Recognition and Execution of a Divorce Decree passed by the courts of USA in Indian Law
Many instances are there where marriages happen in India and Divorce in a foreign country, or the (commonly said NRI’s marriage), here the question arises; are the divorce decrees passed by the foreign courts enforceable in Indian legal system or in a different terminology Execution of a Divorce Decree by the courts of USA in Indian Law
So, yes India does recognize the judgments passed by the foreign courts, by following a procedural law and various legal principles and make them enforceable in the territory of India.
Introduction
Most of us heard that couples married in India then moved to USA and their marriage didn’t worked ;so they filed a divorce petition in foreign court and a divorce decree passed by the foreign court.
But there is a question which remain in the head of the litigants
Whether the Indian Courts will recognize our divorce or the foreign judgment is valid under Indian Laws; or if I re-marry would I be punishable under the offence of bigamy in India or certain other question which may arose in the minds of the contesting parties of divorce.
So, here I will elaborate the possible solution and how to approach the Indian court for the execution of the divorce decree passed by the foreign courts (here especially United States of America).
Background
A marriage is a social and legal institution which involves a partnership of interpersonal relation of two partners which turned out into a family. These families are considered as the units of the society, it is an important part of the social structure of society today.
Sometimes though this partnership doesn’t work as expected in the beginning and this turns down into its breakdown through divorce. Divorce is a step which is used to legally end the marriage, hence law also grant recognition to divorce as it grants to marriage.
Throughout the world mostly all the legal systems recognizes marriage and divorce. But a contradiction arises what to do if you are marries according to one country’s legal system and gets divorce according to other country’s legal system; what would be the set of legal principles which the courts and the country’s law has to follow to not just bring justice but also to maintain a harmonious balance the personal laws of two different nations which do not repudiate the public policy of other nation and also uphold the interests of the parties.
Analysis
Before discussing are foreign divorce decree recognized in India, let’s discuss are marriages solemnized as per Indian law are recognizable in under United State laws? So, yes a marriage solemnized as per Indian law is valid in USA
Institution of marriage comes under the Personal law, and as we know personal laws carries with the person as where he is domicile.
Indian courts do recognize the divorce decree due to various judicial and legislative provisions.
Legal Provisions and Judicial Interpretations
Section 14 of the Civil Procedure Code 1908 states
Presumptions as to foreign judgments
“The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction”
Hence it is clear from the above provision that a court of competent jurisdiction is essential to make recognize the judgment of foreign court.
This was discussed in detail by Supreme Court in Y. Narasimha Rao and Ors v. Venkata Lakshmi and Anr 1991 SCR(2) 821
“Court of competent jurisdiction would be one which the law under which parties are married, recognizes. Any other court would be court without jurisdiction, unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that Court.”
It was held that that the decision should be given on merits, principles of natural justice should be followed, grounds of divorce of Indian law should be followed (as this was the case come under Hindu Marriage Act, 1955) and fair- adjudication was conducted without the presence of fraud, as it is said that law and fraud cannot co-exist.
So, this was a very clear from the above that our code recognizes the foreign judgment if they are conclusive in manner which will discuss in section 13 of Civil Procedure Code, 1908
Section 13 of the Civil Procedure Code 1908 states-
When foreign judgments are not conclusive
“A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-
- Where it has not been pronounced by the Court of competent jurisdiction;
- Where it has not been given on the merits of the case;
- Where it appears on the face of proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable.
- Where the proceedings in which the judgment was obtained are opposed to natural justice;
- Where it has been obtained by fraud;
- Where it sustains a claim founded on a breach of any law in force in India.”
So the provisions of section 13 of the CPC are capable of being interpreted to secure the required certainty of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with the public policy, justice, equity and good conscience.
Here public policy means that the divorce should be granted on the grounds of the divorce which are recognized in India under several laws like Hindu Marriage Act, 1955 or Special Marriage Act, 1954 etc. and various other personal laws which prevail in India and under which the couple was married.
Also there is a doctrine of comity in the Private International law; this was the principle first setup by the Court of England and also confirmed by the Supreme Court of India in Elizabeth Dinshaw v. Arvand M. Dinshaw 1987 AIR 3 while dealing with a child removed by the father from USA contrary to the custody orders of the US Court passed in favor of the mother, the Supreme Court directed that the child be sent back to USA and the Court observed
“2. It is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing. This substitution of self-help for due process of law in this field can only harm interests of the wards generally, and a judge should pay due regard to the orders of the proper foreign courts unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child”
Hence this shows that the Indian Court gives due regard to the foreign court’s judgment if due process of law follows there.
How to execute foreign divorce decree in India?
Recognition and execution of a foreign judgment and decree is India are two different things; recognition is I have discussed above; now let’s come to the execution process.
