The Role Of Foreign Jurisdiction In Marriage: Unraveling The Complexities Of Jurisdictional Errors In Divorce Decrees

Trust and loyalty are foundational to a relationship, but some individuals exploit legal loopholes for their benefit. The more tactical spouse may manipulate the situation to exhaust their partner emotionally, mentally, and financially. This often involves systematically undermining the other's strength, leading to emotional turmoil and weakening their defenses. On such loophole is "forum shopping," where a spouse deliberately chooses a jurisdiction that offers a more favorable legal outcome. This strategic move aims to secure a judicial decision that aligns with their desired result, complicating reconciliation and often leaving the other partner at a disadvantage.

Jurisdictional conflicts become particularly challenging when individuals living in one country seek matrimonial relief in foreign courts. Women seeking maintenance or divorce, whether in India or abroad, often face repeated legal obstacles such as jurisdictional disputes, difficulties with serving notices or orders, and problems enforcing court decisions. Additionally, they frequently encounter retaliatory legal actions initiated by their husbands in different jurisdictions. These issues highlight the urgent need for strong legal protections to safeguard the rights and welfare of spouses in NRI marriages.

It is imperative to critically examine the validity of divorce decrees, as there is no contention regarding the fact that jurisdictional discord constitutes a genuine conundrum that necessitates resolution. Over time, the Indian judiciary has meticulously endeavored to interpret the procedures and validity concerning divorce decrees, taking into account relevant provisions to establish a robust framework. However, the foundation remains inconclusive due to the ongoing conflict between Customary/Statutory Law and Foreign Law, resulting in diverse judicial perspectives on this issue.

In the Supreme Court case of, Y. Narasimha Rao and Ors. Vs. Y. Venkata Lakshmi and Anr. 1991 SCC (3) 451, the husband and wife were married in India under the Hindu Marriage Act. Subsequently, the husband obtained a divorce in Missouri, US on the pretext that he has been resident of Missouri prior 90 Days before filing the petition, he cited the ground of divorce as “irretrievable breakdown” of the marriage. The Supreme Court of India ruled that the Missouri court's jurisdiction and grounds for divorce did not align with the Hindu Marriage Act, making the divorce decree unenforceable in India.

On an analysis and interpretation of Section 13 of Civil Procedure Code, 1908 in aforementioned case, the following rule was deduced by the Supreme Court of India. The Supreme Court established criteria for recognizing a foreign matrimonial judgment in India.

“4.1 The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows;

(i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married;

(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married;

(iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.”

Supreme Court relied upon another of this Court in Smt. Satya V. Teja Singh, [1975] 2 SCR 1971.

In the case of "Sheenam Raheja v. Amit Wadhwa" (2012, 131 DRJ 568), the Delhi High Court referenced the aforementioned Supreme Court's ruling in "Y. Narmasimha Rao (1991, 3 SCC 451)." The court concluded that if a marriage was solemnized and registered under the Hindu Marriage Act, 1955, its dissolution must be carried out in accordance with the provisions of the same Act.

In, Shilpa Sachdev v. Shri. Anand Sachdev (2017-5 AIR Bom R 607, RCR (Civil) 2017-4 258, the Bombay High Court, referred aforementioned case and determined that the Dubai Court was not a competent authority for the divorce proceedings. The court highlighted several issues: the respondent-husband did not claim the petitioner-wife was a resident or domicile of Dubai; there were no statements indicating she had permanently moved to Dubai; and the Dubai Court's judgment did not state she was domiciled there. Records showed the wife returned to India on June 21, 2008, and has been permanently domiciled there since. Both parties are Indian citizens, and without evidence supporting domicile in Dubai, the presumption under Section 14 of the Code of Civil Procedure was invalidated. Additionally, the Dubai Court did not address the main issues between the parties, making its judgment not one on the merits of the case.

The Hindu Marriage Act does not recognize irretrievable breakdown of marriage as a ground for divorce. The Dubai Court granted the divorce on the grounds of desertion, but under Section 13(1)(ib) of the Hindu Marriage Act, desertion requires proof of both separation and the intention to end cohabitation. The Dubai Court did not consider the intention to desert (Animus Deserendi), focusing only on the fact that the parties had lived separately for over two years. The Supreme Court of India, in International Woolen Mills v. Standard Wool (AIR 2001 SC 2134; 2001 5 SCC 265), ruled that an ex-parte decision based solely on the plaintiff's plea and documents, without addressing the controversy between the parties, is not a judgment on the merits. The Dubai Court judgment did not show that the respondent made provisions for the petitioner to effectively contest the proceedings, including covering costs of travel, residence, and litigation.

