Competency of the foreign court to pass a decree of Divorce, when either of the parties to the marriage is domicile of a foreign country and the other spouse is domicile of India. 

 Author: Adv Tanya Jha 

            LLB,CS,BCOM

“Marriages are made in heaven, consummated on earth but governed by the law”!

 India is a secular state, i.e.. it does not have any state religion and people in India have liberty to practice and profess any religion of their choice. The legal system in India comprises civil law, common law, customary law, personal law, corporate law etc. Matters arising out of or connected with marriages and divorce is governed under the personal law of the spouses or under the act, in which the marriage was solemnized, such as the Hindu Marriage Act 1955, the Indian Christian Marriage Act 1872, Muslim Personal Law (Shariat) Application Act, 1937 and the Parsi Marriage and Divorce Act 1936 for solemnization of Marriage and other related matters. However, in the case of interreligious marriage, a spouse can choose to marry under the Special Marriage Act and when a person solemnizes marriage under this law, then the marriage is not governed by the personal law but by the Special Marriage Act and the proceeding for divorce shall be governed by the Special Marriage Act.

In a case where a divorce decree is granted in foreign jurisdiction if one of the spouses is domiciled of foreign country, such a decree is recognized in India under provision of sec 13 of the Code of Civil Procedure: 

 Section 13 of the Civil Procedure Code states when a foreign judgment is not conclusive. It reads:--- 

"13. When a foreign judgment is not conclusive.---A foreign judgment shall be conclusive as to any matter thereby directly adjudicated 

upon between the same parties or between parties under whom they or any of them claim litigating under the same title except--- 

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it 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; 

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in (India). 

Jurisdictional competency of the court, to try suits in matrimony for marriage between the spouses of different nationals, depends on the domicile. Partners are governed by the law of their matrimonial domicile. Domicile ascribed to an individual a character of citizen to the country a place of permanent residence, with an intention to make it a permanent home. Temporary residence doesn’t give a domicile of the country unless there is an intention of making it a permanent home. It is based on domicile, a personal rights of the party, i.e laws of succession, marriage and divorce, testacy, or intestacy are governed. An individual can have residency in more than one country, but he/she cannot have more than one domicile.

There are general rules governing domiciles:-

Nobody is without a domicile. 

 A person cannot have two domiciles.

·        There is a presumption in favor of continuance of an existing domicile.

And two classes of domicile are: -

·      the domicile of origin which is communicated by operation of law to each person by birth  i.e either of father or mother 

                  and

·      Domicile by acquisition.

So far as India is concerned, a judgment of a foreign Court creates estoppel or res judicata between the same parties provided such judgment is not subject to attack under any of the Clauses (a) to (f) of section 13 of the C.P. Code vide Maganbhai v. Maniben, MANU/GJ/0095/1985 : AIR1985Guj187. The question of jurisdiction of a foreign court in a divorce proceeding is generally dependent upon the domicile of the parties. In Satya v. Teja Singh, MANU/SC/0212/1974 : 1975CriLJ52, it was observed: 

"But if a decree of divorce is to be accorded full faith and credit in the courts of another jurisdiction, it is necessary that the Court granting the decree has jurisdiction over the proceedings. A decree of divorce is thus treated as a conclusive adjudication of all matters in controversy except the jurisdictional facts on which it is founded. Domicile is such a jurisdictional fact. A foreign divorce decree is, therefore, subject to collateral attack for lack of jurisdiction even where the decree contains the findings of recital of jurisdictional facts". 

Therefore, law is a test for determining personal law. However, the general rule is that the wife's domicile follows of the husband. In Harvey v. Farnie, 1882 (8) H.L. 43, the contention was that a marriage solemnized in England between an English woman and a Scotchman was an "English marriage", no foreign Court had jurisdiction to dissolve the same. The House of Lords rejected this contention and held that on marriage the wife took the domicile of her husband and became subject to his laws. This is based on the rule laid down in Le Mesurier's, 1895 A.C. 517, that matrimonial status is governed by the law of domicile of the parties and that the wife's domicile follows the domicile of her husband.

The High Court in India, In Prakash v. Mst. Shahni, A.I.R. 1965 J & K 83, went a step further and observed that even on the death of her husband, a widow retains her husband's domicile until she changes it by her own act. 

e.g. by marriage. The Law evolves as per changing time, and the earlier law in which domicile of wife follows that of husband has been relaxed in catena of judgements. in Indyka v/s Indyka 1967 (2) All.E.R. 689: 1969 (1) A.C. 33 the departure from general rule, that wife domicile follows of husband was overruled. This departure form established doctrine laid down in Le Mesurier's case, was laid due to the fact it operated too rigidly, in the case of modern time, when there are more marriages between the different nationalities. Thus decree of divorce can be granted by the court to the wives residence, provided the length and the quality of the residence is taken into account. The direction pronounced in Indyka v/s Indyka was also upheld in subsequent decision Angelo v. Angelo, 1967 (3) All.E.R. 314; Mayfield v. Mayfield, 1969 (2) All.E.R. 219; Mather v. Mahoney, 1968 (3) All.E.R. 223 and Brown v. Brown, 1968 (2) All.E.R. 11, are illustrative of the fact that decrees passed by foreign Courts were recognised on the ground of real and substantial connection of either of the parties to the respective foreign country. In context of India, supreme court upheld law as laid down the directions,  in Indyka case  in Surinder Kaur v. Harbax Singh, 1984 S.C.C. 698. 

If the local/ municipal law is silent about the provision in law, the courts can refer to Hague Convention on the Recognition of Divorces and Legal Separation 1970 to "the recognition in one contracting State of divorces and legal separations obtained in another contracting State which follow judicial or other proceeding officially recognized in that State and which are legally effective there" even though India is not signatory or convention, the courts can refer to the convention, provided it is not inconsistent with the laws made of municipal law and not contrary to public policy. 

Guidelines issued by Supreme court of India in “Narasimha Rao v. Venkata Lakshmi”, (1991)2 SCR 821, while interpreting clause 13(a) deciding on the competency of jurisdiction of the foreign courts, stated 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 shall be held to be without jurisdiction, unless both the parties voluntarily subject themselves to the jurisdiction that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise.”

the Supreme Court stated clause b(13) of CPC to be interpreted as:

"(a)that the decision of the foreign Court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the Court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the Court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case."

the Supreme Court stated clause c(13) of CPC to be interpreted as:

"The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognised by such law, it is a judgment which is in defiance of the law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country."

Disclaimer: The aforesaid  information is  made available for educational purposes only. It is not intended to provide legal advice nor form any attorney client relationship . You should always seek professional advice from a licensed�attorney for any legal questions you may have.