Divorce with a Foreign National

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 takes 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.

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Validity of Foreign Decrees 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 the 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 & lsquo 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 fraud in court.

Ground of divorce not valid under Indian law:

Cruelty, Adultery, Desertion, and 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.

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

Since these two grounds are recognized 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 an 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 no 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. A suit for declaration can be filed, challenging the marital status and invalidity of the foreign decree.

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How can a Lawyer help you?

Divorce is a stressful time for everyone involved. Hiring an attorney to complete a divorce is one way to reduce the stress of the divorce. While the attorney will need to gather information from you regarding the case, he or she will also take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienced divorce attorney can give you expert advice on how to handle your divorce owing to his years of experience in handling such cases. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce/matrimonial lawyers. A divorce lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he can avoid delay and get the divorce completed as quickly as possible.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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