Divorce, also known as the dissolution of marriage. is the procedure of terminating the marriage including all the legal duties and responsibilities arising out of a marriage. It is a legal procedure and can be obtained through the way of a decree from a competent court. Indian courts while granting divorce to a couple consider the jurisdiction where the marriage was solemnized or place where the married couple last stayed together or the place where either of the party is residing at the time of filing a divorce petition.
Foreign divorce decree is not recognized by the Indian courts unless such decree is covered under the ambit of Section 13 of the Civil Procedure Code, 1908. In the landmark judgment titled Y. Narasimha Rao and Others Vs. Y. Venkata Lakshmi And Another, 1991(3) SCC 451, the Hon’ble Supreme Court explained the meaning of phrase “court of the competent jurisdiction” used in section 13 CPC, the relevant para is reproduced below: -
15. Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression "competent court" in section 41 of the Indian Evidence Act has also to be construed likewise.
Moreover, the merits of the case should be given. According to Section 13 Clause (b) of the above said act the decree without being on merits of such case would not be recognized in the Indian Courts.
The second part of clause (c) of the said section does not uphold the order valid of a foreign court where the law is contrary to law on the land of India.
Parties are contesting
In a situation where both the parties i.e. husband and wife, out of which one is NRI or both are NRIs, are contesting the divorce petition filed by either of the party in the foreign court, it implies that both the spouses took voluntarily and unconditional active participation in the divorce proceeding, keeping the consequence in mind and that the divorce decree was obtained through mutual consent from the foreign country. Therefore, in such a scenario the Indian Courts would not want to interfere with it as it shows they have waived off their rights under Indian law.
Divorce Decree obtained with Ex-parte order
Where in a divorce proceeding one of the spouse does not participate because of any reason for instance due to notice of such proceeding not being served or due to any other reason, such divorce will not be treated as valid divorce because in the case of Y. Narasimha Rao and Ors. Vs Y. Venkata Lakshmi and Anr, the Supreme Court laid down that the jurisdiction as well as the relief granted should be in accordance with the matrimonial law under which the parties are married.
Veena Kalia Vs. Jatinder N. Kalia, AIR 1996 Del 54 Ex-parte divorcee decree was obtained in Canada on the grounds which was not available to the petitioner in India, the Delhi High Court held that such divorce was not valid and there is no res judicata on the judgment as such judgment was a nullity in Indian law.
Also, in the said case the High Court observed that though summons were duly served to the respondent/wife in India and respondent/wife did not appear in the foreign court then in such a scenario the silence of the wife could not confer jurisdiction on that Court. Silence here is not because of her own volition but because of the constraints which she could not overcome to contest the proceedings there.
In view of the above said judgments of the Supreme Court and Delhi High Court, while considering the decree of divorce obtained from foreign courts, it is pertinent to mention that Indian courts should apply their judicial mind while acknowledging the universal aspects and Indian law and upholding the rights and welfare of the individual , it should decide the case upon merits and jurisdiction.