Wednesday, June 13, 2018

When Your Decree of divorce is valid in India if divorce granted by USA Court or any foreign Court.

When foreign Court divorce decree is valid/recognized/ Enforceable  in India .

Foreign court decree of divorce or dissolution of marriage can be valid in India provided such decree is according to the provision of law in India as provided under section 13 of the Civil Procedure Code and Principle of law as laid down by the Indian courts. A foreign court divorce decree may be valid in India ONLY if the spouse had lived in that country and had consented to that country's jurisdiction.

FAQ on foreign divorce decree ?

1.       Question : My husband or wife has filed divorce petition in USA/UK/Australia  Court for dissolution of marriage on grounds of “Irretrievable Breakdown of Marriage “ is this decree is valid in India ?

Ans. This means the couple can no longer live together as husband  and wife. Both partners, and one partner, must prove to the court that the marriage broke down so badly that there is no  chances of reconciliation or possible for staying together , but this ground is not available under Hindu Marriage Act in India and thus if marriage dissolved on this grounds is not valid or enforceable in India..

2.       My wife or Husband has filed a divorce petition in USA/ or in abroad , he or she has received the court summons and  after receiving the same relocate in India but court has passed the decree of divorce in his or her absence , Is Ex parte divorce is valid or recognized in India ?.

Ans : when an ex-parte decree is passed by a Foreign Court, it would not be valid and conclusive in India. divorce obtained on grounds other than the grounds enumerated under the Hindu Marriage Act if the parties were married under Hindu Law, as a divorce matter is governed by the law under which one gets married and not the law of the land where the party is residing.

3.     When foreign court divorce decree will be valid or recognized or enforceable in India ?

Ans : It is a general rule that if one of the partners/ couple/party  contests divorce filed in Foreign Court  it would be said that he/she consented/ accepted  to the jurisdiction of that Court, in such a case the decree would be considered to be a conclusive or valid  one.
Where the wife consents to the grant of the relief by the foreign Court although the jurisdiction of the foreign Court is not in accordance with the provisions of the Matrimonial Law/ Private and Personal or International Laws  of the parties, to be valid and the judgment of such foreign Court to be conclusive.

4.     How can I validate/ Enforce or Execute my foreign divorce decree in India ?

Ans: A foreign judgment can be executed in two ways in India. The ways are as follows:

First, by filing an execution under Section 44A of the Civil Procedure Code. Section  44A states that a decree passed by Courts in reciprocating territories can be executed in India as if the decree was passed by the Indian Courts only. The Court also see the judgments  passed by foreign court as per sec.13 of Civil Procedure Code .
Secondly, by filing a civil  suit upon the foreign judgment/decree. For instance, the decree does not pertain to a reciprocating territory or a superior Court of a reciprocating territory, as notified by the Central Government in the Official Gazette, the decree is not directly executable in India.


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