done in early ages of upbringing.
Consonance with the local laws Supreme Court tried to deal with the problem of non-availability
of the specific statute by extending the provision of local laws to inter-country adoption. The
Guardianship and the Wards Act of 1890 was extended to cover relevant procedures with regards
to inter-country adoption. Also an initiative from legislature in this regard was called from the
legislature. Another case is of Re Jay Kevin Salerno[2] where the Bombay High Court said that
the international blend of laws that cover inter-country adoption needs to be interpreted as
harmoniously as possible so as to ensure that substantive goals of adoption are realised.
Legal Challenges
Trafficking and Abuse
As per a UN report, about 5 million children are sold off every year to be used as slaves in
different parts of the world.[3] A line of conventions, though criminalize trafficking and provide
stringent counter measures, but the practice has still not been eradicated altogether. During the
2004 tsunami, there were reports of large scale selling of abandoned children.[4]
Institutions to deal with the issue
As of today, the issue of inter-country adoption is covered under the wide arena of child rights
and so, international agencies like the UNICEF[5] are not able to devote enough attention to the
issue. The Hague convention recommended of the setting up an organization to exclusively deal
with inter-country adoption but the plan forever remained on paper. For a country like India, we
can learn from various countries of the world which have efficiently set up institutions for this
purpose. Lithuania, in 1998, set up the Public Adoptions Authority (PAA)[6] that looks after all
the adoption-related issues in the country including inter-country adoption.
Social and Ethical Challenges
Conflict with ReligionA problem with effective legal framework for inter-country adoption is
that the practice of adoption is a contentious issue among many religions. In Confucian law, for
instance until recently, adopted children had no rights to inherit property and the practice of
adoption was severely restricted in Japan and South Korea. Under Sharia law, adoption is
considered as violation of the Quran. Verse fifth of the thirty-third Surah in Quran states that
adopted children cannot be named after the adoptive father. This verse is interpreted as
prohibition of adoption by God himself.
Interracial Adoptions
Even in the era of globalization, race relations form an important area of dispute when it comes
to adoption. Often, the question is raised whether the trans-racial adoption of children from a
black community by different Caucasian and Anglo-Saxon races is in the best interests of
children. The countries like New Zealand and Australia have historically raised concerns
regarding entry of other races in their country.[7]
MARRIAGE & MATRIMONIAL CAUSES IN PRIVATE INTERNATIONAL LAW
Meaning of Marriage
Marriage is a contract by which a man and a woman express their consent to create the
relationship of husband and wife. This contract, however, differs fundamentally from a
commercial contract in the following ways:
 As a general rule, it can only be concluded by a formal public act. It can only be
dissolved by a formal public act.
 More importantly, it creates a status which is taken into account in relation to, for
example, succession, tax, legitimacy of children, and to some extent in relation to immigration
laws.
Marriage and Divorce
 The basic belief relating to marriage is that it is a sanctified union which joins two
individuals for life. Divorce is a serious issue which devastates the interest of the parties
involved and therefore the courts should make every attempt to save the marriage and should
insist on the performance of marital obligations. Sharing of common life, including all the
happiness and misery associated with it, is the essence of marriage. Living together is a symbol
of sharing such aspects of marriage, while living apart indicates disruption of the essence of
marriage and if this disruption goes on, then it has the tendency of causing breakdown of
marriage.
 The Supreme Court in Bipin Chander Jai Singh Bhai Shah v Prabhawati[ii]observed that
withdrawal from a state of things, i.e. “the home”, is desertion. For desertion to be a ground of
Divorce under Section 13(1)(ib) of the Hindu Marriage Act, 1955, two conditions need to be
fulfilled. Firstly, there has to be intention to bring the cohabitation to an end permanently
(animus deserendi) and secondly, there must be factum of separation. Also, with regard to the
deserted spouse, another two essential conditions, i.e. absence of consent and absence of conduct
giving reasonable cause to the other spouse to form intention to desert the matrimonial home, has
to be proved by the complainant[iii].
 [1] Rajiv Tayal v. Union of India[23] In this case, the NRI husband sought to quash the
order of the court to join the proceedings before the Metropolitan Magistrate in India largely on
the ground that subjecting him to criminal process would constitute an unfair burden on him as
he was residing in a foreign country.
