Hello,
In that case nothing can be done, an ex parte order passed in foreign jurisdiction does not hold good in India and she can get her rights enforced by means of a case.
Regards
Divorce granted by foreign court valid in India?
I understand from the previous discussions that if both the parties have contested in a foreign court and thereby a decree of divorce is passed, the decree is enforceable in India too? What if one of the parties ( wife) refuses to participate in the proceedings of the foreign court purposely?i.e. Husband files for divorce in foreign court. Wife questions the jurisdiction of the foreign court. After the third and final appeal, the foreign court still upholds that they have jurisdiction in the matter. When the divorce proceedings are initiated and the wife stops responding to notices sent to her or attending foreign court (via teleconferencing), what options does the husband have? Mutual consent ruled out because the wife is asking for a filthy sum to leave him. Something he cannot afford.
Asked 6 years ago in Family Law
Religion: Hindu
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19 Answers
If the parties of Indian National the divorce decree passed by the foreign court should be validated by the Indian family court you need to file a petition for divorce in India on the basis of degree you have obtained from the foreign Court to validate the decree of the foreign Court
Hi, The Foreign Judgement is valid in India only when both the parties are participated in the Proceedings, If for any reasons one of the party is not participated in the Proceedings then that divorce is not valid in India.
1) Only Mutual Consent Divorce done in the foreign country that is valid in India and not order or decree passed by foreign country.
2) You can apply here in India for Judicial Separation or divorce, so that will be more effective.
3) If you don't want to give huge money to here as one time lumpsum settlement amount than go with Judicial Separation.
If wife does not participate in divorce proceedings in USA divorce decree would not be valid in India
2) in such a case husband should withdraw divorce petition and file for divorce on India
Hello,
Unless there is a jurisdictional error and both party participate it the judgements are valid in india.
Regards.
The decree will be valid in India. As the wide is deliberately not attending the proceedings. Divorce granted outside India
Divorce from foreign countries are valid in India but you need to validate the same in India. Under Section 13 of the the Code of Civil Procedure, 1908 (Code), a foreign judgment is not conclusive as to any matter thereby “directly adjudicated upon” “between the parties” if: (a) it has not been pronounced by a Court of competent jurisdiction; or (b) it has not been given on the merits of the case; or (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; or (d) the proceedings are opposed to natural justice, or (e) it is obtained by fraud, or (f) it sustains a claim founded on a breach of any law in force in India. If the above conditions are fulfilled in the said foreign divorce decree the said divorce is valid in india
I understand from the previous discussions that if both the parties have contested in a foreign court and thereby a decree of divorce is passed, the decree is enforceable in India too?
Ans. Yes, the above is correct.
what options does the husband have?
Ans. The husband cannot enforce his wife's attendance in the foreign court. If an exparte judgement is granted finally, the same will not be recognised in India.
The best option for the husband is to file a case for contested divorce in India.
As per your information the divorce decree granted is an ex parte decree and hence it cannot be considered as on merit, thus, not valid in India. She must have participated in the foreign court for the decree to be binding on her.
Dear,
One should not draw comfort from inaction of the person who did not participate in
divorce proceedings. The implications of an invalid divorce may appear many years
later and even may arise after the death of the person who got the invalid divorce
from a foreign court.
If the wife has not participated in proceedings in foreign court then the divorce obtained is not valid. Secondly for divorce under foreign court to be valid such court must recognise Indian law and Hindu marriage act. If it does not recognise then the dissolution of marriage done by such court is not binding in India
As such you need to fIle a fresh.suit for divorce in India. If mutual consent is not possible ask him to file under cruelty under Section 13(1)a of Hindu marriage act.
Yes, wife can very well take the advantage of the same, but won’t get succeed in it as jurisdiction can be decided at the end of any party.
If the decision is given on exparte basis without the wife participating in the divorce proceedings, then the divorce is not valid in Invalid.
Contested divorce or divorce on the grounds of mutual consent are valid in India as per Indian laws for the marriages solemnised in India as per Indian laws.
1. Also adding it is enforceable if divorce is granted on grounds mentioned under Hindu marriage act. Such as cruelty adultry desertion etc.
2. Even if party refuses it will not be valid in India as indian courts have jurisdiction and she can refrain and can question the jurisdiction.
3. Husband has to file a divorce in India based on decree of foreign court or without it for valid divorce otherwise on decree of foreign court husband shall be still treated as married in India and wife can file cases on him can ask legally maintaince and rights as wife.
4. You should based on proceeding in foreign court or its decree file a divorce in India that shall have binding value as in case you don't and you get divorce from foreign country it shall still be invalid in India and she will be your wife and she can file cases under 498A domestic violence dowry act or for maintainance under 125 crpc for which husband will be called before court. Aslo non responding can result in impounding passport also if husband remarries it shall be offence under 494 ipc in india .
1. Challenging the jurisdiction of foreign court is itself makes the arty subject to such jurisdiction and hence the wife virtually contested divorce suit in foreign court.
2. Once she participated her traction from there later on will not improve her any case any further.
3. So husband must proceed with the divorce suit in the foreign court and once gets the decree file for a suit for declaration in India for its validity.
4. It is to be seen though whether the foreign country is a reciprocating country with India or not as per section 44A of CPC.
Dear Querist
As per section 13 of CPC the divorce granted by the court outside India will not be conclusive. read the below
13. When a foreign judgment, not conclusive.- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except,—
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where 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 such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.
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In this case, despite the wife challenging the authority of the FC and the court still over-rule the question of jurisdiction, then, it has to be seen on what grounds the jurisdiction question has been discarded. In such circumstances, the FC decree can be challenged in india for want of jurisdiction.
Yes, if both the parties have contested the matter in a foreign court, the Decree can be executed in India also.
If the wife refuses to participate in the proceedings, then the husband can either abort the foreign court proceedings midway and file where the wife is residing or else obtain an ex-parte Divorce from the foreign Court. The same will work as long as the husband has no plans to get return and get remarried in India
Hi
In general foreign divorce decree's are not enforceable in India, unless and until
a) The wife must be domiciled and permanently resident of that foreign land AND the foreign court should decide the case based on Hindu Marriage Act.
B) The wife voluntarily and effectively attends the court proceedings and contests the claim on grounds of divorce as permitted under Hindu Marriage Act.
C) The wife consents to grant of divorce
The key rule laid by the Supreme Court in Y. Narsimha Rao and Y. Venkata Lakshmi can be summed up as follows:
If a couple is married under Hindu law,
(a) the foreign court that grants divorce must be acceptable under Hindu law; and
(b) the foreign court should grant divorce only on the grounds which are permissible under Hindu Law.
The two conditions make it almost impossible for a Hindu couple married in India to get a legally valid divorce from a foreign court since no foreign court is an acceptable one under Hindu Marriage Act and also because no foreign court is likely to consider the provisions of Hindu Marriage Act before granting divorce.
Since in your case, the wife seems to have been aware of the legal position and hence she is not attending the case.
A) So the option would be for you to file a divorce case in India
OR
B) If both of you are citizens of overseas country or have resided in overseas country for more than 12 years , then go ahead with the foreign Court divorce proceedings .
