Cross border divorce: a brief overview to contest divorce in India or abroad

“Divorces are made in heaven” -Oscar Wilde

While already undergoing the emotional trauma of divorce many NRIs face the bigger decision: whether to file for divorce in India or abroad ?

Jurisdiction: In case of US, the first question is what about work permit ? Can H1B visa holder file for divorce and what if  they lose their work permit? An H1-B visa holder or their spouse who have dependent H4 visa, can file for divorce either in US or India, even if they were married in India. Most states in US accept foreign marriages. A divorce can be filed in any state as long as one meets jurisdictional requirements of the State they are living in.

However, in the case of Y. Narasimha Rao and Ors v. Y. Venkata Lakshmi and Anr. (1991) there was an important question, whether the divorce decree of  USA was valid in India and the marriage stood dissolved? The facts were that husband filed a petition for dissolution of the marriage in India, stating that he was a resident of Louisiana, he and his wife last resided together there. The husband filed another petition for dissolution of marriage in Missouri, USA alleging that he has been a resident of the State of Missouri for 90 days or more immediately preceding the filing of the petition. Though, the statements made by him in the petition in India, pointed that he and his wife had last resided together at New Orleans and never together within the jurisdiction of  Missouri. The Hon'ble Supreme Court held that " The decree passed by foreign court is without jurisdiction to Hindu Marriage Act, as neither the marriage was celebrated nor the partied last resided within the jurisdiction of that court. Further, Irretrievable Breakdown of Marriage is not one of the grounds recognised by the Act for for dissolution of marriage. Hence the decree passed by the foreign court was on a ground unavailable under the Act which is applicable to the Marriage. Residence does not mean temporary residence or residence which is intended to be permanent for future as well."

Ex parte decrees are increasingly being sought to get out of obligations of alimony, asset settlements, and hastening the process. In case of divorces filed in US, the law provides provision for Marital property rights, which allows the property acquired post marriage to be divided between both spouses. This provision is not provided in Indian laws. Most people believe that divorce matters are expedited abroad and women have more rights there. 

The lure of fast-tracking divorce proceedings, by getting ex-parte decrees on the ground of “irretrievable breakdown of marriage” or “ no fault divorce” , overlooks the enforceability of a foreign decree in India.

Are Foreign divorce decree enforceable in India? Section 13 of the Code of Civil Procedure a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if (a) it has not been pronounced by a Court of competent jurisdiction. Also, many provisions for divorces available abroad, are not maintainable under different Marriage Acts in India.

In case of Hima Chugh v. Pritam Ashok Sadaphule ( 2013) the parties were married in India and living together in UK. The husband filed for divorce in UK and received decree nisi , but the court in India held that both the parties are Indians and marriage between them was solemnised at New Delhi according to Hindu rites and ceremonies, and both are governed by Hindu Marriage Act,1955. Their marriage has been dissolved by Ilford County Court in UK on the ground of having been broken down irretrievably which is not a ground for divorce under the Hindu Marriage Act. The decree of dissolution of marriage granted by the Ilford County Court, Essex, UK cannot be recognised as the facts of the case fall within the purview of the exceptions of Section 13 of CPC.

Balasubramaniam Guhan v. T Hemapriya (2005) The wife had filed a suit to declare the decree of divorce passed by the Court at Scotland for divorce as ultra vires, unsustainable, illegal, unenforceable and without jurisdiction; the wife prayed for a consequential injunction restraining the petitioner to enforce the decree or to take a second wife. The Court held that if the foreign judgment falls under any of the clauses of Section 13 CPC, it will cease to be conclusive as to any matter thereby adjudicated upon. In the absence of the conditions mentioned in Rule 11 of Order VII CPC or any other valid grounds, the revision application filed by petitioner husband was also dismissed.

Validity of divorce under the Marriage Act: In case of Rupak Rathi vs. Anita Chaudhary (2014), The husband had filed for divorce in UK and then the wife had filed for divorce in India. While the proceedings were on in both the countries, the UK court had passed divorce decree due to “irretrievable breakdown of marriage. The husband sought rejection of wife’s divorce petition in Panchkula Court, citing that divorce in UK was binding, However, the District Court Panchkula dismissed his petition stating that “irretrievable breakdown of marriage is not a valid provision under Hindu Marriage Act”. His appeal in High Court was dismissed.

 Revoking of passport: Section 10 of passport Act provides for impounding of passport, which definitely inconveniences those working abroad and abandoning wives in India . 

In case of Rajiv Tayal v. Union of India & Ors. (2005) , The Ministry of External Affairs, Government of India had instructed the Consulate General of India, New York, USA to impound passport of the appellant NRI husband who had failed to respond to summons. The husband filed a writ petition seeking to quash the order. He stated that he was residing in USA and subjecting him to the criminal process in India was an unfair burden. The Court in India held that A person merely by going abroad cannot claim a status superior to that of a citizen of India. Since, any citizen accused in India of a similar offence would also have to obey the summons and appear before the Magistrate, The acceptance of such a plea would give a premium to the petitioner/accused who happens to travel abroad and it will thus be open to such an accused/petitioner to misuse the process of law to make a mockery of the Indian judicial system by asking for such a special procedure totally opposed to the principles of the criminal jurisprudence.

In the case of Harmeeta Singh v. Rajat Taneja 2003 The husband had abandoned the wife within 6 months of marriage, In the event that the marriage is dissolved by a decree in America, in consonance with principles of private international law which are embodied in Section 13 of the Civil Procedure Code, 1908, inter alia, this decree would have to be confirmed by a Court in this country. Furthermore, if the Defendant (Husband) were to remarry in the United States of America on the strength of the Decree of Divorce granted in that country, until this Decree is recognized in India he would have committed the criminal offence of bigamy and would have rendered himself vulnerable to be punished for bigamy.

Anubha v Vikas Aggarwal (2002) The couple was married for 2 months and the husband had proceeded with 'no fault divorce' petition in USA. He had abandoned the wife in US with no money, she managed to return to India and approached court. The husband received divorce decree in US during the pendency of proceedings in India, yet the court held that the grounds on which the marriage was dissolved is not valid in India, since the parties were Hindu and marriage was solemnised according to Hindu rituals and governed by provisions of Hindu Marriage Act. Also the wife had not submitted to the jurisdiction of the Court in USA and the decree was neither recognisable nor enforceable in India. In the matter of husband seeking exemption from personal appearance on the basis that he apprehended that he would be arrested in the case under Section 498 A, IPC filed by the wife. The High Court rejected the application.

The Courts in India have been very progressive in their approach towards validity of foreign divorce decree in India, to make no room for trickery or mockery of judicial process. The system remains unbiased and true to the merit of the case.