These cases are very common in various Courts of India and Supreme Court of India. I can understand your concern in this regard. At times, despite our best efforts, life takes a turn for the worst. We may have wanted different things from life, but life’s got its own plan as well. A bad marriage is something which nobody hopes for, but at times, that’s exactly what we are given and forced to face head on. Marriages are hard. Divorces…even harder. Nobody enters marriage thinking about a divorce in the end. If some are unable to cope with the harsh realities of marriage, the only viable option in front of them is to approach the Court and seek legal separation by way of mutual consent divorce.
When a couple decides to file a divorce petition in a foreign country, they do so on the basis of the power given to them under the Indian law. The petition for mutual consent divorce will have to be made in accordance with the laws of the country in which the couple resides. The Indian laws will not apply to the foreign courts. The foreign court will then pass a decree recognizing the divorce in accordance with their procedure.
As an Advocate on Record in Supreme Court, day in day out I’ve been getting queries on the validity of a Foreign Divorces in India. This is an area fraught with many conflicting opinions and judgments full of legalese.
The Indian courts do not recognize the decree passed by the foreign courts if the decree so made is inconclusive under Section 13 of the Civil Procedure Code, 1908.
This means that the decree:
- Is not pronounced by a Court of competent jurisdiction.
- Has not been given on the merits of the case.
- 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.
- Was obtained opposed to the principles of natural justice.
- Has been obtained by fraud.
- Sustains a claim founded on a breach of any law in force in India.
A decree passed by a foreign court may be challenged and declared null and void in an Indian court on the basis of the above conditions.
In case of Y. Narasimha Rao And Ors vs Y. Venkata Lakshmi And Anr, the Supreme Court held that the divorce obtained from a foreign court was invalid if the provisions of the Indian divorce laws are not followed.
The Indian courts can refuse to validate a decree given by the foreign courts if the Indian law does not provide for such foreign court to have jurisdiction.
If a foreign court has the jurisdiction and the decree has complied with the conditions, then the foreign decree is held valid and conclusive by the Indian courts. Such a decree must also adjudicate on matters with regard to the property of both the individuals in the foreign country as well as in India, keeping in forefront the law applicable to the NRIs.
To my mind filing a divorce petition in India is a much smoother and safer route. The courts will receive a petition from an NRI for mutual consent divorce and the statements of both individuals will be recorded.
For purposes of appearance in court proceedings, if one party is unable to come, a power of attorney can be accorded to any person. This person should preferably be a family member. Once the statements of the individuals filing for divorce are recorded, the first motion is granted.
After the first motion has been granted, a period of 6 months is allotted as an interim period for the individuals to rethink their consent for the divorce. In this intervening time, either party can withdraw their consent. If neither party withdraws consent, then comes the second motion stage where the individuals have to be present to confirm their consent. The divorce is granted after this.
In the stage of second motion, both parties have to be present to confirm their consent by recording their statements in the court. Here, the physical presence of the parties is compulsory unlike in the first motion stage where a power of attorney could be granted.
The period of 6 months can be extended to 18 months from the date of first motion being granted. The courts have allowed for some amount of flexibility to be granted in this regard. Thus, an NRI can assign his consent and his presence between a period of 6 months to 18 months to acquire the final decree for mutual consent divorce by the courts.
Please understand that divorce decrees passed by Indian courts are valid in other countries just like marriages that are registered in India are valid in foreign countries. Basically, no foreign court is going to question if the decree passed by an Indian court on a matter of divorce of a couple married in India is invalid.
The divorce decree needs to be recognized in the foreign country if the couple jointly owns property in that country. Such recognition is gained by filing a petition for recognition in such country in accordance with their laws. This is the last legal requirement for finalizing a divorce in case the divorcing individuals are non-resident Indians.
At last I just want to say that, after analyzing how an NRI couple can acquire a mutual consent divorce in a foreign country and in India, it can be seen that both sides have their advantages and disadvantages. Therefore, the decision of where to file a mutual consent divorce petition must be carefully perused by both parties beforehand. It should also be agreed upon mutually to ensure that the process is completed quickly and is not dragged around.
Detailed discussion is required in such cases with complete facts.
You may contact my secretary to connect with me for clarification.
Advocate on Record & Amicus Curiae,
Supreme Court of India