Foreign Divorce

Various family issues like DIVORCE, ANNULEMENT, CHILD CUSTODY amongst others are faced by NRIs and Indian’s Living Abroad. Divorce itself is complicated issue, the complication compounds and aggravates when it involves Indian Law of Divorce and is a Foreign Divorce, various issues arise out of the same.

The many questions and queries that arise from such situation can be summarized as “Can a marriage which is solemnized in India, be dissolved by foreign Court of Law? Can Indian’s living abroad for eg say US, UK file a case for Divorce in foreign Court in US or UK Court of Law? Whether a decree of divorce granted by the foreign Court say US , UK Court is valid, legal and binding in India? Whether an exparte decree of divorce granted by foreign Court, say US, UK court, will be valid and binding in India? Can the Indian Court restrain a spouse who has instituted divorce proceedings in a foreign country? Can a person file for divorce in foreign country say US, UK Court ? Is it necessary that if a divorcee decree is obtained from foreign Court say US, UK Court need to be validated in India by Indian Courts.

Answer to all the aforesaid questions and queries differs from situation to situation and case to cases basis. As per Indian Law as interpreted by Indian Court including the Supreme Court of India on NRI divorce issues, settled position can be stated as under, Mutual consent divorce granted by foreign Court is considered as valid, legal and binding in Indian Courts by virtue of section 13 and 14 of Code of Civil Procedure and also on account of comity of Nations. Such decree of divorce granted by foreign Courts need not be validated in Indian Courts, however, as a matter of precaution, one can approach to the Indian Court for declaring that divorce is valid and binding.

Contested Divorce in foreign Courts can be valid and binding depending upon on the below equations :

• Matter contested by both spouses in foreign Court.
• Matter is uncontested in foreign Court and one spouse comes back to India, usually wife.
• In the event, where matter is contested between parties in foreign Court say US or UKCourt, and after the due adjudication and trial, divorce is granted by the foreign Court, the same will be valid and binding in India Courts. However, it is very important to be kept in mind, that on the grounds, which parties seek to obtain divorce are also aplicable in India.
• In case matter uncontested, one of the party comes back to India where marriage had taken place and contest proceedings in India, divorce as granted by foreign Court will not be applicable in India. Party which comes back has an option of filing a case in India to prevent the other spouse from proceeding in foreign Court. Indian Court has jurisdiction over its citizen. Exparte decree of Divorce granted by foreign Court will not be recognized by Indian Court.
• Other related issues like child custody and maintenance goes by the same principal. In case of Child Custody special care and circumstances are always taken care of and the principal as explained above may vary.
• However, universal principal remains constant in guiding the issue of the child custody by any Court in India or foreign Court is the welfare of the child. Welfare of the child depends upon variety of factor.