• Recognition of German Mutual Divorce in India

Hallo,
 I got married in India as per Special Marriage Act in 2018 . Our marriage dint work out well. We both are working in Germany, so I applied for divorce after one year of separation and my spouse has also agreed to it mutually. She also came to the German court physically and gave oral confirmation on the mutual divorce during the hearing which is also recorded by judge. She has also requested a part of pension , which i have also agreed and will be given to her through court. The final verdict comes on September 30. After i get my documents what should I do?

1. Is this mutual divorce valid in India ? If yes , under what section of Indian law or please give some reference judgements. 
2. Do I have to get it validated in India ? Is this mandatory? how long it takes?
3. Before I get remarried in India , what should i do ?
Asked 22 days ago in Family Law
Religion: Christian

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9 Answers

Mutual consent divorce obtained abroad is valid in india 

 

2) you can file petition under section 7 of family court act for validating German divorce decree

Ajay Sethi
Advocate, Mumbai
84381 Answers
5530 Consultations

5.0 on 5.0

petition can be filed within the jurisdiction of the courts of which the parties to the marriage last resided.

The residence or the matrimonial home of the NRI couple will be a foreign country. Thus, the couple can file for a divorce petition either in India or in such foreign country.

 

2) 

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:

  1. Is not pronounced by a Court of competent jurisdiction.
  2. Has not been given on the merits of the case.
  3. 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.
  4. Was obtained opposed to the principles of natural justice.
  5. Has been obtained by fraud.
  6. Sustains a claim founded on a breach of any law in force in India

2) In Y Narasimha Rao & Ors. vs Y Venkata Lakshmi & Anr.SC has held The Jurisdiction assumed by the foreign court as well as the ground on which the relief is granted must be in accordance with the matrimonial law under which the parties are married’.

 

 

3) it should not take more than 6 months to get divorce decree validated 

Ajay Sethi
Advocate, Mumbai
84381 Answers
5530 Consultations

5.0 on 5.0

As per law, a Mutual Consent Divorce granted by foreign Court is considered as valid, legal and binding in Indian Courts by virtue of section 13 and 14 of CPC and also on account of comity of Nations.

1. Since the said divorce decree is going to be granted on the ground of mutual consent , and further there is separation of one year then this decree of divorce granted by German court is valid in India. 

2. Not mandatory , however you can file a petition in India court under section 7 of the family Act. 

3. You can remarry on the basis of foreign divorce decree 

Mohammed Shahzad
Advocate, Delhi
8182 Answers
86 Consultations

5.0 on 5.0

A foreign divorce decree is recognized and is considered final and valid in courts in India, unless the decree is legally flawed under general and divorce laws.

Therefore the reasons and grounds mentioned in the mutual consent divorce is to be seen to confirm that the divorce granted by the German court is valid in India or not.

The ground of divorce in the decision of the foreign court should be a ground available under the provisions of Indian laws. 

A decision on the merits involves the application of the mind of the Court to the truth or falsity of the plaintiff’s case and therefore though a judgment passed after a judicial consideration of the matter by taking evidence may be a decision on the merits even though passed  under the grounds of mutual consent. 

Therefore to get it validated you should first confirm that if it is recognised as a valid divorce in India after which you can file a suit to declare the divorce as valid before a civil court.

The court decree declaring the validity of the marriage would enable you to remarry in India.

T Kalaiselvan
Advocate, Vellore
74484 Answers
1226 Consultations

5.0 on 5.0

There is a provision in Indian law for execution of foreign court decrees. This is contained in Section 44-A CPC read with Section 13 CPC.

Although Section 44-A CPC is couched in general phraseology and would seem to apply to the execution of foreign decrees in general. 

The time taken for disposal of the proposed court by an Indian court cannot be predicted owing to various factors involved in it. 

T Kalaiselvan
Advocate, Vellore
74484 Answers
1226 Consultations

5.0 on 5.0

1. A decree of divorce on mutual consent passed by a competent foreign court is very much valid in India. Sec-13 and Sec-14 of the Code of Civil Procedure and Sec-41 of the Indian Evidence Act are very much relevant in this context.

2. There is no need for any validation of the foreign decree as such. Please obtain a certified copy with an authentic English translation from the German court for your records.

Swaminathan Neelakantan
Advocate, Coimbatore
1018 Answers
17 Consultations

4.9 on 5.0

Under Indian Law, execution of decrees, whether foreign or domestic, is governed by the provisions of the Code of Civil Procedure, 1908. Foreign court decree of divorce or dissolution of marriage can be valid in India provided such decree is according to the provision of law in India as provided under section 13 of the Civil Procedure Code and Principle of law as laid down by the Indian courts. A foreign court divorce decree may be valid in India ONLY if the spouse had lived in that country and had consented to that country's jurisdiction.

Mutual consent divorce obtained abroad is valid in India.

Under the Indian law there are two ways of getting a foreign judgement enforced.

  1. Firstly by filing an Execution Petition under Section 44A of the CPC (in case the conditions specified therein are fulfilled).
  2. Secondly by filing a suit upon the foreign judgement / decree.

More particularly says that;

  • Decree from Courts in "reciprocating territories" can be enforced directly by filing before an Indian Court an Execution Decree.
  • Judgments from "non-reciprocating territories," such as the United States, AUSTRALIA, and GERMANY can be enforced only by filing a law suit in an Indian Court for a Judgement based on the foreign judgement. Foreign judgement is considered evidentiary. - The time limit to file such a law suit in India is within three years of the foreign judgement.

 For enforcing a foreign Judgement or an Award from a ‘Non-Reciprocating Territory’ of India, a fresh suit in an Indian Court with appropriate jurisdiction needs to be instituted. Further, Judgments from a ‘Non-Reciprocating Territory’ only have evidentiary and persuasive value in the eyes of India Judiciary and they must be filed for enforcement within three years from the day when they were originally passed.  No doubt that Foreign Judgments from Non-Reciprocating Territories need to pass through the sieve of the Indian Judiciary but the sieve used is broad and spacious enough to allow the sink in of the cause of Justice upheld by the courts of Foreign Countries.

Germany is Non reciprocating country .

An Award from a ‘Non-Reciprocating Territory’ of India, a fresh suit in an Indian Court with appropriate jurisdiction needs to be instituted. In Indian Judiciary, judgments from a 'Non-Reciprocating Territory' have only evidentiary and persuasive value, and must be filed for enforcement within three years from when they were passed. 

Generally, a mutual consent divorce granted by the Foreign Court is considered valid, legal and binding in Indian Courts by virtue of section 13 and 14 of the Code of Civil Procedure and also on account of comity of Nations. Such decree of divorce granted by foreign courts need not to be validated in Indian Courts. However, as a matter of abundant precaution, one can approach the Indian Court for declaring that divorce is valid and binding.

Ajay N S
Advocate, Ernakulam
3941 Answers
83 Consultations

5.0 on 5.0

1. You need to first validate the same in India. It's applicable under cpc foreign decrees. 

2. Yes it's mandatory. If mutual then less time 

Prashant Nayak
Advocate, Mumbai
24476 Answers
52 Consultations

4.4 on 5.0

Dear Sir / Ma'am,

1. When it comes to mutual consent or consensual divorce order, the verdict conceded by a Foreign Court is viewed as a lawful, valid, and official decree in the Indian Courts by the virtue of Section 13 & Section 14 of the Indian Civil Procedure Code. 

2. It is not mandatory and you need not validate a foreign decree, your divorce would still be considered valid in India.

Thank You.

Anik Miu
Advocate, Bangalore
2729 Answers
27 Consultations

4.9 on 5.0

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