This article attempts to bring some clarity on the law relating to recognition of foreign divorce decrees in India, in what circumstances they are valid, and when not?

We have been getting a lot of queries on the validity of a Foreign Divorces in India. This is an area fraught with many conflicting opinions and judgments, let us articulate the basics of foreign divorces in India.

Requirements of Divorce in Australia:

To make an application for divorce in Australia, you must satisfy the following criteria:

Under the Family Law Act 1975 (Cth), you will be eligible to apply for divorce on the ground that your marriage has broken down irretrievably and if you can establish that:

(i) Either you or your spouse regard Australia as your home and intend to live here indefinitely or are an Australian citizen by birth, descent or grant of citizenship ordinarily live in Australia

or

ordinarily live in Australia for the past twelve (12) months before filing for divorce; and you have been separated from your spouse for twelve (12) months before you apply for the divorce (you can be separated while living under one roof); and

(ii) You have been married for more than two (2) years. If you have been married for less than two (2) years, then a counselling certificate needs to be obtained or leave must be sought from the Court to dispense with the need for the counselling certificate.

(iii) If there are children of the marriage or stepchildren to whom the Family Law Act 1975 (Cth) applies, the court will only grant a divorce if it is satisfied that proper arrangements are made for the care, welfare and development of the children. This means providing information about who they live with, spend time and communicate with, the provision of financial support, their health and education.

When Australian Divorce will be valid in India:

The Supreme Court of India has held that an foreign divorce order is only recognized in India if the following exceptions apply:

• You file for divorce if your spouse in domiciled in Australia and the ground upon which the divorce is granted is a ground for divorce under Indian law; or
• You file a joint divorce application in Australia in which your spouse consents to an order for divorce; or
• Your spouse voluntarily and effectively submits to the Australian jurisdiction and contests the application on a ground under the Indian law.

EXCEPTIONS – WHEN FOREIGN DIVORCE WON’T BE RECOGNISED IN INDIA

-> When Granted by Court not authorised by Indian Law to grant the same

When the decree is passed by a court having no jurisdiction (meaning authority to decide) as per the Indian Law; which leads us to the question which courts have jurisdiction as per the Indian Law, normally the court of place where marriage is solemnised (normally India) or where the parties last resided together as husband and wife, and where the opposite party resides (Respondent). Courts of all these places shall have jurisdiction.

-> When one side is not heard or his/her submissions not taken on record:

That the decree is not passed on merits means the court does not took both side’s submissions into consideration before deciding the case – if it is not done, then divorce is not valid in India.

-> On a ground not recognised by Indian Law

When the Divorce is granted on grounds not recognised in India. The divorce is valid in India if it is on the grounds of Cruelty, adultery, desertion and impotency.

When the proceedings are against principles of Natural Justice?

In simple terms principles of natural justice are certain principles which broadly make the judicial proceedings fair and just. For Example, both parties should know allegations levelled and be given a fair opportunity to be put forth their case, judge being impartial is also a facet of natural justice.

Again the question comes, if on party filing a divorce the other party leaves jurisdiction and runs back to India in such a case, it would again be a question of intention and the decree cannot be said to be against natural justice if party herself evades the court when otherwise a permanent resident was established there.

There may be another situation where the spouse is in India and the other spouse files for divorce outside India, in such situation even after the spouse in India is served (notice is sent and received) any decree passed in absence won’t be valid in India, unless the court feels that the other party had ample opportunity to go, engage counsel and defend in that country. Normally in decrees passed against women in India, Indian Courts have refused to recognise them.

-> If it is obtained by fraud – If a divorce is obtained by misrepresentation of facts or fraud – then the same is not valid in India.

If your divorce is valid in India as per the above test – it is not a requirement of law for you to validate it, however you may still do so in order to start from a clean slate and avoid belated disputes.

If your divorce is not valid in India – it has to be challenged by filing a suit for declaration as to your marital status and invalidity of such a foreign decree, burden of proof being on the person who challenges.

If you would like to discuss your family law matter, book in for consultation with us.