Divorce granted by a foreign court to a couple who have solemnized their marriage as per the Hindu Law on a ground that is not recognized by Hindu Marriage Act, 1955, will not be enforceable in India. Mutual consent divorce granted by foreign court would be valid in India and legally binding by virtue of section 13 and 14 of CPC. This is applicable to those couples who decided to solemnize their marriage in India and thereafter decided to migrate to another foreign land, and due to their difference filed for divorce in their country of domicile. This also applies to such couples who were NRI’s or Citizens of another country and decided to solemnized their marriage in India as per the Hindu Marriage Act,1955. The grounds for divorce have been mentioned in section 13 of the Hindu Marriage Act, 1955. The following are the legal grounds which the Indian courts recognize for the purpose of Divorce:
As per Section 13B , the person can file the petition for divorce by mutual consent of both the parties. If a foreign court passes a judgment on divorce other than the abovementioned grounds, then it can be held that such a judgment is not applicable in the eyes of law in India. The foreign decree/Judgment has to pass the test of S. 13 CPC, which specifies certain exceptions under which the foreign Judgment becomes inconclusive and is therefore not executable or enforceable in India. Under Section 13 of the Code of Civil Procedure , 1908, 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; (b) it has not been given on the merits of the case; (c ) it is founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice; (e) it is obtained by fraud; (f) it sustains a claim founded on a breach of any law in force in India.
That in Rupak Rathi v. Anita Chaudhary (P&H), the Punjab & Haryana High Court laid down principles pertaining to foreign judgments, the revenant Para being reproduced as under:
24. These principles are summarised for guidance of matrimonial courts functioning within the territories over which this court exercises jurisdiction but with a word of caution that they should be applied on a case to case basis while dealing with applications under Order 7 , Rule 11 , CPC in the context of HMA and Section 13 CPC as it is not prudent to lay down any strait jacket formula of universal application and some free play in the joints of matrimonial courts should be left while dealing with different fact situations presented before them:-
(i) If the spouse aggrieved by the foreign matrimonial decree has not submitted to the jurisdiction of the foreign court or consented to the passing of the foreign Court judgment, it ought not to be recognised being unenforceable under Section 13 CPC. This position of law ought to be applied to the facts of the individual case.
(ii) There may be occasions that a spouse relying upon the judgment of a foreign matrimonial court, upon receipt of a summon or notice from a court of competent jurisdiction under the HMA, may not choose to file a written statement in response to a petition seeking a matrimonial cause under HMA in Punjab, Haryana or Chandigarh. Instead, the contesting spouse may prefer to move an application under Order 7 , Rule 11 CPC seeking to rely upon or invoke the provisions of Section 13 CPC. Thus, it may be contended before the court of competent jurisdiction under the HMA that since the matrimonial action between the parties has already been decided and concluded by a Court in the foreign jurisdiction, the adjudication in the matter in issue between the same spouses based on the same matrimonial cause of action is barred by the principle of res judicata and spouses are estopped in law from agitating the same again.
(iii) It is respectfully contended that wherever both or any spouse arrayed in a matrimonial cause in a matrimonial action under HMA contest, dispute, question or oppose any above such application under Order 7 , Rule 11 , CPC involving interpretation of the principles laid down under Section 13 CPC thereby necessitating requirement of detailed pleadings and evidence of spouses, no summary decision may seem possible to decide the matter in the preliminary stage.
(iv) In the above situation, there may also be circumstances involving application of issues of domicile as also applicability of Sections 1 and 2 of the HMA regarding extra territorial application of the provisions of HMA. Determination of these issues may also require parties to put their pleadings and testimony as well on the record of the Court of competent jurisdiction under the HMA.