Execution of a foreign divorce decree is not a cakewalk; one has to keep in mind certain steps
- Is that decree is executable in India
- Limitation period for execution of the decree.
- Which Court to approach in India to the execution of that decree
- What would be the process for its execution
- Is judgment passed by a competent jurisdiction?
- Is the judgment given on the merits of the case
Is that decree executable in India
We need to check is the decree passed by the reciprocating territory or not?
Under the provision of section 44-A of CPC, 1908 only those foreign decrees can be executed in India if they are passed by the superior courts of the reciprocating territory.
Reciprocating territory is those which are notified by the central government in their official gazette in the context of section 44A CPC
If the decree is from the reciprocating territory then an application of execution will be filed in the District Court which has the jurisdiction over it and the court will execute it as if it was passed by the same court; if not then a fresh suit should be filed before the principle civil court of original jurisdiction and all the hearing of the case will start in a fresh way to get the judgment and the foreign judgment will act as just an evidentiary and presumption.
So as stated in section 44-A of CPC; central government has notified in the official gazette- Notification No. 9/1968 dated 31st January 1968 by the Government of India, Ministry of Law and Justice.
The notification reads as follows:
“S.O. 248(E) – In exercise of the powers conferred by section 44A of the Code of Civil Procedure, 1908 (5 of 1908), the central government hereby declares the United States of America to be a reciprocating territory for the purpose of the said section”
Hence this notification officially establishes that decrees passed by the courts of USA can be enforced in India if it satisfies all the required process of law.
Limitation period for execution of a decree
The Supreme Court of India in the judgment of Bank of Baroda v., Kotak Mahindra Bank has held that the limitation period in the case of a decree from a reciprocating territory for making an application for execution of a foreign decree in India is 3 years from the date on which the right to apply accrued. The right to apply accrues, under two circumstances-
- The decree-holder does not take steps to execute the decree in the cause country, and then the right to apply accrues when the decree was passed by the foreign court.
- When the decree-holder takes steps to execute the decree in the cause country and the decree is not fully satisfied, then the right to apply accrues when the execution proceedings in the cause country are finalised.
In the case of a non-reciprocating territory, as the judgment holder is required to file a fresh suit before the competent court in India as per the Limitation Act, 1963 the judgment holders must file a suit within 3 years from the date of the foreign decree.
Which Court to approach in India to the execution of that decree
The petition should be filed where the Judgment debtor resides or is present or works for personal gains, and if the judgment debtor has any property in India, the District Court where the property is located.
Let’s say a person in New York (USA) wins a civil suit against a person in Mumbai (India), and the New York court passes a decree in favour of the plaintiff. To enforce this foreign judgment in India, the plaintiff will file an application in the District Court of Mumbai, where the defendant resides or works. The court will examine whether the New York decree meets the criteria for enforcement in India.
What would be the process for its execution
Approach the appropriate District Court with the following documents as prescribed under the provision of section 44-A of CPC, 1908.
A copy of the divorce decree passed by the foreign court which is duly certified and authenticated in accordance with the laws of the foreign territory,
An affidavit confirming the facts of the case.
Proof of jurisdiction (in case judgment debtor resides there and have property there).
Is the judgment passed by a competent jurisdiction
A foreign judgment to be binding and conclusive must be rendered by a court having sufficient jurisdiction, otherwise the judgment shall be held null and void. The Supreme Court of India (SCI) has held that until and unless the Court does not have jurisdiction, any matter delivered by it shall not be enforceable in India. (Sankaran Govindan v Lakshmi Bharathi 1974 AIR).
Competence of Courts
Competence of courts, in an international sense, entails that the court in question must possess jurisdiction over the subject-matter of the controversy and jurisdiction over the parties.
In the context of matrimonial matters, however, a foreign court to be considered a court of competent jurisdiction must be the court where the respondent is domiciled, habitually / permanently resides; the respondent voluntarily and effectively submits to the jurisdiction of such court; the respondent consents to the grant of relief by such court, even if such court is not regarded as competent by the law under which the parties are married; and
The relief granted by such court is on a ground available in the matrimonial law under which the parties are married.
Is the judgment given on the merits of the case?
A decision on the merits involves the application of the mind of the Court to the truth or falsity of the plaintiff’s case. The court has to consider the case on merits by looking into evidence-led and documents proved before it, as per its rules. It is only if this is done that the decree can be said to be on merits.
While a decree passed in the absence of the defendant, cannot be accepted as a decree on merits, the mere fact of it being ex parte will not in itself justify a finding that the decision was not on the merits.
Conclusion
As stated above, Indian Courts recognizes the foreign judgments and do execute the foreign decrees if they are in conformity with the public policy of the territory of India by following a methodological approach and by abiding with principles of natural justice, equity, fairness, good conscience and due process of law.
Feel free to contact Mr. Nilanshu Khanna at +91-9461620006