Matrimonial Causes
Matrimonial causes are now generally taken to include petition for divorce, nullity of
marriage, judicial separation and presumption of death and dissolution of marriage as well as
similar foreign proceedings which may fall recognition here. The rules relating to the
jurisdiction of the courts and to the recognition of the foreign divorces, annulments and
judicial separations are, in essence, the same for all three matrimonial causes, and therefore be
examined together, identifying where appropriate any rule which do not apply to all three. It
will be seen that the one major area of difference remaining concerns the determination of the
law to be applied by the English Court. It is also necessary to discuss a further preliminary
issue, namely whether an English court will assume jurisdiction to grant matrimonial relief in
the case of an actually or potential polygamous marriage.
A. Matrimonial Causes Act, 1973
The entire above rule have been changed now and Section 47 of the Matrimonial Causes Act,
1973 makes it available to the parties to an actually polygamous marriage awide range of
matrimonial relief,36 namely decrees of divorce, nullity, judicial separation, presumption of
 death and dissolution of marriage, order for financial provisions in the cases of neglect to
maintain, variations of maintenance agreement, orders for financial relief or relating to children
which are ancillary to any of the preceding decree 37 or order, order made under Part I of the
Domestic Proceedings and Magistrates‟ Court Act 1978, order for financial relief after a
foreign divorce, annulment or legal separation38 and any declaration under Part III of the Family
Law Act 1986 involving a determination as to validity of a marriage
 Divorce and Judicial Separation
It was lead by the Privy Council in Le Mesurier v. Le Mesurier, that „according to international
law, the domicile for the time being of the married pair affords the only jurisdiction and only
true test of jurisdiction to dissolve their marriage.‟ The essence of the rule in this case was that
there should be only one test of jurisdiction and only one court capable of dissolving a
particular marriage, the court of the parties domicile. The Matrimonial Causes Act, 1937,
provided that the Court should have jurisdiction to grant a divorce, in proceeding by a wife,
notwithstanding that the husband was not domiciled in England, if she had been deserted by her
husband, or the husband had been deported from United Kingdom, and the husband was
immediately before the desertion or deportion domiciled in England.48
Recognition of Foreign Divorces
The English law of recognition of and foreign divorces has been codified and reformed by the
Recognition of Divorce and Legal Separation Act, 1971. Under this, the English Court would
recognize a foreign decree of divorce if it is recognized as valid by the court of the domicile of
parties. Basically two grounds were laid down for the recognition in 1971:
(a) At the time of institution of the proceeding either spouse was a habitually resident in
the country were divorce was obtained,
(b) At the time of institution of the proceedings either spouse was a national of the
country were divorce was obtained.
An extra-judicial divorce, if pronounced in England, will not be recognized by English
Courts. If, on the other hand, it was granted abroad, then it will be recognized if it is effective
under the law of the country where it was obtained and at that date, each party was domiciled
in that country and the other was domiciled in a country which recognizes such decree,
provided that neither party was habitual resident in the UK for one year immediately
preceding that date.
Current legal status on disputes arising out of NRI Marriages
 In order to deal with the foreign decrees of matrimonial matters, there is a need of well-
developed Private International Law body that has the power of recognition, reorganization and
solemnization of marriages alongwith checking the legitimacy of a foreign decree of divorce. In
India, the rules of Private International Law is either scattered in different legislations, i.e.
Special Marriage Act, Foreign Marriage Act, etc., or have been evolved by the courts. But these
are not cogent enough to deal with all sort of issues that arise in a NRI marriage as they are
deeply based on the English Rule of Private International Law.
Conclusion
 To think of “Uniform Private International Law Rules” is like a dream which will not
come true and therefore there is a need to resort to more feasible options such as bilateral
agreement between nations on issues arising out of matrimony, like Britain has done. Also, as
already been discussed about the complexities that the Indian Courts have to face in the absence
of a cogent legislation with regard to NRI marriages, there is an urgent need of the Parliament
to take cognizance of the matter and enact a legislation pertaining to it.