How to divorce a foreign national not living in Inida

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Divorce with a Foreign National

Legality of foreign divorces in India has always been clouded with conflicting opinions and judgments. However, there are a few basic things that one needs to know while filing for divorce with a foreign/NRI spouse.

A couple married in India as per Indian Law take their personal law with them. Hence, even when the couple decides to settle down outside India, their marriage, and therefore their divorce, will still be governed by Indian law.


Validity of Foreign Decree in India

Section 13 of the Civil Procedure Code lays down that a foreign decree is conclusive in India under normal circumstances. This general principle of law is based on the principle of res-judicata, which basically means that a dispute that has been adjudicated upon in court should not be re-agitated. The same is done in order to prevent wastage of judicial resources. Hence, under normal circumstances, a decree of divorce granted by a foreign court of law will also be valid in India.

However, certain exceptions to this condition of ‘normal circumstances’ have been carved out and the same are as follows:


Grant of divorce by a Court not authorised by Indian Law:

· As per Indian law, the courts that usually have jurisdiction to grant divorce are-
· Where the marriage was solemnized
· Where the couple last resided as husband and wife
· Where the person contesting the divorce resides

When the decree is not based on merits:

This implies that the court which passed the divorce decree failed to take into account submissions of both parties. In most cases, such a problem arises when one party leaves the country and comes back to India, and the divorce is granted in the absence of that party, i.e. ex parte decree.

Exception to exception: In such a case, if it is established that the party that left the country did so only to avoid the divorce proceedings, the divorce would be valid as no party should be allowed to commit such a fraud on court.


Ground of divorce not valid under Indian law:

Cruelty, Adultery, Desertion, Impotency are broadly the grounds on which Indian courts allow divorce. If a foreign court grants divorce on any ground outside of these, and the same is not a valid ground in India, the divorce would not be valid.


Decree awarded on the basis of ‘irreconcilable differences/irretrievable breakdown of marriage:

Since these two grounds are recognised in India, a divorce decree granted on these two grounds is not binding in India.


Proceedings are against Principles of Natural Justice:

Any proceeding that is not just and fair, i.e. both parties have not been given and equal and fair opportunity to present their case, is said to be violative of principles of natural justice. Any divorce granted under such circumstances will not be valid.


Decree obtained by fraud:

Any decree obtained by misrepresentation of facts or fraud will not be valid in India.


Important Tips:

If the foreign divorce decree does not fall under any of these exceptions and is valid in India, there is not mandatory requirement to validate it. However, it is advisable to do the same in consideration of future prospects and to avoid hassles.

If the decree falls within the given exceptions, the burden of proof to prove that the decree is invalid falls on the person claiming it. Such a decree can be challenged by filing a suit for declaration of marital status and invalidity of the foreign decree.

Advocate Siddhant Sharma LawRato