Multi-jurisdictional Divorce and its recognition in India

We are often instructed by clients on Indian matrimonial disputes in the United Kingdom regarding marriages which were solemnized in India accordance with Indian marriage rules.

The most common dilemma faced by warring couples is the place or country where they can file for divorce. Generally, these marriages involve a citizen of United Kingdom who had married an Indian citizen in India or two Indian citizens who got married in India but have subsequently settled in the United Kingdom. Apart from the above, we also receive enquires on divorce in the UK from potential clients who have come to the UK on a temporary basis.

The law of divorce and its effect are complicated, and our clients often find it confusing when the effects are multi-jurisdictional. In such a scenario It then becomes important to ensure that the divorces orders granted by an UK court t are recognized in India and in the UK to avoid contravention of marital responsibilities laid down under Indian laws such as bigamy, inheritance, etc.

In the article below we will be discussing the jurisdictional aspects of a foreign divorce and the procedure for the division of assets.

Family Law Jurisdiction in India

Majority of the marriages solemnized in India are based on the personal laws of the bride and the groom. The personal law statues have rules regarding the solemnization of the marriages, registration and divorce.

Generally, for the purposes of divorce reliance is given on the following aspects to ascertain which court or region would have jurisdiction to adjudicate in a divorce proceeding-

• The place/court in which the petition or suit in a matrimonial cause is filed.
• Parties’ domicile. 
• Place of solemnization of marriage.
• Marital residence and the residence of the respondent (or, if the respondent resides outside India, where the petitioner resides).

The court’s judgment in the case of Ms. Kashmira Kale v Mr. Kishore Kumar Mohan Kale Writ Petition No 1242 of 2010 indicates that domicile is an important requirement for the application of Indian matrimonial statutes. Therefore, a flying visit or a temporary stay in a foreign jurisdiction is not considered as a domicile which may give rise to a jurisdiction unless the jurisdiction is agreed by both the husband and wife.

Are Divorce Orders from Foreign Courts recognized in India?

A foreign divorce order may be recognized by courts in India if it has been passed by a Court in accordance with the rules of divorce in that country. 

Divorce Orders from foreign courts are required to satisfy the conditions laid down in Section 13 of the Civil Procedure Code 1908. Foreign orders that satisfy this requirement are binding for all purposes in India.

Section 13 of the Code lays down that foreign decrees may be held to be inapplicable in the following scenarios:

1. It has not been pronounced by a court of competent jurisdiction.
2. It has not been given on the merits of the case.
3. It appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which that law is applicable.
4. The proceedings in which the judgment was obtained are opposed to natural justice.
5. It has been obtained by fraud.
6. It sustains a claim founded on a breach of any law in force in India.

However, for the specific purposes of Divorce an Indian Court had laid down the following tests in the matter of Y. Narsimha Rao vs Venkata Lakshmi to satisfy requirement of a valid foreign Divorce:

• Where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides, and the relief is granted on a ground available in the matrimonial law under which the parties are married.
• Where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim, which is based on a ground available under the matrimonial law under which the parties are married.
• Where the respondent consents to the granting of relief, although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the “parties”.

The above generally means that divorce proceedings shall be deemed to be valid if the same is initiated at a place where the Respondent is domiciled or normally resides. A valid jurisdiction can also be determined if the Respondent accepts and agrees to the jurisdiction of the Court where proceedings have been filed.

Does Temporary stay create Jurisdiction:

In recent times we have seen many Indians are posted in several foreign countries on a temporary basis for work. In an event of a matrimonial discord some of these people often tend to initiate proceedings in a foreign court to obtain an ex – parte order in the absence of the other party who might be in India and not in a position to access the foreign court. It has also been observed that proceedings are initiated in foreign courts to intimidate the Respondent who would find the foreign court to be a hostile territory.

The Indian Courts in recent judgments have strongly denounced such actions in various of its judgment and anti – suit injunctions are granted by Indian Courts against similar types of cases filed in foreign jurisdictions. The spirit of the Indian Jurisdiction can be observed in the matter of  Surinder Kaur Sandhu vs. Harbax Singh Sandhu & Anr where the Supreme Court of India observed the following:

“It is the duty and function of the Court to protect the wife against the burden of litigating in an inconvenient Forum. The Division Bench held that a wife had no support in U.S.A., she was always an Indian citizen domiciled, her travel to U.S.A. on fiancee visa after the marriage could be held as the act of innocent mind and excessive belief in her husband. It would be unfair to ask the wife to travel to hostile territory only to redress her grievance. The Division Bench of this Court accordingly held that the Family Court at Pune had got jurisdiction to try the matrimonial litigation initiated by the respondent notwithstanding the fact that the appellant is a citizen of United States of America and not an ordinary resident in India”.