The case of Vimal Jeyachandran Vs. Diana Jerine Johnson C.R.P.(MD).No.2594 of 2022 highlights the complexities of international divorce and jurisdictional conflicts. The couple, married in India under Christian rites, faced legal challenges when the husband, residing in the USA, obtained a divorce from a Minnesota court on grounds not recognized by Indian law. Despite the wife's objections and an Indian court's injunction, the foreign court granted the divorce, exemplifying the issue of "forum shopping," where one spouse seeks a favorable jurisdictional outcome.

Indian courts, as seen in this case and supported by precedents like Y. Narasimha Rao vs. Y. Venkata Lakshmi, require foreign divorce decrees to align with the matrimonial laws under which the marriage was solemnized. This case underscores the need for foreign judgments to meet Indian legal standards, ensuring they are not based on invalid grounds or obtained through unjust proceedings.

The decision to allow the wife's petition for restitution of conjugal rights, despite the foreign divorce, highlights the ongoing jurisdictional conflicts and the importance of upholding the sanctity of marriage within the Indian legal framework. This underscores the need for clear legal guidelines and mutual respect between jurisdictions to protect the rights of individuals in international marriages.

Notably, another provision of the Civil Procedure Code (CPC) seeks to facilitate the execution of foreign decrees: Section 44A, which addresses the execution of decrees, passed by courts in reciprocating territories. According to this provision, when a certified copy of a decree from a superior court in any reciprocating territory is filed in a District Court in India, it may be executed as if it had been issued by that District Court. This raises the question of which territories qualify as 'reciprocating territories'. As per Explanation 1 of Section 44A, a "reciprocating territory" is any country or territory outside India that the Central Government, through a notification in the Official Gazette, designates as such for the purposes of this section. Additionally, "superior courts" in relation to these territories refer to the courts specified in the aforementioned notification.

In the very recent case of Kerala High Court, Arun A. Vs. The Marriage Officer (Sub-Registrar), WP(C) NO. 21638 OF 2023, The Kerala High Court reiterated that foreign judgments can be accepted as conclusive in India where the parties voluntarily and effectively submit to the jurisdiction of the foreign court and consent to the grant of the relief, although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.

There is a provision in Indian law for execution of foreign court decrees. This is contained in Section 44-A CPC read with Section 13 CPC. Although Section 44-A CPC is couched in general phraseology and would seem to apply to the execution of foreign decrees in general. However, when it comes to specific laws i.e. the Hindu Marriage Act, 1955 or the issue of custody of the child, Section 44-A seems to have little application. These specific Acts have an overbearing effect on Section 44-A CPC. This is clear from sub-section (3) of Section 44-A which makes it clear that this is subject to the decree falling in any of the exceptions contained in Section 13 CPC.

Different nations view marriage through unique cultural and legal lenses. In India, marriage is considered a sacred institution, reflected in its detailed legislative frameworks. These laws are meticulously crafted, emphasizing the nation's deep respect for the sanctity of marriage. The judiciary plays a vital role in upholding these laws, recognizing their significant moral, ethical, and cultural importance.

The Indian judiciary's perspective on the validity of foreign divorce decrees highlights the complexities arising in international marriages, especially involving Non-Resident Indians (NRIs). The diverse and often conflicting legal landscapes governing divorce decrees pose significant challenges. While global integration fosters mutual respect for diverse cultures, recognizing foreign divorce decrees for marriages solemnized under personal laws can undermine the essence of cultural cohesion.

Marriages conducted under personal laws carry substantial cultural and personal significance, rooted in the traditions and beliefs of the individuals involved. Problems arise when foreign jurisdictions, with different legal principles and interpretations, issue decisions that may not align with the foundational values and legal frameworks of the marriage's country of origin. This disparity complicates legal matters and risks eroding the cultural and ethical foundations symbolized by marriage.

Therefore, as global cooperation aims to bridge cultural divides and promotes harmony, recognizing and enforcing foreign divorce decrees should respect and uphold the cultural integrity of marital relationships. Clear jurisdictional rules, mutual recognition of decrees, and robust legal protections for spouses are necessary. This balanced approach helps maintain both legal and cultural integrity in international matrimonial disputes.

Authors: Preeti Singh, Advocate, Founder/Managing Partner At PS Law Advocates & Solicitors. Views are personal.