This article has been written by Ms. Mahi Agrawal, a first-year student at Hidayatullah National Law University, Raipur.
Abstract
The Hindu Marriage Act of 1955 serves as the governing legislation for Hindu marriages and divorces in India. With the rising migration of individuals governed by various personal laws to different countries, the need for clear rules regarding matrimonial legal proceedings has become crucial. This article delves into the questions of whether a foreign court can validly decree a divorce when the matrimonial ties fall under its purview, and whether Indian courts can recognise and deem conclusive a decree issues by a foreign court. The primary focus of this article to evaluate the enforceability of foreign divorce decrees, particularly in cases where the opposing party actively participates in the proceedings of the foreign court. It addresses the conditions under which an Indian court recognises a foreign decree as conclusive, hinging on the compliance with Section 13 of the CPC and Sections 13,19 and 24 of the Hindu Marriage Act 1955.
Introduction
The recognition and enforcement of foreign judgments in Hindu divorce cases bring forward a complex legal landscape. The Hindu Marriage Act of 1955 stands as the governing statue for Hindu marriages and divorces in India, providing the rules and regulations for legal proceedings within the country. However, as global mobility becomes more prevalent, situations arise when Hindu couples, married in India but residing abroad, encounter matrimonial issues and seek relief from foreign courts. This raises an important question: Can a foreign court, unfamiliar with the intricacies of the Hindu Marriage Act, validly decree a divorce when the matrimonial ties fall under its purview? And if a decree issues by a foreign court can be recognised and deemed conclusive by Indian courts.
The recognition of foreign divorce decrees in India is governed by the provisions of the Civil Procedure Code 1908 and the Indian Evidence Act. Moreover, the Hindu Marriage Act of 1955 and the Hindu Adoption and Maintenance Act of 1956 also play crucial roles in shaping the legal framework surrounding this issue. Section 13 of CPC lays down conditions under which a foreign judgement may not be considered conclusive, emphasizing factors such as the jurisdiction of the foreign court, the merits of the case, compliance with international law, natural justice, fraud, claims based on breach of Indian law. Section 14 introduces a presumption regarding the validity of foreign judgements but allows for its displacement by evidence of jurisdictional inadequacies. The focus of the article lies in assessing the enforceability of foreign divorce decreed, contingent on whether the opposing party participated in and attended the proceedings of the foreign court.
No Active Participation
In foreign court proceedings, the opposing party retains the right to abstain or refrain from active participation in foreign court proceedings. Such non-participation may be construed as the non-applicant’s refusal to submit to the jurisdiction of foreign court, signifying a denial of the opportunity to present their case. In such instances, Indian courts may entertain challenges to the foreign court decree. Proper notice of the foreign court proceedings must be served to the non-applicant for the proceeding to hold validity. Without it, the proceeding conducted would lack legal standing. Indian courts are likely to declare such proceedings void. The Madras High Court clarified in 1932 that merely entering into a contract in a foreign county doesn’t constitute submission to the jurisdiction of that country’s courts. Consequently, the decree from a foreign court was deemed not to be extra-territorially valid and lacked recognition as a competent court. Further, in 1934, in the case of S. Neelakanda Pillai v. K.A. Kunju Pillai, it was held that “It (the foreign decree) must be regarded as a mere nullity by the Courts of other nations except (when authorised by special local legislation) in the Country of the forum by which it was pronounced.”
Active Participation of the Parties
If the opposing party participates in the foreign court proceedings, they cannot subsequently argue that they were denied the opportunity to be heard, as their voluntary appearance is presumed before the court. Nevertheless, the respondent can separately raise a plea before the foreign court’s jurisdiction, seeking alimony or monthly maintenance. In the case of Mrs. Anoop Beniwal v. Dr. Jagbir Singh Beniwal, the Delhi High Court addressed a situation where a divorce decree was granted by a UK Court. The English Court had the competence to entertain the husband’s petition, leading to the issuance of the divorce decree in his favour. The breakdown of marriage justified the grant of a decree nisi to the husband. Importantly, the Court didn’t refuse to recognise Indian law, and the proceedings adhered to principles of natural justice by providing a fair hearing. There was no violation of Sections 13,19 and 24 of the Hindu Marriage Act 1955, as alleged in the complaint. The plaintiff lacked a cause of action to challenge the conclusiveness of the judgment rendered by the English Court. The Indian Court consequently refused to entertain the matter afresh.
