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. So, it becomes significant to know the legislative
position in India as to the recognition of foreign divorce decrees.

Recognition under English Law

. Accordingly, the Act has laid down additional two grounds under which a foreign
divorce decree is recognised in English Law. So, the grounds under which a foreign
divorce decree would be recognised under English Law are:

 Both the parties were domiciled in the country where divorce was obtained at the
time of the institution of the suit,[3]
 One of them was domiciled there and the other country in which the other party
domiciled recognised it as a valid divorce.[4]
 The divorce is recognised as valid in the country of the common domicile of the
parties, or where the parties have different domicile in the country of domicile of
each party
 At the time of the institution of the proceedings either spouse was a national of
the country where divorce was obtained.
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. Henceforth, it has become
immensely important to get the foreign divorce decree to be legally recognised in India
so as to avail the benefits conferred in India. But there has been no specific legislation
devoted toward the recognition of foreign divorce decrees in India.

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.
Whereas in the case of Anoop Beniwal v. Jagbir Singh Beniwal[10] recognition was
granted on the ground that the decree is in accordance with law of the land. This case
relates to a matrimonial dispute between the parties. The suit was filed under S. 1(1)(2)
(b) of the Matrimonial Causes Act, 1973 before the English Court on the ground that the
petitioner cannot be reasonably expected to live with the respondent due to his
behavior. When the decree was obtained in England, it was subsequently brought
before the Indian Bench for enforcement. The contention of the respondent was that the
Indian court should refuse enforcement as the decree was based on English law. The
Court denied such contention and held that under the Indian Hindu Marriage Act under
S. 13(1)(ia), there is a similar ground which is “cruelty” on which the divorce may be
granted, and the decree of the foreign court is entitled to recognition under the Indian
Court.
In general terms, a decree of a foreign Court is recognised by a Court in another
jurisdiction as a matter of comity[11] and public policy. But this principle of comity
would not compel any country to recognise the decree of a foreign court if it is
repugnant to its own laws and public policy. When it comes to the concern of India, a
judgment of a foreign Court creates estoppel or res judicata between the same parties,
but with a prerequisite that such judgment is not attacked under any of the Clauses (a)
to (f) of section 13 of the Code.Classification of Foreign Divorce Decree:

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.

Matrimonial Disputes in India and England or Conflict of Laws in Matrimony

Introduction
The institution of marriage gives rise to obligations, conjugal relations and certain rights
between the spouses and this is the reason why law seeks the discharge of those marital
obligations. In India, conjugal right is believed to be inherent in the very institution of marriage
and not a mere creation of statute.
But in cases where foreign element, i.e. Private International Law, is involved, then for the
purpose of resolution of Conflict of laws, the Courts resort to the Principles of Comity or
Courtesy and in some cases, the Courts also use the Principle of reciprocity.
Till date, there is no specific and cogent legislation in India with regards to NRI marriages and
there is an urgent need of legislative intervention in this matter as delivering Justice to all by
way of legislation is far more satisfactory way of dispensing Justice, than delivering Justice on a
case by case basis.
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. The court unequivocally held that the acceptance of a plea of
this nature would accord a premium to an accused citizen simply because he happened to be
abroad, thereby placing him in a position superior to other Indians. By its rejection, in contrast,
it could be ensured that the process of law was not misused by the accused.
Matrimonial Problems faced as a result of NRI Marriages
In India, over the years, the issue of NRI marriages has gained substantial importance by virtue
of it assuming alarming dimension due to the fraudulent trappings of Indian Women by the
People of Indian Origin (PIOs) and Non-Resident Indians (NRIs). Since there is not any specific
and cogent legislation with regard to NRI marriages in India, there is an urgent need of
legislative intervention.
Matrimonial disputes are already one of the most complex areas for legal intervention and it
becomes more complex when one of the parties of the marriage belong to an area beyond the
borders of India. Such marriages then enter into a maze where there is a conflict of laws of
different nations.

There are some typical issues that arise in NRI marriages which are pointed out by the National
Council for Women after conducting research on actual cases in different nations. Some of
them are:
Abandonment of women by her husband after being taken to the foreign country.
Brutal assault, battering and abuse of women, both mentally and physically, by the husband
and his family members.
Capturing and holding of the women in the foreign nation for the sake of huge sum of money as
dowry.
Giving false information relating to the job, salary and property to the family members of the
women before marriage, and later conning the women into marriage.
Hiding of the status of pre-existing marriage by the husband.
Husband who has obtained divorce from women through an ex-parte decree by making false
representations without her knowledge in other legal systems.
Women encountering jurisdictional obstacles in Indian Courts due to unavailability of cogent
legislation in this regard[vi].
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.
Although the courts in India have repeatedly appealed to the legislature for enacting a law that
seeks to prevent the injustices that are caused to the Indian wives of those NRIs who obtain an
ex parte decree of divorce without the knowledge of their wives, from courts of foreign
jurisdiction. There is also a need for such a provision in that enacted law that gives recognition
and solemnization of foreign marriages here.
In the case of Y. Narsimha Rao v Y. Venkata Lakshmi[vii], the SC held that jurisdiction assumed
as well as the grounds of decision made by the foreign court should be in consonance with the
matrimonial laws under which the parties are married.
Just like the European Nations did under the Brussels II framework on Regulation of Recognition
of Foreign Orders, India should also enter into bilateral/ multilateral agreements with other
nations for purpose of recognition of matrimonial decrees given in courts of foreign jurisdiction.
The Foreign Marriage Act of 1969
In order to fulfill the assurance of a law that will deal with marriages in which one of the party is
a foreigner, the Parliament came up with the Foreign Marriage Act in the year 1969[viii], which
contained provisions for marriages of Indians who are residing outside the territories of India,
or one of the parties to the marriage is a foreigner. It has borrowed most of the provisions from
the Foreign Marriage Act, 1892[ix] of Britain and Marriage Act, 1961[x] of Australia.
Although the Foreign Marriage Act was an improvement in this regard, but it doesn’t contain
any provision which explicitly deals with divorce, nullity of marriage and other matrimonial
reliefs. Also, it has certain loopholes that are critically analysed hereafter:
Inadequate Provisions for Penalty: By virtue of Section 19[xi], 20[xii] and 21[xiii] of the Act, it is
evident that the punishments and penalties, prescribed under the Act applies only to the Indian
party of such foreign marriages and this has the tendency of limiting the scope of this Act as in
cases like that of desertion, where one of the party files a suit for desertion and the other
challenges the said suit on the ground of marriage not to be subjected to Indian laws, then
anomaly will be created by virtue of Hindu Marriage Act being only applicable when both the
parties are Hindu. So, in such cases, the foreign party will easily evade the punishment and only
the Indian party will be subjected to the penal provisions of this act.
Use of ‘may’ in Section 4 and 17 of the Act: The use of word ‘may’ in Section 4[xiv] and 17[xv]
makes this Act an enabling legislation. This act does not contain provision that make the
solemnization and registration of marriage, a compulsion. In order to make it a compulsion, the
act should have contained the word ‘shall’ or ‘must’ in the place of ‘may’.

Adoption and Custody of Children,Inter-country Adoption – What Are The Legal Safeguards?
International Scenario
The Hague Convention
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.
Present Challenges in Inter-country adoption
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.
A 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]