It will be a contested divorce but to make it still applicable in India you need to validate the same in india
International divorce valid in India
Hi, I moved to Australia in 2015. My ex-wife did not move with me. After several years of negotiations things were not moving forward so we decided to get a Divorce. We were not able to come to an agreement for a mutual consent divorce in india. No divorce application was filed in India. We were married under the special marriage act in 2008 in 2019 I filed for a divorce in australia and served her the documents. She received the documents and contested the divorce stating I was not domiciled in Australia. The Australian court considered this and ruled in my favour stating I am domiciled in india and granted me the divorce. My ex-wife was in india and did not come to the court. There was a provision in the court for people living in other countries to appear via video call. She did not avail that as well. My question is whether this would be considered a contested divorce where my ex-wife has submitted to the jurisdiction of the Australian court?
Asked 2 years ago in Family Law
Religion: Christian
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11 Answers
What were the grounds of divorce ?
for valid divorce it has to be on grounds recognised by SMA
if it was granted on grounds not recognised in india divorce decree would not be valid in india
Dear Sir,
An Australian Divorce Order is recognized in India where such order is final and conclusive and where it has recognized and applied relevant Indian laws. If you filed for divorce on the grounds mentioned Under Indian law then such divorce decree will be valid in India.
Thank You.
the reason for divorce was Irretrievable Breakdown of Marriage. I read somewhere "Both parties contesting the divorce actively attends the divorce proceedings in the foreign court" My question was what constitutes this? My ex wife has responded to the summons and contested the divorce claim. the Australian court has heard her response and ruled in favour of the divorce. She has not been physically present for the hearing. Would this be considered as she has attended the divorce proceedings? If it is then would it be correct to suppose that she has submitted the jurisdiction of the Australian court. Thus making the divorce valid in India. Also, if it is valid. What would I need to do to complete the process in india
Asked 2 years ago
It is not ground for divorce recognised by SMA
2) granting divorce on the ground of irretrievable breakdown of marriage is exclusive within jurisdiction of the Supreme Court and is beyond jurisdiction of any other Court in India.
3) it would not be valid in India
The divorce decree granted by Australia by the Australian court is not recognized to be legally valid in India for the marriage solemnized in Indian as per Indian laws.
A foreign judgment not conclusive, if the reasons stated in the decree is ion the grounds of irretrievable breakdown of marriage”, as this is not a ground under the prescribed under Indian laws for divorce.
Further the decision should be a result of contest between the parties. The non-applicant should have unconditionally submitted to the jurisdiction of the foreign court and contested the claim or agreed to the passing of the decree. The concept of acquiescence to jurisdiction would not suffice.
Another reason: The concept of natural justice is the provision of fair hearing; absence of bias of Judge and following the elementary principles of fair play. This is a larger concept but shortly can be stated as essential trappings in order to have a fair adjudication. Where for instance respondent was denied documents filed by the other side or where the respondent was denied the opportunity to cross-examine witnesses of the other side, without a justifiable cause, these would be opposed to the principles of natural justice.
In Satya v. Teja Singh[2], when the respondent had instituted a foreign court proceeding, in a court in whose jurisdiction the applicant has never lived, respondent had made a false representation that respondent was a bona fide resident of that State. It was held that the respondent had practised fraud on the foreign court by concealing this fact. Therefore, that foreign court had no territorial jurisdiction. That foreign court decree was declared invalid by the Supreme Court of India.
The non-applicant always has an option not to attend nor actively participate in the foreign court proceedings. This would be taken as, the non-applicant did not submit to the jurisdiction of the foreign court. This, however, does not mean that the non-applicant is not even required to be served in the foreign court proceedings. Non-service would amount to denial of opportunity to be heard.
As the non-applicant did not submit to the jurisdiction, it is further said that this non-applicant did not chance a judgment in his/her favour. Challenge to the foreign court decree in such a situation may be entertained by the Indian courts.
In view of the foregoing, it is clear that the divorce granted by Australian court is not valid in India for the marriage solemnised in India as per Indian laws.
Consequences of a Foreign Decree of Divorce Being Held as Invalid
Respondent cannot sit with the comfort that he/she has a decree for divorce from a foreign court. Consequences may appear soon thereafter or maybe years later. The other side may apply for its cancellation in the Indian court. In such an eventuality if:
(i) The respondent remarries, he may be prosecuted for bigamy. Case in point is Y. Narasimha Rao v. Y. Venkata Lakshmi.
(ii) Opposite party may file for maintenance.
(iii) Issue of custody of children can be raised.
(iv) Opposite party may claim share in the property of the respondent.
The non-applicant always has an option not to attend nor actively participate in the foreign court proceedings. This would be taken as, the non-applicant did not submit to the jurisdiction of the foreign court. This, however, does not mean that the non-applicant is not even required to be served in the foreign court proceedings. Non-service would amount to denial of opportunity to be heard.
As the non-applicant did not submit to the jurisdiction, it is further said that this non-applicant did not chance a judgment in his/her favour. Challenge to the foreign court decree in such a situation may be entertained by the Indian courts.
If a divorce obtained on grounds other than the grounds enumerated under the Indian laws if the parties were married under the provisions of Indian Law, as a divorce matter is governed by the law under which one gets married and not the law of the land where the party is residing.
A foreign judgment can be executed in two ways in India. The ways are as follows:
- First, by filing an execution under Section 44A of the Civil Procedure Code. Section 44A states that a decree passed by Courts in reciprocating territories can be executed in India as if the decree was passed by the Indian Courts only.
- Secondly, by filing a suit upon the foreign judgment/decree. For instance, the decree does not pertain to a reciprocating territory or a superior Court of a reciprocating territory, as notified by the Central Government in the Official Gazette, the decree is not directly executable in India. Here the decree passed by the foreign court shall be considered as another piece of evidence.
To conclude we can say that a decree passed by a Foreign Court has either to be executed under Section 44A or a fresh suit has to be filed for its enforcement. A foreign divorce decree is considered to be conclusive under Section 14 of the Civil Procedure Code if it passes the test under Section 13 of the said Code.
Yes validation in indian court is must for admissibilty in india
This would not be considered as contested divorce as the wife was unable to make her submissions in Australian courts.
The said divorce decree would not be enforceable in India.
Her Response submitted to the Australian court needs to be perused in order to give you concrete advice regarding this issue
- Since she has not contested the case after appearing before the court and not engage a counsel on her behalf , and further she has not depose herself for the conclusion of the dispute , then it will not treated as a contested divorce case , and such decree of divorce granted by the foreign court is not valid in India.
Dear Client,
Since the other party has not attended the divorce proceedings physically, the divorce shall not be enforceable in India.
However, for the execution and enforcement of such a decree passed by a Foreign Court to be valid in India, a fresh suit shall essentially be filed under Section 44A of the Civil Procedure Code. Henceforth, once it has cleared, such decree shall be considered valid under Section 14 of the Civil Procedure Code.
Thank you.