Jurisdiction and Recognition: Ensuring Matrimonial Certainty
In the landmark case of Narasimha Rao v. Y. Venkata Lakshmi, the Supreme Court emphasised its ability to fulfil a modest role within the existing statutory provisions through rational interpretation and extension to achieve the intended purpose. The Court recognised that relying solely on available resources in this domain may prove insufficient or overlook certain aspects not apparent at the present moment. This judgment served as a starting point, with the expectation that future judgements will fill in any gaps or correct errors. Hon’ble Supreme Court recognised that there was a pressing need for clear rules regarding the recognition of foreign judgements in personal and family matters, particularly in matrimonial disputes. The increasing migration of individuals with different personal laws to various countries, coupled with advancements in communication and transportation, had made it imperative to establish definitive rules. Marriages involving citizens of India and nationals of other countries further complicated the problem. The resulting migration, whether temporary or permanent, had given rise to diverse matrimonial disputes, threatening the stability of families. In the light of these developments, there was an urgent call for certainty in the recognition of foreign judgments. It was held that relevant provisions of Section 13 of the Hindu Marriage Act could be interpreted to achieve this certainty in alignment with public policy, justice, equity, and good conscience, with an aim to protect the institution of marriage and the unity of families. The Court addressed the larger question: whether the courts in this country should recognise foreign divorce cases. However, in this particular case, it was held that since the foreign decree was not in accordance with the Act under which the parties were married, and the respondent didn’t submit to the jurisdiction or consent to its passing, it could not be recognised or enforced by the courts in India.
From this judgement, certain rules were derived. The key rule for recognising a foreign matrimonial judgement in India is that the jurisdiction and grounds on which the relief is granted must align with the matrimonial law under which the parties were married. Exceptions to this rule include situations where the respondent is domiciled or habitually and permanently resides in the forum, or where the respondent voluntarily submits to the jurisdiction and contests the claim based on the applicable matrimonial law. Additionally, recognition may occur if the respondent consents to the relief, even if the forum’s jurisdiction does not align with the matrimonial law. This rule, along with its stated exceptions, is deemed just and equitable, avoiding injustice to any party. It ensures that parties understand their rights and obligations when marrying under a particular law, preventing grievances. Moreover, the rule offers protection to women, a vulnerable section of the society, by liberating them from restrictive rules tied to a husband’s domicile. Further, all the courts globally are urged to deal with petitions for dissolution of marriages under foreign law to strictly observe the principles of natural justice, particularly in cases involving absent spouses. This would help the cause of “deserted” wives.
In the case of Dinesh Singh Thakur, the Supreme Court observed that, “Foreign court cannot be presumed to be exercising its jurisdiction wrongly even after the appellant being able to prove that the parties in the present case continue to be governed by the law governing Hindus in India in the matter of dispute between them.” However, if the decree is passed by the Court not having jurisdiction and such decree is put in execution, the execution could be resisted claiming that it isn’t executable. In another case of Smt. Hemavathi Shivashankar v. Dr. Tumkur S. Shivashankar, the wife asserted marriage to her husband in 1966. Advised to return to India with their children, she faced complications when their son was injured in 1982. Upon her return to the USA, her husband denied her entry, having filed for divorce. She alleged the defendant’s intention to obtain a divorce without her resistance, asserting fraud on the American Court under Section 13 of the CPC, 1908. The husband argued for a valid divorce holding up the Court’s jurisdiction to enforce foreign laws. The Karnataka High Court determined that the foreign court had asserted jurisdiction solely based on the temporary residence of the parties within its territory. Consequently, the Court declared the divorce decree issues by the foreign court as void, citing lack of jurisdiction. The proceedings were deemed to have violated the principles of natural justice. It was established that the foreign court lacked the authority to dissolve the marriage, resulting in the decree’s infringement of Indian law. given that the parties were subject to the provisions of HMA 1955, the Court concluded that a jurisdictionally deficient court could not dissolve the marriage.
Ultimately, the Supreme Court has advocated a fresh approach to the recognition of foreign divorce decrees in India. This new perspective doesn’t necessitate the enactment of entirely new legislation. The Court emphasises the importance of a contextual interpretation within the existing legal framework. While adapting the general law on the recognition and enforcement of foreign judgments in India to the specific requirements of divorce decrees, the Supreme Court has set the stage for further development. The initiative provides guidance to address legal gaps, with future judgements expected to contribute to the evolution of the law.
Conclusion
The key conclusions derived from this article could be summarized as follows:
- In cases where the matrimonial bond falls under the purview of the Hindu Marriage Act 1955, a foreign court is capable of issuing a valid divorce decree. Recognition of such decree by an Indian Court is deemed conclusive, contingent upon adherence to the provisions of Section 13 of the Code of Civil Procedure. This interpretation is in line with the Supreme Court’s decision in Y. Narasimha Rao v. Y. Venkata Lakshmi.
- In cases involving the marital union regulated by the HMA 1955, if both parties do not willingly subject themselves to the jurisdiction of a foreign court or unequivocally agree to divorce in that jurisdiction, the foreign court does not possess the power to consider and rule on the divorce petition. As a result, any judgment from such a foreign court is not valid or enforceable in India.
References
- This article was originally written by Rajinder Goyal and published on Legal Service India. The link for the same is herein:
- This article was originally written by Lakshmi Jambholkar and published on Journal of the Indian Law Institute. The link for the same is herein:
https://www.jstor.org/stable/43951380
- This article was originally published on Tripaksha Litigation. The link for the same is herein: